Correct on the date of publication - 3 November 2025
Question:
Can you explain the provisions of section 5(2)(b) of the Criminal Damage Act 1971?
Answer:
Where a person relies on the defence offered by section 5(2)(b) of the Act; he must have two separate beliefs, firstly, he must believe that his property or that belonging to another, was in need of immediate protection; and secondly, that the means employed were reasonable.
For the purposes of the section, it is immaterial whether a belief is justified or not, provided it is honestly held, (section 5(3)). Because of this, a person acting under a mistaken belief as to protecting his right or interest in property may rely on his claim that he had lawful excuse, provided his belief was honestly held.
The provisions of section 5(2) of the Act shall not be construed as casting doubt upon any defence recognised by law as a defence to criminal charges (section 5(5)). By virtue of this, a person may have a defence which does not fall within section 5, a consideration underlined by the inclusion in section 5(2) of the phrase, "whether or not he would be treated for the purposes of the Act as having a lawful excuse apart from this subsection". For example, taking action to abate a Common Law nuisance might fall within this provision. In the cases of Deane v Clayton (1817) and Jordin v Crump (1841) it was held that a person has a right at Common Law to protect his own land or property provided it does not invade or interfere with the legal rights of his neighbour. It can be argued that the conception of protection of property extends to protecting the right to use the property.
Where the defence is raised, no matter how tenuous or nebulous it might be, the question of whether the accused held such belief must be left for the jury to decide, (R v Wang)).
In R v Hunt (1977) it was held that whether or not a particular act was done in order to protect property was an objective one; whilst in R v Hill (1989) the Court of Appeal ruled that the court had first to decide what was in the accused person's mind – something which demanded the imposition of a subjective test – and, secondly, whether it can be said as a matter of law that on the facts as believed by him, the offending act(s) were done in order to protect property – an objective test.
The case of Chamberlain v Lindon (1998) also illustrates the provision, in which case the Divisional Court held that the defendant had a lawful excuse to demolish a wall which restricted his right of way, as he had the honest belief that it was necessary to do so to protect his right or interest in the property.
For further information on this section please see the notes attached to section 5(2) of the Criminal Damage Act 1971.
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