Criminal Damage. An unfriendly case about anti-nuclear protestors, so often used against us, to limit the “lawful excuse” defence under the Criminal Damage Act
The reference to this case in the law journals (which you are supposed to quote in court) is 89 Cr.App.R. 74, which you read out as, “volume 89, Criminal Appeals Reports, page 74.”
Valerie Hill and Jennifer Hall were found with hacksaw blades in April 1987, and charged with possession of an article with intent to damage property under the Criminal Damage Act 1971. They were part of a campaign[note] against US nuclear bases. In court, they had claimed that they had a defence under section 5(2) of the Criminal Damage Act 1971:[note]
A person charged with an offence to which this section applies shall . . . be treated for those purposes as having a lawful excuse—. . . (b) if he . . . intended to use or cause or permit the use of something to destroy or damage [the property], in order to protect property belonging to himself or another or a right or interest in property. . . , and at the time of the act or acts alleged to constitute the offence he believed—(i) that the property, right or interest was in immediate need of protection. . . . (Criminal Damage Act 1971, section 5(2), “lawful excuse” defence)
The two women were originally charged and convicted separately, but the cases seem to have been almost identical. The judge at their trials had dismissed their defence and directed the jury to convict, which they duly did. Hill and Hall both appealed to the Court of Appeal, which heard the two cases together, and dismissed their applications for leave to appeal. This is the judgment of the Court of Appeal.
The judgment basically summarises the conclusions of the original trial judge, and then says that he got it right. The lawful excuse defence was dismissed for the following two reasons (which are in reality very similar):
1)What the women did could not be said to be done to protect property, but was merely part of a political campaign against nuclear weapons. In particular, their actions were too remote from their eventual aims to support the lawful excuse defence.
2)There was no immediate need of protection.
These points can be summarised by quoting from the judgment:
He [the trial judge] came to the conclusion that the causative relationship between the acts which she intended to perform and the alleged protection was so tenuous, so nebulous, that the acts could not be said to be done to protect viewed obvjectively. (Lord Chief Justice (LCJ), at p.77)
He decided, again quite rightly in our view, that that proposed act on her part [snipping the strand of the wire] was far too remote from the eventual aim at which she was targeting her actions to satisfy the test. (LCJ, at p.79)
And on the question of ‘immediacy’:
Once again the judge had to determine whether, on the facts as stated by the applicant, there was any evidence on which it could be said that she believed there was a need of protection from immediate danger. In our view that must mean evidence that she believed that immediate action had to be taken to do something which would otherwise be a crime in order to prevent the immediate risk of something worse happening. (LCJ, at pp.80–81)
On the basis of the defendants’ own answers, he concluded that there was no evidence for the “immediate need of protection” test.
This case is used to routinely dismiss the lawful excuse defence that is specific to a Criminal Damage charge, on the grounds of the remoteness of the nuclear danger. While it is not a good case, it is worth looking at the defence of the women in more detail, and using this to distinguish the case from ones that TPers might be involved in. The defendant’s arguments are summarised in the judgment as follows:
Perhaps I may try to give in précis what it was she said. She believed that the purpose of this particular base was to monitor the movements of Soviet submarines, that in the event of hostilities breaking out between the United States and the Soviets or the Soviets and ourselves, the base would be the subject of a nculear strike with devastation in that area. She lived about 40 miles away from the base. Consequently her property and the property of friends and neighbours of hers in Pembrokeshire would be put at risk, to say the least, should there be any such nuclear strike.
There was an alternative limb to this particular argument, and that was this, that the Soviets might select the site at Brawdy as a target for a sudden nuclear strike in order to indicate that they, the Soviets, did not want all-out nuclear war, but were in a position to protect their submarines in the Atlantic if they so wished,. . .
Thus, goes the reasoning that at the end of these hypothetical events, the property . . . would avoid destruction. (page 76)
So the defence failed because there was not a direct, straightforward link between the danger and the action, and the danger was a theoretical or hypothetical one. But TPers do not (necessarily) cut a fence because we fear the possibility of being the target of a possible nuclear attack at some remote point in the future, but because nuclear weapons are threatening us now. We are not trying to prevent a theoretical danger, but an actual, present danger. In particular circumstances (e.g. at AWE Aldermaston) we might also want to argue that radioactive discharges and leaks etc themselves pose a threat to life, as well as the threat posed by Trident and the possession or manufacture of nuclear weapons.
© 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).
Permission is granted to copy, distribute and/or modify this document under the terms of the GNU Free Documentation License, Version 1.1 or any later version published by the Free Software Foundation; with no Invariant Sections, no Front-Cover Texts and no Back-Cover Texts. A copy of the license is included in the section entitled “GNU Free Documentation License.”
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.)