Criminal Damage Flashcards
What constitutes basic criminal damage?
The offence of basic criminal damage offence may be broken down into five parts:
* Destroy or damage
* Property
* Belonging to another
* Without lawful excuse (this will be covered in a separate section)
* Intention or recklessness as to the damage or destruction of property belonging to another
What constitutes damage for criminal damage offences?
mischief or harm done to property, and that in order to constitute damage it is unnecessary to establish such definite or
actual damage as renders the property useless or prevents it from serving its normal function
The defendants had painted silhouettes on a pavement in whitewash as part of a demonstration against Hiroshima. The Local Authority had employed a ‘graffiti squad’ to clean the pavements, despite the fact that the pictures would eventually have been washed away by the rain.
The court held this to be damage as damage need not be permanent. It was relevant that time, effort and money had been spent in restoring the pavement to its original state.
Mud was spread on the walls of a police cell. This cost £7 to remove and was held to be damage.
The court held that spitting on a policeman’s raincoat was not criminal damage. It was argued that the spittle could be wiped away with a cloth to return the raincoat to its original state without a mark or stain.
[Criminal damage includes] not only permanent or temporary physical harm but also permanent or temporary impairment of value or usefulness.
A case where F stuffed his blanket down the toilet in his prison cell and the repeatedly flushed the toilet. This flooded the cell. Although the floor was waterproof and the blanket was washable, this constituted damage as both were temporarily unusable.
What is property?
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.
For the purposes of this subsection mushroom” includes any fungus and “plant” includes any shrub or tree.
In R v Whitely (1991) 93 Cr App R 25, the court held that information does not fall within the definition of ‘property’ contained in (s 10(1)).
What does belonging to another mean?
Section 10(2)
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.
It can be seen that property can belong to more than one person. Where D owns property it can still belong to another, such as a co-owner. If the property is mortgaged it will also belong to the bank or mortgage company by virtue of s 10(2)(c).
What is the mens rea for basic criminal damage?
The mens rea for basic criminal damage is the intention or recklessness as to the destruction or damage of property belonging to another.
Intention is to be given its ordinary meaning (R v Moloney [1985] 1 AC 905) and therefore requires consideration of whether, at the time D carried out the actus reus, it was D’s aim or purpose to destroy or damage the property belonging to another.
Key case: R v G [2003] UKHL 50
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.
It follows that in our judgment no
offence is committed under this section if a person destroys or causes damage to property belonging to another if he does so in the honest though mistaken belief that the property is his own, and provided that the belief is honestly held it is irrelevant to consider whether or not it is a justifiable belief.
Therefore, while ignorance of the criminal law is no defence, this case is an example of how ignorance of the civil law can prevent liability.
What are the requirements for basic arson?
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.
What defences apply to criminal damage?
- Any general defence: Where relevant, can apply to any offence of criminal damage/arson
under (s 5(5)); or - Section 5(2) 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 the next section).
Section 5(2) lawful excuse defences
There are two lawful excuse defences in s 5(2):
* 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.
When does belief of consent defence actually apply?
- Section 5(2)(a) operates where the defendant believes that the owner would have consented to the damage; and
- Section 5(3) says that the defendant’s belief need not be reasonable. It is only necessary for it to be honestly held.
The court confirmed that the test was subjective. Applying s 5(3), the court held that Dickinson was entitled to the defence under the s 5(2)(a), irrespective of whether the belief was reasonable, even, as here, where it resulted from the defendant’s intoxication.
Provided the defendant honestly believes that the owner of the property has or would have consented to the damage to property, the defendant’s motive for causing the damage is irrelevant to s 5(2)(a), even where the motive is to perpetrate a fraud. Criminal damage is not an offence of dishonesty.
he owner of a factory in financial difficulties had apparently said to D: ‘There is nothing like a good fire for improving the financial circumstances of a business’. D took this as an instruction to set fire to the factory, which he did.
Held: His conviction for arson was quashed, the Court of Appeal holding that he was entitled to the s 5(2)(a) defence.
What are the limits to the belief of consent defence?
The QBD dismissed his appeal, holding that a belief, however powerful, genuine and
honestly held, that God had given consent was not a lawful excuse under the domestic law of England.
When does the acts to protect property defence apply?
(a) R v Baker & Wilkins: The defendant must act to protect property (pets but not people).
(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.
What other lawful excuses apply to criminal damage?
Section 5(5) preserves the availability of the general defences to criminal offences such as self-defence, and duress.
What are the requirements for aggravated criminal damage?
A person who without lawful excuse destroys of damages any property, whether belonging to himself or another—
(a) intending to destroy or damage any property or being reckless as whether any property would be destroyed or damaged; and
(b) intending by the destruction or damage to endanger life of another or being reckless as to whether the life of another would be thereby endangered; shall be guilty of an offence.
What is the actus reus for aggravated criminal damage?
The offence of aggravated criminal damage falls under s 1(2) (or s 1(2) and s 1(3) if the charge is aggravated arson).
* Destroy or damage (by fire)
* Property (s 10(1))
* Belonging to another s 10(2) or himself.
While the actus reus of aggravated criminal damage/arson requires damage or destruction to property:
* A defendant can commit aggravated criminal damage to D’s own property.
* The lawful excuse defences in the s 5(2) do not apply. However, a defendant might
nevertheless have a lawful excuse if any of the general defences to criminal offences apply (s 5(5)).
* As a matter of actus reus, it is irrelevant whether the life of another was actually endangered.
What is the mens rea for aggravated criminal damage?
Section 1(2)(a): Intention or recklessness as to the destruction or damage of property (by fire);
and
* Section 1(2)(b): Intention or recklessness as to the endangerment of life by the damage or destruction (by fire).
