Henry Blaxland KC, Tom Wainwright and Owen Greenhall, of the Garden Court Chambers Protest Rights and Criminal Defence teams, represented the acquitted person, instructed by Lydia Dagostino of Kellys Solicitors.
The Court of Appeal today handed down judgment in Attorney General’s Reference (No. 1 of 2023), concerning the defence in criminal damage cases, that the defendant believed that the owner of the property in question would have consented if they had known of the damage and its circumstances. The reference arose from a trial relating to a protest, in which the respondent had been acquitted. Henry Blaxland KC, Tom Wainwright and Owen Greenhall represented the acquitted person before the Court of Appeal.
Two questions of law were referred by the Attorney General, the first asking 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. The Court of Appeal have held that ‘the relevant circumstances may include matters such as the time, place and the extent of the damage caused… They do not include the political or philosophical beliefs of the person causing the damage’. However, the court went on to hold that ‘the reason for the damage… namely that it was an act of protest against climate change, was a “circumstance” of the damage’.
In relation to the second issue, which concerned whether the judge in the trial from which the reference arose should have withdrawn the defence either before or after the defence case, the Court of Appeal declined to answer the question in the terms posed by the Attorney General. The judgment sets out the Court’s views on the issue of principal raised by the question, holding that a judge could withdraw a defence if it either did not arise on the evidence or if ‘no reasonable jury, properly directed, could find the defence to be made out’. It was emphasised that ‘a judge must exercise considerable caution before taking that step. It is not for the judge to substitute his or her decision for that of the jury when deciding to withdraw the defence’.
This is an important judgment for protest cases relating to criminal damage. The fact that damage was caused in the course of a protest or demonstration does not mean that the defence is not available and, to the contrary, it would be a relevant circumstance for the jury to take into account. Furthermore, judges must be very cautious before acceding to prosecution applications to withdraw the defence. It is not the judge’s opinion of the merits of the defence, but that of the jury which remains paramount.
