Criminal Damage

Question 1

Basic criminal damage - statutory reference

Answer 1

Criminal Damage Act 1971 s 1(1) - ‘A person who without lawful excuse damages or destroys 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.’

Question 2

Basic criminal damage - maximum sentence

Answer 2

10 years imprisonment

Question 3

Basic criminal damage - actus reus

Answer 3

• Destroy or damage
• Property
• Belonging to another

Question 4

Basic criminal damage - actus reus: ‘destroy or damage’

Answer 4

CDA 1971 does not provide definitions of these terms

Samuels v Stubbs - ‘sufficiently wide in its meaning to embrace injury, mischief or harm done to property…it is unnecessary to establish such definite or actual damage as renders the property useless’

Hardman v Chief Constable of Avon - Defendants painted silhouettes on a pavement in protest. Damage need not be permanent. It was relevant that time, effort and money had been spent in restoring the pavement to its original state.

Roe v Kingerlee - Mud spread on walls of a police cell cost £7 to remove and was held to be damage.

Morphitis v Salmon - ‘[includes] not only permanent or temporary physical harm but also permanent or temporary impairment of value or usefulness.’

A (a juvenile) v R - spitting on a policeman’s raincoat was not criminal damage. It could be wiped away to return the raincoat to its original state.

Fiak - F stuffed his blanket down the toilet in his prison cell and then repeatedly flushed, flooding the cell. The floor was waterproof and the blanket washable, but this constituted damage as both were temporarily unuseable.

Question 5

Basic criminal damage - actus reus: ‘Property’

Answer 5

CDA 1971, section 10(1): ‘In this Act “property” means property of a tangible nature, whether real or personal, including money and-
(a) including wild creatures which have been tamed or are ordinarily kept in captivity, and any other wild creatures or their carcasses if, but only if, they have been reduced into possession which has not been lost or abandoned or are in the course of being reduced into possession; but
(b) not including mushrooms growing wild on any land or flowers, fruit or foliage of a plant growing wild on any land.
For the purposes of this subsection “mushroom” includes any fungus and “plant” includes any shrub or tree.’

R v Whitely: Information does not fall within the definition of ‘property.’

Question 6

Basic criminal damage - actus reus: ‘Belonging to another’

Answer 6

CDA 1971, s 10(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.’

Property can belong to more than one person.
If the property is mortgaged, it will also belong to the bank or mortgage company (s 10(2)(c)).

Question 7

Basic criminal damage - mens rea

Answer 7

Intention or recklessness as to the destruction or damage of property belonging to another

Question 8

Basic criminal damage - mens rea: intention

Answer 8

To be given its ordinary meaning, has to have been D’s aim or purpose when they carried out the actus reus (R v Moloney)

Question 9

Basic criminal damage - mens rea: recklessness

Answer 9

The prosecution must prove that:

(a) at the time of comitting the actus reus, the accused was subjectively aware of a risk; and
(b) in the circumstances known to the accused, it was objectively unreasonable for the accused to take that risk (R v G)

It must be proved not only that D intended/was reckless as to damaging property, but that they knew or were reckless as to whether it belonged to another.

R v Smith - ‘No offence is committed if a person destroys or damages property belonging to another if he does so in the honest though mistaken belief that the property is his own’

Question 10

Basic arson - statutory references

Answer 10

• Charged under s 1(1) and s 1(3) CDA 1971
• s 1(3): ‘Any offence committed under this section by destroying or damaging property by fire shall be charged as arson.’

Question 11

Basic arson - actus reus

Answer 11

Destroy or damage by fire, property, belonging to another, without lawful excuse

Question 12

Basic arson - mens rea

Answer 12

Intention or recklessness as to the destruction or damage of property belonging to another by fire.

Question 13

Criminal damage - ‘lawful excuse’

Answer 13

• Any general defence, where relevant, can apply to any offence of criminal damage/arson (s 5(5) CDA 1971)
• s 5(2) CDA 1971 gives the lawful excuse defences, which can apply to BASIC criminal damage or BASIC arson

Question 14

Section 5(2) CDA 1971 Lawful excuse defences

Answer 14

Section 5(2)(a) - where the defendant believes the owner would have consented to the damage

Section 5(2)(b) - where the defendant acts to protect their or another’s property

Question 15

Section 5(2)(a) - D believes the owner would have consented

Answer 15

s 5(3) - The defendant’s belief need not be reasonable, it is only necessary for it to be honestly held.

Question 16

Section 5(2)(a) - Mistaken belief due to voluntary intoxication as to whether the owner would have consented

Answer 16

Jaggard v Dickinson - The test is subjective. Applying s 5(3), the defendant is entitled to the defence irrespective of whether the belief is reasonable, even where it resulted from the defendant’s intoxication.

Question 17

Section 5(2)(a) - Can a defendant’s motive be taken into account?

Answer 17

Provided the defendant honestly believes that the owner of the property has or would have consented, the defendant’s motive for causing the damage is irrelevant.

R v Denton - The owner of a factory in financial difficulties said to D ‘there is nothing like a good fire for improving the financial circumstances of a business.’ D took this as an instruction and set fire to the factory. His conviction was quashed as he was entitled to the s 5(2)(a) defence.

Question 18

Section 5(2)(a) - Limits to the defence

Answer 18

Blake v DPP - Defendant appealed against conviction for criminal damage, claiming he was carrying out the instructions of God, and God was the one entitled to consent to the damage. The appeal was dismissed - a belief, however powerful and honestly held, that God had given consent, was not a lawful excuse.

Question 19

Section 5(2)(b) - D acts to protect property

Answer 19

R v Baker & Wilkins - A mother could not raise the defence to a charge of criminal damage for a door she kicked open in order to rescue her child, as the child did not constitute ‘property’ for the purposes of the section.

Defence will apply if in order to protect property belonging to himself or another or a right or interest in property which was or which he believed to be vested in himself or another, and at the time of the acts/alleged acts he believed, (a) that the property, right or interest was in need of immediate protection, and (b) that the means of protection adopted or proposed to be adopted were or would be reasonable having regard to all the circumstances.

Again, is immaterial whether the belief that property needs to be protected is justified or not as long as it is honestly held.

Question 20

Four elements of Section 5(2)(b) defence

Answer 20

a) Defendant must act to protect property (R v Baker & Wilkins)
b) Defendant must subjectively believe (s 5(3)) that the property was in immediate need of protection (s 5(2)(b)(i))
c) Defendant must subjectively (s 5(3)) believe that the means of protection adopted are reasonable (s 5(2)(b)(ii))
d) The damage caused by the defendant must be objectively capable of protecting property (R v Hunt)

Question 21

Section 5(2)(b) - In need of ‘immediate protection’

Answer 21

Johnson v DPP - Johnson damaged a door while attempting to fit locks in a house he was squatting in. He tried to raise s 5(2)(b) on the basis that there had been a high number of thefts in the area, so he was acting to protect property. His conviction was upheld as he did not believe his property was in need of immediate protection.

Question 22

Section 5(2)(b) - Objectively capable of protecting property

Answer 22

R v Hunt - Hunt started a fire in order to test the fire alarm. The court introduced the extra element that the act is required to be objectively capable of protecting property from damage.

Blake v DPP - Defendant put forward the argument he had acted to protect property in the Gulf States. The court held that his actions were not capable of having this effect.

R v Hill and Hall - Nuclear protestor unsuccessfully tried to raise the defence that she was acting in order to reduce the threat of nuclear strike, and thus protect her property. Her acts were held to be too remote from the eventual aim of protecting property.

Question 23

Aggravated criminal damage - statutory reference

Answer 23

Criminal Damage Act 1971 s 1(2):
‘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 life of another or being reckless as to whether the life of another would be thereby endangered’

Question 24

Aggravated arson - statutory reference

Answer 24

The offence of arson will be charged under s 1(2) CDA 1971 and s 1(3) CDA 1971

Question 25

Aggravated criminal damage/arson - actus reus

Answer 25

• Destroy or damage (by fire)
• Property (s 10(1))
• It is irrelevant whether the life of another was actually endangered (R v Sangha)

Question 26

Aggravated criminal damage/arson - actus reus: property

Answer 26

A defendant can commit aggravated criminal damage to their own property.

Question 27

Aggravated criminal damage/arson - mens rea

Answer 27

s 1(2)(a) - Intention or recklessness as to the destruction or damage of property (by fire) 
s 1(2)(b) - Intention or recklessness as to the endangerment of life by the damage or destruction (by fire)

The words ‘destruction or damage’ in section 1(2)(b) refer back to the destruction or damage intended/as to which there was recklessness, not the destruction/damage actually caused.

Question 28

Aggravated criminal damage/arson - Danger to life must arise from the damaged property

Answer 28

R v Steer - Defendant fired 3 shots through a window. This did not constitute an offence under s 1(2) because any risk to life intended/foreseen had been by the bullets fired and not by the damaged property (the window). There has to be a causal link between the damage to the property and the danger to life. If the damage is caused by fire however, the risk to life will always be from the damaged property.

R v Webster - Defendants pushed a stone from a bridge onto a train, which hit the carriage and showered passengers with debris from the roof. The conviction had been based on a direction that intent to endanger life by the stone falling on the passenger would suffice. The court substituted a conviction based on recklessness; that the defendant was reckless that the stone would smash the roof so that metal or wood from the roof would or obviously might descend on the passengers.

‘If the defendant’s intention is that the stone itself would crash through the roof…and…directly injure…or if he was reckless as to that outcome, the section would not bite. However, if the defendant intended or was reckless that the stone would smash the roof of the train so that metal or wood would or obviously might descend on a passenger, endangering life, he would surely be guilty.’