Lawful excuse based on an honest belief in the owner's consent (Criminal Damage Act 1971, s.5)
Ben Taylor's neighbour, Mrs Ali, told him some weeks ago that she wanted the rotten fence between their gardens in Sheffield 'taken down'. She meant next spring, once she had saved for a new one. Ben misunderstood and believed she wanted it removed straight away. One Saturday he pulls down the fence panels, which belong to Mrs Ali. A more careful person would have checked with her first. Ben is charged with criminal damage and says he honestly believed she had agreed.
Which of the following best describes whether Ben has a defence?
Choose one answer to see the reasoning.
Worked answer
Correct answer D: He has a lawful excuse, because he believed the owner had consented to the damage, and the belief need only be honestly held.
THE RULE TO REMEMBER
A defendant has a lawful excuse under s.5(2)(a) CDA 1971 if he honestly believed the owner had consented or would have consented; the belief need not be reasonable.
Lawful excuse based on an honest belief in the owner's consent (Criminal Damage Act 1971, s.5)
Section 5(2)(a) of the Criminal Damage Act 1971 provides that a person charged with criminal damage under s.1(1) is to be treated as having a lawful excuse if, at the time, he believed that the person entitled to consent to the damage had consented, or would have consented if she had known of the damage and its circumstances. Under s.5(3) it is immaterial whether the belief is justified, provided it is honestly held. Mrs Ali, the owner of the fence, was the person entitled to consent. If the jury accept that Ben honestly believed she had agreed to its immediate removal, he has a lawful excuse, even though his belief was mistaken and a more careful person would have checked. The prosecution must disprove the excuse once it is raised.
Why A is wrong: Section 5(3) makes it immaterial whether the belief is justified, so long as it is honestly held.
Why B is wrong: The defence turns on Ben's belief about consent, not on whether consent was actually given.
Why C is wrong: Lawful excuse is a defence even where the damage is intentional.
Why E is wrong: Protection of property is a separate ground under s.5(2)(b); belief in consent under s.5(2)(a) is enough on its own.
A little more practice done.
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