Threats to destroy or damage property, Lawful excuse defence, Environment protest PDF

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Threats to destroy or damage property, Lawful excuse defence, Environment protest...

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Threats to destroy or damage property

Section 2 of the Criminal Damage Act 1971 provides: A person who without lawful excuse makes to another a threat, intending that that other would fear it would be carried out— (a) to destroy or damage any property belonging to that other or a third person; or (b) to destroy or damage his own property in a way which he knows is likely to endanger the life of that other or a third person; shall be guilty of an offence. Actus reus D: without lawful excuse, makes to another a threat, either 1) to destroy or damage any property belonging to that other or a third person, or 2) to destroy or damage his own property. Mens rea D does so: 1) intending that that other would fear the threat would be carried out; 2) and, for the purposes of a charge under s. 2(b), knowing that the way he proposes to destroy or damage the property is likely to endanger the life of that other or a third person.

On conviction on indictment the maximum punishment for this offence is 10 years’ imprisonment (s. 4(2)). The threat may be made by any means. The Law Commission stated that ‘the only limitation that needs to be imposed is that the threats should be intended to create fear that what is threatened will be carried out’ (Law Com No. 29, para. 55). There is no requirement that D intend to carry out the threats; the essence of the offence is the intention to create fear. If P is not, in fact, put in fear as he does not believe D would carry out the threat, this will not avail D provided it is proved D intended to cause fear in P. The conduct threatened must be an offence under s. 1 of the Act. If D threatens an offence under s. 1(1), the definition of ‘without lawful excuse’ in s. 5 applies, but if he threatens an offence under s. 1(2) this definition is inapplicable. ➔ Possessing anything with intent to destroy or damage property Section 3 of the Criminal Damage Act 1971 provides: A person who has anything in his custody or under his control intending without lawful excuse to use it or cause or permit another to use it— (a) to destroy or damage any property belonging to some other person; or (b) to destroy or damage his own property in a way which he knows is likely to endanger the life of some other person; shall be guilty of an offence.

Actus reus D has anything in his custody or control. Mens rea Intending, without lawful excuse, to use the thing or cause or permit another to use it: 1) to destroy or damage any property belonging to some other person; or

2) to destroy or damage his own property in a way which he knows is likely to endanger the life of some other person.

On conviction on indictment the maximum punishment for this offence is 10 years’ imprisonment (s. 4(2)). It is necessary to prove a purposive intention, that is that D possessed the item for the purpose of committing an offence under s. 1 himself or for another to use it to commit such an offence. A conditional intention, to use the item to cause damage should it prove necessary, will suffice (Buckingham (1976) 63 Cr App R 159). ‘Without lawful excuse’ applies in the same way as for the s. 2 offence (see 15.3.3). D must have actual custody or control of the item at the time he formulates the intention. If, for example, D gives E a brick and subsequently suggests to him that he should use it to damage P’s property, D has the necessary intention but he does not have custody or control of the brick (he would, however, be liable to conviction for incitement). By contrast, if D picks up a brick intending to give it to E so that he can damage P’s property, D will have custody and control of the brick with the intention to permit E to use it to cause criminal damage. There is no definition of ‘anything’; the essence of the offence is D’s intent. If D has the requisite intent it does not matter what the thing is which he has in his custody or control. ➔ Racially or religiously aggravated criminal damage Section 30 of the Crime and Disorder Act 1998 provides for the offence of racially or religiously aggravated criminal damage (see s. 30). Criminal damage is racially or religiously aggravated where a person commits criminal damage, and: (a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence (i) [i.e. the person to whom the property belongs or is treated as belonging] (b) hostility based on the victim’s membership (or presumed membership) of a racial or religious group; or (c) the offence is motivated (wholly or partly) by hostility towards members of a racial or religious group based on their membership of that group. [See ss 28(1) and 30(3).]

The maximum penalty for criminal damage is increased to 14 years where the offence is racially aggravated. For further analysis of this offence. - The tendency for the CPS to charge racially or religiously aggravated offences where the actual reason for the offence has nothing to do with race or religion, and for courts to uphold convictions in such circumstances, risks bringing these laws into disrepute. Divisional Court In DPP v Green [2004] EWHC 1225 (Admin) The Divisional Court considered DPP v Woods (see 10.2.1) and confirmed that an offence may be considered racially or religiously aggravated if accompanied by any racial or religious abuse even where the defendant does not in fact act from any racial or religious motive. In DPP v M [2004] EWHC 1453 (Admin) D, who was involved in a dispute over payment in a Turkish kebab shop, broke a window in the course of the argument and muttered the words ‘bloody foreigners’. The offence was charged as racially aggravated criminal damage and, although the justices found as a fact that the cause of th di t t th Di i i lC t h ld th t th d ‘bl d

foreigners’ were capable of describing a racial group by reference to nationality and the word ‘bloody’ could demonstrate hostility. Rogers [2007] The term ‘foreigner’ lacks specificity; to what nationality is reference being made? Such an argument, however, fell on deaf ears in Rogers [2007] UKHL 8 where the same epithet, ‘bloody foreigners’, was used by D to a group of Spanish women who got in his way as he rode his mobility scooter along the pavement. Section 30 One view of these cases is that they extend the notion of racial or religious aggravation too far: had Mr M and Mr Rogers simply uttered the words ‘bloody chefs’ or ‘bloody pedestrians’ there would have been no offence under s. 30. Another view is that these cases appropriately recognise that hostility can be manifested in passive-aggressive language that does not explicitly reference the person’s real motivation or hatred but it is language from which it is reasonable to infer racial or religious hostility (see further 10.2.1). The simple offence of criminal damage (or indeed assault etc.) is more serious when such hostility is evident, explicitly or implicitly. ➔ Whether property has been damaged is a question of fact for the jury or magistrates. The courts have held that property is ‘damaged’ if expense would be incurred by the property’s owner to restore the property to its previous condition. ➔ Property’ is defined in s. 10(1) and ‘belonging to another’ in s. 10(2). ➔ The mens rea of criminal damage is intention or subjective recklessness. The leading case is the House of Lords’ decision R v G (2003), which reversed Caldwell. The defence of lawful excuse in s. 5 is available when: ➔ A person honestly believes the property’s owner had or would have consented to the property’s damage or destruction; or ➔ A person destroys or damages the property in order to protect other property that he honestly believes is in immediate need of protection and he honestly believes that the means used were or would be reasonable. ➔ The Court of Appeal in Hill and Hall (1989) held that the question whether property is destroyed or damaged ‘in order to protect property’ is one of law for the trial judge to determine. ➔ Jury sympathy can play an important role in cases where lawful excuse is pleaded, as shown by some cases involving political protesters seeking to raise awareness of environmental issues. ➔ For the offence under s. 1(2), D must at least be reckless as to whether the life of another would be endangered by the property’s destruction or damage. Criminal damage, lawful excuse, and environmental protest The s. 68 offence is committed if: a) person trespasses on land and, in relation to any lawful activity which persons are engaging in or are about to engage in on that or adjoining land, does there anything which is intended by him to have the effect b) of intimidating those persons or any of them so as to deter them or any of them from engaging in that activity, c) of obstructing that activity, or d) of disrupting that activity

Environmental groups such as Greenpeace have used the defence of lawful excuse in several cases of political protest involving damage to property. These first-instance cases highlight the central role of the jury in this area of law. Example: Six Greenpeace For example, in 2007 six Greenpeace climate change protesters entered the Kingsnorth power station. They admitted trying to shut the power station down, by occupying the smokestack and writing a slogan on its side. Section 5(2)(b) They were charged with criminal damage to the smokestack and argued that they had lawful excuse under s. 5(2)(b) of the Criminal Damage Act 1971. They argued that painting on the chimney protected property belonging to themselves or to others, and that they believed that other property was in immediate need of protection and the means adopted were reasonable. Their defence was that they were acting to protect property around the world, including the Siberian permafrost, public and private property in Bangladesh, and property belonging to the Inuit people of the Arctic. Their argument focused on the environmental impact of coal-fired power stations such as Kingsnorth. By closing the power station, even for a short time, they were protecting property around the world. Leading climate change scientists testified to the environmental impact of climate change. The prosecution’s case was simply that the defendants had gone too far in their protest: ‘There are things you can lawfully do in making a protest but there’s a line which has to be drawn. When the defendants caused damage to that chimney, it’s the line that they crossed’ (The Guardian, 11 September 2008). ➔ Greenpeace protesters In 2000, 28 Greenpeace protesters were charged with causing criminal damage to a field of genetically modified (GM) maize (The Guardian, ‘Greenpeace Wins Key GM Case’ 21 September 2000). They entered fields on a farm that was being used for a trial of GM crops and dug up all the maize plants, which were about to flower. At trial they argued that they acted to protect other property, namely crops in surrounding fields, that was in immediate need of protection from cross-contamination and that the means adopted were reasonable. ➔ Greenpeace protesters We cannot know why the jury reached verdicts of not guilty, but in both cases it is likely that jury members were sympathetic to the defendants’ arguments about why they were damaging the particular property and about the reasonableness of the means they adopted. As we have seen throughout the book, English law entrusts the jury with deciding what is ‘reasonable’ and when lawful excuse is pleaded in criminal damage cases defence counsel will seek directly to engage their personal and political sympathies. Lawful excuse defence: ‘sympathy lottery’ This is not to say that the lawful excuse defence is a ‘sympathy lottery’, devoid of any clarity. Hill and Hall We saw earlier that the Court of Appeal in Hill and Hall imposed an objective limit on this defence, namely the trial judge must decide whether it could be said, as a matter of law, that the defendant’s acts could amount to something done in order to protect property or whether they were too remote. Kelleher The defendant must show that the act of damaging property was done in order to protect property belonging to himself or another. Kelleher [2003] EWCA Crim 3525 illustrates this. Facts:

D decapitated a statue of former Prime Minister Margaret Thatcher that was on display in a London art gallery. He claimed a lawful excuse on the basis that her economic policies had promoted materialism and global corporations’ influence over democratic governments, which were ‘leading the world towards its eventual destruction’ (para. 18). Court of appeal However, the trial judge withdrew the defence from the jury, a decision that was approved by the Court of Appeal, because D had not damaged the sculpture in order to protect property, but rather to express anger and frustration. It is worth noting though that Kelleher was convicted at a retrial, the jury in his first trial being unable to reach a verdict. The Court of Appeal reiterated the crucial point of English law that a trial judge is not entitled to direct the jury to convict a defendant. The jury remains at the heart of such trials, even when the facts (here, the obvious damage to property!) seem to point to a guilty verdict. The availability of the lawful excuse defence to a charge of criminal damage can influence prosecutorial decisions. Aggravated trespass under s. 68 of the Criminal Justice and Public Order Act 1994 can be a more attractive charge for the CPS, as it is triable only summarily (although the maximum sentence is only three months’ imprisonment, a factor which might lead the CPS to prefer a charge under s. 1 of the 1971 Act)....