Criminal Damage

Question 1

What legislation does the majority of law surrounding damage to property?

Answer 1

Criminal Damage Act 1971

Question 2

Police officers have a power of entry to search premises in order to prevent serious damage to property under what section/ legislation?

Answer 2

(s 17(1)(e) of the PACE Act 1984).

Question 3

Graffiti is among the most common forms of criminal damage. To help reduce it, what law was put in place?

Answer 3

To help reduce its prevalence the sale of containers of aerosol paint to a young person under the age of 16 is a summary offence (s 54(1) of the Anti-Social Behaviour Act 2003).

Question 4

Section 1(1) of the Criminal Damage Act 1971 describes the offence of criminal damage. It states that an offence is committed by a person who without lawful excuse:

Answer 4

Destroys or damages…

…property..
- must be something tangible (touchable)

…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.

Question 5

There are some circumstances where a person would have a lawful excuse for causing the damage. He/she would need to have an honestly held belief that:

Answer 5

They had permission from owner of property to carry out acts likely to cause the damage (e.g a recovery operator is authorised by a car owner to load the car onto a recovery vehicle, and damages it in the process).

His/her own or another’s property was in immediate need of protection by reasonable means (e.g a car had slipped down a steep embankment and was likely to slip further and a recovery operator damages it in the process of lifting it back up).

Question 6

The person carrying out the offence must either intend to cause the damage or be reckless as to whether the property would be damaged. The appropriate test of recklessness for criminal damage is:

Answer 6

A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to…

i) A circumstance when he is aware of a risk that it exists or will exist
i) A result when he is aware of a risk that it will occur

and it is, in the circumstances known to him, unreasonable to take the risk.

The person who takes the risk must be fully aware of it (extent of awareness needs to be considered, e.g naivety of children).

Question 7

The offence of criminal damage penalty?

Answer 7

Triable either way and will be tried summarily if the value of the property damaged or destroyed is less than £5000 (s 22 of the Magistrate’s Courts Act 1980).

The penalty is 6 months imprisonment and/or a fine if tried summarily, and 10 years imprisonment on indictment.

If the damage is aggravated by religious or racial hatred then the max penalty on indictment is increased to 14 years (s 30(1)) of the Crime and Disorder Act 1998).

Question 8

The offence of ‘criminal damage, life endangered’ is covered where and what does it say?

Answer 8

s 1(2) of the Criminal Damage Act 1971

Committed by a person who destroys or damages property intending (or being reckless as) to endanger life.

To prove the offence, there is no requirement for the offender to try to kill someone or for any actual injury or harm to occur.

There is only a necessity to prove that the damage was caused intentionally or recklessly and that there was potential for another to be harmed as a result of that damage being caused.

Question 9

For aggravated criminal damage, can the property belong to the offender?

Answer 9

Yes, it can belong to another person or to the offender (in contrast with the basic offence of criminal damage, where the property must belong to another).

E.g an angry man damages the breaks of his own car knowing his partner will be driving it later that day, intending her life to be endangered.

Question 10

For aggravated criminal damage, what is the penalty?

Answer 10

Triable by indictment only and the penalty is life imprisonment.

Question 11

What is arson?

Answer 11

Arson is destroying or damaging property by fire.

Question 12

Where is arson covered in the Criminal Damage Act 1971?

Answer 12

s 1(3) of the Criminal Damage Act 1971.

Question 13

How would someone be found guilty of arson?

Answer 13

At least some of the damage must have been caused by fire (excluding smoke damage).

For the offence to be proved there must be an intent or an element of recklessness in relation to the use of fire.

Question 14

For arson, what is the penalty?

Answer 14

s 1(3) of the Criminal Damage Act 1971.

If no life is endangered then arson is triable either way, with a penalty of 6 months imprisonment and/or a fine if tried summarily.

Up to live imprisonment on indictment, which the offence must be tried on if life was endangered.

Question 15

Has criminal damage occurred in the following scenario? I kick in the front door of my house causing damage to the door, have I committed the actus reus of the offence of criminal damage.

Answer 15

No

Section 10(2) defines ‘belonging to another’ as including situations where another person has an interest in the property. Damaging the front door to your own property cannot amount to the actus reus of simple criminal damage. However, if the suspect kicks the door to a house that he rents, co-owns or if the house is mortgaged, another has an interest in the property and therefore the actus reus of simple criminal damage is fulfilled.

Question 16

Lucy, aged 21, is babysitting her younger cousins. They decide to draw a colourful picture with chalks on the pavement. Which ONE of the following statements is correct.

Answer 16

Lucy has committed the actus reus of criminal damage.

The facts of this case are similar to the case of the Hardman v Chief Constable of Avon and Somerset. Usually, if expense is involved in restoring the property to its previous condition, the court is likely to find that damage is established.
It is not necessary to prove that Lucy intended to cause the damage, it is sufficient to prove that she was reckless as to whether the damage or destruction would occur.

Question 17

Section 1(2) of the Criminal Damage Act 1971 relates to Criminal Damage that endangers the life of another person. It states that

Answer 17

“A person who without lawful excuse destroys or damages any property, whether belonging to himself or another (a) intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and (b) intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby damaged”.

Question 18

There are two main differences between Simple Criminal Damage (s.1(1)) and Aggravated Criminal Damage (s.1(2))

Answer 18

For the simple offence, the defendant must destroy or damage property ‘belonging to another’ whereas under s1(2) the property damaged or destroyed can belong to another person OR to the suspect themselves.

The aggravated offence has an additional mens rea that must be proved: Intention or recklessness as to the endangerment of life of another (by the damage).

….Accordingly, it is important to emphasise that life doesn’t actually have to be endangered! It is sufficient that at the time of the damage, the suspect intended to endanger life or was reckless as to that risk.

The damage must be the base cause of the risk to life.

Question 19

With Aggravated Criminal Damage (s.1(2)) it is important to emphasise that life doesn’t actually have to be endangered! It is sufficient that at the time of the damage, the suspect intended to endanger life or was reckless as to that risk.

This comes from what case?

Answer 19

R v Dudley where the defendant set fire to a house by throwing a fire bomb into the property. The fire was quickly extinguished.

There was nobody in the house when the fire was started.

The court held that the MR had to be considered at the time the defendant did the act which caused the damage, therefore the defendant was convicted of aggravated criminal arson notwithstanding the fact that no one’s life was actually put in danger.

Question 20

Claire shoots at her former husband, Steve, through the closed glass window of his sitting room. The window is smashed and there is damage to the internal wall. Steve is not home. Claire says that she only intended to frighten Steve. Has Claire committed an offence under s1(1) and/or s1(2) of the Criminal Damage Act 1971?

Answer 20

Yes

Claire is definitely guilty of s1(1) and the court could prove guilt of s1(2) if it is clear that the damage or destruction was intended to endanger life or was reckless to the possibility

Question 21

Criminal Damage Act 1971 Section 1(3), triable either way, states that

Answer 21

“An offence committed under this section by destroying or damaging property by fire shall be charged as arson”.

Question 22

To prove arson you must establish:

Actus Reus

Answer 22

Destroys or damages by fire

• The court takes a common-sense approach to damage (Roe v Kingerlee). Damage is a matter of fact and degree.
• The damage need not be extensive (Hardman v Chief Constable of Avon and Somerset Constabulary). You should consider whether there would be any expense involved in restoration.

Property
- Property is defined as anything tangible, real or personal. This includes money and property.

Belonging to another
- According to s.10(2) CDA property will belong to another if that person has control, custody, a proprietary right or interest on it.

Question 23

To prove arson you must establish:

Mens Rea

Answer 23

Intention or recklessness to destroy or damage property
- Intention can be either direct or indirect.
Recklessness (did the suspect see forsee a risk and then go on to take it).

The suspect knows or is reckless as to whether the property belongs to another.
- The suspect will not be liable if he honestly believed the property belonging to themselves.

Question 24

What is Aggravated Arson?

Answer 24

An aggravated offence is an offence which intends or is reckless to the endangerment of life.

Aggravated arson is the same as aggravated criminal damage, with the addition of ‘by fire’ after destroys/damages. Remember, as with aggravated criminal damage, the property does not need to belong to another.

Question 25

As you may already realise from reading other core learning topics, certain offences can be racially or religiously aggravated. Criminal Damage is one of these offences.

There are two parts to aggravated offences as the term ‘aggravated’ covers both:

Answer 25

1. ‘motivated by’ (what the person is thinking)
2. ‘demonstrated by’ (how the person did it)

The actual base offence of Criminal Damage remains unchanged, but, if the motivation for the damage can be shown to be racial or religious then the ‘aggravated’ part of the offence is complete. It carries a more severe penalty than simple Criminal Damage.

Question 26

Without lawful excuse is covered where in Criminal Damage Act 1971?

Answer 26

Section 5

s5(1) states that “any offence under section 1(1), section 2, or 3, other than one involving a threat by the person charged to destroy or damage property in a way which he knows is likely to endanger the life of another or involving an intent by the person charged to use or cause or permit the use of something in his custody or under his control so to destroy or damage property”.

Question 27

Section 5 of the Criminal Damage Act 1971?

A defence of lawful excuse can be established if there is either permission or the act was done to protect the property (s.5(2) CDA).

Answer 27

Permission (s.5(2)(a))

• The suspect believed he had/would have had consent from the person who was capable of giving permission, or the person the suspect believed was capable of giving permission.
• This defence can be used even if it turns out, on investigation, that the permission was fraudulent.
• EXAMPLE: This could be where someone forces entry to a flat in order to turn off a running tap and prevent further damage being caused. Here, the ‘suspect’ would have to believe that the owner of the flat would have given them permission to cause Criminal Damage in order to enter.

Protection (s.5(2)(b))
- The suspect believed the property was in immediate need of protection; AND
the suspect believed the means of protection were reasonable considering the circumstances.
- EXAMPLE: A car has slipped down an embankment and was likely to continue to do so. A recovery operator intervenes in an attempt to pull it back up. In the process, the recovery operator causes damage to the car.