Attorney General’s Reference on a point of law concerning the scope of the “lawful excuse” defence for the offence of criminal damage

The defendant was a member of a political group which asserts climate change is an emergency and anything short of immediate and substantial change will lead to terrible consequences for the planet and the human race. In July 2020, she, together with others, agreed to target the offices of various environmental NGOs. At each premises the group asked to hand in a letter and then proceeded to throw pink paint and to attach copies of the letters to the premises. The letters drew attention to the climate emergency and what they saw as the culpable inaction of those targeted. In August 2020, similar events, involving the defendant and others, took place at the headquarters of the major UK political parties. At one of these headquarters, one defendant took out a glass hammer and smashed a window. Finally, it was alleged that the defendant and others agreed to target the headquarters of various trade unions, but this agreement was not put into effect. The defendant was prosecuted for conspiracy to damage property. At her Crown Court trial she gave evidence that she believed the occupiers of the premises would have consented to the damage had they been aware it was carried out to alert those responsible for the premises to the nature and extent of man-made climate change. This was in support of her “lawful excuse” defence under section 5(2)(a) of the Criminal Damage Act 1971. The defendant was acquitted by the jury. Pursuant to section 36 of the Criminal Justice Act 1972, the Attorney General referred two questions of law to the Court of Appeal said to have arisen from the trial. The first question related to the lawful excuse defence, which applies where a defendant honestly believes the owner had given their consent, or would have consented had they “known of the destruction or damage and its circumstances”. On this point, the Court of Appeal confirmed that ""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. The second question related to whether the judge was right to rule that the defence should not be withdrawn from the jury. The Court of Appeal declined to answer, as that may call into question the acquittal. However it did address the legal question as whether and when it is appropriate not to leave a possible defence to the jury (see judgment, paragraphs 52 to 64).