R v Baker (Janet) – Case Summary

R v Baker (Janet)

Court of Appeal

Citations: [1997] Crim LR 497.


B had a child with W, who later separated from her, leaving the child with B. He later sought to be involved in the child’s life. B allowed him to keep the child for short visits, but on one occasion W failed to return her. His excuse was that she was ill. W later alleged that the child was being abused, and the local authority issued an emergency protection order. The allegations were not proven and the order lapsed, but by that point W had gone into hiding with the child.

After making telephone contact with W, B and her cousin found W’s car at a petrol station. They threatened W and his companion. W drove away, but his companion stayed and told B where W was living. B went to the location, heard the child crying, and broke down the door.

B and her co-defendants argued that they had lawful excuse to break the door and were at all times acting under duress of circumstances or to prevent a crime (child abduction). However, the judge at trial did not allow them to rely on any of these defences. The defendants were convicted of criminal damage and threatening behaviour.

  1. Did the defendants have a lawful excuse defence to the criminal damage charge, applying s.5(2)(b) of the Criminal Damage Act 1971?
  2. Were the defendants acting under duress of circumstances?
  3. Were the defendants acting reasonably to prevent a crime?

The Court of Appeal held that none of the three defences applies. The defence of lawful excuse under s.5(2)(b) only applied to acts intended to protect property, and the child was not property. Duress is only available where there is a threat of physical injury, and there was no such threat to the child in this case. The defence of prevention of crime did not apply because in the circumstances W had not, and did not intend, to commit a criminal offence.

This Case is Authority For…
  • The threat of serious psychological harm is insufficient to raise the defence of duress.
  • The defence of prevention of crime requires a crime to have been committed (or intended to be committed). It is not enough that the defendant believes that someone is committing a crime.