The Court of Appeal will rule this morning on whether protestors in England and Wales have a defence to charges of criminal damage even if there is no direct link between the damage they cause and the issues about which they are protesting.
That question was considered at a hearing on 21 February by the lady chief justice Baroness Carr of Walton-on-the-Hill, sitting with Lord Justice William Davis and Mr Justice Garnham. They reserved judgment until today.
Demonstrators who have sprayed offices with paint or smashed plate-glass windows have been cleared in recent years after telling juries they honestly believed that property owners would have consented to the damage if they had known about the impact of climate change. The attorney general is challenging that interpretation of the law.
Victoria Prentis KC MP used her powers to refer a point of law to the court following an acquittal. The verdict will not be affected by today’s ruling and restrictions currently in force prevent us from identifying the case considered by the court.
If the attorney’s arguments are accepted by the Court of Appeal, judges will have to direct juries that defendants can no longer rely on a defence that has proved successful in the past.
The law
Section 5(2)(a) of the Criminal Damage Act 1971 provides a defence of lawful excuse to any person who would otherwise be guilty of criminal damage —
if at the time of the act or acts alleged to constitute the offence he believed that the person or persons whom he believed to be entitled to consent to the destruction of or damage to the property in question had so consented, or would have so consented to it if he or they had known of the destruction or damage and its circumstances…
The Court of Appeal was invited by the government’s senior law officer to consider what issues are capable of amounting to “circumstances”.
If the destruction or damage are an act of protest, asked the attorney, are the circumstances capable of including the issues about which the demonstrators may be protesting? Or must there be a direct nexus — a link — between the damage and the issues?
The attorney’s arguments
According to Prentis,
the merits, urgency or importance of any matter about which a defendant may be protesting or the perceived need to draw attention to a cause or situation are not, in law, capable of being “circumstances” of the destruction or damage within the meaning of the statute; and
if there is no direct nexus between the destruction or damage and the matters on which the defence rely as “circumstances”, those matters are not, as a matter of law, “its circumstances” (that is, the circumstances of the damage or destruction).
At the hearing last month, Tom Little KC for Prentis stressed that the word “its” connected the damage and its circumstances. The circumstances that are relevant under the act are not simply any circumstances on which a defendant may choose to rely, he argued. There must be a connection between the circumstances and the damage.
Little accepted that it was for the jury to decide whether a defendant honestly believed that the facts relied on were true. But that did not prevent a judge from deciding whether or not those facts were capable in principle of being a circumstance within the meaning of the legislation.
He argued that “circumstances” did not include:
matters of opinion,
facts that were too remote to be part of the “damage and its circumstances”; or
circumstances that were irrelevant to the owner’s consent.
Those arguments were opposed at the hearing last month by counsel for the acquitted person, who said a defendant’s honest belief was all that mattered. Henry Blaxland KC argued that the section of the Criminal Damage Act 1971 was entirely subjective.
Little’s argument was that the legislation was designed to protect property. It had been used by protestors in a way that was never envisaged or intended by parliament. Some judges had interpreted it too broadly — and therefore wrongly.
Though it was not a direct precedent, Little cited a ruling from 2006 by the law lords — precursors of today’s UK Supreme Court justices — in another criminal damage ruling. Lord Hoffmann had said:
The law will not tolerate vigilantes. If the citizen cannot get the courts to order the law enforcement authorities to act… then he must use democratic methods to persuade the government or legislature to intervene.
Agreeing with Hoffmann, Little said that “any interpretation of the legislation which produces a result that was never intended by parliament raises the question whether the interpretation can really be the right one”.
Update 1430: The court said that Section 5(2)(a) of the Criminal Damage Act 1971 “was not intended to afford a defence to protestors based on the merits, urgency or importance of their cause (nor the perceived need to draw attention to a cause or situation)”.
It added:
This is not to place artificial restrictions on the availability of the defence in a particular category of cases nor to adjudicate on any matter touching on the validity of political, moral or religious beliefs. Rather, that by applying the normal principles of statutory construction, the merits, urgency or importance of any matter about which the defendant may be protesting do not constitute the circumstances of the damage for the purpose of section 5(2)(a).
The court gave two answers to one of the questions it had been asked:
“Circumstances” in the phrase “the destruction or damage and its circumstances” do not include the merits, urgency or importance of the matter about which the defendant is protesting, nor the perceived need to draw attention to a cause or situation.
“Damage and its circumstances” means the damage and the circumstances of the damage which, in protest cases, means the fact that the damage was caused as part of a protest (against a particular cause).
Thanks as ever, Joshua. Pending the judgment, I confine myself merely to observing that from my earliest to my last days of practice as a criminal defence advocate I viewed my role as including wherever appropriate pushing the edge of the envelope, even at the risk of making myself unpopular. Part of that process was likely, in the event of my argument failing, to require me to emphasise how that point had been my lawyer’s point rather than one envisaged by the client. I await the ruling and your (always) so lucid appraisal of it with much interest.