Criminal Damage - Part I: The Law on Criminal Damage

Question 1

Law on criminal damage - overview

Answer 1

> 4 criminal damage offences are found in the Criminal Damage Act 1971:
1. Basic criminal damage
2. Arson
3. Aggravated criminal damage
4. Aggravated arson.
There’s also an offence of racially aggravated criminal damage

Question 2

Basic criminal damage - definition

Answer 2

> AR = destruction of or damage to property belonging to another without lawful excuse.
MR = D intended or was reckless (a) that their action would damage or destroy property and (b) that that property belonged to another.
S. 1 of 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.
Max = 10yrs.

Question 3

Basic criminal damage - elements - list

Answer 3

1. Damage
2. Property
3. Belonging to another
4. MR
5. Defences

Question 4

Basic criminal damage - elements - damage

Answer 4

> ‘Destroy or damage’.
Destruction = after D’s act, item no longer exists.
Damage involves either a reduction in value of item or in the usefulness of the item.
Can be damage even if no visible effect.
Issues:
1. Is minimal damage excluded from the concept?
2. Is adding to property damaging it?
3. How significant is the opinion of the owner of property in deciding whether there was damage?

Question 5

Basic criminal damage - elements - damage - is minimal damage excluded from the concept?

Answer 5

• Cases = inconsistent. In A (A Juvenile) v R [1978] spitting on a police officer’s raincoat was held not to amount to damage as argued wiping with a cloth returned it to former state. Other cases take broader view:
• Trampling on grass field in Gayford v Chouler [1898].
• Graffiti which could easily be removed with water in Roe v Kingerlee [1986].
• Depends on nature of affected object as well.

Question 6

Basic criminal damage - elements - damage - Is adding to property damaging it?

Answer 6

> Courts lack consistency.
Lloyd v DPP [1992] and Drake v DPP [1994] = putting wheel clamp on car not damage as didn’t affect integrity of car however, this is controversial as clamping seriously affects the car’s usefulness.
Contrast with Hardman v Chief Constable of Avon and Somerset Constabulary = painting on pavement is criminal damage even though doesn’t affect pavement’s integrity.
Henderson 1984: Dumping rubbish on another’s land has also been held as criminal damage.

Question 7

Basic criminal damage - elements - damage - How significant is the opinion of the owner of property in deciding whether there was damage?

Answer 7

> No case law directly addressing this issue.

Question 8

Basic criminal damage - elements - property

Answer 8

> S. 10 of CDA 1971.
“Property of a tangible nature, whether real or personal”.
Notion of property here similar to that in theft.
However, property does not have same meaning in both offences as land can be damaged where as it can’t be stolen.
Likewise intangible property e.g. patents can be stolen but not damage.

Question 9

Basic criminal damage - elements - belonging to another

Answer 9

> Offence to damage own property if contrary to s. 1(2).
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 propriety right or interest; or
c) having a charge on it.
3. Where property is subject to a trust, the person to whom it belongs shall be so treated as including any person having a right to enforce the trust.
4. Property of a corporation sole shall be so treated as belonging to the corporation notwithstanding a vacancy in the corporation.

Question 10

Basic criminal damage - elements - MR

Answer 10

> S. 1(1): Show D intended or was reckless as to damaging the property.
Subjective.
MR applies both to the damage AND fact it belongs to another.
Seray-Wurie v DPP [2012]: D intended to write on signs but didn’t realise doing so would constitute damage. Conviction upheld as he intended to do the acts and produce the result. Irrelevant that he didn’t realise law would describe what he had done as damage.

Question 11

Basic criminal damage - elements - defences

Answer 11

> In addition to general defences, there are some specific ones to criminal damage in s.5 of the Act.
Defence if D who honestly believed V was consenting or would consent to the damage.
Can act if you believed that you were protecting your own property even if in fact your property wasn’t at risk or wasn’t your own as long as it was believed to be in immediate need of protection and that the protection would be reasonable in all the circumstances.
Highly subjective test as what matters is whether D believed the actions were reasonable to protect the property.
Interpretation = complex and seen in R v Hill and Hall, which also summarises earlier decision of Hunt (1978).

Question 12

Basic criminal damage - elements - defences - R v Hill and Hall

Answer 12

> R v Hill and Hall (1989).
Ds charged under s. 3 of CDA 1971 for having an article to destroy or damage another’s property without lawful excuse.
Hacksaw blade to cut part of fence of US naval facility in England.
Sought to rely on defence under s. 5 that they had a lawful excuse as acting to protect property belonging to another.
They were part of a CND campaign (Campaign for Nuclear Disarmament), so had an honest belief that the damage was justified to protect other property. In the event of war, the base would be the subject of nuclear attack and damage would occur to the surrounding area, including their own property.
Lord Lane CJ:
-“The causative relationship between the acts which she intended to perform and the alleged protection was so tenuous, so nebulous, that the acts could not be said to be done to protect viewed objectively.”
-“On the applicant’s own evidence the applicant could not be said to have believed under the provisions of s. 5(2)(b)(i) that the property was in immediate need of protection.”
-The “proposed act on her part was far too remote from the eventual aim at which she was targeting her actions to satisfy the test.”
-Applications refused.
Controversial as takes very narrow interpretation of ‘acting in order to protect property.’
Court interpretated it to ask whether objectively (but on facts as D understood them) whether the act could be said to cause protection of property rather than seeing this test as being about D’s motives (which one might have thought to be the natural meaning of the words.

Question 13

Arson

Answer 13

> Species of CD.
S. 1(3) of CDA 1971:
-“An offence committed under this section by destroying or damaging property by fire shall be charged as arson.”
Only difference to CD is that must be shown fire caused damage/destruction.

Question 14

Aggravated Criminal Damage - overview

Answer 14

> S. 1(2) of CDA 1971:
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.
Life imprisonment.

Question 15

Aggravated Criminal Damage - AR

Answer 15

> AR same as basic offence but can also be D’s own property.
No need to show the damage/destruction actually endangers the life of others.
In Sangha [1998], D convicted even though there was (unknown to D) no one in the house and so wasn’t risk to people because a reasonable person would have thought that there was a risk that people’s lives would be endangered.

Question 16

Aggravated Criminal Damage - MR

Answer 16

> MR has 2 parts:
1. Show D intended to damage/destroy or was reckless whether or not they did so. This is same as for basic offence.
2. Show D intended or was reckless as the the endangerment of someone’s life as a result of the criminal damage.
-Intention = usual meaning.
-Cunningham recklessness.
Endangerment to life must result from the CD (as opposed to the act which caused the CD) as established in R v Steer.
Don’t need to show that the property which endangers the life of the other is the same as the property which is damage.

Question 17

Aggravated Criminal Damage - R v Steer

Answer 17

> R v Steer [1988].
D fired shots at windows of former business partner’s house and although no injuries caused he was charged under S. 1(2) of CDA 1971 for ACA.
Q: Does prosecution need to prove danger resulted from the damage/destruction of property or is it sufficient to prove it resulted from D’s act which caused the destruction/damage?
Lord Bridge of Harwich:
-“To be guilty under sub-s (2) he must additionally have intended to endanger life or be reckless whether life would be endangered ‘by the damage’ to property which he caused. This is the context in which the words must be construed and it seems to me impossible to read the words ‘by the damage’ as meaning ‘by the damage or by the act which caused the damage’.”
The Crown’s appeal was dismissed and Steer’s conviction was quashed. The recklessness or intention specified by the Criminal Damage Act 1971 section 1 (2) was intended to cover danger to life caused by property damage, not the dangers that could be caused by the method the damage was inflicted (i.e. the rifle). The prosecution were required to prove that the danger to life was caused by the danger to the property which in this case, it was not. It was also noted that a person who has in his possession, a firearm commits a distinct offence under the Firearms Act 1968 section 16.

Question 18

Aggravated Criminal Damage - defences

Answer 18

> Defences in s. 5 don’t apply to s. 2.

>However, offence uses phrase ‘without lawful excuse’ so implies general defences can be used.