Defense of property
Encyclopedia
The defence of property is a possible justification
used by defendants who argue that they should not be held liable for the loss and injury they have caused because they were acting to protect their property
. Courts have generally ruled that the use of force
may be acceptable.
. In addition to the right of self-defence at common law
, section 3 of the Criminal Law Act 1967
states that
Insofar as an attack on property is a crime, reasonable force may be used to prevent the crime or to arrest the offender, whether it be theft
of a sum of money or the damage of an object. In many cases of robbery
and burglary
, the threat will be to both a person and property, and this combination can be a powerful defence. In AG's Reference (No 2 of 1983) (1984) 1 AER 988 Lane CJ. held that a defendant who manufactured ten petrol bombs to defend his shop during the Toxteth Riots
could set up the defence of showing that he possessed an explosive substance "for a lawful purpose" if he could show he acted to protect himself or his family or property by means he believed reasonably necessary to meet the attack. In theory, the defence of property by itself cannot reasonably provide a justification for inflicting serious injury, but there are a number of cases approving considerable violence to arrest criminals threatening property.
Although R v Scully (1824) 171 ER 1213 held that it was not justifiable to shoot an intruder merely to arrest him, on the facts, “the life of the prisoner was threatened, and if he considered his life in actual danger, he was justified in shooting the deceased as he had done; but if, not considering his own life in danger, he rashly shot this man, who was only a trespasser, he would be guilty of manslaughter.” See self-defence (Australia)
for a comparative view on whether the use of excessive force causing death should give rise to a mitigatory defence and "Reform" below. In Mead and Belt's Case (1823) 68 ER 1006. Holroyd J. instructed a jury that violence could not be used against a civil trespasser, adding: “But, the making an attack upon a dwelling, and especially at night, the law regards as equivalent to an assault on a man's person; for a man's house is his castle and therefore, in the eye of the law, it is equivalent to an assault."
One recent case on using force against a burglar is Anthony Martin
v R (2001) EWCA 2245, which resulted in the householder being convicted. As the law currently stands, a person in possession can use no more force than they reasonably believe necessary to remove a trespasser from the premises. Further, where the threat to the land or its possession is not immediate, and other measures could be taken that would make force unnecessary (e.g., calling the police or seeking remedies through the courts) the defence will normally be lost. But in Chamberlain v Lindon (1998) 1 WLR 1252 Lindon demolished a wall to protect a right-of-way
, honestly believing that it was a reasonable means of protecting his property (and, incidentally, avoiding litigation). It was held that it was not necessary to decide whether Lindon’s action was justified as a matter of civil law.
For the purpose of the criminal law, what mattered was whether Lindon believed that his actions were reasonable. Although this case is on the specific interpretation of the statutory defence under s5 Criminal Damage Act 1971, the fact that the defendant was not out of time after nine months of inaction is interesting. On a similar statutory defence, DPP v Bayer and Others (2004) 1 Cr. App. R. 493 dealt with defence of private property as a defence to aggravated trespass under section 68 of the Criminal Justice and Public Order Act 1994
.
The court held that if defendants argued they had used reasonable force to defend property from actual or imminent damage that would constitute a criminal act, then the court had to consider whether, on the facts as the defendants honestly believed them to be, the force used was reasonable in all the circumstances.
Justification
Justification may refer to:*Theory of justification, a part of epistemology that attempts to understand the justification of propositions and beliefs*Justification , defence in a prosecution for a criminal offense...
used by defendants who argue that they should not be held liable for the loss and injury they have caused because they were acting to protect their property
Property
Property is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation...
. Courts have generally ruled that the use of force
Force
In physics, a force is any influence that causes an object to undergo a change in speed, a change in direction, or a change in shape. In other words, a force is that which can cause an object with mass to change its velocity , i.e., to accelerate, or which can cause a flexible object to deform...
may be acceptable.
English law
Generally, see self-defence in English lawSelf-defence in English law
Self-defence is part of private defence, the doctrine in English law that one can act to prevent injury to oneself or others or to prevent crime more generally – one has the same right to act to protect others as to protect oneself. This defence arises both from common law and the Criminal Law Act...
. In addition to the right of self-defence at common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, section 3 of the Criminal Law Act 1967
Criminal Law Act 1967
The Criminal Law Act 1967 is an Act of the Parliament of the United Kingdom. However, with some minor exceptions, it generally applies to only England and Wales. It made some major changes to English criminal law...
states that
- A person may use such force as is reasonable in the circumstances in the prevention of crime or in arresting offenders or suspects.
Insofar as an attack on property is a crime, reasonable force may be used to prevent the crime or to arrest the offender, whether it be theft
Theft
In common usage, theft is the illegal taking of another person's property without that person's permission or consent. The word is also used as an informal shorthand term for some crimes against property, such as burglary, embezzlement, larceny, looting, robbery, shoplifting and fraud...
of a sum of money or the damage of an object. In many cases of robbery
Robbery
Robbery is the crime of taking or attempting to take something of value by force or threat of force or by putting the victim in fear. At common law, robbery is defined as taking the property of another, with the intent to permanently deprive the person of that property, by means of force or fear....
and burglary
Burglary
Burglary is a crime, the essence of which is illicit entry into a building for the purposes of committing an offense. Usually that offense will be theft, but most jurisdictions specify others which fall within the ambit of burglary...
, the threat will be to both a person and property, and this combination can be a powerful defence. In AG's Reference (No 2 of 1983) (1984) 1 AER 988 Lane CJ. held that a defendant who manufactured ten petrol bombs to defend his shop during the Toxteth Riots
Toxteth riots
The Toxteth riots of July 1981 were a civil disturbance in Toxteth, inner-city Liverpool, which arose in part from long-standing tensions between the local police and the black community...
could set up the defence of showing that he possessed an explosive substance "for a lawful purpose" if he could show he acted to protect himself or his family or property by means he believed reasonably necessary to meet the attack. In theory, the defence of property by itself cannot reasonably provide a justification for inflicting serious injury, but there are a number of cases approving considerable violence to arrest criminals threatening property.
Although R v Scully (1824) 171 ER 1213 held that it was not justifiable to shoot an intruder merely to arrest him, on the facts, “the life of the prisoner was threatened, and if he considered his life in actual danger, he was justified in shooting the deceased as he had done; but if, not considering his own life in danger, he rashly shot this man, who was only a trespasser, he would be guilty of manslaughter.” See self-defence (Australia)
Self-defence (Australia)
In the criminal law of Australia, self-defence may be a complete defence to criminal liability for causing injury or death in defence of the person or, to a limited extent, property, or a partial defence to murder if the degree of force used was excessive...
for a comparative view on whether the use of excessive force causing death should give rise to a mitigatory defence and "Reform" below. In Mead and Belt's Case (1823) 68 ER 1006. Holroyd J. instructed a jury that violence could not be used against a civil trespasser, adding: “But, the making an attack upon a dwelling, and especially at night, the law regards as equivalent to an assault on a man's person; for a man's house is his castle and therefore, in the eye of the law, it is equivalent to an assault."
One recent case on using force against a burglar is Anthony Martin
Tony Martin (farmer)
Anthony Edward "Tony" Martin is a farmer from Norfolk, England, who in 1999 killed one burglar and wounded another who had both entered his home...
v R (2001) EWCA 2245, which resulted in the householder being convicted. As the law currently stands, a person in possession can use no more force than they reasonably believe necessary to remove a trespasser from the premises. Further, where the threat to the land or its possession is not immediate, and other measures could be taken that would make force unnecessary (e.g., calling the police or seeking remedies through the courts) the defence will normally be lost. But in Chamberlain v Lindon (1998) 1 WLR 1252 Lindon demolished a wall to protect a right-of-way
Easement
An easement is a certain right to use the real property of another without possessing it.Easements are helpful for providing pathways across two or more pieces of property or allowing an individual to fish in a privately owned pond...
, honestly believing that it was a reasonable means of protecting his property (and, incidentally, avoiding litigation). It was held that it was not necessary to decide whether Lindon’s action was justified as a matter of civil law.
For the purpose of the criminal law, what mattered was whether Lindon believed that his actions were reasonable. Although this case is on the specific interpretation of the statutory defence under s5 Criminal Damage Act 1971, the fact that the defendant was not out of time after nine months of inaction is interesting. On a similar statutory defence, DPP v Bayer and Others (2004) 1 Cr. App. R. 493 dealt with defence of private property as a defence to aggravated trespass under section 68 of the Criminal Justice and Public Order Act 1994
Criminal Justice and Public Order Act 1994
The Criminal Justice and Public Order Act 1994 is an Act of the Parliament of the United Kingdom. It introduced a number of changes to the existing law, most notably in the restriction and reduction of existing rights and in greater penalties for certain "anti-social" behaviours...
.
The court held that if defendants argued they had used reasonable force to defend property from actual or imminent damage that would constitute a criminal act, then the court had to consider whether, on the facts as the defendants honestly believed them to be, the force used was reasonable in all the circumstances.
Reform
The defence of "private defence" or "protective force," when unlawful force is used or threatened against a person who may use proportionate force to defend persons or property, is distinguished from the line of authority concerned with a similar defence against trespassers. In the Law Commission's Report No. 218 Offences Against the Person and General Principles (1993) at pp 106–110) these defences are set out (so far as they relate to defence of property) as follows:- 27(i) The use of force by a person for any of the following purposes, if only such as is reasonable in the circumstances as he believes them to be, does not constitute an offence:
- (c) to protect his property... from trespass;
- (d) to protect property belonging to another from . . . damage caused by a criminal act or (with the authority of the other) from trespass...
- 29(i) For the purposes of s 27...
- (a) a person uses force in relation to... property not only where he applies force to, but also where he causes an impact on,... that property;"