Criminal damage Flashcards
Simple criminal damage
The basic offence of simple criminal damage is defined as:
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.
Actus reus
The actus reus of simple criminal damage is made up of four key elements. The defendant must:
(a) destroy or damage
(b) property
(c) belonging to another
(d) without lawful excuse.
Actus reus: Destruction or damage
Actus reus: Property
The criminal damage must be to property and this is defined in s 10(1) of the CDA 1971.
Only tangible property is covered so a thing in action, for example a bank account, cannot be damaged. It includes both real property, such as land and buildings, and personal property including money. With regard to animals and plants, the law takes account of the circumstances, primarily whether the item is wild or not.
Animals are included:
(a) if tamed or ordinarily kept in captivity (pets and zoo animals); or
(b) if they have been, or are being, reduced into possession (for example, a rabbit that has been snared).
A similar approach is taken to plants, so flowers growing in a local authority park may be damaged, but wild mushrooms, fruit, flowers, foliage and plants cannot.
Actus reus: Belonging to another
The simple offence of criminal damage cannot be committed against a person’s own property and, usually, whether property belongs to another will be straightforward. Property will be treated for the purposes of the CDA 1971 as belonging to anyone who has legal ownership, for example the registered owner of a car or a house, but the definition is wider than this.
Section 10(2) provides some additional guidance, specifically that it includes property over which the victim has:
* custody or control;
* a proprietary right or interest; or
* a charge.
Lawful excuse
The law sets out two (non-exhaustive) situations where a defendant has a lawful excuse, and these can be found in s 5 of the CDA 1971. However, although an accused may rely upon the two statutory lawful excuses as a defence for simple criminal damage or arson, they do not apply to aggravated criminal damage.
Lawful excuse: Belief in consent
The defendant will not be guilty of criminal damage if they had an honest belief that the person entitled to consent to the damage or destruction had consented or would have consented if they had known of the circumstances. This is a subjective test
Need of protection
The first question to be determined is whether the defendant’s (real) purpose was the protection of their own or another’s property. This is a two-stage process.
(i) The court must be satisfied that the accused honestly believed their action was protecting, or was capable of protecting, property (subjective). In other words, they are not simply using this reason to conceal a different one. A defendant who set fire to a room in a care home to raise awareness of the defective fire alarm system failed this test.
(ii) Having determined what the defendant’s purpose was, the court will rule as a matter of law whether this amounts to a purpose of protecting property. This is an objective test.
The defendant must also believe that the property was in need of immediate protection.
Finally, the defendant would need to satisfy the court that they honestly believed the damage or destruction was reasonable in the circumstances. Again, this is a subjective test so the defendant will be judged on their own beliefs.
Arson
Criminal damage is committed where the defendant destroys or damages property belonging to another, either intentionally or recklessly and without a lawful excuse
Aggravated arson
To conclude the analysis of aggravated criminal damage and arson, the key differences with the less serious simple offences are summarised below:
* The property damaged or destroyed does not have to belong to another.
* There is an ‘extra’ requirement to the mens rea of endangerment to life.
* The statutory defences of lawful excuses are not available, although the general defences are.
Aggravated criminal damage
There are two key differences between the actus reus of simple criminal damage and the aggravated offence.
(a) The property that is damaged or destroyed may belong to either the defendant or to another. This contrasts with the actus reus for simple criminal damage where the property must belong to someone else.
(b) The statutory defence of lawful excuse does not apply even though, rather confusingly, these words appear in the statutory definition. However, this does not preclude the defendant from relying upon a general defence.
