8. Criminal Damage Flashcards
Definition of Criminal Damage
A person who without lawful excuse destroys or damages any property belonging
to another intending to destroy or damage any such property or being reckless as
to whether any such property would be destroyed or damaged shall be guilty of an
offence.
AR of Simple Criminal Damage
Damage or destruction of property belonging to another without lawful excuse
MR of Simple Criminal Damage
D must:
1. intend to damage or destroy property, or be reckless as to such
2. know that property belongs to another or be reckless to this fact
Definition of Damage or Destruction
includes physical harm (permanent or temporary) as was as impairment of the value or usefulness of the property (ie. removing a part from a machine)
- simple action cannot restore property to its previous state
- matter of fact
If an expense is required in rectifying the situation, but such offence could have been avoided with proactive measures, is this likely to constitute ‘damage’
Yes
Does ‘property’ include animals and plants?
Not specifically, but law will take into account circumstances (ie. whether it was wild etc.)
What constitutes ‘property’ for SCD
Real property and personal property (ie. money)
When does property ‘belong to another’
If that person has
a. custody or control over it
b. has any proprietary right or interest (not equitable arising only from an agreement to transfer or grant an interest) or
c. having a charge on it
Without lawful excuse definition - when does lawful excuse apply?
- Either there is a belief in consent or a need of protection
- it is simple criminal damage only
Lawful Excuse (Belief in Consent): How is this established
Subjective Test:
a. they believed they had the consent of the person who was entitled to give permission for the damage to be caused
b) they believed they had the consent of the person whom they thought was entitled to give permission for the damage to be caused
c) they believes they would have had the consent of person entitled to give permission if that person had known of the damage and the circumstances
d) They believed they would have had the consent of the person whom they thought was entitled to give permission if that person had known of the damage and the circumstances
Lawful Excuse (Need of Protection): How is this established
Subjective and Objective Test
- Can be argued if (1) they believed the property was in immediate need of attention (2) they believed that the means of protection they adopted were reasonable regard to all the circumstances
(1) Real Purpose
- court must be satisfied that D believed their action was indeed protecting the property and court will then rule as to whether this amounts to protecting property (objective)
(2) Immediate need of protection
- Subjective test: defendant must honestly believe this
(3) Reasonable
- Subjective Test: Defendant judged on own beliefs
SCD: ‘intend to damage or destroy property or be reckless…’ how is this established?
Test for recklessness is subjective
- accused judged on basis of their own state of mind
- satisfied if defendant was aware of risk or damage and unreasonably took it
SCD: If the defendant honestly mistook the property as their own, can they satisfy the MR for criminal damage?
No - this MR requires actual knowledge
Is any special protection afforded to those who criminal damage during non-peaceful protests (in the ECHR)?
No
AR of Aggravated Criminal Damage
Destroy or damage property
