Defences

Question 1

What are the lawful excuses to criminal damage?

Answer 1

Section 5(2)(a) - D believes the owner would have consented

Section 5(2)(b) - D acts to protect property

Question 2

D believes the owner would have consented

Answer 2

• Defendant believes the owner would have consented
• the belief does not need to be reasonable
• it is only necessary for it to be honestly held (subjective)
• D acts to protect their own or another’s property

Question 3

Mistaken belief due to intoxication (s5(2))(a))

Answer 3

• test is subjective - defendant can rely on the mistaken belief, irrespective of whether the belief was reasonable, even if it resulted from intoxication

Question 4

Limits on the defence

Answer 4

God given consent is not a lawful excuse

Question 5

Defendant acts to protect property

Answer 5

• D acts to protect their or another’s property
• only applies to property, not protection of people

Question 6

What are the requirements of s5(2)(b) - D acts to protect property

Answer 6

a) Defendant must act to protect property
b) defendant must believe property was in immediate need of protection
c) defendant must believe the means of protection adopted are reasonable - subjective
d) damage caused by defendant must be objectively capable of protecting property
- immediate need of protection

Question 7

Does the defendant need to know that the owner would have consented?

Answer 7

No - it is irrelevant that it was not known to the defendant that the property owner would have consented

Question 8

What must the defendant’s belief be when using a lawful excuse?

Answer 8

Genuine and honest
- must truly believe that property is in immediate need of protection

• D must demonstrate they honestly believed the damage was reasonable and the level of damage is proportionate

Question 9

Does the belief need to be justified?

Answer 9

No, it is irrelevant whether it is a justified belief, provided it was honestly held

Question 10

Theft - dishonesty
What are the three possible defences?

Answer 10

Theft Act provides three circumstances where appropriation of property is not to be regarded as dishonest:
a) D has a right in law to deprive the other of the property
b) D would have the other’s consent if the other person knew
c) the person to whom the property belongs cannot be found by reasonable steps

Question 11

Does the defendant need to hold a reasonable belief for the theft defences to apply?

Answer 11

No - as long as it is genuinely held, D will not be dishonest

E.g., if D appropriates property believing they have the owner’s consent, given the knowledge of the appropriation - D will not be dishonest