Practice and Procedure


PUBLISHED November 20, 2003

On the evidence the judge was right to direct the jury that the defendant, charged with criminal damage, did not have a defence of lawful excuse available. The judge should not have directed the jury to convict, however, the conviction could be regarded as safe following, inter alia, DPP v Stonehouse (1977).Appeal, with leave of the single judge, against conviction for criminal damage imposed, following a retrial, at Southwark Crown Court on 22 January 2003. The defendant ('D') was sentenced by HH Judge Bathurst-Norman to three months' imprisonment. D had strong beliefs and concerns regarding policies of the USA and the UK and the influence major corporations appeared to exercise over democratic governments. He held Baroness Thatcher partly responsible and on 3 July 2002 visited the Guildhall Gallery armed with a cricket bat and with the intention of knocking the head of a statue of Lady Thatcher. The cricket bat proved ineffectual and D used a metal stanchion which supported a cordon round the statue to achieve his object. D waited for the police to arrive and explained his motives saying he genuinely feared for the future of his son. At his first trial D explained his motives and philosophy. The judge raised with the prosecution how the matter should be left to the jury. The prosecution conceded the defence of "lawful excuse" under s.5(2)(b) Criminal Damage Act 1971 was available to D. The jury failed to reach a verdict. At the retrial the judge took a different view and directed the jury that D did not have a "lawful excuse" for his actions. He further directed that, as a result, "there can only be one verdict in this case and that is one of guilty". D appealed conviction on the grounds that: (i) the judge was wrong to rule that, as a matter of law, the defence of "lawful excuse" was not available; and (ii) the judge was wrong to direct the jury to return a verdict of guilty.HELD: (1) The court was bound by the decisions of R v Hunt (1978) 66 Cr App R 105, R v Ashford and Smith (1988) CLR 682 and R v Hill and Hall 1989 89 CAR 74 whereby it was held that on a true construction of the statute the test as to whether an act was done "in order to protect property", s.5(2)(b), was an objective test. The judge was right to conclude that D's purpose in damaging the statue did not raise the defence of lawful excuse. (2) All the time a defendant remained in the charge of the jury he could only be acquitted or convicted by their verdict. Even where a defendant changed his plea to one of guilty it was not the usual practice, and doubtful whether it could ever be correct practice, for a judge to direct a guilty verdict. The majority decision in DPP v Stonehouse 1977 65 CAR 192, and followed by R v Gent 1989 89 CAR 247, was to the effect there could never be circumstances where it would be right to direct a conviction in terms. (3) However, in R v Hill and Hall (supra) the judge effectively directed a verdict of guilty. In that one respect the court was in error. Even where it was correctly ruled the defence of lawful excuse was not available it was still for the prosecution to prove criminal damage had been committed. Even where evidence was overwhelming it remained for the jury to return its own voluntary verdict. (4) In the present case the words used by the judge could be taken as a direction to convict. The words crossed the line that separated forceful comment from a direction to convict. Whilst the judge was right to withdraw the defence of lawful excuse from the jury the general issue of guilt or innocence should have been left to the jury. (5) Evidence against D was overwhelming, he had admitted the constituents of the offence and had no defence. Following a proper direction a verdict of guilty was, or should have been, inevitable. However, as held in R v Davis & Ors (2001) 1 Cr App R 115, the court of appeal was not concerned with guilt or innocence only with the safety of the conviction. In DPP v Stonehouse (supra) the proviso to s.2(1) Criminal Appeal Act 1968 was applied and the conviction was upheld. Further, in R v Gent (supra) the court saw no difficulty in principle in applying the proviso but was unpersuaded to do so having regard to the evidence. (6) It was unlikely the position had changed significantly by the amendment to s.2(1) of the 1968 Act. The court attempted to extract principles in R v Davis & Ors (supra) and held that, inter alia, it would normally be sufficient to apply the test in R v Stirland (1945) 30 Cr App R 40. (7) When applying that test to the present case and following DPP v Stonehouse (supra) the conviction should be regarded as safe.Appeal dismissed.