2.2.7 Criminal Damage – s.5 CDA 1971

Without Lawful Excuse

Statutory Provision

• s.5(2) CDA 1971:
  • A person has a lawful excuse if—
    (a) At the time of the act, he believed that the person whom he believed to be entitled to consent to the destruction/damage had consented or would consent if he knew of the circumstances; or
    (b) He destroyed/damaged the property in order to protect property belonging to himself or another, and he believed—
    (i) that the property was in immediate need of protection; and
    (ii) that the means adopted were reasonable in all the circumstances.
• s.5(3):
  • It is immaterial whether a belief is justified, provided it is honestly held.

Defence 1 – Belief in Consent (s.5(2)(a))

• D is excused if he honestly believed the owner consented (or would have consented).
• Subjective test: even if belief unreasonable, as long as honestly held it suffices.

Key Cases

• Jaggard v Dickinson [1980] 3 All ER 716
  • D, drunk, broke into friend’s house believing she had consent to stay. Wrong house. Conviction quashed: honest belief in consent = lawful excuse (even if mistaken and intoxicated).
• R v Denton [1982] 1 All ER 65
  • D set fire to factory machines, believing owner consented as part of insurance fraud. Conviction quashed: belief in consent, even if immoral or fraudulent, could be lawful excuse.

Principle: Subjective honesty is key, not reasonableness.

Written and Compiled By Sir Hunain Zia, World Record Holder With 154 Total A Grades, 7 Distinctions and 11 World Records For Educate A Change AS Level Law Full Scale Course

Defence 2 – Protection of Property (s.5(2)(b))

• D is excused if he damaged property to protect other property.
• Must believe:
  1. Property was in immediate need of protection; and
  2. The means of protection were reasonable.

Key Cases

• Chamberlain v Lindon [1998] 1 WLR 1252
  • D demolished wall obstructing his right of way, believing it unlawful. Court held: belief in need to protect property sufficient, even if mistaken.
• R v Baker & Wilkins [1997] Crim LR 497
  • Mother damaged door to rescue child from father. Defence failed: “property” excludes protecting people. s.5(2)(b) only applies to property, not persons.
• Johnson v DPP [1994] 1 WLR 1409
  • D changed locks on squat house, claiming to protect occupiers’ property. Court rejected: no immediate need for protection and means not reasonable.

Written and Compiled By Sir Hunain Zia, World Record Holder With 154 Total A Grades, 7 Distinctions and 11 World Records For Educate A Change AS Level Law Full Scale Course

Subjective Nature of Belief

• s.5(3):
  • Belief need only be honest, not reasonable.
• Juries must consider whether D truly held the belief, even if irrational.
• Denton and Jaggard confirm subjective test.

Limits of Lawful Excuse

• Belief must relate to consent or property protection — no general “moral justification.”
• Cannot extend to protecting people (Baker & Wilkins).
• Consent defence applies even if owner’s purpose illegal (insurance fraud in Denton).

Application to Aggravated Damage (s.1(2))

• s.5 defences also apply to aggravated damage, but limited:
  • D cannot rely on consent where damage endangers life.
  • Lawful excuse narrower where public safety at stake.
• R v Hunt [1978] 2 All ER 1057
  • D set fire to bedding in care home to demonstrate need for new fire alarm system. Conviction upheld: act not “reasonable means” of protecting property.

Written and Compiled By Sir Hunain Zia, World Record Holder With 154 Total A Grades, 7 Distinctions and 11 World Records For Educate A Change AS Level Law Full Scale Course

Evaluation

• Strengths:
  • Protects individuals acting in genuine but mistaken belief of consent or property protection.
  • Subjective test ensures fairness — avoids punishing honest mistakes.
  • Flexible defence balances property rights with practical circumstances.
• Weaknesses:
  • Subjective test too wide? (Denton allows defence even where belief supports insurance fraud).
  • Excludes protection of people, creating illogical results (Baker & Wilkins).
  • Distinction between “reasonable means” and “immediate need” sometimes vague (Hunt).

Reform Proposals

• Law Commission (2002): recommended reform of s.5 to:
  • Clarify “reasonable means” requirement.
  • Extend defence to cover protecting people as well as property.
  • Prevent abuse where belief in consent is linked to illegal purpose (Denton).

Exam Application Strategy

1. Quote s.5(2)(a) and (b).
2. Apply belief in consent defence (Jaggard, Denton).
3. Apply property protection defence (Chamberlain v Lindon, Hunt, Johnson, Baker & Wilkins).
4. Stress subjective test under s.5(3).
5. Conclude whether lawful excuse established.

Conclusion

• s.5 CDA 1971 provides two lawful excuse defences:
  • Honest belief in consent (s.5(2)(a)).
  • Acting to protect property in immediate need, using reasonable means (s.5(2)(b)).
• Belief need only be honest, not reasonable (s.5(3)).
• Case law (Jaggard, Denton, Chamberlain, Hunt, Johnson, Baker & Wilkins) illustrates scope.
• Ensures fairness but criticised for over-breadth (consent) and under-inclusiveness (exclusion of people).