Criminal Damage

Question 1

Categorising
Criminal Damage
Offences

Simple Criminal
Damage

Answer 1

Either way Offence
* Racially or religiously aggravated simple
criminal damage is an either way offence
irrespective of the value of the damage
caused.
* Simple criminal damage of property valued at
E5000 or over is an either way offence.

Summary Offence
Simple criminal damage
of property valued under E5000
is a summary offence.

Fixed Penalty Notice
Simple criminal damage
of property valued under E300
can be dealt with by a
fixed penalty notice.

Graffiti Notice
A graffiti notice
can be issued in respect of
simple criminal damage
caused by graffiti
- (i.e. painting, soiling,
writing or defacing property).

Question 2

Attempts
& Simple Criminal
Damage

Answer 2

Can Simple Criminal Damage Be
Attempted?
- irrespective of its value.
R v Bristol Magistrates Coud ex parte E [1999] 1 WLR 390

Question 3

Aggravated Criminal
Damage

Answer 3

Indictable Offence
Irrespective
of the value
of the damage caused.

Question 4

Definitions Of Simple
Criminal Damage &
Aggravated Criminal
Damage
Section 1(1) & 1(2)
Criminal Damage Act 1971

Answer 4

Simple Criminal Damage
* Without lawful excuse either
* Destroy; or
* Damage:
* property:
* Belonging to another
- (NB not themselves)

Either intending or being (subjectively) reckless to cause the damage or destruction

Aggravated Criminal Damage
* Without lawful excuse either
* Destroy; or
* Damage:
* Property:
* Belonging to ether to
* Themselves: or
* Another.

Either intending or being (subjectively) reckless to cause the damage or destruction and at the time of doing so they either intended to endanger the life of another or were subjectively reckless as to whether another’s life would be endangered.

Question 5

Destruction

Answer 5

Rendered Useless
Property will be destroyed
if it has been
rendered useless.
Establishing destruction
is a question of fact.

Question 6

Damage

Answer 6

Permanent Or Temporary
Establishing damage
is a question of fact.
There is no need for the damage to be
permanent or irreparable
— it can also be temporary.

Temporary Example 1
A street artist using
water soluble paints
to paint on a pavement
Hardman v Chef Constable Avon and Somerset
(1986) Crim IR 330

Temporary Example 2
Smearing graffiti
with mud.
Roe v Kingertee
(1986) crim LR 735

Temporary Example 3
Flooding a cell
by stuffing a blanket into
a toilet
and repeatedly flushing.
R v Fiak (2005) EWCA Crim 2381

Question 7

Property
Section 10 Criminal Damage Act 1971

Categories Of Tangible
Property That Can Be
Criminally Damaged

Answer 7

Real
(Land and things forming part of the land)

Personal
(i.e. moveable things that can be owned)

Money

Wild Creatures
It will not be possible
to criminally damage a wild animal —
unless it falls it falls into any of the following
exceptional categories…

Exception 1
The wild animal has been tamed.

Exception 2
The wild animal is ordinarily
kept in captivity.

Exception 3
The wild animal has been either:
*Reduced into possession; or
*Is in the course of being
reduced into possession.

Mutilation Of Pets Or Livestock
Yes
Criminal damage
offence

Question 8

Categories Of Tangible
Property That Cannot
Be Criminally Damaged

Answer 8

Intangible Property e.g. TM, (C), (R)

Mushrooms
Flowers
Fruit
Foliage
…growing wild on anv land.

Wild Plants Damaged On Public
Or Private Land
No offence

Cultivated Plants On Public Or
Private Land Damaged
Offence

Question 9

Who Will Property
Belong To?
Section 10 Criminal Damage Act

Answer 9

Who Will Property Belong To?
Property belongs to the person who has either:
* Custody or control of it;
*A proprietary right or interest in it; or
* Has a charge on it.

Can Property Belong To More Than
One Person At The Same Time?
Yes

Question 10

Damage To Whose
Property?
Simple Criminal Damage
— Narrower

Answer 10

General Rule
Simple criminal damage relates only to
destroying or damaging property
belonging to another
(as opposed to them).
Generally - it will not be possible
to commit simple criminal damage
by destroying or damaging
one’s own property.

Exception
The property the person damages belongs to both
themselves and another - by virtue of either:
* Joint ownership — i.e. a proprietary interest:
* Another party has custody or control of the property; or
* Another party has a charge over the property.

Question 11

Damage To Whose
Property?
Aggravated Criminal Damage
- Wider

Answer 11

Wider
The damage or destruction
of property
belonging either to
oneself or another
- if accompanied by the requisite mens
rea to endanger the life of another.

Question 12

Mens Rea Applicable
To Both Simple
Criminal Damage
And Aggravated
Criminal Damage

Answer 12

Mens Rea For Both Offences?
For both offences - it is necessary to
establish that the person either:
*Intended; or
*Was subjectively reckless
.that damage or destruction would
be caused.

Question 13

Definition Of
Subjective
Recklessness?
2 steps

Answer 13

Step 1
The defendant is
subjectively aware of the risk
(i.e. they foresee the risk)
of the consequence of either
destruction or damage to property
Put simply - they have
internally registered the risk.

step 2
They nevertheless
go ahead and
unreasonably
take the risk anyway

Question 14

Additional “Bolt On”
Mens Rea Specific To
Aggravated Criminal
Damage

Answer 14

Bolt On Mens Rea
At the time of causing the damage or
destruction - the person either:
* Intended to endanger another’s life; or
* Was subjectively reckless as to
whether another’s life would be
endangered.

Foresight Of Endangerment
It does not matter
if the actual damage caused
turned out to be minor.
What matters is that
damage or destruction was caused,
and the defendant subjectively foresaw
the risk of endangerment to the life of another
- yet took the risk anyway.

The Damage Must Cause
Endangerment
The actual damaqe caused
to the property
- must create the potential for
endangerment to life.

Bullet Created Endangerment —
No Offence
R v Steer(1988) AC 111

Damaged Shards Of Glass
Creates Endangerment — Offence

The Endangerment Must Relate
To The Life Of Another
The endangerment
must relate to the life of another
-the mens rea to
endanger one’s own life
will not suffice.

Question 15

Basic Arson
& Aggravated Arson
Section 1(3) Criminal Damage Act 1971

Answer 15

Similarities
The arson and aggravated arson offences
are identical to those of
basic criminal damage
and aggravated criminal damage
- except for…

Difference 1
The damage is
caused by fire
in arson offences

Difference 2
The penalties differ between
basic criminal damage
and basic arson
Penalty In The Crown Court
— Life Imprisonment
Penalty In The Magistrates Court
— 6 Months Imprisonment And / Or A Fine

Difference 3
Arson is an either way offence
irrespective of its value
There is no value differential in establishing the
category of basic arson — i.e. it makes no difference
whether the property damaged by fire was worth more
or less than €5,000,
Whereas there is for basic criminal damage.

Question 16

Deaths Resulting
From Arson —
Constructive
Manslaughter

Answer 16

Convict For Both Offences
If a death is caused
by arson of premises —
can convict for both
arson and constructive manslaughter
R v Willoughby [20041 EWCA Crim 3365.

Question 17

DEATHS CAUSED BY ARSON OF PREMISES

Answer 17

MORE THAN ONE OFFENCE CAN BE COMMITTED
If a death is caused by arson of premises – it is possible to convict the defendant of both:
* Arson; and
* Constructive manslaughter.

CONSTRUCTIVE MANSLAUGHTER TEST
The 3 step test for constructive manslaughter would be satisfied (see Homicide module for further details) in such circumstances as:
* The arson element will constitute an inherently unlawful act that causes death – thereby satisfying the actus reus of the offence;
* A reasonable person would foresee that fire setting would pose a risk of some physical harm; and
* Providing the defendant had been at least subjectively reckless that destruction or damage would be caused to property – the requisite mens rea would also be present.

Question 18

Threats To Destroy
Or Damage Property
Section 2 Criminal Damage Act 1971

Answer 18

Actus Reus
An offence will be committed
by a person who
without lawful excuse
- makes a threat to another.

Mens Rea
..intending
(NB – the offence is
complete at this point)
for them to fear
that the threat
would be carried out to either..

Threat 1
* Destroy or damage;
* Any property;
* Belonging to either
* The person threatened (e g. — I’ll smash your windows): or
* A 3rd party; (e.g. I’ll smash your friend’s windows).

Threat 2
* Destroy or damage;
* Their own property;
* In a way they know is likely to endanger the life of either:
* The person threatened; or
* A 3rd person.

Question 19

When Is The Offence
Complete?

Answer 19

Intent Offence
The offence is complete
at the time
the threat is made
- if the person making the threat
intended
the person to believe
the threat would be carried out.

No Result Is Required
The person threatened
does not need to believe
that the threat will be carried out.

Will An Empty Threat Commit
The Offence?
Yes
The person making the threat
need not intend
to actually carry out the actions threatened
— i.e. an empty threat will suffice
if the person making the threat
intended to cause fear that the threat would in fact
be carried out.

Can The Offence Be Committed
Via An Impossible Threat?
Yes
- the offence will be complete
once the intent to cause the fear of the
threat being carried out is formed.
For example: Making a threat to throw a brick
through a reinforced window

Question 20

Whose Property
Must The Threat
Relate To?

Answer 20

Where There Is No Intention To
Cause Fear Of Endangerment Of Life
The property that the threats relate to must
belong to another - i.e. either:
*The person threatened; or
*A 3rd party.

Where There Is The Intention To
Cause Fear Of Endangerment Of Life
The property that the threats relate to can
belong to either:
*The person making the threats; or
*Another person.

Question 21

Having Articles With
The Intent To Destroy
Or Damage Property
Section 3 Criminal Damage Act 1971

Answer 21

An offence will be committed by a
person who has anything:
* In their custody; or
* Under their control..

-intending (NB — the offence is
complete at this point) - without
lawful excuse to either:
* Use it themselves; or
*Cause or permit another to use
it…

.to destroy or damage either:
*Any property belonging to some other person
- (NB — not property belonging to the person
permitted to use the item); or
* Their own or the user’s property in a way they
know is likely to endanger the life Of some
other person - (NB — not the life of the person
permitted to use the item).

Question 22

When Is The Offence
Complete?

Answer 22

Intent Offence
The offence is complete once the person
has:
*An item under their custody and
control; and
* The requisite intention to destroy or
damage property themselves or allow
another to destroy or damage
property

Is The Result Of Destruction Or
Damage Of Property Necessary?
No

Question 23

Custody or Control

Answer 23

Think Wide
The concept of
custody or control is very wide.
The item need not
be in the person’s physical
possession.
For example - an item kept in a lock up
garage or in a bedroom would suffice.

Question 24

Causing or
Permitting Use

Answer 24

The intention to allow a friend
to use the item
to destroy or damage property
will constitute an offence.

Conditional Intent
The offence will still be
committed
even if the person
keeps an article
‘just in case’
of the need arising in future.
R v Buckingham (1976) 63 Cr App R 158

Question 25

The Intention To
Destroy Or Damage
Whose Property?

Answer 25

Where There Is No Intention To
Cause Destruction Or Damage That
Is Likely To Cause Endangerment Of
Life
The property
they intend
to destroy or damage
must belong to
some other person.

No Offence
* If there is no intention to cause damage
likely to endanger life; and
* The property they intend to destroy or
damage belongs to either:
* Them; or
* The person whom they intend to
permit to use the item.

Where There Is The Intention To
Cause Destruction Or Damage
That Is Likely To Cause
Endangerment Of Life
The propertv they intend to destroy or damage can
belong to either:
* Them; or
* The person whom they intend to permit to use the item.

Question 26

SPECIFIC DEFENCES

Answer 26

THE 2 SPECIFIC DEFENCES
There are also 2 additional specific defences of lawful excuse available:
* Consent; and
* Protection.

WHICH DAMAGE OFFENCES DO THE 2 SPECIFIC DEFENCES RELATE TO?
The additional specific defences are only available to offences of:
* Basic criminal damage;
* Threats to destroy or damage property – except where the intention is to endanger life; and
* Having articles with the intent to destroy or damage property – except where the intention is to endanger life.
The specific lawful excuse defences of consent and protection do not apply to the offence of aggravated criminal damage with the intent to endanger life – only general defences are available to this offence.

Question 27

Defences
2 categories…

Answer 27

General Defences
Apply to the following offences…

• Basic criminal damage.
• Aggravated criminal damage,
• Basic arson,
• Aggravated arson.
• Threats to destroy or damage property. and
• Having articles With the Intent to destroy or damage property.

Specific Defences
Section 5(2)(a)&(b) Criminal Damage Act 1971
Only available to the offences of…

• Basic criminal damage;
• Threats to destroy or damage property — except
  where the intention is to endanger life; and
• Having articles with the intent to destroy or
  damage property except where the intention is
  to endanger life.

Question 28

Specific Defence 1
Consent

Answer 28

Subjective Test
It is a defence if
at the time of the act
the person causing
the destruction or damage
honestly believed
(subjective test)
- that either:

Belief 1
A person entitled
to give consent
to the destruction or damage
had done so.

Who Must They Believe That
Consent Would Be Forthcoming
From?
The person who was entitled to give
consent — e.g. the owner.
A belief that god consented will not
constitute a defence.
Blake v DPP (1993) Crim LR 586

Belief 2
The person who could have consented to the
destruction or damage taking place - would
have consented, if they had known of the:
* Destruction or damage; and
* Its circumstances.

What If The Honestly Held Belief
Was Mistaken?
It does not matter
- provided the belief is honestly held,
then the defence will be established.
NB - subjective test.

A drunk person
who broke a window
to mistakenly get into the wrong house
- successfully raised the defence of
consent.
Jaggard v Dickinson (1981) QB 527

Question 29

Specific Defence 2
Protection

Answer 29

It is a defence to either:
* Destroy, or damage property;
*Threaten to either destroy, or damage
property; or
*Intend to use, or cause or permit the use of
something in order to destroy, or damage
property..

…in order to protect either:
* Property that belongs to:
* Themselves; or
* Another
*A right or interest in property that they believed to
be vested in either:
* Themselves; or
* Another..

.provided that at the time of the act —
they believed that both:
* The property, right or interest was in
immediate need of protection; and
* The means used were reasonable in
the circumstances.

There Must Be An Immediate
Need Of Protection
Damaged fence at a nuclear base
to protect from the risk
of a nuclear war.
No defence
— as there was no immediate risk
of a nuclear war.
R v Hill (1986) 89 Cr App R 74

Protection And The
Reasonableness Of The Damage
The damage or destruction caused
to protect the property
must be reasonable
and proportionate
to the risk to property averted.

Question 30

Police Powers —
Warrant To Search
Premises
Section 6 Criminal Damage Act 1871

Answer 30

An application can be lodged at a Magistrates Court for a
warrant to search premises for - anything that either:
* Could be used; or
* Is intended to be used
.to either:
* Destroy; or
* Damage
. property.

Question 31

Grounds For Granting
The Warrant?

Answer 31

If a Justice of the Peace has reasonable cause
to believe that any person either:
* Has in their custody;
* Has under their control; or
* Has on their premises…

.anything which there is reasonable cause to
believe either:
*Has been used; or
* Is intended for use
..without lawful excuse…

..to either:
* Destroy or damage property belonging to
another; or
* Destroy or damage any property in a way
likely to endanger the life of another…

.then the justice may grant a warrant
authorising any constable to:
* Enter the premises (if need be by force);
* Search the premises for that thing; and
* Seize anything which they believe to have been
used or is intended to be used.

Question 32

CONTAMINATION OR INTERFERENCE OF GOODS

3 SEPARATE OFFENCES

Answer 32

There are 3 separate offences:
* Contamination offence;
* Threats offence; and
* Possession offence.

Question 33

CONTAMINATION OFFENCE

Answer 33

• The actus reus of the offence - the CAP acronym;
• The mens rea of the offence - the PIE acronym;
• When the offence is complete - when the intent to cause PIE is formed;
• The fact that there is no need for the result of PIE; and
• The importance of identifying where goods have been placed.

Question 34

THREATS OFFENCE

Answer 34

• The timing of the threat - it can relate to conduct that has already taken place or a threat to carry out actions in the future;
• Who can carry out the threatened action - it can be the threatener or another;
• What the threat relates to - carrying out CAP;
• The mens rea of the offence - this time the narrower PE acronym (I - injury does not apply to this offence);
• When the offence is complete - when the intent to cause PE is formed;
• The fact that there is no need for the result of PE; and
• The defence of reporting in good faith.

Question 35

Contamination
Offence
Section 38(1) Public Order Act 1986

Answer 35

Actus Reus
It is an offence to either:
* Contaminate or interfere with goods;
* Make it appear that goods have been contaminated or
interfered With, or
* Place goods which are or appear to be contaminated or
interfered in a place where goods of that description are
sold, supplied, consumed, or used

Actus Reus - C.A.P

Contaminate or interfere
Appear
Place

Mens Rea
Intending (NB — the offence is complete at this point) to cause
either:
* Public alarm or anxiety;
* Injury to members of the public consuming or using the
goods; or
* Economic loss to any person by reason of goods being
shunned or steps being taken to avoid any alarm, anxiety,
injury or loss.

Mens Rea - PIE
Intending to cause either:

Public alarm or anxiety
Injury
Economic loss

Is The Result Of P.I.E. Required?
No
-This is an
intent offence.

Goods Placed In A Area
Unrelated To Their Nature?
No offence
Not left in a place (i.e. near to)
where goods of that
description
are sold, supplied,
consumed, or used

Question 36

Threats Offence
Section 38(2) Public Order Act 1986

Answer 36

Actus Reus?
It is an offence to either:
* Threaten that in future, or
* Claim that already:
Either:
* They, or
* Another…

..have or will either:
* Contaminate or interfere with goods;
* Make it appear that goods have been contaminated
or interfered with; or
* Place goods which are or appear to be contaminated
or interfered in a place where goods of that
description are sold, supplied, consumed, or used

What Act Does The Threat /
Claim Relate To?
Either:
* Threatener; or
Another person
…has or will cause a C.A.P consequence.

Mens Rea
Intending (NB — the offence is complete at this point)
to cause either:
* Public alarm or anxiety; or
* Economic loss to any person by reason of goods
being shunned or steps being taken to avoid any
alarm, anxiety, injury or loss.

Mens Rea - P.E.
Intending to cause either:

Public alarm or anxiety
Economic loss

Is The Result Of P.E. Required?
No
- intent offence.

Question 37

Reporting In Good
Faith
Section 38(6) Public Order Act 1986

Answer 37

Defence
It is not an offence to
report in good faith
or warn
that an act of contamination
has taken place.