Removing ‘claim of right’ dangerous

The government is a poor loser. It didn’t bother to appeal after it lost the ‘intentional damage’ case against the three men who pricked a dome at the Waihopai spybase. But it hasn’t let the matter rest. Last month it laid a $1 million damages claim against the men.

To add insult to injury, Justice Minister Simon Power is now trying to change a law which was used to acquit the Waihopai Three. Yesterday

he announced

that legislation was being drafted so that people could only use ‘claim of right’ defence to excuse the taking or damaging of property when they believed they have ‘a proprietary or possessory right in the property involved’.

I think it’s quite dangerous to use one court decision to change a centuries-old law. It is important, even if it is hard to get your head around.

Basically, ‘claim of right’ means that even though you technically infringe one law, such as taking or damaging someone else’s property, you can argue you believed, looking at the total picture, that your actions were lawful because:

–        either you genuinely thought it was your property (eg. your bag and another might look the same),

–       or  you thought, even if mistakenly, that other laws came into play (eg: the laws against people being harmed or killed)

The Waihopai Three essentially used the latter part of the ‘claim of right’ defence, that they believed their actions was saving lives in Iraq, and they backed this up with extensive evidence, including from a British intelligence whistleblower, Katherine Gunn.

There are more close-to-home reasons why the Crimes Act does not restrict the ‘claim of right’ defence to cases to the taking or damaging of property which people may believe, mistakenly, that they personally own.

People might smash a door down to help someone in distress, or remove someone’s car to stop them driving home drunk. There are all sorts of occasions where the property affected might not be one’s own.

A ‘claim of right’ defence may be appropriate in such situations, even where some other defences may also be available.