Attorney General’s Reference on a Point of Law No 1 of 2023

Section 5(2)(a) of the Criminal Damage Act 1971 creates a subjective defence based on an honestly held belief at the time of the act. The belief must be that the person entitled to consent had consented, or would have consented if aware of the damage and its circumstances.

The relevant circumstances are those directly connected with the damage. In a protest case, the fact that damage formed part of a protest may qualify, but the merits, urgency or importance of the cause, and the perceived need to publicise it, do not. A judge may withdraw a defence where no reasonable jury properly directed could find it made out, but must exercise considerable caution.

The Attorney General referred two points of law under section 36 of the Criminal Justice Act 1972 after C was acquitted in the Crown Court of conspiracy to damage property. The reference concerned the scope of the lawful-excuse defence in section 5(2)(a) of the Criminal Damage Act 1971, in the context of damage allegedly carried out as climate-change protest.

The first question asked whether the merits, urgency or importance of the protested cause, or the perceived need to draw attention to it, could be circumstances of the damage. The second asked when a judge may withdraw a possible defence from the jury. The court answered the first question and declined to answer the second as posed.

1. First question answered. Section 5(2)(a) of the Criminal Damage Act 1971 must be construed according to the ordinary and natural meaning of its words. Protest cases attract no special statutory restriction, but the defence must be applied within its statutory limits.
2. The defendant’s belief must exist at the time of the act. It cannot be formed after the event or depend on the actual or potential effect of later persuasion. The damage cannot be used as an instrument to persuade the owner. The belief must be genuine and honestly held, although it need not be justified under section 5(3).
3. The defendant must believe that the person believed to be entitled to consent had consented, or would have consented if aware of the damage and its circumstances. The word would requires a belief amounting to certainty, rather than a belief that the owner might, should or was likely to consent. There must also be evidence capable of raising the defence.
4. The possessive word its confines the relevant circumstances to the circumstances of the damage. They may include matters such as time, place and extent. There must be a direct and sufficient connection between the damage and its circumstances. This introduces an objective limit: circumstances belonging to the defendant, rather than to the damage, or matters too remote from it, do not qualify.
5. The fact that damage was caused as part of a protest against a particular cause may be a circumstance because it is the immediate prompt for the damage and may found the alleged belief in consent. However, the merits, urgency or importance of the cause, the perceived need to draw attention to it, and evidence about its wider factual or political significance are not circumstances of the damage and are inadmissible for this defence. The court’s approach was consistent with the observations in R v Jones (Margaret) and others [2006] UKHL 16; DPP v Ditchfield [2021] EWHC 1090 (Admin); and Kelleher 147 SJLB 1395.
6. Second question declined as posed. Under section 36(7) of the Criminal Justice Act 1972, the reference could not be answered in a manner that might call C’s acquittal into question. The court nevertheless confirmed the applicable legal principle: a judge may withdraw a defence where no reasonable jury, properly directed, could reach the relevant conclusion. Considerable caution is required, and the judge must not substitute their own decision for that of the jury. The court treated the broader approach in R v Asmeron [2013] EWCA Crim 435 as going beyond the proper test, while recognising that the case illustrates the need for caution.

The first question was answered in the terms set out at paragraph 65. The second question was not answered.

1. Court of Appeal (Criminal Division)—considered an Attorney General’s reference under section 36 of the Criminal Justice Act 1972, answered the first point of law and declined to answer the second as posed.
2. Crown Court—C had been acquitted of conspiracy to damage property. No citation for the Crown Court decision is stated in the judgment.