The appellant challenged the dismissal of his private prosecution of the defendant in destroying a new garden wall. The magistrates had found a lawful excuse in that the defendant said that the wall had been constructed to obstruct his private right of way.
Held: The use of self redress to justify criminal damage by lawful excuse was satisfied if the damage was current at the time of the action. There was no obligation to satisfy alternative possibilities of redress through civil courts.
Sullivan LJ said: ‘Under section 5(2)(b) one is entitled to protect not merely property but a right or interest in property. Since a person entitled to the benefit of a right of way may as a matter of civil law remove any obstruction to the way, it would indeed have been surprising if he did not have the protection of section 5(2)(b) if, in so doing, he necessarily destroyed or damaged the obstruction.’
. . And: ‘It is unnecessary to reach a conclusion as to whether the respondent’s self-help was justified as a matter of civil law on the facts of this case, because the appellant chose to take proceedings in the criminal courts. Rather than suing the respondent for trespass he preferred an information charging the respondent with criminal damage. I have already indicated that, in my view, criminal proceedings were inappropriate. At worst a civil wrong had been committed, either nuisance by the appellant or trespass by the respondent. It should have been for the civil courts to decide which.
In the criminal context the question is not whether the means of protection adopted by the respondent were objectively reasonable, having regard to all the circumstances, but whether the respondent believed them to be so, and by virtue of section 5(3) it is immaterial whether his belief was justified, provided it was honestly held.
On the facts found by the justices there can be no doubt that the respondent honestly believed that the means he adopted were reasonable in all of the circumstances of this case.
For these reasons I would answer each of the two questions posed by the Justices in the affirmative and would dismiss this appeal.’
Rose LJ, Sullivan J
Times 06-Apr-1998,  EWHC Admin 329
Criminal Damage Act 1971 5(2)(b)
England and Wales
Cited – Lloyd v Director of Public Prosecutions QBD 1992
Mr Lloyd had parked his car in a private car park with five large notices boards located at the entrance to and exit of this private car park positioned at eye-level for car drivers. All those notices warned that unauthorised vehicles would be . .
Cited – Regina v Hunt CACD 1978
The defendant had been charged with setting fire to a guest room in an old people’s home. He claimed that he had done so to draw attention to a defective fire alarm system. He sought to set up a statutory defence under section 5(2) by claiming to . .
Cited – Regina v Hill and Hall CACD 1989
The defendants were separately tried for possession of an article with intent to damage property contrary to section 3. In each case the article in question was a hacksaw blade and it was the prosecution case that each of the applicants intended to . .
Applied – Burton v Winters CA 2-Jun-1993
The defendant’s garage had encroached by one brick’s width on the plaintiff’s land and had been built in 1975. The plaintiff obtained a declaration that that was the position in 1990 but was refused the mandatory injunction which she sought. The . .
Cited – Moffett v Brewer 1848
Greene J said: ‘This summary method of redressing a grievance, by the act of an injured party, should be regarded with great jealousy, and authorised only in cases of particular emergency, requiring a more speedy remedy than can be had by the . .
Cited – Johnson v Director of Public Prosecutions CACD 1994
A squatter’s purpose in chiselling the locks off a door and replacing them with his own locks, was not to protect the squatter’s own belongings, but to enable him to gain access to the premises and to bring his bed into the premises. . .
Cited – Lane v Capsey 1891
A building society held a charge over property which enjoyed a right of way over neighbouring land. The right was obstructed by the neighbour building over it. Their request for the removal of the obstruction had been rejected by the court with no . .
Cited – Lagan Navigation Co v Lambeg Bleaching, Dyeing and Finishing Co Ltd HL 1927
Lord Atkinson stated: ‘It has been well said that the abatement of a nuisance is a remedy which the law does not favour and is not usually advisable, and that its exercise destroys any right of action in respect of the nuisance.’
Concluding, . .
These lists may be incomplete.
Updated: 25 December 2020; Ref: scu.138450