A person who without lawful excuse makes to another a threat, intending that that other would fear it would be carried out, - (a) to destroy or damage any property belonging to that other or a third person; or (b) to destroy or damage his own property in a way which he knows is likely to endanger the life of that other or a third person; shall be guilty of an offence.

Mr Justice Aikens said that on 20 December 2000, a group of protestors demonstrating against human rights abuses in Turkey, including the appellants, occupied pods 4 and 24 of the London Eye.

There was no dispute that the appellant, Cavcav, used the intercom to contact the operator of the wheel, Robert Burt, who was in the control room. He threatened that the protestors would set fire to themselves if any attempt was made to storm the pods and told Mr Burt that the intention of the protestors was to speak to the media. Some of the protestors were seen by Mr Burt and others to pour some liquid over themselves. The appellants were charged with threatening criminal damage contrary to s. 2(a) of the 1971 Act. The particulars were: 'that on December 20, 2000, without lawful excuse, they threatened Robert Burt that they would start fires inside capsules 4 and 24 of the London Eye belonging to British Airways, intending that Robert Burt would fear that the said threat would be carried out'. The appellants were convicted and on appeal submitted, among other things, that the judge had misdirected the jury as to the ingredients of the offence under s. 2(a).

In considering that question, their Lordships noted that although an offence under s.1 of the 1971 Act could be committed where it was established that a defendant was reckless as to whether his acts would destroy or damage the property that was in fact destroyed or damaged, there was no reference to recklessness in s. 2.

The gist of the offence was the threat, not, as the judge appeared to have assumed by his direction, the setting of fires. Whether an offence under s. 2(a) or 2(b) was charged, the jury had to be satisfied that a threat had been made by the defendant. But the nature of the threat was different in the two parts of the section. Under s. 2(a) the nature of the threat had to be to destroy or damage property belonging to the person threatened or property belonging to a third person.

Under s. 2(a) there was no offence if the defendant made a threat to another that the defendant would destroy or damage the defendant's own property. Under s. 2(b) the nature of the threat was to destroy or damage the threatener's own property in a way that the threatener himself knew was likely to endanger the life of the person threatened or a third person. So there was no offence under s. 2(b) if the defendant threatened to destroy or damage his own property in a way that was likely to endanger the property of another person.

Their Lordships noted that there was a contrast between s. 2(a), which dealt exclusively with the property of a person other than the defendant and s. 2(b), which dealt with threats to the property of the threatener.

1. Had a threat been made by the appellants to Mr Burt? That would have involved considering whether, objectively speaking, the words and actions of these appellants constituted a threat to Mr Burt.

(i) If the words and actions constituted a threat to Mr Burt, were they, objectively considered, capable of amounting to a threat to destroy or damage the London Eye, being the property of British Airways, and

In their Lordships' view, with great respect, the judge, by directing the jury that the act involved was the threat to start a fire, did not deal with the ingredients of the offence as clearly as he might. In fairness to him, he was not helped by the way the indictment had been drafted, with its emphasis on the setting of fires when the essence of the offence was the threat to damage the property of another. Having concluded that the judge erred in giving his directions to the jury on the ingredients of the offence, their Lordships were not satisfied that the jury would have been concentrating on the correct issue and therefore concluded that the misdirections rendered the convictions unsafe.

The Court of Appeal, Criminal Division, so held in granting leave to appeal and allowing appeals by Kenan Cakmak, Tolga Cavcav, Evrim Talay, Muharren Can, Aydemir Karaaslan and Ahmed Durukanoglu against their convictions of threatening to destroy or damage property, contrary to s. 2 of the 1971 Act, for which they were each sentenced to 28 days' imprisonment.

In s. 2 of the Criminal Damage Act 1971 the nature of the threat to damage property had to be considered objectively. It did not matter what the person threatened thought was embraced by the threat, nor whether the person threatened actually feared the threat would be carried out.

In relation to the mental element of the offence under both parts of s. 2, it was not enough for the prosecution to prove only that the threatener was reckless as to whether the person threatened feared that the threat would be carried out, it also had to be proved that the defendant intended that the person threatened would fear that the threat would be carried out.

The s. 2 offence, which originates from the need to tackle protection racketeers, is very straightforward: there is no need to show that the other person actually feared or even believed that the threat would be carried out. There is no need to show that the defendant intended to carry it out; nor does it matter whether the threat was even capable of being carried out.

If a person, enraged by a neighbour's inconsiderate parking, shouts over the garden wall, 'When you've gone to bed I'm going to T-cut that heap with paint stripper!', the offence will be complete, provided you can show that the person making the threat intended the neighbour to fear it would be carried out.

There is often confusion with the offences created by the Criminal Law Act 1977, s 51 in relation to bomb hoaxes. Although that section is largely concerned with persons who place or despatch false articles (which may be harmless) to induce fear of explosion, it also deals with the offence of communicating false information to induce such a fear. That offence is distinguished from the one under s 2 of the 1971 Act by its limitations to false information whereas the offence under s 2 can be committed whether or not the threat involves false information. However, for practical purposes, both are arrestable offences.

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