Criminal Damage

Question 1

What is required for basic crim damage?

Answer 1

• Destroy or damage
• Property
• Belonging to another
• Without lawful excuse
• Intention or recklessness as to the damage or destruction of property belonging to another

Question 2

What constitutes as destroy or damage?

Answer 2

‘[Criminal damage includes] not only permanent or temporary physical harm but also permanent or temporary impairment of value or usefulness.’

Whether criminal damage has occurred is a
matter of fact and degree but, usually, if expense is incurred in rectifying the consequences of
the defendant’s act, this will be sufficient. An example would be:
*
drawing on a pavement using soluble chalks because the local authority would have to
pay the clean- up costs – Hardman v Chief Constable of Avon and Somerset Constabulary
[1986] Crim LR 330; but not
*
spitting on a police officer’s raincoat because this could simply be wiped off to restore
the jacket to its previous condition – A (a juvenile) v R [1978] Crim LR 689. (The lack of any
attempt to do so led to a small stain.)

Question 3

What constitutes as property for criminal damage?

Answer 3

‘In this Act “property” means property of a tangible nature, whether real or personal, including money and-
(a) including wild creatures which have been tamed or are ordinarily kept in captivity, and any other wild creatures or their carcasses if, but only if, they have been reduced into possession which has not been lost or abandoned or are in the course of being reduced into possession; but
(b) not including mushrooms growing wild on any land or flowers, fruit or foliage of a plant growing wild on any land.

Question 4

What constitutes as belonging to another?

Answer 4

‘Property shall be treated for the purposes of this Act as belonging to any person—
(a) having the custody or control of it;
(b) having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest); or
(c) having a charge on it.’

Question 5

What constitutes as recklessness for crime damage?

Answer 5

The House of Lords, stated that to convict a person of reckless criminal damage the prosecution must prove that:
a) at the time of committing the actus reus, the accused was subjectively aware of a risk; and
b) in the circumstances known to the accused, it was objectively unreasonable for the accused to take that risk.

Question 6

What is required for arson?

Answer 6

Arson is criminal damage by fire, however slight. Basic arson is charged under s 1(1) ands 1(3) CDA 1971. Below you can see the additions to the actus reus and mens rea:
Actus reus
* Destroy or damage by fire
* Property
* Belonging to another
* Without lawful excuse
Mens rea
Intention or recklessness as to the destruction or damage of property belonging to another by fire.

Question 7

What constitutes as a lawful excuse?

Answer 7

• Any general defence- where relevant, can apply to any offence of criminal damage/ arson under the CDA 1971 (s 5(5)); or
• Section 5(2) CDA 1971 lawful excuse defences- where relevant, can apply to basic criminal damage or basic arson (but not the aggravated form of these offences which are covered in a separate element).

There are two lawful excuse defences in section 5(2) CDA 1971:
* section 5(2)(a): operates where the defendant believes that the owner would have consented to the damage; and
* section 5(2)(b): operates where the defendant acts to protect their or another’s property.

Question 8

Does D’s belief for lawful excuse need to be reasonable?

Answer 8

No, only necessary for it to be honestly held.

This includes when D is intoxicated.

Question 9

Can God consent to the damage?

Answer 9

however powerful, genuine and honestly held, that God had given consent was not a lawful excuse under the domestic law of England.

Question 10

What are the four requirements for the section 5(2)(b) defence ?

Answer 10

a) R v Baker & Wilkins - The defendant must act to protect property.
b) Section 5(2)(b)(i)- The defendant must believe that the property was in immediate need of protection (subjective test, see s 5(3)).
c) Section 5(2)(b)(ii)- The defendant must believe that the means of protection adopted are reasonable (subjective test, see s 5(3)).
d) R v Hunt- The damage caused by the defendant must be (objectively) capable of protecting the property.

Question 11

To which offences do the lawful excuse defences within the Criminal Damage Act 1971 section 5(2) potentially apply?

Answer 11

Basic criminal damage and basic arson

Question 12

Mike is very proud of his car. He believes that its paintwork is being damaged by pollutants caused by a nearby factory. Mike feels that the only way to stop any further damage to his car he must get rid of the factory, so he burns it down.

Which defence, if any, could you argue on behalf of Mike?

Answer 12

Section 5(2)(b)- Mike believes that he must act to protect property

Question 13

What is required for aggravated crim damage or arson?

Answer 13

Actus reus
* Destroy or damage (by fire)
* Property- s 10(1)
Mens rea
* Intention or recklessness as to the destruction or damage of property (by fire).
* Intention or recklessness as to the endangerment of life by the damage or destruction (by fire).

Question 14

Does life need to be endangered for aggravated crim damage or arson?

Answer 14

No

Question 15

How should danger to life arise foraggravated crim damage or arson?

Answer 15

Danger to life must arise from the damaged property, not the means of damaging it. If the damage is caused by fire, the risk to life will always be from the damaged property, R v Steer.

Question 16

Do the lawful excuse defences in section 5(2) apply to aggravated criminal damage or aggravated arson?

Answer 16

No

Question 17

A farmer is on his farm with a shotgun for shooting vermin. Suddenly he is passed by a car being driven haphazardly by a child. He recognises the car as belonging to his tractor driver. The car is heading straight for the farmer’s own vehicle. The farmer raises his shotgun and shoots out two of the cars’ tyres. The farmer is charged with aggravated damage.

Which of the following best explains the application of the lawful excuse defences?

The farmer can use both lawful excuse defences as the reasonable person would believe in the owner’s consent and that his car is in immediate need of protection

The farmer cannot use the lawful excuse defences as he has neither the owner’s consent nor does he act reasonably to protect his own property

The farmer cannot use the lawful excuses defences for an aggravated damage offence

The farmer can only use the lawful excuse of belief in the owner’s consent as he has not used reasonable force to protect his car from immediate harm

The farmer can use both lawful excuse defences as he genuinely believes the tractor driver would consent and that his car is in immediate need of protection

Answer 17

The farmer cannot use the lawful excuses defences for an aggravated damage offence

Correct. Section 5(1) Criminal Damage Act 1971 states that the lawful excuse defences in s 5(2) do not apply to aggravated criminal damage or aggravated arson.
The other options, some of which are plausible if this was a case of simple criminal damage, are incorrect.
Both s 5(2)(a) and (b) are based on the defendant’s genuine beliefs, either in the owner’s consent or that the property to be protected is in immediate need of protection and that the means adopted by the defendant are reasonable. The fourth requirement of the defence under s 5(2)(b), introduced in case law such as R v Hunt, asks whether the steps taken by the defendant are capable of protecting the property. It does not require the steps to be reasonable.

Question 18

A man puts a lighted rag through a letter box. He wants to burn the house down. The flames destroy a rug and damages a chair and some coats in the hall, but all the doors from the hall are shut and the fire eventually burns itself out on the stone floor beneath the rug.

Is the man criminally liable for aggravated arson?

The man will not be liable as no life was endangered

The man will be liable because even if he did not intend to endanger life by the damaged property, there was an obvious risk of endangering life by burning the house down

The man will be liable if he intended or was reckless as to endangering life by burning the house down

The man will be liable if he intended or it was virtually certain that life would be endangered by burning the house down

The man will be liable because when damage is caused by fire, there is always a risk to life from the damaged property

Answer 18

The man will be liable if he intended or was reckless as to endangering life by burning the house down

Correct. See R v Dudley. The words destruction and damage in s 1(2) Criminal Damage Act 1971 refer to the destruction and damage intentionally or recklessly caused (burning down the house), not the destruction and damage which actually occurred (damage done to the rug, chair and coats). The man’s mens rea as to endangering life will be established by reference to the damage he intended or saw a risk of causing.
The other options are incorrect.
For aggravated criminal damage or aggravated arson, no life need be endangered in fact, R v Sangha.
If the man did not directly intend to endanger life, recklessness should be considered as an alternative rather than oblique intention.
What Lord Bridge said in R v Steer, is that in cases where D intended or saw a risk of endangering life by fire it will be from damaged property. He did not say that whenever D damaged property by fire there would be a risk of endangering life.
Where it is alleged that the defendant was reckless as to endangering life by the damage, the test as set out in R v G will be applied. Consider first whether the defendant did see the risk. Next, apply the objective test – was the risk seen by the defendant a reasonable one to take in the circumstances known to the defendant?

Question 19

A woman owns a coffee shop in her local town. A new coffee shop has opened at the other end of the high street which is affecting the woman’s business. Late one night the woman goes to the new coffee shop with a can of petrol. A light is on in a first-floor window above the shop and she can see the shadow of a person in that light. However, she is determined to destroy the new coffee shop. She breaks a window, pours petrol through the broken window and then throws in a lighted rag. The man living in the flat above the coffee shop escapes down an external fire escape at the back of the building. The woman is being charged with aggravated arson.

Which of the following questions are most likely to result in the woman being found to have the endangering life element of the mens rea for aggravated arson?

Was it the woman’s aim or purpose to endanger life by setting fire to the shop?

Did the woman see that it was virtually certain that life would be endangered by setting fire to the shop?

Did the woman see the risk of endangering life by setting fire to the shop and was the risk she saw an unreasonable one to take in the circumstances known to her, bearing in mind, that there is no social utility in the woman’s actions

Was it virtually certain that life would be endangered by setting fire to the shop and did the woman see that it was virtually certain?

Did the woman see the risk of endangering life by setting fire to the shop and was the risk she saw an unreasonable one to take?

Answer 19

Did the woman see the risk of endangering life by setting fire to the shop and was the risk she saw an unreasonable one to take in the circumstances known to her, bearing in mind, that there is no social utility in the woman’s actions

Correct. This is the test from R v G.
The other options, while plausible are incorrect or not the best answer.
The test in R v G is a two-part test. The second part is objective and requires a consideration of whether the risk seen by the defendant was, objectively, an unreasonable one to take in the circumstances known to the defendant.
Where the mens rea of an offence is defined as intention or reckless, if direct intention cannot be established, oblique intention should not be applied. Instead, the test for recklessness should be applied.
The woman’s direct intention is to destroy the new coffee shop, not to endanger the life of the man living in the flat above. The woman is more likely to be found to have the endangering life element of the mens rea for aggravated arson by applying the test for recklessness as set out in R v G.

Question 20

A man lives in a town with two rival football teams, the Town and Rangers teams. He and most of the people in his road are avid supporters of the Town team and live near the Town stadium, where the two teams are playing each other on Saturday. On Friday night the man gets very drunk and sprays, in red paint, on his neighbour’s house, ‘If any Rangers supporters come near here, we will break their legs!’ The man’s neighbour supports the Town team and the man thinks his neighbour will be pleased. In fact, the neighbour is furious.

If the man is charged with simple criminal damage, can he rely on the lawful excuse defence of belief in the owner’s consent?

No- the man cannot use the defence because the neighbour does not consent

No- the man cannot use the defence as his belief is not a reasonable one

Yes- the reasonable person would believe the neighbour will consent to the damage

Yes- the man believes the neighbour will consent to the damage to the property

No- the man cannot use the defence as he is intoxicated

Answer 20

Yes- the man believes the neighbour will consent to the damage to the property

Correct. The defence of lawful excuse is set out in s 5 Criminal Damage Act 1971 and s 5(2)(a) is relevant here: the defendant acts in the belief that the owner consents to the damage or would do so if he knew of the damage and its circumstances. It is immaterial whether the belief is justified or not, so long as it is honestly held, s 5(3), and it does not matter that the man makes a mistake due to intoxication, see Jaggard v Dickinson.
The other options are incorrect.
The test is applied subjectively and if the defendant honestly believes that they have the owner’s consent to cause damage, the defence will apply even when that belief arises out of a drunken mistake.
The defence will also apply if the defendant honestly believes he has the owner’s consent for the damage.
The belief in consent does not have to be a reasonable one, so long as it is honest.
The defence is based on the defendant’s belief in consent. It is immaterial whether the owner does or does not consent to the damage in fact.

Question 21

Lawful excuse?

Answer 21

s 5(2)(a) – Honest belief in the owner’s consent – subjective
s 5(2)(b) – Protection of property
*
Was D’s (real) purpose the protection of property? – objective
*
If yes, did D honestly believe:
–
​ the property was in immediate need of protection; and
–
​ the means adopted were reasonable? – subjective

Question 22

Question 1
The defendant receives a text from his girlfriend telling him she no longer wants to see him.
He throws his mobile phone to the floor in anger and breaks the screen. On the way home
from art class, he decides to try and win his girlfriend back by writing ‘I love you’ in chalk
on the wall of her parents’ house. He also leaves a bunch of bluebells, which he has picked
from the roadside, in front of her door.
To remove the chalk, the parents had to purchase cleaning materials and scrub the wall
although it only took a couple of minutes to do so.
Which of the following statements describes the defendant’s liability for criminal
damage?
A The defendant is liable for criminal damage to the phone, the wall and the bluebells.
B The defendant is liable for criminal damage to the wall and the bluebells, but not
the phone.
C The defendant is liable for criminal damage to the phone and the bluebells, but not
the wall.
D The defendant is liable for criminal damage to the wall, but not the phone or the
bluebells.
E The defendant is not liable for criminal damage to the phone, the wall or the bluebells.

Answer 22

Answer
The correct answer is option D. The defendant is liable for criminal damage for the chalk
writing, despite the fact it could easily be removed, because expense was incurred in
restoring the wall to its previous condition. He is not liable for the damage to the mobile
phone as it is his own, so does not belong to another. Nor is the defendant criminally liable
for picking the bluebells, as these are wild flowers growing by the roadside so not property
within the definition of the CDA 1971. For these reasons, options A, B, C and E are wrong in
some way.

Question 23

Question 2
The defendant, aged 14 years, is at his friend’s house. The boys are pretending they
are on a survival camp in a forest and, as part of their play- acting, the defendant lights
candles around the edge of the bedroom. Although his friend is worried about the risk of
fire, the defendant reassures him they could easily put out any flames. Unfortunately, one
of the candles falls over and sets light to the curtains, which burn fiercely as the material
is particularly flammable. The boys are shocked and immediately flee the house. The fire
causes considerable damage to the bedroom.
Which of the following best describes the defendant’s criminal liability for an offence
of arson?
A The defendant is liable for arson as he intentionally damaged property belonging to
another by fire.
B The defendant is liable for arson as he recklessly damaged property belonging to
another by fire.
C The defendant is liable for aggravated arson as he recklessly endangered life.
D The defendant is liable for aggravated arson as the risk of endangering life would be
obvious to the reasonable person.
E The defendant is not liable for aggravated arson as no- one’s life was actually
endangered.

Answer 23

Answer
The correct answer is option B – the defendant is liable for arson as he recklessly damaged
property belonging to another (his friend) by fire. Although he is a child, he was aware
of his friend’s concerns but took the risk regardless. Option A is wrong because he did
not cause damage intentionally. His aim or purpose was to create the atmosphere of a
survival camp.
Option C is wrong because the defendant was confident they could put out any flames,
was ‘shocked’ by the fire and, furthermore, it appears the fire only took hold because the
curtains were particularly flammable; thus, there is no evidence the defendant was aware
of the risk of endangering life. Option D is wrong as the endangerment to life must be
apparent to the defendant (subjective) rather than to the reasonable person. Option E is
wrong as it is irrelevant whether anyone’s life was actually endangered.

Question 24

Question 3
A woman lives with her grandmother at her grandmother’s house. She has left her key
at work. On returning home she looks through the front window and is horrified to see
her grandmother lying on the floor with a cigarette smouldering by her side. The woman
grabs a large stone that she finds in the garden, smashes the window and climbs into
the house. She stubs out the cigarette and immediately telephones for an ambulance. Her
grandmother is admitted to hospital and makes a full recovery.
Has the woman committed an offence of simple criminal damage in these
circumstances?
A Yes, because the woman intentionally damaged property belonging to her
grandmother.
B Yes, because the woman has recklessly damaged property belonging to another and
is aware that the property belongs to her grandmother.
C No, because the woman may rely upon the defence of lawful excuse as a reasonable
person would have consented to the damage had they known of the circumstances.
D No, provided the court is satisfied that a reasonable person in the woman’s position
would have acted in the same way to save her grandmother.
E No, because the woman honestly believed that the property was in immediate danger
and the damage was reasonable in the circumstances.

Answer 24

Answer
The correct answer is option E as the woman honestly believed – a subjective test – that
the property (the house) was in immediate danger from the cigarette and smashing the
window was reasonable in these circumstances.
Option A is wrong because although the woman did intentionally cause criminal damage,
she will be able to rely on the defence of lawful excuse. Option B is wrong as the
defendant intentionally, rather than recklessly, damaged her grandmother’s property as she
smashed the window deliberately.
To establish the defence of lawful excuse under s 5(2)(a) of the CDA 1971, the woman’s
belief need only be an honest one (subjective) so option C is wrong. Option D is wrong as
the court will decide – objectively – what the defendant’s purpose was under s 5(2)(b) of
the CDA 1971 and this must be to protect property (and not to save the grandmother). The
statement in option D is not the correct definition of a lawful excuse.

Question 25

A man squeezed superglue into the hard drive of his colleague’s computer. The man intended only to play a practical joke by making the computer temporarily unusable.

He foresaw that his actions could cause damage to the computer and it was, in the circumstances known to him, unreasonable to take this risk.

He did not foresee that damage was a virtually certain consequence of his actions. In fact the computer was damaged beyond repair and he ought to have foreseen that this was a virtual certainty. His actions were unreasonable.

Can the man be guilty of criminal damage?

A. No, because he did not intend to cause the damage.

B. No, because he did not foresee that the damage was a virtually certain consequence of his actions.

C. No, because he was only negligent with respect to the damage.

D. Yes, because he foresaw the risk of damage and it was, in the circumstances known to him, unreasonable of him to take the risk.

E. Yes, because he should have foreseen that the damage was a virtually certain consequence of his actions and his actions were unreasonable.

Answer 25

D - Yes, because he foresaw the risk of damage and it was, in the circumstances known to him, unreasonable of him to take the risk.

Question 26

A woman holds a grudge against her former employer.

The woman goes to the former employer’s house intending to smash a window of the house with a brick. She sees a car on the drive of the house and realises that someone may be inside the house. She also realises that, if she throws the brick, the life of anyone inside the house could be endangered either by the brick or by flying pieces of glass resulting from the brick smashing the window. However, she does not intend to harm anyone or to endanger anyone’s life.

The woman throws a brick through the kitchen window. The window smashes and pieces of glass are thrown into the kitchen as a result. The son of the former employer is sitting in the kitchen. The brick flies past him and narrowly misses hitting him. He is cut by several pieces of flying glass, causing life threatening injuries.

Which of the following best describes why the woman is guilty of aggravated criminal damage?

A. She intended to throw the brick through the kitchen window and the son was injured by flying glass as a result.

B. She intended to throw the brick through the kitchen window and the son’s life was endangered by flying glass as a result.

C. She intended to throw the brick through the kitchen window and the son’s life was endangered by the brick as a result.

D. She intended to throw the brick through the kitchen window and was reckless as to whether a life would be endangered by the brick as a result.

E. She intended to throw the brick through the kitchen window and was reckless as to whether a life would be endangered by flying glass as a result.

Answer 26

E - She intended to throw the brick through the kitchen window and was reckless as to whether a life would be endangered by flying glass as a result.