Criminal Damage. Upholds a ‘lawful excuse’ defence (of damaging property in order to protect other property), allowing the defendant to destroy an obstruction that was blocking his right of way, even though he did not immediately destroy the obstruction.
The reference to this case in the law journals (which you are supposed to quote in court) is [1998] 1 WLR 1252 and [1998] 2 All ER 538, which you read out as, “year 1998, volume 1, Weekly Law Reports, page 1252, and 1998, volume 2, All England Reports, page 538.”[note]
This was essentially a dispute between two neighbours, about the access to a house. Lindon claimed a right of access across a patch of ground owned by Chamberlain. The right of access itself wasn’t in dispute, but what was disputed was Lindon’s driving diagonally across it, instead of straight across it. Chamberlain began to build a wall to stop this, at which point Lindon drove across the foundations of this wall to his house. Chamberlain then completed his wall, and Lindon’s car was trapped behind it. This was in July 1995.
After extensive correspondence, Lindon told Chamberlain that he would knock down the wall unless it was removed. It wasn’t, so he did. That was in April 1996.
Chamberlain took Lindon to court for criminal damage. Lindon claimed that he had knocked down the wall in order to protect his right of way (‘lawful excuse’ defence, under section 5(2)(b) of the Criminal Damatge Act 1971). The magistrates agreed and he was acquitted.
Chamberlain then appealed to the Divisional Court by ‘case stated’ (i.e. on a matter of law). The Divisional Court dismissed his appeal, thereby upholding Lindon’s acquittal on the criminal damage charge. This is the judgment of the Divisional Court.
In dismissing Chamberlain’s appeal, the judges upheld Lindon’s ‘lawful excuse’ defence, finding as follows:
•section 5(2)(b) of the Criminal Damage Act 1971 applied to a right of way as much as any other property.
•Lindon destroyed the wall in order to protect his property—the fact that he may have done it also in order to avoid a civil court case didn’t matter.
•Lindon’s right of way was in immediate need of protection, despite the 9 month delay.
•Lindon was allowed to resort to self-help even if it wasn’t an emergency, because he honestly believed that the action he took was reasonable.
In more detail. . . :
First, section 5(2)(b) specifically states, “a right or interest in property includes any right or privilege in or over land, whether created by grant, licence or otherwise” (Criminal Damage Act 1971, s.5(4)).
Secondly, even though Lindon may have demolished the wall partly to avoid litigation (i.e. having to take Chamberlain to court in the civil courts), it was an action which, viewed objectively, was capable of protecting property.
His purpose was to protect the right of way. He chose the means of abatement because he hoped to avoid litigation. That does not convert the avoidance of litigation into his purpose. (Sullivan J, at page 6 of my transcript)
Thirdly, on the matter of immediacy, Chamberlain had tried to argue from the Hill & Hall case[note] to say that Lindon’s action did not satisfy the “immediacy” test. The judge distinguishes Hill & Hall,[note] and says:
In my view the respondent is not to be penalised for his attempt, through correspondence, to persuade the appellant to remove the wall. So long as the wall remained it was, on the rfacts as believed by the respondent, an obstruction to his right of way, and so there was an immediate need to remove it. (Sullivan J, page 6 of my transcript)
Fourthly, the judge considered the suggestion that Lindon should not have resorted to ‘self-help’ except in an emergency, and that the law should not condone such action by acquitting him. Lots of case law is quoted here, to say that self-help actions involving force are only recognised as legal as a ‘last resort’ and in emergency situations.[note] These arguments were put forward to support the previous argument, although they were treated separately by the judge.
The judge answers these points by rfirst saying that, as this is a matter of criminal law, he does not have to decide whether Lindon’s action was justified as a matter of civil law, and then says that, for the purpose of the criminal law, what matters is whether Lindon believed that his actions were reasonable—i.e. a subjective test.
In the criminal context the question is not whether the means of protection adopted by the respondent were objectively reasonable, hagvintg regard to all the circumstances, but whether the respondent believed them to be so, and by virtue of section 5(3) it is immaterial whether his belief was justified, provided it was honestly held. (Sullivan J, page 8 of my transcript)
There are two main points that this case is useful for, the second being probably the most important in terms of TP defences (being the point on which our ‘lawful excuse’ defences are most commonly dismissed by the courts):
1)The question of whether actions taken under section 5(2) of the Criminal Damage Act is a subjective not an objective test.
2)The long delay between the building of the obstruction (the wall) and the action taken to remove it (knocking it down) demonstrates that the “immediacy” factor is about the immediacy of the danger in a general sense, and a delay before taking action does not invalidate the ‘lawful excuse’ defence.
© Copyright 2001, Andrew Gray
What, “copyright”! Isn’t copyright evil? [ You better read these notes]
This briefing was written by me (with or without help from others) for Trident Ploughshares, but may be used freely and copied/distributed by others. In order to guarantee this freedom, the briefing is copyrighted and licensed under the GNU Free Documentation License (formal license statement follows).
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I am not a lawyer. The briefing is not guaranteed in any way, and is not a substitute for proper legal advice. Feedback and corrections are very welcome, phone 0845 4588 368, email andrew@andrewgray.uklinux.net.
Andrew Gray, TP legal support (England & Wales)
This briefing was last revised: 11/12/2001
(See the changelog and authorship page for revision details.)