Unsworth v Dpp
| Jurisdiction | England & Wales |
| Judge | Lord Justice Munby,Mr Justice Langstaff,LORD JUSTICE MUNBY |
| Judgment Date | 06 July 2010 |
| Neutral Citation | [2010] EWHC 3037 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5520/2010 |
| Date | 06 July 2010 |
[2010] EWHC 3037 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Sitting at
Manchester Civil Justice Centre
1 Bridge Street West
Manchester
M3 3FX
Before: Lord Justice Munby
and
Mr Justice Langstaff
Case No: CO/5520/2010
Mr Benjamin Myers appeared on behalf of the Appellant (Defendant).
Ms Vanessa Thomson appeared on behalf of the Respondent (Prosecutor)
(As Approved)
Lord Justice Munby
This is an appeal by way of Case Stated from a decision of the Crown Court (HHJ Jonathan Gibson sitting with two Lay Justices) at Crown Square, Manchester, so far as is relevant for present purposes dismissing the appeal of the appellant, Ms Jacqueline Unsworth, from a decision of Oldham Magistrates Court for an offence of causing criminal damage contrary to section 1(1) of the Criminal Damage Act 1971.
The proceedings arose out of a dispute between Ms Unsworth and her neighbours a Mr and Mrs Parsons, the parties living in adjacent properties in Oldham. The historical facts can for present purposes be briefly and succinctly summarised, as they were in paragraph 5 of the Case:
“The principal facts (undisputed at the hearing) were as follows:
i. in March 2008, Ms Unsworth lived at 32B Crowley Lane, Oldham;
ii. Paul and Nicola Parsons lived next door at 40 Crowley Lane;
iii. conifer trees, approximately 10–12 feet in height, stood on the Parsons' side of the boundary between the gardens of the two houses;
iv. these trees were the property of the Parsons;
v. in December 2007, Ms Unsworth wrote to the Parsons on two occasions requesting that the trees be reduced in height … In the letter dated 14/12/07, Ms Unsworth made reference to her depression;
vi. on the 2 nd March 2008, the Parsons discovered Ms Unsworth cutting the conifer trees with a saw. This cutting was substantially on the Parsons' side of the boundary and caused significant damage to the trees (as depicted in the photographic exhibits)
vii. Mrs Parsons called the police who attended. Ms Unsworth was arrested on suspicion of criminal damage.”
As can readily be understood in the light of those facts, the essential issue, both before the Magistrates' Court and on appeal before the Crown Court, was whether or not Ms Unsworth was able to establish the defence under section 5(2) (b) of the Act. The Crown Court held that she was not, or to be more precise held that the Crown had successfully demonstrated that she was not entitled to that defence. Mr Myers, who appears before us today on her behalf, asserts not merely that the Crown Court was wrong in that finding but indeed, on its findings of fact, including crucially its findings as to her state of mind, that the defence was made good, so that, he says, on the Crown Court's own findings of facts she was entitled to an acquittal.
Section 1(1) of the Act provides as follows:
“A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.
It is therefore an essential ingredient of the offence that the damage which is caused is caused without there being lawful excuse.
The lawful excuse which can be relied upon by way of defence may of course be a lawful excuse conferred upon the defendant by the civil law, for example if the defendant can demonstrate that in doing what she did she was lawfully exercising a right of abatement conferred upon her by the civil law. Section 5(2), however, provides an extended ambit to the defence of lawful excuse, providing so far as is material for present purposes 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 destroyed or damaged or threatened to destroy or damage the property in question … 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 ; and
(ii) that the means of protection adopted or proposed to be adopted were or would be reasonable having regard to all the circumstances.”
Subsection (3) provides:
“ For the purposes of this section it is immaterial whether a belief is justified or not if it is honestly held.”
It can be seen from an analysis of the language in subsection (2) (b) that there are two elements to the defence. The first element, which for ease of exposition I will refer to as limb (A), is that introduced by the words “in order to protect property” and so on. The other element, which for ease of exposition I will refer to as limb (B), is the latter part of the subsection beginning with the words “at the time of the act or acts alleged”. As will be appreciated limb (B) itself has two sub-limbs, those set out in subsection (2) (b) paragraphs (i) and (ii).
On a plain reading of the statute the test in relation to limb (B) is and is exclusively a test of the defendant's belief. What on the other hand is the nature of the test in relation to limb (A)? The answer to that question is in my judgment answered definitively by the decisions of the Court of Appeal, Criminal Division, in R v Hunt (1977) 66 Crim App Rep 105, followed by and elaborated upon in R v Hill, R v Hall (1988) 89 Crim App Rep 74.
In Hunt the judgment was given by Roskill LJ, who said this at page 108:
“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.”
As I read that, Roskill LJ is clearly distinguishing between what I have referred to as limb (A) and limb (B), is clearly stating that limb (B) is “subjective” but is accepting that in part at least limb (A) imports “an objective test”.
That reasoning was accepted by Lord Lane LCJ, giving judgment in Hill and Hall, as being binding upon the court. However, at page 79 he added these important observations:
“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.”
Reading that, not merely on its own but in conjunction with the earlier judgment of Roskill LJ, it is clear in my judgment that the discussion by the Lord Chief Justice there was exclusively by reference to limb (A) and not by reference to limb (B). The significance of the principle as there expounded is that limb (A) has, for the reasons explained by the Lord Chief Justice, two aspects: the one subjective, the other objective.
From those two judgments, as indeed from the structure and wording of section 5(2) (b) I conclude therefore that limb (A) has both a subjective and an objective aspect, whereas limb (B) has an exclusively subjective aspect. It is also important to bear in mind, not least in the light of certain submissions helpfully put before us by Ms Thomson on behalf of the respondent, the Crown Prosecution Service, that the focus in limb (A) is upon the single question of whether what was done was done “in order to protect property”, whether the property of the defendant or someone else or to protect some interest in property which the defendant believed was vested in himself or somebody else. The matters referred to in paragraphs (i) and (ii) at the end of subsection (2) (b), that is, whether the property was in “immediate need of protection” and whether the means of protection were or would be “reasonable having regard to all the circumstances”, are to be found within limb (B) and are therefore, for the reasons I have given, subject to an exclusively subjective test.
The other authority to which we were referred was the decision of the Divisional Court in Chamberlain v Lindon [1998] EWHC Admin 329, ...
To continue reading
Request your trial
-
Simon Taj v The Crown
...to whether or not the defendant had acted instinctively given the situation in which he had found himself and in Unsworth v DPP [2010] EWHC 3037 (Admin), the court emphasised the length of time that the threat had been in place and the extremeness of the measures taken to remove it. ‘Extrem......
-
Director of Public Prosecutions v Angela Ditchfield
...excuse is an essential element on the offence which must be proved by the prosecution to the criminal standard. See Unsworth v DPP [2010] EWHC 3037 (Admin) [4] (Sir James 4 Section 5(2) of the 1971 Act provides: “(2) A person charged with an offence to which this section applies, shall, wh......