Learning Outcomes
This article examines the principal defences available to a charge of criminal damage under the Criminal Damage Act 1971. It focuses on the statutory defence of lawful excuse provided by section 5, including belief in consent and protection of property. It also considers the applicability of general defences such as self-defence and intoxication. By the end of this article, you should be able to identify the elements of these defences and apply them to factual scenarios typical of the SQE1 assessment style. This understanding is essential for advising clients and answering multiple-choice questions accurately.
SQE1 Syllabus
For SQE1, you need a detailed understanding of the defences applicable specifically to criminal damage, particularly the statutory defence under s 5 of the Criminal Damage Act 1971, alongside relevant general defences. You will be expected to apply these principles to problem questions.
As you work through this article, ensure you focus on:
- The elements of the defence of lawful excuse under s 5 CDA 1971, including belief in consent and protection of property.
- The subjective nature of the belief required for the s 5 defence.
- The application of general defences, such as self-defence and intoxication, to criminal damage charges.
- Distinguishing between simple and aggravated criminal damage in the context of available defences.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
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Which section of the Criminal Damage Act 1971 provides the defence of lawful excuse?
- Section 1(1)
- Section 1(2)
- Section 5
- Section 10
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A defendant honestly, but unreasonably, believes the owner would consent to damage caused to their property. Can they rely on lawful excuse under s 5(2)(a) CDA 1971?
- Yes, if the belief is honestly held.
- No, the belief must be reasonable.
- No, belief in consent is never a defence.
- Yes, but only if the defendant was not intoxicated.
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Can the defence of lawful excuse under s 5 CDA 1971 be used for a charge of aggravated criminal damage (s 1(2) CDA 1971)?
- Yes, always.
- No, never.
- Yes, but only the 'belief in consent' part.
- Yes, but only the 'protection of property' part.
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A defendant damages property belonging to another while heavily intoxicated voluntarily. They claim they lacked the mens rea due to intoxication. Is this a valid defence to simple criminal damage?
- Yes, intoxication always negates mens rea.
- No, voluntary intoxication is never a defence to basic intent crimes like simple criminal damage.
- Yes, if the intoxication meant they could not form the specific intent required.
- No, intoxication is only relevant if it was involuntary.
Introduction
When a defendant is charged with an offence under the Criminal Damage Act (CDA) 1971, such as simple criminal damage, aggravated criminal damage or arson, they may seek to rely on a defence to avoid criminal liability. While general defences applicable across criminal law (such as self-defence or intoxication) may be relevant, the CDA 1971 also provides a specific statutory defence known as 'lawful excuse' under section 5. Understanding the scope and application of these defences is essential for advising clients and for success in the SQE1 assessments. This article focuses primarily on the statutory defence of lawful excuse and considers how general defences apply in the context of criminal damage.
Lawful Excuse (Section 5 CDA 1971)
The defence of lawful excuse is specifically provided by s 5 of the CDA 1971. It is important to note from the outset that this defence applies only to offences under s 1(1) CDA 1971 (simple criminal damage and simple arson). It cannot be relied upon for aggravated offences under s 1(2) CDA 1971 (aggravated criminal damage and aggravated arson) where life is endangered.
Section 5(2) outlines two distinct circumstances where a defendant will have a lawful excuse:
- Belief in consent (s 5(2)(a)); or
- Acting to protect property (s 5(2)(b)).
It is important to analyse the defendant's state of mind, as the defence largely hinges on their subjective belief at the time of the act.
Belief in Consent (s 5(2)(a))
A defendant has a lawful excuse under s 5(2)(a) if, at the time of the act causing the damage or destruction, they believed that the person(s) entitled to consent to the destruction or damage:
- had consented; or
- would have consented if they had known of the destruction or damage and its circumstances.
Key Term: Lawful Excuse A specific defence under s 5 of the Criminal Damage Act 1971 applicable only to simple criminal damage/arson, based on the defendant's honest belief in consent or the need to protect property.
The key aspect here is the defendant's belief. Section 5(3) CDA 1971 explicitly states that for the purposes of s 5(2), it is immaterial whether a belief is justified or not, provided it is honestly held. This establishes a subjective test.
Worked Example 1.1
Ahmed is staying at his friend Ben's house while Ben is away. Late one night, Ahmed locks himself out. Believing Ben would want him to get back inside rather than sleep outside, Ahmed breaks a small window pane to open the door. Ben later tells the police he would definitely not have consented to the damage. Does Ahmed have a lawful excuse?
Answer: Yes, Ahmed likely has a lawful excuse under s 5(2)(a). The test is whether Ahmed honestly believed Ben would have consented in the circumstances. It does not matter whether Ben actually would have consented, nor whether Ahmed's belief was objectively reasonable. If Ahmed's belief was genuinely held at the time he broke the window, the defence applies.
The subjectivity of the belief means that even an unreasonable belief can found the defence, provided it is honestly held. This was demonstrated in Jaggard v Dickinson [1981] QB 527, where a defendant, who was intoxicated, mistakenly broke into the wrong house believing it belonged to a friend who would have consented. The court held that her honest belief, although mistaken and potentially unreasonable (partly due to intoxication), was sufficient for the s 5(2)(a) defence. This highlights that intoxication does not automatically negate this specific statutory defence if the belief was honestly held, contrasting with the general rule for intoxication and mistaken self-defence.
Exam Warning
Do not confuse the subjective test for lawful excuse under s 5 CDA 1971 with the objective elements present in other defences like self-defence (regarding the reasonableness of the force used). For s 5(2)(a), the focus is solely on the defendant's honest belief about consent, regardless of its reasonableness.
Acting to Protect Property (s 5(2)(b))
A defendant also has a lawful excuse if:
(i) they damaged or destroyed property in order to protect property belonging to themselves or another;
(ii) they believed that the property they were seeking to protect was in immediate need of protection; and
(iii) they believed that the means of protection adopted were reasonable having regard to all the circumstances.
Again, s 5(3) applies, meaning the defendant’s beliefs regarding the immediate need for protection (ii) and the reasonableness of their actions (iii) only need to be honestly held, not objectively reasonable.
However, there is an objective element introduced by case law regarding the first limb (i). The court in R v Hunt (1977) 66 Cr App R 105 established that the act causing the damage must be objectively capable of protecting the property.
Worked Example 1.2
Chloë sees smoke coming from under the door of her neighbour David's flat. Believing the flat is on fire and needing to rescue David's cat, she kicks the door open, causing damage to the lock and frame. It turns out the smoke was from burnt toast and there was no fire. Does Chloë have a lawful excuse?
Answer: Yes, Chloë likely has a lawful excuse under s 5(2)(b). She acted to protect property (David's flat and/or his cat). She honestly believed the property was in immediate need of protection from fire. She honestly believed kicking the door open was a reasonable means of protection in the circumstances. Even though her belief about the fire was mistaken, as long as her beliefs were honestly held, the defence applies. Kicking a door open is objectively capable of protecting property from fire (by allowing access to extinguish it or rescue occupants/pets).
It is essential that the defendant acts to protect property. Acting solely to protect a person does not fall within s 5(2)(b) (R v Baker & Wilkins [1997] Crim LR 497), although the general defence of self-defence (protecting oneself or another person) might apply in such circumstances.
The belief that property is in immediate need of protection is also essential. A belief that property might be endangered at some point in the future is insufficient (Johnson v DPP [1994] Crim LR 673).
Revision Tip
Remember the key distinction: s 5(2)(a) focuses on belief about consent, while s 5(2)(b) focuses on belief about the necessity to protect property from immediate danger. Both rely heavily on the defendant's subjective, honestly held belief.
General Defences and Criminal Damage
Beyond the specific lawful excuse under s 5, general defences applicable to many criminal offences can also apply to criminal damage charges.
Self-Defence
A person may use reasonable force to protect themselves, another person, or property, or to prevent a crime (Common Law and s 3 Criminal Law Act 1967). If damaging property occurs while using such reasonable force, self-defence can negate liability for criminal damage.
Key Term: Self-Defence A general defence permitting the use of reasonable force to protect oneself, another, or property, or to prevent crime or effect a lawful arrest. Force must be necessary and reasonable in the circumstances as the defendant honestly believed them to be.
The force used must be necessary (a subjective test based on the defendant's honest belief, even if mistaken, unless the mistake is due to voluntary intoxication) and reasonable (an objective test based on the circumstances as the defendant believed them to be). Unlike the s 5(2)(b) lawful excuse, self-defence can apply where the defendant acts to protect a person.
Intoxication
The rules on intoxication apply to criminal damage as they do to other offences.
Key Term: Intoxication The state of being under the influence of alcohol or drugs, which may negate the mens rea required for an offence, depending on whether the intoxication was voluntary or involuntary and whether the crime is one of basic or specific intent.
Simple criminal damage requires intention or recklessness as to damaging property belonging to another. This makes it a crime of basic intent. Therefore, voluntary intoxication cannot provide a defence, as the act of becoming voluntarily intoxicated is considered reckless (DPP v Majewski [1977] AC 443). A defendant cannot argue they lacked mens rea because they were voluntarily drunk or high. Involuntary intoxication may provide a defence if it prevented the defendant from forming the necessary mens rea.
Aggravated criminal damage (s 1(2)) requires an additional mens rea element: intention or recklessness as to endangering life by the damage. If the prosecution relies on intention to endanger life, this makes the offence one of specific intent, and voluntary intoxication could potentially negate this specific intent (though the defendant might still be liable for simple criminal damage). If the prosecution relies on recklessness as to endangering life, it remains a basic intent crime, and voluntary intoxication is no defence.
Consent
While s 5(2)(a) provides a specific defence based on belief in consent, actual consent from a person entitled to give it would also prevent liability, as the damage would not be unlawful.
Duress and Necessity
These general defences might apply in rare circumstances. Duress requires a threat of death or serious injury compelling the defendant to commit the damage. Necessity requires the defendant to damage property to avoid a greater evil where there was no other reasonable alternative. Both are narrowly applied.
Summary
• The primary defence specific to simple criminal damage (s 1(1) CDA 1971) is ‘lawful excuse’ under s 5.
• Lawful excuse under s 5(2)(a) applies if the defendant honestly believes the owner consented or would consent. The belief need not be reasonable.
• Lawful excuse under s 5(2)(b) applies if the defendant honestly believes property is in immediate need of protection and the means used are reasonable. The action must also be objectively capable of protecting the property.
• The s 5 defence does not apply to aggravated criminal damage (s 1(2) CDA 1971).
• General defences like self-defence can apply if property is damaged while using reasonable force to protect persons or property, or prevent crime.
• Voluntary intoxication is generally not a defence to simple criminal damage (a basic intent crime). It might be a defence to aggravated criminal damage if specific intent to endanger life is alleged and the intoxication prevented its formation.
Key Point Checklist
This article has covered the following key knowledge points:
- The defence of lawful excuse under s 5 CDA 1971 applies only to simple criminal damage/arson (s 1(1)).
- Lawful excuse arises from either an honest belief in consent (s 5(2)(a)) or an honest belief in the immediate need to protect property using reasonable means (s 5(2)(b)).
- The test for the defendant's belief under s 5 is subjective (honestly held), not objective (reasonable), although the act must be objectively capable of protecting property for s 5(2)(b).
- Intoxication does not negate the s 5(2)(a) defence if the belief in consent was honestly held (Jaggard v Dickinson).
- General defences like self-defence and intoxication apply to criminal damage, subject to their usual rules.
- Voluntary intoxication is not a defence to simple criminal damage (basic intent), but may potentially negate the specific intent required for some forms of aggravated criminal damage.
Key Terms and Concepts
- Lawful Excuse
- Self-Defence
- Intoxication
