CPS guidance misstates the law on defence of property?

[Disclaimer: I am a layman, NOT a qualified lawyer of any kind.]

Something curious I noticed today: https://www.cps.gov.uk/legal-guidance/self-defence-and-prevention-crime currently claims that:

Self defence and the prevention of crime originates from a number of different sources. Defence of the person is governed by the common law. Defence of property however, is governed by the Criminal Damage Act 1971. Arrest and the prevention of crime are governed by the Criminal Law Act 1967.

This appears to me to be incorrect as it pertains to defence of property. There is a "defence of property" defence in the Criminal Damage Act 1971, specifically in section 5(2)(b), but it's a defence only to offences defined in that act (i.e. criminal damage and assorted related offences like threats of damage). So that defence would be entirely irrelevant when someone uses force against another person to protect their property.

If you take the CPS's word for it that defence of property is governed by the Criminal Damage Act and not by common law, you would logically conclude from this that there is only a very limited "defence of property" defence in English law and that it does not entitle you to use force against people to protect property (even if, perhaps, some other defence such as prevention of crime might give you such an entitlement). I'm pretty sure, however, that this is wrong.  Contra what the CPS says, there is a common law defence of "defence of property".

This defence is described in the 2003 judgment DPP v Bayer & Ors, where the judge says:

24. This line of authority is concerned with the defence of "private defence" or "protective force" when unlawful force is used or imminently threatened against a person who may use proportionate force to defend persons or property. It is to be distinguished from the line of authority which is concerned with a similar defence against trespassers. In the Law Commission's most recent attempt, following very widespread consultation, to articulate the relevant principles of law in a simple codified form (see Offences Against the Person and General Principles (1993) Law Com No 218, pp 106-110), these defences are set out (so far as they relate to defence of property) in the following terms:

• "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 …
    ...

Additionally, the "defence of property" common law defence is mentioned, and clarified, in statute! The Criminal Justice and Immigration Act 2008 §76 defines "Reasonable force for purposes of self-defence etc.", and subsection (2)(aa) of the act as amended says this applies to "the common law defence of defence of property" - i.e. the common law defence that the CPS states does not exist!

Unless I'm missing some crazy development in the law since 2008 that I can't find any mention of when I google this issue, the CPS guidance on this is therefore very, very wrong! I've duly filled in the feedback form on their website and submitted the following feedback:

It appears to me that there is an error in your guidance about "defence of property" at https://www.cps.gov.uk/legal-guidance/self-defence-and-prevention-crime. There you claim that:

> "Defence of the person is governed by the common law. Defence of property however, is governed by the Criminal Damage Act 1971."

I believe this to be a misstatement of the law. Although there is a defence of property defence defined in the Criminal Damage Act 1971, it is a defence ONLY against charges of criminal damage (and as such is relevant only in situations where a person damages property to defend some other property, not in situations where a person uses force against another person to defend property). For any other charge, the defence of "defence of property" instead comes from common law, as described in e.g. https://www.bailii.org/ew/cases/EWHC/Admin/2003/2567.html. The existence of a common law defence of defence of property is also mentioned in statute, in the Criminal Justice and Immigration Act 2008 section 76(2)(aa).

I suggest reviewing the claims about defence of property on that page and correcting them if you agree that they are in error.

Let's see if anything comes of it!