Criminal Damage Flashcards
What are the 4 criminal damage offences?
Simple criminal damage
Arson
Aggravated criminal damage
Aggravated arson
What are the elements of the AR for simple criminal damage?
4 elements:
1) Damage or destruction
- Damage can be permanent or temporary
- If expense is needed to rectify the damage, that will satisfy the AR
- If there is impairment of value or usefulness, by removing a part of a machine for example = damage
2) Of property
- Real property or tangible, personal property
- Animals which are tamed are property, but wild ones are not
- Wild mushrooms, fruit, flowers, foliage is not property
3) Belonging to another
- Includes legal owner, as well as someone with control, a proprietary right or interest, or a charge over the property (mortgage lender)
4) [without lawful excuse] - looked at as a defence
What are the elements of the MR for simple criminal damage?
2 elements:
1) D must intend or be reckless as to damage or destruction
- Ordinary meanings of intention/recklessness
2) D must know or believe that the property belongs to another
- Judged subjectively on their honest beliefs
What are the required elements for ‘arson?’
Simple criminal damage by fire
- The AR + MR are the same for simple criminal damage
- This must also be done without lawful excuse for the offence to be made out
For simple criminal damage and arson, one of the AR elements is ‘without lawful excuse.’ There are two forms of lawful excuse under s5.
What is the 1st in relation to consent of property owner?
D has a lawful excuse if they had an honest belief that the person D believes to be entitled to consent, either had consented or would have consented if they had known of the damage/destruction and its circumstances
- Even if the belief is due to intoxication, it can still provide lawful excuse if it is honestly held
- Subjective test
For simple criminal damage and arson, one of the AR elements is ‘without lawful excuse.’ There are two forms of lawful excuse.
What is the 2nd in relation to property being in need of protection?
D has a lawful excuse if they had an honest belief that the property is in immediate need of protection and that the means adopted were reasonable, having regard to all the circumstances
- 1) Did D honestly believe their action was capable of protecting property (subjective)
- 2) Objective test then to see if the court believes that this amounts to a purpose of protecting property
- 3) If met, then look at whether D had a belief that the property was in immediate need (subjective test)
- 4) Also, look at whether D had a belief that the damage or destruction used was reasonable (subjective test)
What are the elements of the AR for aggravated criminal damage?
3 elements:
1) Damage or destruction
2) Of property
- Doesn’t need to belong to another
3) Without lawful excuse
No elements in AR in relation to endangering life – this doesn’t have to occur, but must be intended/reckless to
What are the elements of the MR for aggravated criminal damage?
Intention or recklessness as to damage or destruction; and
Intention or recklessness as to the endangerment of life through the damage/destruction
- Test for recklessness is subjective
What are the required elements for aggravated arson?
Aggravated criminal damage by fire
- The same AR + MR elements as for aggravated criminal damage
Give a summary of lawful excuse as it applies to all the criminal damage offences
1) If looking at an offence of simple criminal damage or simple arson, look at the lawful excuses set out in s5 above, relating to D’s honest belief
- If s5 doesn’t apply, consider general defences
2) If looking at aggravated criminal damage or aggravated arson or if s5 doesn’t apply to simple criminal damage or arson, consider the general defences of:
- Intoxication
- Self-defence
- Prevention of crime
2a) Lawful excuse under s5 therefore does not apply to the aggravated forms of the offences
