R v Smith [1974] QB 354

Damage to property – mistake – Criminal Damage Act 1971


Smith was the tenant of a ground floor flat. With the landlord’s permission, he installed some sound equipment and soundproofing material. When he was given notice to exit the flat, the defendant ripped out the soundproofing to access the wires lying underneath it. As a matter of law, the soundproofing had become a fixture of the property and belonged to the landlord. Smith was charged with causing criminal damage to certain property. Smith’s defence was that he had an honest belief the property was his. This was not accepted by the trial judge and Smith appealed the decision.


It was important to consider the offence under the Criminal Damage Act 1971:

‘No offence is committed under Criminal Damage Act 1971, section 1(1) where a person damages property belonging to another if he does so in the honest though mistaken belief that the property is his own.’

The court was also concerned as to whether the belief that Smith had with regards to the property was reasonable or not.


Appeal allowed. An honest but mistaken belief could be used as a lawful defence to such a charge under the circumstances. It was held that the trial judge had erred in not letting Smith demonstrate his case to the jury and this was considered to be a fundamental misdirection in the law. It was irrelevant to consider whether such a belief was justifiable or not as if the individual believed the property was his own, he lacked mens rea at the time of the act. The conviction was quashed as a result.