Criminal Damage

Question 1

Simple Damage Offence

Answer 1

s1 Criminal Damage Act 1971

(1) 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.

Penalty:
- Summarily– 6 months and/ or fine.

Question 2

Simple Damage Offence – Racially or Religiously Aggravated

Answer 2

s30 Crime and Disorder Act 1998

(1) A person is guilty of an offence under this section if he commits an offence under section 1(1) of the Criminal Damage Act 1971 (destroying or damaging property belonging to another) which is racially or religiously aggravated for the purposes of this section.

Penalty:

• Summarily– 6 months and/ or fine.
• Indictment– 14 years

Question 3

Can defacing a pavement by an artist using only water-soluble paint and graffiti smeared in mud amount to damage?

Answer 3

Yes– even if it is easily washed off.

If something needs even temporary repairing it still falls within the concept of damage.

Question 4

What is ‘property’ defined as?

Answer 4

s10 Criminal Damage Act 1971

(1) In this Act “property” means property of a tangible nature, whether real or personal, including money and—

• Includes land and wild creatures which have been tamed or are ordinarily kept in captivity.
• Not including mushrooms growing wild on any land or flowers, fruit or foliage of a plant growing wild on any land.

Question 5

What is ‘belonging to another’ defined as?

Answer 5

s10 Criminal Damage Act 1971

(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.

Question 6

Defences for causing damage

He/she would need to have an HONESTLY HELD BELIEF that:

Answer 6

s5 Criminal Damage Act 1971

(a) They had/ would have permission/ consent from the owner of the 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).

(b) 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 7

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 7

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 8

Aggravated Criminal Damage – 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.

Penalty:
- Indictment– Life Imprisonment

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

Arson

Answer 10

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

(3) An offence committed under this section by destroying or damaging property by fire shall be charged as arson.

Penalty:

• Summarily– 6 months and/ or fine (where life is not endangered)
• Indictment– Life Imprisonment

Question 11

How would someone be found guilty of arson?

Answer 11

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 12

What is Aggravated Arson?

Answer 12

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 13

Threats to destroy or damage property.

Answer 13

s2 Criminal Damage Act 1971

(1) A person who without lawful excuse makes to another a threat, INTENDING that that other would fear it would be carried out,—

(a) To destroy or damage any property belonging to that other or a third person; or
(b) To destroy or damage his own property in a way which he knows is likely to endanger the life of that other or third person;

Penalty:

• Summarily– 6 months and/ or fine
• Indictment– 10 years

Question 14

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

Answer 14

• There has been a threat to another.
• The threat amounted to ‘a threat to damage or destroy property.’
• The defendant had the necessary state of mind at the time.

Question 15

When carrying of threats of damage, is there an intention that the person receiving the threat actually fears it will be carried out?

Answer 15

No, nor does it matter whether the threat was even capable of being carried out.

Question 16

Having Articles with Intent to Destroy or Damage Property

Answer 16

s3 Criminal Damage Act 1971

A person who has anything in his custody or under his control INTENDING without lawful excuse to use it or cause or permit another to use it—

(a) To destroy or damage any property belonging to some other person; or
(b) To destroy or damage his own or the user’s property in a way which he knows is likely to endanger the life of some other person; shall be guilty of an offence.

Penalty:

• Summarily– 6 months and/ or fine.
• Indictment– 10 years and/ or fine.

Question 17

What statutory power can be applied to a magistrate for a search warrant for reasonable belief of articles with intent to destroy or damage property?

Answer 17

s6 Criminal Damage Act 1971

Question 18

Contamination or Interference with Goods

Answer 18

s38 Public Order Act 1986

(1) It is an offence for a person, with the intention—
(a) Of causing public alarm or anxiety, or
(b) Of causing injury to members of the public consuming or using the goods, or
(c) Of causing economic loss to any person by reason of the goods being shunned by members of the public, or
(d) Of causing economic loss to any person by reason of steps taken to avoid any such alarm or anxiety, injury or loss,

…to contaminate or interfere with goods, or make it appear that goods have been contaminated or interfered with, or to place goods which have been contaminated or interfered with, or which appear to have been contaminated or interfered with, in a place where goods of that description are consumed, used, sold or otherwise supplied.

(2) Making of threats to do, or claiming to have done, any of the acts in (1).

Penalty:

• Summarily– 6 months and/ or fine
• Indictment– 10 years

Question 19

Question: James and Mike have had too many beers. They are walking home from the pub when they find a can of spray paint. James says, ‘it would be so funny if we spray painted some cows’. James then points to a private farmers field with cows in it. They jump the fence and spray ‘moo’ on 10 cows.

Has the offence of Criminal Damage been committed?

Answer 19

• Yes, it has.
• The cows are farm animals and therefore count as property.
• Property for damage just needs to be tangible.

Question 20

Question: Sophia knocks on Kate’s door and tells her that she has lost her cat, Tom. She is worried that Tom has gotten locked somewhere. The next day Sophia is out and Kate is hanging washing in the garden. She hears a cat crying from Sophia’s shed. She goes into Sophia’s garden and using a screwdriver forces open the shed door causing it to splinter. When she opens the door a cat runs out but it is not Tom.

Has Kate committed Criminal Damage?

Answer 20

• No, she has not.

- Kate has a lawful excuse as had Sophia known of the circumstances she belives she would have consented.

Question 21

Question: Ron has an amazing Star Wars toy collection he keeps in his conservatory. Ron is out and Tony his neighbour, suddenly hears pouring water. He looks over the fence and sees water gushing into the conservatory. He also sees that it is nearing the Star Wars toy boxes. Without a second thought, he goes over and throws a brick through the window and runs to pull out the toys.

Does this qualify for the protection of property?

Answer 21

• Yes, it does.
• Protecting his neighbour’s property (reasonable to believe neighbour would have wanted him to/ consented).
• Needed immediate protection.
• Smashing a window is reasonable compared to the loss.

Question 22

1. Examples of Belief (Honestly Held) for Criminal Damage…

2. Examples of where Belief (Honestly Held) for Criminal Damage doesn’t apply…

Answer 22

1. Jaggardv Dickinson: the defendant had smashed a window to get into a house. The defendant was intoxicated and smashed the window of the wrong house. However, as her belief was honestly held defence was accepted by court.
2. R v Kelleher: the statue of Baroness Thatcher was decapitated and the reason given was owing to government decisions his sons future was in jeopardy. Even though his belief was honestly held his appeal failed.

Question 23

Question: Mick works in a small office with two other people where he has always smoked. One day the boss comes in and says that owing to new laws there is no smoking. Mick is livid about this and brings in a sledgehammer. He smashes a large hole in the wall to make a point. What he doesn’t realise is where he makes the hole is a key supporting bracket and as such the building could collapse. His two colleagues do not realise this and continue working.

Has Mick committed aggravated damage?

Answer 23

• Yes, he has.
• Without lawful excuse.
• Destroys a wall.
• Is reckless that he has endangered the lives of his co-workers by doing this.

Question 24

Give an example of when a person can criminally damage his or her own property?

Answer 24

If, at the same time, it belongs to someone else.

For example, if a person sets fire to his own house, which is subject to a mortgage, he can still be charged under s1(1) and (3) as the mortgage lender will have a proprietary right or interest in the property.

Question 25

Question: Which of the following is the correct test for recklessness in relation to criminal damage offences?

(a) Caldwell recklessness
(b) Objective
(c) The reasonable person test
(d) Subjective

Answer 25

(d) Subjective

As per House of Lords decision in R v G 2004