Law-Criminal Damage

Question 1

Where is the basic offence set out?

Answer 1

In s 1(1) Criminal Damage Act 1971

Question 2

What does s 1(1) Criminal Damage Act 1971 state?

Answer 2

That “a person who without lawful excuse destroys or damages any property belonging to another indenting 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 3

What is ‘destroy or damage’?

Answer 3

It is not defined in the Act. However the same phrase was used in the law prior to the 1971 Act, and old cases ruled that even slight damage was sufficient to prove damage; eg in Gayford v Chouler, trampling down grass was held to be damage. The cases prior to the Criminal Damage Act 1971 are no longer binding but they may still be used as persuasive precedent

Question 4

How are destroy and damage different?

Answer 4

Destroy is a much stronger word than damage and it includes where the property has been made useless even though it is not completely destroyed. Damage covers a wide range of situations, as shown by Roe v Kingerlee, Hardman v Chief Constable of Avon and Somerset Constabulary, Blake v DPP and Fiak

Question 5

What happened in Roe v Kingerlee?

Answer 5

Divisional court said whether property had been damaged was ‘matter of fact and degree’. In case the defendant had smeared mud on walls of police cell which cost £7 to be cleaned off. Was held this could be damage even though it was not permanent

Question 6

What happened in Hardman v Chief Constable of Avon and Somerset Constabulary?

Answer 6

CND protestors painted silhouettes on pavement with water soluble paint, to mark 40th anniversary of dropping of atomic bomb on Hiroshima. Local council removed paintings with water jets. Defendants argued the damage was only temporary, the paintings would have quickly been erased by weather and people walking on them, and so no need for council to go to expense of removing them by high pressure water jets. Court held this was damage

Question 7

What happened in Blake v DPP?

Answer 7

Defendant wrote biblical quotation on concrete pillar. Needed to be cleaned off so held to be criminal damage. Same decision reached in Roe v Kingerlee where costs were incurred in removing mud from cell wall

Question 8

What happened in Fiak?

Answer 8

The ‘temporary impairment of value or usefulness’ was key factor’. Defendant was in police station and placed in cell. He put blanket in cell toilet and flushed it several times causing water to overflow and flood the cell, plus the two adjoining cells. Blanket was not visibly ruined but had to be cleaned and dried before it could be used again. Cell had to be cleaned. This was held to be criminal damage

Question 9

What happens if there are no costs or efforts in clearing up, and the property can continue to be used?

Answer 9

There is no offence, as in A (a juvenile) v R. Defendant spat at policeman, on his uniform. It was held not to be damage as it could be wiped off with a wet cloth with very little effort. It it possible a different decision would have been reached if the spit had landed on a light coloured T-shirt and left a stain, so it needed washing/dry cleaning. As cost would have occurred in those circumstances it could have been criminal damage

Question 10

What was considered in Morphitis v Salmon?

Answer 10

Type and purpose f property may be relevant. It was held a scratch on a scaffolding pole was not damage. Scaffolding poles are likely to get quite scratched in the ordinary course of use and it does not affect their usefulness or integrity. However a scratch on a car would almost certainly be considered damage

Question 11

What is ‘property’ for criminal damage?

Answer 11

Defined in s 10(1) Criminal Damage Act 1971. It means property of a tangible nature, whether real or personal, including money. It includes wild creatures which have been tamed or are ordinarily kept in captivity. Also includes other wild creatures or their carcasses if in someone’s possession. Personal property covers all items which can be owned by people so is a very wide term. Real property means land and buildings/other structures attached to the land. However property does not include mushrooms, flowers, fruit or foliage growing wild on any land

Question 12

What is ‘belonging to another’ in criminal damage?

Answer 12

Definition set out in s 10(2). Property is treated as belonging to any person 1. having custody or control of it; or 2. having in it any proprietary right or interest; or 3. having a charge on it. For criminal damage it is not restricted to the owner. In fact a co-owner can be guilty of criminal damage as the other co-owner has a proprietary right in the property

Question 13

What happened in the case of Smith?

Answer 13

Defendant removed some electrical wiring, which he had earlier fitted in the flat he rented. In doing this he damaged some of the fixtures he had put in. In civil law these fixtures belong to landlord and this was property ‘belonging to another’. However, defendant was found not guilty because he lacked necessary mens rea

Question 14

Can own property be classed as criminal damage?

Answer 14

For the basic offence, the property affected must belong to another. A person cannot be guilty of the basic offence if the property he destroys or damages is his own. However, for the aggravated offence a person can be guilty even it it is their own property

Question 15

What is the mens rea of the basic offence?

Answer 15

The defendant must do the damage or destruction either intentionally or recklessly. The law commission meant for the previous principles of mens rea used in criminal damage cases to continue to apply

Question 16

What is intention for criminal damage?

Answer 16

Defendant myst intend to destroy or damage property belonging to another. Proving the act is not enough there must be intention to do the damage, as was seen in case of Pembilton-who was not guilty of criminal damage (transferred malice case). The case of Seray-White is an example where the defendant was shown to have intended the act. The second point is the need to intend to damage property ‘belonging to another’ which was illustrated in Smith

Question 17

What happened in Seray-White?

Answer 17

Dr wrote with black marker pen on 2 parking notices, which had been placed by management company in estate he lived. Said he didn’t intend to cause damage and wasn’t reckless as to whether damage was caused. He was convicted and appealed first to the Crown Court and from there to the Divisional Court. Crown court found writing to be damage and this was confirmed by Court of Appeal. As defendant intended to do the writing, they held he had intention to cause criminal damage. They held that no question of recklessness arose as the case concerned an act with an intended result

Question 18

What happened in Smith?

Answer 18

Defendant mistakenly believed the property he was damaging was his own. His conviction was quashed by Court of Appeal who said: “Honest belief, whether justifiable or not, that the property is the defendant’s own negatives the element of mens rea”

Question 19

What is recklessness for criminal damage?

Answer 19

Initially courts used meaning of subjective recklessness, as in Stephenson, however in Caldwell the House of Lords changed it to an objective and subjective test known as Caldwell recklessness. The objective test was harsh in its application, particularly where the defendant was young or had learning difficulties, as seen in Elliott v C. The objective test was used up to 2003 when in Gemmell and Richards, the House of Lords quashed their convictions and overruled Caldwell and reinstated the subjective test for recklessness, and said the Law Commission intended there to be no change in mens rea so were only replacing the old expression ‘maliciously’ by more familiar expression of ‘reckless’

Question 20

What was the effect of the decission in G and R?

Answer 20

‘Reckless’ in s 1 Criminal Damage Act 1971 is now clearly subjective in its meaning. The defendant can only be guilty if he realised the risk of the damage

Question 21

What is ‘without lawful excuse’?

Answer 21

The Act defines two lawful excuses in s5. These are only available for the basic offence and apply where defendant honestly believes either that: the owner (or other person with rights in the property) would have consented to the damage; or other property was at risk and in need of immediate protection and what he did was reasonable in all the circumstances. The defendant must honestly believe one of these, it doesn’t matter whether the belief is justified or not, provided it was honestly held

Question 22

What is belief in consent?

Answer 22

In Denton, the defendant, who worked in a cotton mill, thought that his employer had encouraged him to set fire to the mil so the employer could make an insurance claim. Court of Appeal quashed his conviction as he had a defence under s 5(2)(a)

Question 23

What is intoxicated mistake?

Answer 23

The combination of s 5(2) (a) and s 5(3) allows a defence of mistake to be used, even where the defendant makes the mistake because they were intoxicated as in Jaggard v Dickinson, where drunk defendant broke into a house window she thought was her friends as she believed (accurately) she would have consented to this. However it was someone else’s house. Conviction was quashed as ‘specifically required court to consider defendant’s actual state of belief, not the state of belief which ought to have existed’. Pointed out that belief may be honestly held whether it is caused by intoxication, stupidity, forgetfulness or inattention

Question 24

What happens when there is belief that other property was in immediate need of protection?

Answer 24

Section 5(2)(b) could give defence in situations where trees are nut down or building demolished to prevent spread of fire. A case that was successful in this was Greenpeace who damaged GM crops in order to prevent non-GM crops in neighbouring fields from being contaminated with pollen from GM crops. Judge allowed defence to go to jury, but were unable to agree on verdict so retrial was ordered and jury acquitted defendants. If the defendant has another purpose in doing the damage, then the court may rule that the defence is not available, as in Hunt

Question 25

What happened in Hunt?

Answer 25

Defendant helped wife in her post as deputy warden of block of old people’s flats. He set fire to some bedding in order, as he claimed, to draw attention to fact the fire alarm was not in working order. Judge refused to allow defence under s 5(2)(b) to go to jury as his act was not done in order to protect property which was in immediate need of protection. Court of Appeal upheld conviction, despite subjective wording of s 5(2)(b)

Question 26

What is an example of a case which attempted to use both defences?

Answer 26

Blake v DPP. Defendant was a vicar who believed Government shouldn’t use military force in Kuwait and Iraq in Gulf War. He wrote a biblical quotation with marker pen on concrete post outside Houses of Parliament. He claimed he was carrying out instructions of God which gave full defence under s 5(2)(a) as God was entitled to consent to damage of property, and the damage was to protect property of civilians in Kuwait and Iraq so held defence under s 5(2)(b). Convicted and appealed but both claims were rejected. Court held God couldn’t consent and what he did was not capable of protecting property in the Gulf judged objectively, despite apparent subjective working of s 5(2)(a) and (b)

Question 27

What was the point of law in Cresswell and Currie?

Answer 27

In order for the defence to succeed, the item that defendant is trying to protect must be property. Defendant cannot cause criminal damage to something in order to protect something which in law is not considered to be property. In this case the defendants damaged property in order to protect badgers which would have otherwise been killed. The defence was unavailable as the badgers were not property at the time the traps were destroyed as they had not been reduced into possession since they hadn’t been caught yet. Court also held the badgers did not belong to another. Defendants convictions were upheld

Question 28

Can criminal damage be used to protect a person?

Answer 28

The Act does not provide a defence where the defendant believes he is acting to protect a person from harm. In Baker and Wilkins the two defendants believed Baker’s daughter was being held in a house. They tried to enter the house causing damage to the door. They were convicted and their conviction was upheld on appeal as s 5(2)(b) only provides a defence where other property is in immediate need of protection

Question 29

What is the aggravated offence of criminal damage?

Answer 29

Endangering life, and is set out under s 1(2) Criminal Damage Act 1971

Question 30

What does s 1(2) Criminal Damage Act 1971 state?

Answer 30

“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 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 31

What is the maximum sentence for endangering life?

Answer 31

Life imprisonment

Question 32

What is the ‘danger to life’ element of endangering life?

Answer 32

The danger to life must come from the destruction or damage, not from another source in which damage was caused. This was shown by Steer

Question 33

What happened in the case of Steer?

Answer 33

Defendant fired three shots at home of former business partner, causing damage to house. Court of Appeal quashed conviction for endangering life by causing criminal damage as they held danger came from shots not from any damage done to the house through those shots. The prosecution appealed but defendant was still not guilty

Question 34

What cases are examples where life was endangered by criminal damage?

Answer 34

Webster and Warwick, which the court of appeal tried to distinguish on the facts from the case of Steer. In Webster the defendants pushed a large stone from a bridge onto a train underneath hitting the roof causing debris to shower on passengers in that coach. In Warwick defendant hit a police car and threw bricks at it causing rear window to smash and shower officers with broken glass

Question 35

What happens when life is not actually endangered?

Answer 35

Life does not actually have to be endangered. In Sangha defendant set fire to mattress and two chairs in neighbour’s flat. Flat was empty at time and because of design of building, people in adjoining flats were not at risk. Court of Appeal using now discredited Caldwell test said if an ordinary prudent bystander would perceive obvious risk of damage and that life would thereby be endangered, defendant was guilty. As Caldwell has been overruled by Gemmell and Richards a subjective would be applied. So, the test is whether the defendant realised life may be endangered. If he did then he would be guilty even if there was no actual risk

Question 36

What is ‘own property’ in endangering life?

Answer 36

Section 1(2) applies not only were property belonging to another is damaged or destroyed but also where the property damaged is defendant’s own. This can be justified in most situations, as aim of the section is to make defendant guilty where he has intended or been reckless as to whether life is endangered by damage he does. It doesn’t matter whether damage is to property he owns or someone else owns. However, the case of Merrick shows how this section can be extended to absurd lengths

Question 37

What happened in the case of Merrick?

Answer 37

Defendant employed by householder to remove some old television cable. While doing this he left live cable exposed for about 6 minutes. No one was hurt by this but he was charged with endangering life because of the ‘damage’ to the wiring. His conviction under s 1(2) of the 1971 Act was upheld by Court of Appeal. In this case the householder was using Merrick as an agent, but if householder had done work personally it seems he would equally have been guilty eve though it was his own property. Another anomaly is he was removing old cable and ‘damaging’ it by this process, it would have been difficult to argue damage if new cable was being installed and left exposed for 6 minutes

Question 38

What is the mens rea of aggravated criminal damage?

Answer 38

There are two points which the prosecution must prove. These are: 1. intention or recklessness as to destroying or damaging any property; and 2. intention or recklessness as to whether the life is endangered by the destruction or damage

Question 39

What is intention/recklessness for endangering life?

Answer 39

They have the same meaning as for the basic offence, meaning the Caldwell test for recklessness has been overruled and prosecution must prove the defendant was aware both that there was a risk the property would be destroyed or damaged and that life would be endangered. The decision in R where Court of Appeal followed decision in Elliot v C is presumably overruled after G and R. The test would be whether the defendant had realised the risk. This was confirmed in Cooper

Question 40

What happened in the case of Cooper?

Answer 40

Defendant, who lived in hostel for people needing support for mental illness, set fire to his mattress and bedding. No serious damage caused. When asked by police if it crossed his mind people may have been hurt, he replied ‘I don’t, this it did cross my mind a but but nobody would have got hurt’. Charged with arson being reckless as to whether life would be endangered. Trial judge directed jury in accordance with Caldwell. Defendant convicted but conviction quashed at court of appeal holding Caldwell test was no longer appropriate. The test for recklessness was subjective. Court of Appeal made it clear that Gemmell and Richards had affected law in respect of level of recklessness required for all criminal damage offences. For all of them a subjective test is now used

Question 41

Where is arson set out?

Answer 41

Under s 1(3) Criminal Damage Act 1971 where an offence under s 1 Criminal Damage Act 1971 is committed by destroying or damaging property by fire, the offence becomes arson, with a maximum penalty of life imprisonment

Question 42

How is arson committed?

Answer 42

Basic offence of criminal damage must be destruction or damage by fire. All other elements of the offence are the same as for the basic offence. Where aggravated arson is charged then it is necessary for the prosecution to prove that the defendant intended or was reckless as to whether life was endangered by the damage or destruction by fire

Question 43

What happened in the case of Miller?

Answer 43

The House of Lords held that arson could be committed by an omission where the defendant accidentally started a fire and failed to do anything to prevent damage from that fire