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).

Subject to the following provisions of this section, and without prejudice to any other enactment, a constable may enter and search any premises for the purpose
…
(e) of saving life or limb or preventing serious damage to property.

Question 3

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

Answer 3

(s 54(1) of the Anti-Social Behaviour Act 2003).

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 and a fine not exceeding level 4 on the standard scale.

• It is a defence for a person charged with an offence under this section in respect of a sale to prove that—

(a) he took all reasonable steps to determine the purchaser’s age, and
(b) he reasonably believed that the purchaser was not under the age of sixteen.

Question 4

Which section 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

Section 1(1) of the Criminal Damage Act 1971

Destroys or damages…

…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.

Question 5

Defences for causing damage

He/she would need to have an honestly held belief that:

Answer 5

Section 5 Criminal Damage Act 1971

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 s1 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 (fully aware of this).

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’

A person who, without lawful excuse, destroys or damages any property, whether belonging to himself or another—

Answer 8

s 1(2) of the Criminal Damage Act 1971

(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 endangered; shall be guilty of an offence.

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.

I.e question asking the crucial interpretation of the content of the legislation I need to remember.

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

S.1(2) Aggravated Damage

To prove this offence, is there a requirement for the offender to try to kill someone or for any actual injury or harm to occur?

Answer 17

No - 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 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.

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 propert (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

Aggravated arson 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

Where are offences related to threats to damage covered?

Answer 25

s 2 of the Criminal Damage Act 1971.

Question 26

There are two points to prove in relation to threats to damage:

Answer 26

The conduct that is threatened must refer to damage; and

The extent of the threatened damage must constitute an offence under s 1 of the Criminal Damage Act 1971. This can include acts of simple damage under s 1(1), as well as criminal damage where life is endangered s 1(2).

Question 27

Threats of damage

It is an offence for a person, who without lawful excuse…makes to another a threat intending that the other would fear it would be carried out…

Answer 27

s2 of the Criminal Damage Act 1971

a) to destroy or damage any property belonging to that other or a third person, e.g I’ll torch your mum’s shed
b) to destroy or damage [his/her] own property in a way which [he/she] knows is likely to endanger the life of that other or a third person.

Question 28

Can the offence of making threats to damage be committed if the threat involves an element of recklessness as to whether the property would actually be damaged?

Answer 28

No - e.g if you keep doing x I’ll do b and I don’t care what happens.

Question 29

Where are penalties related to threats to damage?

Answer 29

Triable either way and the penalty is 6 months imprisonment and/ or a fine if tried summarily, and 10 years prison on indictment.

Question 30

Points to prove in Section 2 of the Criminal Damage Act 1971…

Answer 30

that the suspect made a threat, and

that the suspect intended for the victim to believe that threat

Question 31

KHALILSON needs to burn some rubbish in his back garden. He puts the rubbish in a garden incinerator and sets fire to it. In amongst the rubbish he places in the incinerator is a significant amount of plastic. The rubbish causes a cloud of smoke to drift over KHALILSON’s garden into the garden of his neighbour, SKIDMORE. SKIDMORE had hung out a large amount of washing on a line and the smoke from the fire in KHALILSON’s back garden causes so much damage to the clothing it is effectively destroyed (the clothing is worth £50). KHALILSON had seen the washing was hanging out before he started the fire in his back garden and was aware that the smoke might damage SKIDMORE’s property but thought that the risk was small and carried on anyway.

Has KHALILSON committed an offence of arson (contrary to s. 193) of the criminal Damage Act 1971)?

Answer 31

No, the damage was caused by smoke, not fire.