Criminal damages

Question 1

Criminal damage 1971

Answer 1

A person who without lawful excuse destroys or damages any property belonging to another intending to destroy any such property or being reckless as to whtether anny such property would be destroyed or damaged shall be guilty of an offence.

Question 2

Actus reus of criminal damage

Answer 2

Destruction / damage
Property
Belonging to another
Without lawful excuse

Question 3

Mens rea

Answer 3

Intention to damage/destroy
or
recklessness

Question 4

Damages and destruction

Answer 4

Damage - material change affecting the value and or use of the property
Destruction - total elimination of value

Question 5

Definition of property

Answer 5

It excludes intangible property such as credit balances

It includes real property such as land and buildings

Question 6

Definition of property

Answer 6

It excludes intangible property such as credit balances

It includes real property such as land and buildings

Answer 7

If at the time of the act he believed that the person wom he believed to be entitled to consent to the destruction of or damage to the property, had so consented, or would have consented to it if he or they had knwon of the destruction or damage and it s circumstances.
If he had destroyed ro damaged property in order to protect property belonging to himself or another, then at the time of the act alleged to consititute the offence he believed
- That the property, right or interest was in immediate need of protection
- That the means of protection adopted were reasonable having regarded to all the circumstances.

Question 8

Examples

Answer 8

Delores breaks a window to enter Victoria’s house, because she thinks that her missing child may be inside. Delores is afraid that Victoria will be furious about the broken window, suggesting that she believes that Victoria would not have consented to the damage. Delores would be unlikely to be able to rely on lawful excuse.

Victor agrees to lend his golf clubs to Dennis and to leave his house keys ‘in the usual place’ so that Dennis can collect them while he is out. Dennis cannot find the key so he smashes a window and leaves a note saying ‘fancy forgetting to leave me the key. I’ll help you sweep up the glass later.’ the jokey tone of the note suggests that Dennis believes Victor will consent to the damage, therefore he may be able to rely on lawful excuse.

Question 9

Protection of property

Answer 9

There must be an immediate threat to the property
The steps taken to protect the property must be reasonable
The property must be damaged or destroyed in order to protect it

Question 10

Cases

Answer 10

R v Hunt (1978)
The defendant was worried about inadequate fire-safety precautions in sheltered accommodation but hsi concerns were dismissed by the management. He started a fire in order to draw attention to the inoperable fire alarms and inadequacy of the evacuation procedure.

Meaning no lawful excuse was not available as the defendant was motivated by a desire to draw attention to safety defects rather than to protect property. The issue of whether actions were undertaken ‘in order to protect property’ was an objective question to be determined by the court with no regard for the defendant’s motive or intentions.

Question 11

Hill and Hall (1989)

Answer 11

Stage 1 - subjective:
Did the defendant believe that the property was in immediate need of protection and that means used to protect the property was reasonable?

Stage 2 - Objective:
Was the defendant’s act performed in order to protect property

Question 12

Intention

Answer 12

Intentional damage/destruction of property is usually straightforward as the defendant’s aim will be evident

There must be intention in relation to all aspects of the actus reus so the defendant must intend to damage/destroy property belonging to another

Question 13

Recklessness

Answer 13

RvG (2004)
A person acts recklessly with respect to-
1 - A circumstance when he is aware of a risk that it exists or will exist
2 - A result when he is aware of a risk that it will occur

~ Probability of the harm occurring
~ Social utility of the defendant’s conduct

• This test of recklessness is based on volitional risk - taking therefore the defendant must be aware that there is a risk that property belonging to another will be damaged
• It is irrelevant that the defendant thinks that the risk of damage is very small; it is awareness of risk not the size of it
• R v G differs from other forms of subjective recklessness as it contains explicit references to ‘reasonable’ risk taking.

Evidence of social utility and level of probability of harm

Question 14

Aggravated criminal damage

Answer 14

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

~ Intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged
~ 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.

Criminal damage - Intention or recklessness as to the endangerment of life - aggravated criminal damage
Criminal damage - A person can be liable for the damage or destruction of their own property if causing harm to others - aggravated criminal damages

Question 15

Actus reus

Answer 15

Belonging to another
In general, people may do anything they wish with their own property, including destroying or damaging it; however, to do so in such a way as to endanger the lives of other attracts criminal liability.

Question 16

Mens rea

Answer 16

Endangerment to life
The major distinction between the basis &aggravated offence lies with the requirement that the defendant intents or is reckless as to the endangerment of life:
~There is no need for life to be actually endangered - this is a Mens rea element so concerns the defendant’s state of mind not those actions
~ The defendant must intend that life is endangered by the damage/destruction of property

Question 17

R v Steer

Answer 17

As a result if a grudge against his former business partner, the defendant fired a rifle at the window of his house, causing damage. Nobody inside the house was injured, the defendant’s conviction for criminal damage with intent to endanger life was quashed by the House of Lords.

The defendant must have intendeds to endanger life by smashing windows or foreseen a risk that life would be endangered by smashing windows.

Question 18

Criminal damage act 1971, s.1 (3)

Answer 18

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

Question 19

Potential exam question

Answer 19

“After an argument, Davy is burning his sister’s collection of postcards in a small fire he started at the bottom of the garden. After he walks away from the smouldering embers, a spark from the fire sets light to the neighbour’s wooden fence. Donald watches the fence burn but does nothing.”

Question 20

Important quote to remember (This is only possible if he has a duty to act and no such duty is suggested by the facts. (Even if you conclude that he has no liability, this must still be raised and explored otherwise you will not have done what the question requires.)

Answer 20

.This question looks deceptively simple and could give rise to a poor answer that does not deal with all the issues that are raised. It is always tempting for students to make an instinctive evaluation of the facts and reach a conclusion about liability without working through the element of the offence in a methodical manner.

It is important to work out how many issues there are in the problem scenario and to deal with each separately (even if they involve the same offence or give rise to similar issues.)
Davey has destroyed his sister’s postcards. As he did so, the charge will be arson – under s.1(3) of the Criminal Damage Act 1971. Set out the actus reus and mens rea of criminal damage and establish each element of the offence in turn by picking up on specific facts from the problem:
For example: he has destroyed (burnt) property (postcards) belonging to another (his sister) and he did so deliberately (intention). There is nothing on the facts to suggest he has lawful excuse – could you argue that he believed that she would have consented? (As he is acting in anger, this seems unlikely.)

The fire has spread to the neighbour’s fence. The actus reus resembles the postcards issue but the mens rea differs because here Davy did not aim to set fire to the fence. Therefore, you would need to consider recklessness rather than intent.
It is essential that you use the R v. G test here (see slide 12) to establish recklessness here

Donald has not done anything so it might seem that he has no criminal liability here. However, the instructions that accompany the problem scenario stipulate that his criminal liability should be considered also – so it would be foolish not to do this. Is it possible that he could incur liability for criminal damage on the basis that he failed to act? This is only possible if he has a duty to act and no such duty is suggested by the facts. (Even if you conclude that he has no liability, this must still be raised and explored otherwise you will not have done what the question requires.)
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The omissions argument providers greater scope to impress your examiner. A strong answer would address Donald’s position by explaining that a person can be liable for the consequences of an omission if they have a duty of care but would conclude that Donald does not seem to have a duty here. A stronger answer would take this even =further by pointing out possible scenarios in which he would have had a duty to act –

For example, if Donald was Davy’s friend he may have helped to start the fire (duty arising from the creation of a dangerous situation) or he may be the gardener employed by the neighbours (possible contractual basis for a duty to act.)

Make sure you consider all elements off the offence even if this is only to explain that they are not relevant. For example, it is likely that your conclusion with regard to Davy’s liability will be that he is liable for criminal damage in relation to his sister’s postcards but did you reach this conclusion after considering lawful excuse? It only takes a couple of sentences to deal with these issues and it will add strength to your answer.

For example, you could say ‘There is no suggestion that Davy was acting to protect property from damage by starting the fire and burning his sister’s postcards so s.5(2)(b) will not apply.’ that deals with the protection of property limb of lawful excuse (see slide 6). Equally, you could point out that Davy is burning the postcards after an argument with his sister, this it is lilkely that this is an act of revenge rather than something that he is doing with her permission : s.5(2)(a)The fire has spread to the neighbour’s fence. The actus reus resembles the postcards issue but the mens rea differs