4) Criminal Damage Flashcards
Criminal Damage Act 1971
A person who without lawful excuse damages or destroys any property belonging to another intending to destroy or damage any property or being reckless as to whether any such proeprty should be destroyed = guilty of an offence.
What is the maximum sentence for criminal damage?
Ten years imprisonment
Breaking down the criminal damage offence - what are the five parts
- Destroy or damage
- Property
- Belonging to another
- Without lawful excuse
- Intention or recklessness as to the damage / destruction of another’s property
Does the CDA 1971 define destroy or damage?
No, this is determined in case law.
Destroy = property ceases to exist.
Samuel v Stubbs 1972
Damage
Difficult to lay down general rules as to what is meant by damage.
Guided by the circumstances.
Unnecessary to establish the damage renders the property useless / prevents normal function
Hardman v CC of Avon
Damage
Silouhettes painted on pavement, in protest against Hiroshima/ Would have been washed away by the rain.
The damaged need not be permanent = time / effort spent on restoring the property.
Roe v Kingerlee
Damage
Mud spread across walls of the police cell.
Cost £7 to remove
= Damage
Cost of remediation
Morphitis v Salmon
Damage
Criminal damage incudes not also permanent or temporary physical harm, but also, permanent or temporary impairment of value or usefulness
Fiak
damage
F stuffed his blanket down the toilet in his prison cell and repeatedly flushed the toilet.
Flooded the cell.
ALthough cell and blanket were recoverable, the temporary impairment meant that this = physical damage.
A(a juvenile) v R
damage
Spittle was not criminal damage as could be wiped away without leaving a mark or stain.
Is “property” defined in the CDA 1971?
Yes, in section 10(1).
Section 10(1), CDA 1971
Meaning of property
Property means property of a tangible nature
* Inc wild creatures - has not been lost / abandoned
* Not including mushrooms, flowers, fruit or plajnt
R v Whitely 1991
Information
Information does not fall within the definition of Property, held in the CDA 1971
Belonging to another
Section 10(2)
Belonging to another if:
- Having custody or control of i
- Having in it any proprietary right or interest (not equitable interest arising from agreement to transfer / grant)
- Having a charge on it.
Can property belonging to another, be owned by more than one person?
Co-owned
* If mortgaged it will also be property of the bank or mortgage company
Mens rea for basic criminal damage
The intention or recklessness as to the destruction or damage of property belonging to another.
Intention is given its ordinary meaning in which case?
R v Moloney
When considering Actus Reus of property, need to also cosider whether….
It was the Defendant’s aim or purpose to destroy or damage the property of another.
R v G
HoL stated that to convict a person of reckless criminal damage, must prove:
1) D was subjectively aware of a risk
2) It was objectively unreasonable for them to take that risk
To convict a person of reckless criminal damage, must prove that:
Person was subjectively aware of the risk, and that it was objectively unreasonable for them to take the risk.
R v G
- To cause damage
- to property belonging to another
What does the “mens rea” extend to?
The whole of the actus reas.
Insufficient to show that they intended to create damage, but also show that they knew the property belonged to another.
R v Smith
R v Smith
Property belonging to antoher
Smashed up floorboards fitted by the tenant and brother on being told by the landlord that he couldnt take on the lease from his brother. Was found guilty of criminal damage. BUT on appeal
Held that not Mens Rea if defendant actually honestly believed that the property did not belong to another. Irrelevant to consider whether justifiable, just whether honest
- Ignorance is no defence, but can in this instance prevent liablility
What is the key whether a person can use ignorance of ownership of property?
Whether they honestly believed that the property was their own…. even if not justifiable.
Definition of basic arsons1(3) of DA 1971
CDA 1971 s 1(3)
“Any offence committed under this section by destroying or damaging property by fire shall be charged with arson”
Where in the statute is basic arson defined?
CDA 1971 s 1(3)
What are the five steps of basic arson
Actus Reus
1) Destroy or damage by fire
2) Property
3) Belonging to another
4) Without lawful excuse
Mens Rea
5) Intention or recklessness as to the destruction or damage of property belonging to another by fire.
Where is property defined in the CDA 1971
s 10(1)
Where is “belonging to another” defined in the CDA 1971?
s10(2)
Without lawful excuse can be
- Any general defence where relevant CDA 1971 s5(5) - can apply to any offence of criminal damage / arson
- Lawful excuse defences s5(2) CDA 971 - can only apply to basic, not aggravated offences of criminal damage or arson
Which defence can apply to any criminal damage or arson offence
- General defence under CDA 1971 s5(5)
Which defence can apply only to basic not aggravated, criminal damage or basic arson….
Lawful excuse defences
s5(2) CDA 1971
s 5(2)(a) CDA
Operates where defendant believes that the owner would have consented to the damage
Defendants belief need not be reasonable, but must be honestly held (s5(3)).
s5(3) CDA
D’s belief need not be reasonable, only necessary that it is honestly held
Jaggard v Dickinson
Dickinson broke a window, mistakenly believing the hosue was that of a friend he was staying with.
= A subjective test
Applying s5(3) the court held this was a defence, irrespective of whether reasonable.
Can a defendants motive be taken into account?
If they honestly believed that the owner would have consented, then the motive is irrelevant to the lawful defence claim….. even where the motive is to perpetrate a fraud
Is criminal damage an offence of dishonesty?
No…
Motive is not the relevant
R v Denton
R v Denton
Honesty
There is nothing like a good fire for improving the financial circumstances of a business.
Thought this was an instruction
= Defence - Conviction for arson was quashed
Limitations to the defence that D believes the owner would have consented - CASE
Blake v DPP
God and the marker pen
Blake v DPP
Limitations to honest belief
During a demonstration re: use of military force by allies in Iraq and Kuwait, Vicar wrote in markerpen a verse of the Bible outside the houses of parliament.
Appealed claimant that he was carrying out the instructions of God, therefore believed owner would have consented. Also argued that he had damaged property, to protect the property of others.
Dismissed - however honest - not a lawful excuse under English Law
s5(2)(b) CDA 1971
Defendant acts to protect their or another’s property.
Only as relates to the protection of property, as opposed to the protection of people
R v Baker & Wilkins
Protection of property
Mother could not raise the defence of protection, when she kicked open a door to rescue child from the perceived threat of estranged husband.
Child, is not property, may have been differently decided if it was a pet!!
What are the four requirements the defence of acting to protect property
s5(2) (b)
1) Acting to protect property (R v Baker & Wilkins)
2) Must believe the propety is in need of protection (i). Test is subjective (s5(3))
3) Defendant must believe the means of protection were reasonable. Test is subjective (s5(3)).
4) Damage caused must be objectively capable of protecting property.
Johnson v DPP
Need of protection
Squatter fitting locks caused damage to a door. Argued that the locks were fitted to protect property, as there had been a high number of thefts int he area.
Court quashed this argument, stating that there was not need for immediate protection.
R v Hunt
Capable of prtoecting
To demonstrate the inadequacy of the fire alarm in a block of flats, Mr Hunt started a fire in a bedroom.
Objectively not capable of protecting the property from damage
Blake v DPP - objectively capable of protecting the property from damage?
- Vicar protecting property in the Gulf States
- Actions not capable of having this effect.
R v Hill and hall
Protection of property
A nuclar protestor arrested outside of submarine base with a hacksaw. Intended to cut through wire fence.
Argued she was acting to persuade the Americans to leave the area, and resduce the risk of a nuclear strike that would impact her property..
Objectively too far remote
Other lawful excuses
Uder CDA 1971, s 5(5)
General defences to criminal offences such a self-defence and duress.
Aggravated Criminal Damage - Definition in statute
Must also endanger life of another, or be reckless as to whether the life would also be endangered.
Mens rea of aggravated criminal damage
s1(2)(a) Intention of recklessness as to the destruction or damage of property
s1(2)(b) Intention of recklessness as to the endangerment of life by the damage or destruction
R v Sangha
Danger to life
Set fire to furniture in flat, no occupants at the time.
BUT upheld as aggravated as the issue was whether life Might have been endangered
R v Dudley
Danger to life
Consumed drink and drugs and threw a fire bomb at the house of a family he had a grievance with.
Not much damage was actually caused,,,, but the Court of Appeal held that it was what was intended.
R v Steer
Where must the danger to life came from
Defendant fired three shots through the window.
Had to be a causal link between damage caused and endangerment to life...
Risk to life from fire is always form damage property.
R v Webster
Where must the danger to life came from
Pushed a coping stone from a bridge onto a train, hit a carriage showering the passengers from debris from the roof.
Court substituted the conviction based on recklessness to endanger life.
Does the property need to belong to another for aggravated criminal damage?
No - it can even be your own property that causes danger to life
Do the lawful excuse defences in section 5(2) apply to aggravated criminal damage or aggravated arson?
No. The lawful excuse defences do not apply to aggravated criminal damage or aggravated arson, s 5(1) states this.
What is the key part of the mens rea of aggravated criminal damage?
Intention or recklessness to:
* Damage property
* Danger to life must arise from damaged property.
Definition of Theft
s1(1) Theft Act
A person is guilty of theft if he dishonestly appropriates proeprty belonging to another with the intention of permanently depriving the others of it.
What are the five elements required to secure a conviction for theft.
Actus reus.
1) Appropriation (s3)
2) Property (s4)
3) Belonging to another(s5)
Mens Rea
4) Dishonestly (s2)
5) With the intention to permatnently deprive (s6)
Do you need all of the elements to be simultaneous
Yes… but differing scenario’s could still amount to theft under the Theft Act 1968
Definition of appropriation
Theft Act 1968, s3(1)
“Any assumption by a person of the rights of an owner amounts to an appropriation”
R v Morris
Switched labels to be under priced. Arrested and covicted by theft.
Dismissed appeal.
Switching prices = assumed the rights of the owner = appropriation.
Any assumption
The asssumption of any one of the rights of an owner = appropriation
eg selling it, or determining prices, hiring it, giving it away or destroying it.
R v Morris
Can appropriation of property occur even with the consent of the owner?
Yes
R v Gomez
R v Gomez
Assistant manger of an electrical goods store.
Allowed co accused to use stolen cheques.
Shop manager told Gomez to check the bank that the cheques were acceptable.
Manager had authorised the transaction. Could still be appropriation.
Appropriation - Lord Browne-Wilkinson in R v Gomez
“I regard the word of “appropriation” in isolation as being an objective description of the act done irrespective of the mental state of either the owner or the accused”
Point of law certified in R v Gomez
Can still be appropriation where:
1) Property has passed with the owners consent
2) There is no need for an adverse interference with the owner’s rights.
Theft of gifts key case
R v Hinks
R v Hinks
Influenced, persuaded or coerced man of limited intelligence, received gifts of £60k = theft.
Can be guilty of theft. Was found guilty.
Reasoning in R v Hinks that recepient of a gift can still be found guilty of theft
1) Appropriation is a neutral act and the state of mind of the donor is irrelevant.
2) Appropriation cna take place with or withoyt the consent of the owner.
3) A person could be guilty of stealing valid inter vivos gifts.
All elements of the theft myst exist…
All elements of the theft must exist simultaneously
Later appropriation - Meaning
Occasions when the defendant does not have the mens rea when they first assume an owner’s right and therefore do not commit theft at this point.
When D forms mens rea later, then….
Apply the Theft Act 1968 s 3(1)
Provides for later assumption of the owner’s rights to amount to appropriation.
Theft Act 1968 s 3(1)
Includes, where he has come by the property (innocenty or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as its owner
The Innocent Purchaser
s3(2) of the THeft Act 1968
Exempts defendant from liability for theft where purchased in good faith and for value…. then later discovers lack of title to property but decides to keep it.
What precludes the protection offered by The Theft Act 1968
Mala fides = Bad Faith
R v Adams
Defendant purchased goods not knowing they were stolen.
Court convicted him, conviction then quashed as jury failed to be directed re:L defence of purchasing in good faith,
Definition of property inder the Theft Act 1968
S4(1) of The Theft Act 1968
Property includes money and all of other property, real or personal, including things in action and intangible property.
Generally rule re: stealing of property
Generally all property can be stolen
Exceptions to the general rule that all property can be stolen
s4(2) Land
s4(3) things growing wild
s4(4) wild creatures
Land
In general land cannot be stolen (s4(2))
However, a person can be guilty….
a) Sells more land than authorised to
b) Trespasser / invited guest removes and sells
c) Tenant sells without removing eg fixed greenhouse
Wild plants
s4(3)
D will not be guilty of theft for picking
- Mushrooms, flowers, fruit and foliage
Will be guilty if…
- Purpose was for a reward, to sell or other commercial use.
- Uproots or cuts parts of the wild plant
- Picks cultivated plants
Wild animals
S4(4)
Not guilty of theft of:
- untamed animals
- Animals not ordinarily kept in captivity
Can be guilty of theft of
- Tamed or zoo animals; trapped animals
What property can be stolen
Money
Real property (land)
Personal property
Intangible things - action (right to sue /reover)
Unlawful or illegal items
Smith, Plummer and Haines 2011
Class drugs can be stolen
What property cannot be stolen>
- Wild plants and animals
- Electricty
- Corpses and body parts (except as taken into possession)
- Confidential information
- Services such as train journey
- Cheques on accounts over the agreed overdraft limit (bank not onliged to honour it)
Low v Blease
Electricity cannot be sotlen
Oxford v Moss
Confidential information does not fall within the definition of intangible property, therefore cannot be stolen
What is meant by taking into possession corpses / body parts
- Corpses in hospitals
- Blood given to blood banks
- Scientific bodies etc
Kelly and LIndsay
Bodies donated for science can be stolen
Assumption is..
“any assumption by a person of the rights of an owner”
Only one right needs to be assumed to = appropriation
R v Morris
Can you appropriate even with consent of the owner?
Yes
R v Gomez
Can you steal a valid gift
Yes
R v Hinks
If Defendent doesnt have mens rea when first appropriating the property…
Check whether there is a later appropriation under s3(1)
Is an innocent purchaser guilty of theft?
o by virtue of s3(2)
