Judges to decide whether damage is lawful
What do protestors believe you’d let them do to your property?
The Court of Appeal is to consider whether protestors have a defence to criminal damage charges if they honestly believe that organisations whose property they damage would have given their consent.
Some environmental campaigners who relied on this argument have been acquitted by juries in England and Wales over the past year. The defendants argued that organisations affected by their actions would have consented to the damage if they had known more about the impact of climate change.
Victoria Prentis KC MP, the attorney general, has used her powers to refer a point of law to the court following an acquittal. She said yesterday:
I have made this reference as it is important that the law is clear and fairly applied. I look forward to the Court of Appeal considering this issue and would like to emphasise that, regardless of the outcome of this reference, it cannot affect those who have been acquitted through the usual trial process.
Appeal judges are expected to hear the arguments next year.
In her press statement, Prentis made no mention of the case that had generated her reference. I said in the original version of this piece that it was not clear why.
I have now been alerted to part 41 of the Criminal Procedure Rules 2020. This says:
Where the attorney refers a point of law, she must notify the acquitted defendant.
A notice referring a point of law must exclude any reference to the defendant’s name and any other reference that may identify the defendant.
A defendant on whom the attorney serves a notice of reference may serve a respondent’s notice; and must do so if the defendant wants to make representations to the court or the court so directs.
The court must not allow anyone to identify the defendant during the proceedings unless the defendant gives permission.
Possible cases
Nearly two months ago, it was reported that five protesters who bought an old fire engine and used it to spray red dye over the Treasury in London had been cleared by a jury of criminal damage.
One of the defendants had apparently argued that the those responsible for the government building would, if asked, have consented to the damage.
In November, nine climate protesters were cleared by a jury of causing criminal damage at the headquarters of HSBC in London. The court was told they used hammers and chisels to shatter plate-glass windows in April 2021. Replacing the custom-made panels was said to have cost £500,000.
Sally Hobson, prosecuting in the HSBC case, told jurors that the defendants were guilty of unlawful conduct. “We say that, whatever the purpose behind them causing the damage, there was no lawful excuse for doing so.”
That was not, we may infer, how the jury saw it.
The law
Under the Criminal Damage Act 1971
a person who without lawful excuse destroys or damages any property belonging to another… shall be guilty of an offence.
You have a lawful excuse if you believe that the people who could give their consent to the damage — generally, the property’s owners — “would have so consented to it if… they had known of the… damage and its circumstances”. So, for example, it would be lawful to smash the window of a parked car, or a house, if people inside were in danger.
It does not matter whether your belief is justified or not, provided it is honestly held.
Comment
Last month, I urged the attorney general to refer this issue to the Court of Appeal. I am pleased she has now done so.
I hope the court will decide whether the defendant’s belief in the owner’s likely consent is qualified in any way. Does it have to be reasonable? Or merely honest?
We shall see.
“It was all Mrs. Bumble. She would do it," urged Mr. Bumble; first looking round, to ascertain that his partner had left the room.
That is no excuse," returned Mr. Brownlow. "You were present on the occasion of the destruction of these trinkets, and, indeed, are the more guilty of the two, in the eye of the law; for the law supposes that your wife acts under your direction."
If the law supposes that," said Mr. Bumble, squeezing his hat emphatically in both hands, "the law is a ass — a idiot. If that's the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience — by experience.”
Lawful excuse can obviously cover many situations, such as in emergency situations, ie saving someone from immediate danger. But me agreeing to having had my windows smashed, because I run a petrol car, “knowing” it “may” damage the environment, is a stretch to far. I am not a masochist. Note the tense here. I am not agreeing to the possibility of damage in the future because of my using petrol. It’s like me agreeing to a deserved smack round the head because someone else decides my actions deserved it.