LAW04: Criminal Law (Offences against Property)

Criminal damage

The Criminal Damage Act 1971 created 4 offences:

1.The basic offence of criminal damage.

2.Aggravated criminal damage.

3.Arson.

4.Aggravated arson.

1. Basic criminal damage.

This offence is defined in s. 1(1) CDA71

"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."

Property.

This is defined in s. 10(1) CDA71.

"Property" is defined as property of a tangible nature, whether real or personal, including money.

It also includes wild creatures tamed or kept in captivity and those in someone's possession (including carcasses).

Personal and real property have the same meaning as they do in theft.

But property does not, in the offence, include mushrooms growing wild etc.

Destroy or damage.

This is not defined in the CDA71.

Slight damage can be enough.

Gayford v Chouler (1898) stated that trampling down grass was enough to satisfy damage.

Cases pre-1971 are no longer binding but can be persuasive.

"Destroy" includes where the property has been made useless even though it hasn't been completely

destroyed.

"Damage" will cover a wide range of situations.

Roe v Kingerlee (1986)

The D had smeared "mud" on the walls of a police cell which cost £7 to clean off.

The Divisional Court stated that damage was a "matter of fact and degree".

In this case damage had still been done even though the " d a m a g e " w a s n o t permanent.

The courts' approach seems to be that if it will cost money, time and/or effort to remove the damage then

this will be "damage".

Hardman v Chief Constable of Avon and Somerset Constabulary (1986)

C N D p r o t e s t e r s p a i n t e d silhouettes on the pavement with water soluble paint. The council removed the paint with water jets.

The Ds argued that the paint would have worn away with the weather and with people walking over it. In their opinion there was no need to go to the effort of washing it off.

The court held that this was still "damage".

Blake v DPP (1993)

The D wrote a biblical quote on a concrete pillar.

T h i s n e e d e d t o b e cleaned off and so was "damage".

Fiak (2005)

The D was arrested, taken to a police station and put in a cell. D put a blanket in the toilet and flushed several times. This caused the toilet to overflow and flood the cell.

The blanket had to be cleaned and dried before it could be used again and the cell also had to be cleaned.

This was considered to be "damage".

If there is no cost or effort attached to the cleaning of the property and the property can continue to be used

then there will be no offence.

A (a juvenile) v R (1978)

T h e D s p a t a t a policeman and it landed on his uniform.

This was not damage as it could be wiped off with a damp cloth using very little effort.

The type and purpose of the property could also be a relevant factor in deciding whether property has been

damaged or not.

Morphitis v Salmon (1990)

A scratch on a scaffolding pole was not considered to be damage.

Scaffolding poles are likely to get scratched in their ordinary use and it does not affect their usefulness.

A scratch on a car however, w o u l d b e c o n s i d e r e d damage.

Belonging to another.

This is defined in s. 10(2) CDA71 and is very similar to theft.

Property belongs 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.

So, just as in theft, this is not just restricted to the owner.

A co-owner could be guilty of criminal damage to their own property as the other co-owner has a proprietary

right.

Smith (1974)

The D moved some electrical wiring in his rented flat that he had fitted at an earlier date. In doing this he damaged fixtures that belonged to the l and lo rd (p rope r t y t ha t 'belonged to' the landlord).

D satisfied the actus reus of criminal damage but was eventually found not guilty as he lacked the mens rea ...

MENS REA.

The D must do the damage/destruction intentionally or recklessly.

Intention.

The D must intend to destroy/damage property that belongs to another.

The D must have the intention to do the damage/destruction.

If the D only has the intention to do the act that causes the damage then this won't be enough to satisfy mens rea.

Pembliton (1874)

The D was having a fight with some men and threw a stone at them. The stone missed the men but broke a window.

D guilty of criminal damage?

No.

Why?

The D had no intention to break the window. His intention was to throw the stone and hit the men.

The D must also have the intention to damage property belonging to another.

In Smith (1974) the D mistakenly believed that the property he had damaged belonged to him.

The CA stated:

"Honest belief, whether justifiable or not, that the property is the defendant's own negatives the element

of mens rea."

Recklessness.

The courts initially used the subjective (Cunningham) definition of recklessness as confirmed by Stephenson

(1979).

The HL then changed the law in Caldwell (1981) and invented objective recklessness.

This however, is NOT the law now ... the subjective test was reinstated by the case of ...

Gemmell and Richards (G and R) (2003)

The effect of this case was that a person would only be reckless (and t h e r e f o r e g u i l t y o f criminal damage) if he at least realised the risk of damage and then ran that risk.

Without lawful excuse.

Criminal damage has its own "in-built" defence.

If the D has a lawful excuse for committing the damage he will not be guilty but if he is without lawful excuse then he

will be guilty.

The CDA71 defines 2 lawful excuses in s. 5(2)(a) and s. 5(2)(b).

They apply where the D honestly believes either that:

s. 5(2)(a)

the owner (or another person with rights in the property) would have consented to the damage; or

s. 5(2)(b)

other property was at risk and in need of immediate protection and what he did was reasonable in all the

circumstances.

The D must honestly believe one of these to have a lawful excuse.

It doesn't matter if the belief is justifiable or not.

s. 5(2)(a): belief in consent. Denton (1982)

The D worked in a cotton m i l l a n d t h o u g h t h i s employer had encouraged him to set fire to the mill so that the employer could claim the insurance.

T h e C A q u a s h e d t h e conviction as D had a defence under s. 5(2)(a).

Intoxicated mistakes.

The combination of s. 5(2)(a) and s. 5(3) allows a defence of mistaken belief in consent even if the D is intoxicated.

Jaggard v Dickinson (1980)

The D was drunk and went to what she thought was her friend's house. No-one was in so she broke a window to get in as she believed (accurately) that her friend would consent. But she'd made a mistake and broken into the house of another person.

The Divisional Court quashed her conviction. A belief may be honestly held whether it is caused b y i n t o x i c a t i o n , s t u p i d i t y, forgetfulness or inattention.

s. 5(2)(b): belief that other property was in immediate need of protection.

s. 5(2)(b) could give a defence where trees are cut down or buildings demolished in order to prevent the spread of fire

destroying property.

If the D has another purpose for doing the damage then the court may rule that the defence is not allowed.

Hunt (1978)

The D helped his wife in her job as a warden of a block of old people's flats. He set fire to some bedding in order to draw attention to the fact the fire alarm wasn't working.

Defence of s. 5(2)(b)?

No.

Why?

The D did not act in order to protect property that was in immediate need of protection.

Blake v DPP (1993)

The D wrote a biblical quote on a concrete pillar in protest against the first Gulf War and put forward defences of both s. 5(2)(a) and s. 5(2)(b).

He argued s. 5(2)(a) because ...

... he was carrying out the instructions of God and God was entitled to consent; and

... he argued s. 5(2)(b) because ...

... he was protecting the property of citizens in Iraq and Kuwait.

The D's defences were not allowed. God could not consent and his actions were not capable of protecting property in the Gulf.

Also, in order for a lawful excuse of s. 5(2)(b) to succeed the "item" D is trying to protect must be

property.

Cresswell and Currie (2006)

The Ds were aga ins t the Department for Environment, Food and Rural Affairs' (DEFRA) cull of badgers.

The badgers were being culled in order to see if there was a link between badgers and TB in cows. The Ds destroyed traps that had been set by DEFRA for the purpose of trapping badgers (the badgers would then be killed).

Do the Ds have a defence under s. 5(2)(b)? Are the badgers property?

No.

Why?

The badgers were not property when the traps were destroyed. They had not been caught yet and so they were not in anyone's possession. Plus they didn't "belong to another".

There is no defence if the D believes he is acting in order to protect a person from harm.

Baker and Wilkins (1997)

The 2 Ds believed Baker's daughter was being held against her will in a house.

They tried to enter the house and caused damage to the door.

The Ds were convicted of criminal damage because the defence of s. 5(2)(b) only applies where property is in immediate need of protection not people.

2. Aggravated criminal damage.

This defined in s. 1(2) CDA71

"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 damage; 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 therefore endangered;

shall be guilty of an offence."

The actus reus and mens rea of aggravated criminal damage is the same as basic criminal damage with

some extra criteria that must also be satisfied.

Danger to life.

The danger to life must come from the damage or destruction and not from some other source.

Steer (1987)

The D fired 3 shots at the house of h is former business partner causing damage to the house.

The CA quashed the Ds conviction. The danger to life came from the D's act (the firing of the shots) and not the damage.

The prosecution appealed.

Did the HL allow the appeal?

No.

Why?

The act states "... by the destruction or damage" and so it could not be extended to include the act that caused the damage.

Webster (1995)

3 Ds pushed a large stone from a bridge on to a train. The stone hit the roof and caused debris to fall on to the passengers. The stone did not fall into the carriage.

In this type of case The D would be guilty under s. 1(2) if he intended or was reckless that the stone would smash the roof so that wood/metal struts from the roof would/might fall on to a passenger, endangering life.

Warwick (1995)

The D rammed a police car and threw a brick at it causing the rear windscreen to smash and shower the officers with glass.

In this case being guilty of s. 1(2) does not depend on whether the brick hits the window or not but whether the D intended or was reckless that the damage should endanger life.

Life not actually endangered.

Life does not actually need to be endangered.

Sangha (1988)

The D set fire to a mattress and 2 chairs in a neighbour's flat. The flat was empty and because of the design of the bu i ld ing , peop le in the neighbouring flats were not at risk.

The D was found guilty even though no actual life was endangered. The damage was still a danger to life.

Own property.

s. 1(2) applies where property belongs to another and is damaged/destroyed and where the property damaged/

destroyed is the D's own.

This makes sense as the aim of the offence is to punish Ds who intend or are reckless as to whether damage will

endanger life.

Merrick (1995)

The D was employed by the home owner to remove some old TV cables. Whilst D was doing this he left the live cable exposed for approximately 6 minutes. No-one was hurt but he was charged under s. 1(2) because of the damage to the wiring.

The D's conviction was upheld. It was stated that if the home owner had done the work himself then he would have been equally guilty.

MENS REA.

There are 2 elements that the prosecution must prove:

1. Intention or recklessness to destroy or damage property;

and

2. Intention or recklessness as to whether life is endangered by the destruction or damage.

Intention and recklessness are given the same definitions as in basic criminal damage.

Since G and R (2003) the meaning of recklessness has been subjective and this was confirmed for aggravated

criminal damage in the case of Cooper (2004).

3. Arson and 4. Aggravated arson.

Under s. 1(3) CDA71 it states that where a s. 1 offence occurs (either s. 1(1) or s. 1(2)) and is caused by fire, the

offence then becomes one or arson.

All the definitions are the same except the damage/destruction must be caused by fire.

Miller (1983)

The HL stated that arson could be committed by an omission where the D accidentally started a fire and then failed to do anything to prevent the damage from fire.