Introduction

The case titled Attorney General's Reference On A Point of Law No. 1 of 2023 ([2024] EWCA Crim 243) before the England and Wales Court of Appeal (Criminal Division) addresses significant questions concerning the interpretation of section 5(2)(a) of the Criminal Damage Act 1971 (the 1971 Act). This provision outlines the criteria under which a person may be considered as having a "lawful excuse" for committing criminal damage, particularly focusing on the context of protest actions against climate change.

The defendant, referred to as C, was acquitted of conspiracy to damage property in the Crown Court. The Attorney General (AG) sought the Court of Appeal's opinion on two pivotal points of law arising from C's trial, primarily concerning the interpretation of what constitutes "circumstances" under section 5(2)(a) and the propriety of the judge's decisions regarding the defense presented.

This commentary delves into the intricacies of the judgment, offering a comprehensive analysis of the court's reasoning, the precedents considered, and the broader implications of the ruling on future cases involving protest-related criminal damage.

Summary of the Judgment

The Court of Appeal was presented with two main questions by the AG:

1. What legal matters qualify as "circumstances" under section 5(2)(a) of the 1971 Act, especially in the context of protest-related damage?
2. Was the trial judge correct in deciding not to withdraw the defense of lawful excuse from the jury both before the case was opened and after the evidence was concluded?

After thorough examination, the Court concluded that "circumstances" in section 5(2)(a) do not encompass the broader merits, urgency, or importance of the cause underlying the protest. Instead, "circumstances" are confined to the immediate factors directly related to the act of damage itself. Consequently, the belief that the property owner would consent to the damage based on the protest's nature does not fall within the statutory definition of "circumstances." Therefore, the defense under section 5(2)(a) was not applicable in C's case, upholding her acquittal.

Regarding the second question, the Court refrained from providing a direct answer to avoid undermining the prior acquittal, instead offering insights into the appropriate legal standards for when a defense should or should not be presented to a jury.

Analysis

Precedents Cited

The judgment references several key cases to contextualize and support its interpretation of section 5(2)(a):

• R v Jones (Margaret) and others [2006 UKHL 16; [2007] AC 136: Highlighted the boundaries of lawful protest and the limited scenarios where property damage could be justified.
• Jaggard v Dickinson [1981] 1 QB 527: Demonstrated that an honest, albeit mistaken, belief in consent could provide a lawful excuse, albeit in limited circumstances.
• R v Denton [1981] 1 WLR 1446: Showed that fraudulent consent does not negate the availability of a defense under section 5(2)(a).
• Attorney General's Reference (No.1 of 2022) [2022] EWCA Crim 1259: Provided foundational principles on when a defense can be withdrawn from a jury.
• R v Kelleher 147 SJLB 1395: Reinforced the notion that political motivations do not justify the destruction of property.

These precedents collectively underscore the judiciary's stance that legal defenses cannot be expansively applied to legitimize acts of protest through property damage.

Legal Reasoning

The Court employed a strict statutory interpretation approach, emphasizing the ordinary and natural meanings of the law. Four primary elements were considered in interpreting section 5(2)(a):

1. Timing of Belief: The belief that the property owner would consent must be held at the time of the act, not formed post hoc.
2. Genuine Belief: The defendant must honestly hold the belief, irrespective of its justification.
3. Scope of Consent: The belief must pertain solely to the owner's consent regarding the specific damage and its immediate circumstances.
4. Direct Nexus: There must be a direct connection between the damage and its circumstances, excluding broader protest motivations.

The Court clarified that the "circumstances" are limited to factors directly tied to the act of damage, such as time, place, and manner, rather than the overarching reasons for the protest. This delineation ensures that the legal framework remains focused on the act itself rather than the subjective motivations behind it.

Furthermore, the Court emphasized that allowing broader interpretations of "circumstances" could inadvertently grant protesters undue leniency, undermining the legislative intent of the 1971 Act.

Impact

This judgment significantly narrows the applicability of the lawful excuse defense under section 5(2)(a) in protest-related criminal damage cases. By clearly defining the limits of "circumstances," the ruling:

• Prevents the use of broad ideological motivations as a basis for legal defenses.
• Reaffirms the judiciary's commitment to upholding property rights over contentious protest actions.
• Provides a clear framework for future cases, reducing judicial ambiguity and ensuring consistent application of the law.

Moreover, the decision serves as a precedent, guiding lower courts in interpreting similar defenses and reinforcing the boundaries within which lawful excuse defenses can be invoked.

Complex Concepts Simplified

Section 5(2)(a) of the Criminal Damage Act 1971

This section provides a defense for individuals accused of criminal damage if they genuinely believed that the property owner would consent to the damage, provided the belief pertains to the damage and its immediate circumstances. Key points include:

• Timing of Belief: The belief must exist at the time of committing the act.
• Genuine and Honest: The belief doesn't need to be correct, only genuinely held.
• Scope of Circumstances: Limited to factors directly related to the act of damage, not broader ideological reasons.

Lawful Excuse Defense

A legal defense asserting that the defendant had a valid reason for committing the offense. Under section 5(2)(a), this defense hinges on the defendant's honest belief regarding the owner's consent to the damage.

Direct Nexus

The requirement that there is a direct link between the act of damage and its immediate circumstances. Without this direct connection, the defense under section 5(2)(a) cannot be successfully invoked.

Conclusion

The Court of Appeal's judgment in Attorney General's Reference On A Point of Law No. 1 of 2023 provides a definitive interpretation of section 5(2)(a) of the Criminal Damage Act 1971. By explicitly limiting the scope of "circumstances" to factors directly associated with the act of damage itself, the Court ensures that the defense of lawful excuse cannot be broadly applied to justify protest-related property damage based on ideological motivations.

This ruling reinforces the importance of property rights and sets clear boundaries for lawful excuse defenses, thereby promoting consistency and fairness in the application of the law. Legal practitioners and defendants in future cases can rely on this judgment to understand the precise conditions under which the lawful excuse defense may be applicable, particularly in the context of political or environmental protests.

In summary, the judgment underscores the judiciary's role in maintaining the balance between lawful protest and the protection of property rights, ensuring that legal defenses are not exploited to undermine legislative purposes.