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COURT OF APPEAL (CRIMINAL DIVISION) 89 Cr App Rep 74, [1989] Crim LR 136 HEARING-DATES: 4 October 1988 4 October 1988 CATCHWORDS: Criminal Damage -- Possession of Article with Intent to Damage Property -- Defence of Lawful Excuse -- Objective and Subjective Tests -- Direction to Convict -- Whether Appropriate -- Criminal Damage Act 1971 (c 48), ss 3, 5(2). HEADNOTE: By section 3 of the Criminal Damage Act 1971: "A person who has anything in his custody . . . intending without lawful excuse to use it . . . (a) to destroy or damage any property belonging to to some other person . . . shall be guilty of an offence." By section 5: " . . . (2) A person charged with an offence [under section 31] . . . shall, whether or not he would be treated for the purposes of this Act as having a lawful excuse apart from this subsection, be treated for those purposes as having a lawful excuse . . . (b) if he . . . intended to use . . . something to destroy or damage [the property] . . . in order to protect property belonging to himself or another . . . and at the time of the act or acts alleged to constiture the offence he believed -- (1) that the property . . . . was in immediate need of protection . . . (3) For the purposes of this section it is immaterial whether a belief is justified or not if it is honestly held . . ." The applicants were each individually charged with possessing an article with intent to damage property contrary to section 3 of the Criminal Damage Act 1971. The article in question was a hacksaw blade, the prosecution case being that it was intended to be used to cut part of the perimeter fence of a United States Naval Facility. The applicants' defence in each case was one of lawful excuse, based on section 5(2)(b) of the 1971 Act, in that they were acting as part of a CND campaign directed at United States' bases and aimed at forcing the United Kingdom to abandon nuclear weapons; thereby saving their own property and neighbours from destruction. The trial judge in each case directed the jury to convict on the basis, first, that the causative relationship between the acts and the alleged protection was so tenuous and nebulous that the acts could not, objectively, have amounted to protection; and, second, on her own evidence, she could not be said to have believed, under section 5(2)(b(i) that the property was in immediate need of protection. On applications to appeal against conviction it was contended that the test was a subjective one, that it should be left to the jury, as a question of fact, what the applicant believed. Further, it was questioned whether the judge had been right in directing the jury to convict: Held, refusing the applications, that (1) the trial judge had to decide (i) what was in the applicant's mind (the subjective test); (ii) whether it could be said as a matter of law, on the facts believed by her, cutting the perimeter fence could amount to something done to protect her home and that of her nearby friends (the objective test). The judge had rightly concluded that the proposed act was too remote from the eventual aim at which she had targeted her actions to satify the test; further, there was no evidence to justify the applicant's belief that there was need to protect from immediate danger. (2) The judge in each of the instant cases was dealing with lawful excuse. Although the prosecution had to destroy that defence, it was no part of their affirmative case; there was no need for the judge to direct the jury on those matters, unless there was some evidence capable of constituting that defence. In fact there was none, as the judge in each case rightly held. In any event, if the Court had allowed the applications, it would have had no hesitation in applying the proviso to section 2(1) of the Criminal Appeal Act 1968. Hunt (1978) 66 Cr App R 105 applied. Director of Public Prosecutions v Stonehouse (1977) 65 Cr App R 192, [1978] AC 55 considered. [For ss 3 and 5 of the Criminal Damage Act 1971, see Archbold, para 19-347, 350.] INTRODUCTION: Applications for leave to appeal against conviction. On November 12, 1987, in the Crown Court at Haverfordwest (Judge Graham Jones) the applicant Hill was convicted of possessing an article with intent to damage property, contrary to section 3 of the Criminal Damage Act 1971. She was given a conditional discharge and ordered to pay £370 costs. On November 24, 1987, at the same Crown Court (Judge Glyn Morgan) the applicant, Jennifer Hall, was convicted of a similar offence in similar circumstances, and given the same sentence. The facts and relevant grounds of appeal are summarised in the judgment. The following additional cases were cited in argument: Challinor (1985) 80 Cr App R 253, Hendrick (1921) 15 Cr App R 149, Woolmington v Director of Public Prosecutions (1936) 25 Cr App R 72, [1935] AC 462. COUNSEL: John Bowyer (assigned by the Registrar of Criminal Appeals) for the applicants; Vivian Manning-Davies for the Crown. PANEL: Lane CJ, McCullough, Kennedy JJ JUDGMENTBY-1: LANE CJ JUDGMENT-1: LANE CJ: These are two applications for leave to appeal against conviction: one by Valerie Mary Hill and the other by Jennifer Hall. They arise under circumstances which are almost precisely similar, the one to the other, and consequently, although the two applicants were the subject of separate convictions, we have dealt with them together with the concurrence of counsel. So far as Valerie Mary Hill was concerned, she was convicted in the Crown Court at Haverfordwest on November 12, 1987, before His Honour Judge Graham Jones and a jury. She was convicted of possessing an article with intent to damage property contrary to section 3 of the Criminal Damage Act 1971, the judge having ruled that on the evidence there was no other conclusion open to the jury, and so in effect having directed them to convict. She was given a conditional discharge for two years, and ordered to pay £370 by way of costs. The other applicant, Jennifer Hall, was convicted at the same Court before His Honour Judge Glyn Morgan on November 24, 1987 of a similar offence in similar circumstances and the sentence imposed upon her was the same sentence as that which had been imposed upon Valerie Hill. Each now applies for leave to appeal against that conviction on grounds of mixed fact and law. As already indicated, the facts and grounds in each case are to all intents and purposes identical. The particulars of offence were as follows -- I take the Hill case: "Valerie Mary Hill on the 4th day of April 1987 had in her custody or under her control a hacksaw blade intending without lawful excuse to use the said article to damage a fence belonging to the Secretary of State for Defence." She admitted that she had the blade as alleged. She admitted that she intended with it to cut one strand of the chain link fence at the United State Naval Facility at Brawdy in Dyfed. In each case, in Hill and Hall, the defence was the defence of lawful excuse. She was, she alleged in short, acting in pursuance of a campaign directed at United States bases and aimed at forcing this country, the United Kingdom, to abandon nuclear weapons. Valerie Hill gave evidence amplifying that excuse. Perhaps I may try to give in precis 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 nuclear 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, and so to maintain the nuclear threat which those submarines posed to the United States. That latter limb, so to speak, was the subject of evidence by a gentleman called Dr Cox, whose qualifications seemed to us, if we may say so respectfully, to fall far short of entitling him to speak about these matters as an expert which he purported to be. However that may be, the way in which the matter presented itself to Valerie Hill was this, that if enough people took a hacksaw blade and did as she intended to do, namely cut a strand of the perimeter wire, the Americans might come to the conclusion that it was no longer possible to maintain the safety and integrity of their base; it would be too insecure to be maintained. They accordingly might remove their base. Thereby they would have removed the reason for any nuclear attack to be made by the Soviet forces; or else possibly the United Kingdom Government would take steps to remove the need for such places by abandoning the idea of nuclear defence. Thus, goes the reasoning that at the end of these hypothetical events, the property, whether it was her own property or the property of neighbours, in Pembrokeshire, would avoid destruction. It seems that this was part of a concerted campaign by the Campaign for Nuclear Disarmament. Broadly speaking, that was the background to these two cases. As I say, she was charged under section 3 of the Criminal Damage Act 1971, which reads as follows: "A person who has anything in his custody or under his control intending without lawful excuse to use it or cause or permit another to use it -- (a) to destroy or damage any property belonging to some other person . . . shall be guilty of an offence." Section 5(2) provided the statutory basis for the defence which was being advanced by these two applicants It reads as follows: "A person charged with an offence to which this section applies shall, whether or not he would be treated for the purposes of this Act as having a lawful excuse apart from this subsection, 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 which was or which he believed to be vested in himself or another, 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 . . ." Subsection (3) reads: "For the purposes of this section it is immaterial whether a belief is justified or not if it is honestly held." The learned judge, as I have already indicated, directed the jury to convict on two bases. The first basis was this, that what the applicant did or proposed to do could not, viewed objectively, be said to have been done to protect her own or anyone else's property under section 5(2)(b) which I have just read. It is simply, he concluded, part of a political campaign aimed at drawing attention to the base and to the risks as she described them raised by the presence of the base in Pembrokeshire. It aimed further at having the base removed. He 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 objectively. The second ground was with reference to the provision that the lawful excuse must be based upon an immediate need for protection. In each case the judge came to the same conclusion that on the applicant's own evidence the applicant could not be said to have believed under the provisions of section 5(2)(b)(i) that the property was in immediate need of protection. It perhaps convenient at this point to read what it was that Mrs Valerie Hill had to say on this aspect of the matter: "Q. We move on now to the question of the danger, the risk that you have described, of damge to people and property in the area. What is your belief as to whether that is something that will happen at some determinate date, or could happen at any time? What is your belief as to how imminent that risk is? A. I see the international situation as being constantly changing and sometimes far more threatening than others, and when we play with nuclear weapons, when we play the nuclear game, there is always the possibility at any time, as with driving a motor car, that you could smash your motor car, that somebody will press the button and a bomb will fall. Q. What was your belief on April 4, as to the position as to the nature of that risk? [the day she was found close by with the hacksaw blade] A. I mean, I see it -- perhaps I can make an analogy, which is perhaps irrelevant. I don't know; my husband is an epileptic; he suffers from epilepsy. This does not mean every minute of every day I go round thinking Ian is going to have a fit, but it is something that is kept in my mind at all times as a possibility, and I would say this is an analogy really as to how I feel about Brawdy. I don't expect a nuclear bomb to fall today, or tomorrow, but there is always that possibility that it is going to happen. It is built into the logic of the games they play, the nuclear games they play, that I believe at some time -- it could be tomorrow; it could be in twenty years -- this will happen. The judge in each case relied upon a decision of this Court in Hunt (1978) 66 Cr App R 105. We have the advantage also of having that report in transcript. We also have before us a more recent decision of this Court in Ashford and Smith (unreported) decided on May 26, 1988, in which very similar considerations were raised to those which exist in the present case. It also has the advantage of having set out the material findings of the Court in Hunt which were delivered by Roskill LJ. I am referring to p 4 of the transcript in Ashford and Smith, and it will help to set out the basis of the decision not only in Ashford and Smith but also in Hunt if I read the passage. It runs as follows: "The judge relied very largely upon the decision of this Court in Hunt (1978) 66 Cr App R 105. That was a case in which the appellant set fire to a guest room in an old people's home. He did so, he said, to draw attention to the defective fire alarm system. 'He was charged with arson, contrary to section 1(1) of the Criminal Damage Act 1971. He sought to set up the statutory defence under section 5(2) by claiming to have had a lawful excuse in doing what he did and that he was not reckless whether any such property would be destroyed. The trial judge withdrew the defence of lawful excuse from the jury and left the issue of recklessness for them to determine. The jury by a majority verdict convicted the appellant. On appeal, "'Held, that, applying the objective test, the trial judge had ruled correctly because what the appellant had done was not an act which in itself did protect or was capable of protecting property; but in order to draw attention to what in his view was an immediate need for protection by repairing the alarm system; thus the stautory defence under section 5(2) of the Act was not open to him; accordingly, the appeal would be dismissed.' 'Giving the judgment of the Court Roskill LJ said, at p 108: 'Mr Marshall-Andrews' submission can be put thus: if this man honestly believed that that which he did was necessary in order to protect this property from the risk of fire and damage to the old people's home by reason of the absence of a working fire alarm, he was entitled to set fire to that bed and so to claim the statutory defence accorded by section 5(2). 'I have said we will assume in this favour that he possessed the requisite honest belief. But in our view the question whether he was entitled to the benefit of the defence turns upon the meaning of the words "in order to protect property belonging to another." It was argued that those words were subjective in concept, just like the words in the latter part of section 5(2)(b) which are subjective. 'We do not think that is right. The question whether or not a particular act of destruction or damage or threat of destruction or damage was done or made in order to protect property belonging to another must be, on the true construction of the statute, an objective test. Therefore we have to ask ourselves whether, whatever the state of this man's mind and assuming an honest belief, that which he admittedly did was done in order to protect this particular property, namely the old people's home in Hertfordshire? 'If one formulates the question in that way, in the view of each member of this Court, for the reason Slynn J gave during the argument, it admits of only one answer: this was not done in order to protect property; it was done in order to draw attention to the defective state of the fire alarm. it was not an act which in itself did protect or was capable of protecting property'." Then the judgment in Ashford and Smith, delivered by Glidewell LJ continued as follows: "In our view that reasoning applies exactly in the present case. Hunt is, of course, binding upon us. But even if it were not, we agree with the reasoning contained in it." Now it is submitted by Mr Bowyer to us that the decision in Hunt and the decision in Ashford and Smith were wrong and that the test is a subjective test. In other words the submission is that it was a question of what the applicant believed, and accordingly, it should have been left to he jury as a matter of fact to decide what it was the applicant did believe. We are bound by the decision in Hunt just as the Court in Ashford and Smith were bound, unless that case can be demonstrated to have been wrongly decided in the light of previous authority. Mr Bowyer endeavoured to persuade us that the decision which I have read of Roskill LJ flew in the face of the decision of the House of Lords in Chandler v Director of Public Prosecutions (1962) 46 Cr App R 347, [1964] AC 763. That was a case which bore certain superficial resemblances to the present case, because the appellants there were members of the Committee of 100, who were set to further the aims of the campaign for nuclear disarmament by demonstrations of civil disobedience, and they picked on Wethersfield Airfield, which was a prohibited place under the Official Secrets Act 1911, in order to mount a rally. It was occupied at the material time by certain US Air Force Squadrons. The idea was that demonstrators would take up positions outside the entrances to the airfield and would remain sitting there for five hours while others would enter and sit in front of the aircraft in order to prevent them operating. We have examined the speeches in this case with some particularity. I hope we will not give offence if we say we are unable to derive any assistance whatsoever from the case of Chandler v DPP so far as the decisions in Hunt and Ashford and Smith are concerned. It certainly does not have the effect of casting any doubt upon the validity or the accuracy of the decision in those cases. hat leaves us with the fact that we are bound by the decision in Hunt. But we add that we think that Hunt was correctly decided, for this reason. There are two aspects to this type of question. The first aspect is to decide what it was that the applicant, in this case Valerie Hill, in her own mind thought. The learned judge assumed, and so do we, for the purposes of this decision, that everything she said about her reasoning was true. I have already perhaps given a sufficient outline of what it was she believed to demonstrate what is meant by that. Up to that point the test was subjective. In other words one is examining what is going on in the applicant's mind. Having done that, the judges in the present cases -- and the judge particularly in the case of Valerie Hill -- turned to the second aspect of the case, and that is this. He had to decide as a matter of law, which means objectively, whether it could be said that on those facts as believed by the applicant, snipping the strand of the wire, which she intended to do, could amount to something done to protect either the applicant's own home or the homes of her adjacent friends in Pembrokeshire. He decided, again quite rightly in our view, that that proposed act on her part was far too remote from the eventual aim at which she was targeting her actions to satisfy the test. It follows therefore, in our view, that the judges in the present two cases were absolutely right to come to the conclusion that they did so far as this aspect of the case is concerned, and to come to that conclusion as a matter of law, having decided the subjective test as the applicants wished them to be decided. The second half of the question was that of the immediacy of the danger. Here the wording of the Act, one reminds oneself, is as follows: She believed that "the property . . . was in immediate need of protection." 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. The answers which I have read in the evidence given by this woman (and the evidence given by the other applicant was very similar) drives this Court to the conclusion, as they drove the respective judges to the conclusion, that there was no evidence on which it could be said that there was that belief. The final problem, and the one perhaps on which Mr Bowyer expended most of his eloquence, was whether the judge was in each case correct to direct the jury to convict. Mr Bowyer has read us extensive extracts from the speeches of their Lordships in the well known case of Director of Public Prosecutions v Stonehouse (1977) 65 Cr App R 192, [1978] AC 55. We acknowledge, needless to say, the authority and force of what appears there, noting at the same time that there were two impressive dissenting voices in the shape of Lord Diplock and Viscount Dilhorne. There are two passages which perhaps I ought to read, one from the speech of Lord Salmon at p 219 and pp 79, 80 respectively, which reads as follows: "Whilst there is no doubt that if a judge is satisfied that there is no evidence before the jury which could justify them in convicting the accused and that it would be perverse for them to do so, it is the judge's duty to direct them to acquit. This rule, which has long been established, is to protect the accused against being wrongly convicted. But there is no converse rule -- although there may be some who think that there should be. If the judge is satisfied that, on the evidence, the jury would not be justified in acquitting the accused and indeed that it would be perverse of them to do so, he has no power to pre-empt the jury's verdit by directing them to convict. The jury alone have the right to decide that the accused is guilty. In an appropriate case (and this was certainly such a case) the judge may sum up in such a way as to make it plain that he considers that the accused is guilty and should be convicted. I doubt however whether the most effective way of doing so would be for the judge to tell the jury that it would be perverse for them to acquit. Such a course might well be counter-productive." The other passage is from the speech of Lord Edmund Davies, at p 226 and p 88 respectively, where he says this: "My Lords, the erroneous direction in the instant case is but one example of a prevalent (though fortunately not universal) tendency in our courts in these days to withdraw from the jury issues which are solely theirs to determine. The tendency has been deplored, notably by Lord Devlin in commenting on Larkin (1943) 29 Cr App R 18 . . . And it has to be said that, while the possibility of a perverse verdict cannot be wholly eliminated, the risk that directions to convict may lead to quashings can be obviated by clarity in identifying the contested issue, by commenting on the evidence (maybe even in strong terms, provided that they fall short of a direction, as Lord Devlin stressed in Chandler v Director of Public Prosecutions (1962) 46 Cr App R 347, [1964] AC 763, 806 and by them trusting the jury to play their constitutional part in the criminal process." In the case of DPP v Stonehouse the Crown set out to establish as the root of their case the attempt to obtain the insurance monies by pretending that the appellant Stonehouse was dead when in fact of course he was not. In order to do that the Crown had to show as part of their affirmative case that his actions were directly connected with the offence and were not too remote. In other words they had to show the actions were sufficiently proximate to constitute an attempt. The judge withdrew from the jury in that case that part of the affirmative prosecution case. That part of the affirmative prosecution case was, as is already obvious, a question of fact. A question of fact is remained however unlikely the appellant's version might be. That was the reason for the decision by three of their Lordships who thought that the judge had acted wrongly, namely, Lord Salmon, Lord Edmund Davies and Lord Keith of Kinkel. The situation here in the instant case was not the same. The judge here was dealing with the defence of lawful excuse. Certainly the prosecution had to destroy that defence, but it was no part of their affirmative case. It bore a similarity to the defence of self-defence, and as in that case, so in this, there was no need for the judge to direct the jury on those matters, unless there was some evidence capable of constituting that defence. In fact there was none, as the judge in each case rightly held. There was no other issue. Indeed the judge was very careful in the way he handled the case -- if I may take the case of Hill as an example -- because what he said was this: "Judge Graham Jones: I would like the help of you both here. It seems to me, strictly on my ruling, there is only one verdict the jury can return, but the defendant is in the jury's charge and she has maintained a plea of not guilty. She is entitled to a verdict from the jury. Unless you both think that I should direct a verdict of guilty, I will simply sum up in the ordinary way, indicating what the evidence is and indicating to the jury my ruling on the defence, and withdraw the defence from them. To an extent that may be a charade, but if it is a course the defence wish me to take, I will do so. "Mr Bowyer: I think it would be right for your Honour, consistent with the ruling, to direct the jury to return a verdict, because if another course were adopted it would be unsatisfactory, because I would wish to urge a lot of matters to the jury and it would not be right for them, in my view, to arrive at a verdict otherwise than by direction, without the defence being able to address them." After a further exchange between counsel on each side and the judge, the jury on the judge's direction returned a verdict of guilty. For the reasons which we have endeavoured to indicate, that is the way in which we approach the matter in deciding that the judge in each case was correct to act as he did. Perhaps we should add this. Had the decision been otherwise and had we thought that the application should be granted and the matter heard as an appeal, and had we come to the conclusion that the judge was wrong in the way in which he dealt with the case, we would have had no hesitation at all in saying that this was a case for the application of the proviso to section 2 of the Criminal Appeal Act 1968. Just as in DPP v Stonehouse (supra), so here, there would have been no miscarriage of justice at all had the criticisms of Mr Bowyer been valid, which in our judgment they were not. For those reasons the applications for leave to appeal against conviction are refused. DISPOSITION: Applications refused. SOLICITORS: Crown Prosecution Service, Haverfordwest. |