On 18 March, the Court of Appeal (Criminal Division) handed down Attorney General’s Reference On A Point of Law No. 1 of 2023 [2024] EWCA Crim 243. The reference arose from the acquittal at her trial for criminal damage of a member of a group, “Burning Pink”, that grew out of Extinction Rebellion [5].

S.5(2) of the Criminal Damage Act 1971 applies to an offence under s.1(1) and states that:

“(2) A person charged with an offence to which this section applies, shall, whether or not he would be treated for the purposes of this Act as having a lawful excuse apart from this subsection, be treated for those purposes as having a lawful excuse—

(a) 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; or

(b) if he destroyed or damaged or threatened to destroy or damage the property in question or, in the case of a charge of an offence under section 3 above, intended to use or cause or permit the use of something to destroy or damage it, in order to protect property belonging to himself or another or a right or interest in property which was or which he believed to be vested in himself or another, and at the time of the act or acts alleged to constitute the offence he believed—

(i) that the property, right or interest was in immediate need of protection; and

(ii) that the means of protection adopted or proposed to be adopted were or would be reasonable having regard to all the circumstances”.

S.5(3) provides that for the purposes of section 5(2) “it is immaterial whether a belief is justified or not if it is honestly held”.

The Attorney made a reference pursuant to s.36 of the Criminal Justice Act 1972, as follows:

“What matters are capable, in law, of being the “circumstances” of destruction or damage under section 5(2)(a) of the Criminal Damage Act 1971? In particular,

a. if the destruction or damage is an act of protest, are ‘circumstances’ in the phrase ‘the destruction or damage and its circumstances’ capable as a matter of law of including the merits, urgency or importance of any matter about which the defendant may be protesting by causing the destruction or damage, or the perceived need to draw attention to a cause or situation?

b. if there is no direct nexus between the destruction or damage and the matters on which the defence rely as ‘circumstances’, can those matters still be ‘circumstances’ within the meaning of the phrase ‘the destruction or damage and its circumstances’?”

(An opinion was also sought on whether or not the trial judge had been right to rule before the case was opened to the jury and at the conclusion of the evidence that the defence should not be withdrawn from the jury – but the Court of Appeal did not rule on that question.)

The issue before the Court was the proper construction of s.5(2)(a) [29]. Previously, climate protesters had successfully relied on the defence that they honestly believed the owner of the property would have consented to the damage if they had known of the damage “and its circumstances”. The Court emphasised the need for a direct nexus between the damage and its circumstances:

“The need for a direct nexus between the circumstances of the damage and the anticipated giving of consent is implicit in the statutory language. The circumstances must belong to the damage, not to the defendant. To this extent there is an objective element to the defence … the circumstances cannot be so remote from the damage as no longer to be part of the damage. There must be a sufficient connection between the damage and its circumstances” [46].

The Court ruled that:

“(i) ‘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.

(ii) ‘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)” [65].

Comment

While the facts of the case that triggered the ruling were about a climate change protest, the ruling will apply equally in cases where protesters tear down or deface items of “contested heritage”. Regular readers may recall the Court’s opinion in Attorney General’s Reference No. 1 of 2022 [2022] EWCA Crim 1259, on a reference arising from the prosecution and acquittal at the Crown Court at Bristol of four defendant protestors for allegations of criminal damage to a statue of the English merchant and slave trader Edward Colston.

In that instance, the Attorney sought the Court’s opinion on three questions of law:

• whether the offence of criminal damage fell within that category of offences in which conviction  – intrinsically and without the need for separate consideration of proportionality in individual cases – was a justified and proportionate interference with any rights engaged under Articles 9, 10 and 11 ECHR;
• If the answer to Q1 was negative and it was necessary to consider human rights issues in individual cases of criminal damage, what principles should judges in the Crown Court apply when determining whether the qualified rights in Articles 9, 10 and 11 were engaged by the potential conviction of defendants purporting to be carrying out an act of protest; and
• if those rights were engaged, under what circumstances should any question of proportionality be withdrawn from a jury.

In its judgment, the Court held inter alia that Articles 9, 10 and 11 were not engaged in those circumstances and that no question of proportionality arose.

We noted the judgment on Colston here. The latest judgment would appear to restrict the defences available to protesters against items of “contested heritage” even further.