1. Criminal Damage Criminal Damage Act 1971

2. S.1(1) Criminal Damage Act 1971 “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.” Defence- if done with a lawful excuse

3. Elements  Destroy or damage  Property  Belonging to another  Intentionally or recklessly

4. Destroy or Damage  No real definition given in Act BUT  Has value or usefulness of item been affected?  Has any permanent or temporary physical harm been done?  Has any expense been incurred in order to remedy the damage?  Has property been left so that it can no longer be used for its normal purpose?

5. There are 3 criminal damage offences  S1 (1)The basic offence- intentionally or recklessly destroying or damaging property belonging to another  S1(2) the aggravated offence- intentionally or recklessly destroying or damaging property or intending by the destruction or damage to endanger life of another or being reckless as to whether life of another would be endangered  S1(3) arson- destroying or damaging property by fire.

6. The Basic offence  The D must:  Destroy or damage  Property  Belonging to another  Intending or being reckless as to the damage or destruction of property

7. The Actus Reus-Destroy or damage  Damage is not defined by the Act, and the courts have construed the word liberally.  In one case smearing mud on the walls of a police station cell was considered criminal damage.  The damage need not be visible or tangible if it affects performance or value of property

8. Consider when the following will cause damage:  Damage does not have to be irreparable  Time required to restore or repair property is lengthy  The use of the item is impared

9. A (a juvenile) v R (1978) Compare that case with R v A (1978) where the d spat on a policeman’s overcoat but was not guilty of criminal damage as the spit could have easily been wiped away with a damp cloth. It would appear to be criminal damage if someone is put to the expense of repairing or cleaning. Morphitis v Salmon (1990) It will not amount to criminal damage if there is no impairment of use as shown in Morphitis v Salmon (1990) where a scratch on some scaffolding was not deemed as criminal damage as it did not prevent its use or affect its value.

10. Examples Hardman & Others v C.C. Of Somerset & Avon Police (1986) Hardman v Chief Constable of Avon Constabulary (1986) members of the CND, nuclear disarmament group, used water soluble paints on the pavement to symbolise vaporised victims of Hiroshima on the 40 th year anniversary. This washed away with rain but their conviction for criminal damage was upheld as the council was put to the expense of cleaning the pavements. Samuels v Stubbs - A temporary derangement of a PO hat from being jumped on was CD

11. The Actus Reus-Property  Defined by S.10(1) CDA 1971  Essentially the same definition of property as in s.4 Theft Act 1968  Here though property does not extend to intangible property- has to be tangible e.g something that can be touched  Exclusion- wild flowers, wild animals  But courts may interpret this widely if necessary

12. Belonging to Another  Defined by S.10(2) CDA 1971 but again almost same definition as used for theft.  Cannot be guilty of an offence if property is yours – and extended to property which you honestly believed to be yours but turned out not to be.  Can extend to people who may not be the owner but have a lesser interest in the property as they have control of it, a proprietary right/interest in it, have a charge on it- because of this an owner can be guilty of damaging own property e.g. car owns with GF  It is not possible to damage abandoned property

13. R v Smith (David Raymond) (1974)   Smith (1974) tenants had the permission of their landlord to install wiring in his property. Before leaving the tenants removed the wiring but in doing so damaged the floorboards. Once the wires were down they were considered the property of the landlord but their conviction was quashed by the CoA on the basis that they honestly believed the wires were their own.

14. Mens Rea-Intentionally or Recklessly  Intention – the defendant must have intentionally destroyed or damaged the property.  Recklessly – since the case of R v G and Another (2003) this is now assessed on a subjective basis.

15. Intention- subjective test  The D will escape liability if he genuinely (even if mistakenly) believed he owned the property as he would not intend to damage property belonging to another- consider the Smith case  So need to consider whether the D knew there was doubt about ownership of property, and despite this when ahead and destroyed it.  It must also be proven that D knew or forsaw the risk that damage might occur

16. Recklessness  This was considered in Seray-Wurie v DPP 2012. Here the court confirmed that the prosecution must prove that the D was reckless as to the damage caused, but need not show that the D knew or was reckless as to whether what he did amounted to damage.  D wrote with black marker on signs and appricieated there was a risk the writing could not be erased as so was considered reckless.

17.   Note that recklessness is now subjective recklessness. This comes from the case of Gemmell and Richards (2003). The Lords, now the Supreme Court overruled their own decision in the case of Caldwell (1982). The question the courts ask is did the d’ recognise the risk of damaging or destroying property (and of endangering life for the aggravated offence?   Gemmell and Richards (2003) two boys, aged 11 and 13 set fire to some papers at the back of a shop and damaged several buildings. They were convicted of arson on the basis of Caldwell (the damage was obvious to a reasonable person.) On appeal to the Lords, they used the Practice Statement 1966 to overrule their previous decision. They said that the previous law was wrong and the d’ had to understand that there was some sort of risk.  

18. Without Lawful Excuse  This obviously allows for a defence to a criminal damage charge.  Any of the general defences +  S.5(2) Criminal Damage Act 1971

19. S.5(2) CDA 1971  S.5(2)(a) – if at the time of the act the defendant believed that the “owner” consented or would have consented to the damage or destruction if they had known of the circumstances.  S.5(2)(b) – that the destruction etc was honestly believed to be necessary in order to protect property belonging to the defendant or another and that the means of protection adopted was reasonable in the circumstances R v Hill & Hall (1989)- judge had to decide if there was any need of protection of immediate danger for the D. This meant than immediate action was necessary to prevent something worse from happening. Here nuclear war- at naval base for nuclear submarines

20.   There is a defence of lawful excuse that can be relied upon. This is not applicable to criminal damage endangering life. Lawful excuse is where the d destroys property in the belief that;   The person entitled to consent would have consented to the destruction or damage if they had known about it and its circumstances s5(2)(a) or   It was necessary in order to protect property belonging to himself or another which he believed was in immediate need of protection and he believed the means adopted was reasonable, having regard to all the circumstances s5(2)(b).  

21. Section 5(2)(a)   Jaggard v Dickenson (1981) d was drunk and broke into a house believing it was a friend’s house. She believed that her friend would have consented to the damage caused. On appeal the court said that she should be acquitted because her drunkenness should not play a factor, her belief was enough.   DPP v Blake (1993) a vicar used a marker pen to write biblical quotations on a wall outside parliament. He argued consent, stating he had God’s consent. He failed as the act mentions nothing about God.  

22. Section 5(2)(b)   DPP v Blake (1993) the vicar also claimed that with his protest he was aiming to protect the property of the people of the Gulf. He failed because the people of the Gulf were too far away to benefit from his actions.   Chamberlin v Lindon (1998) d was allowed the defence when he destroyed a neighbour’s wall because he honestly believed that the wall was blocking his right of access and he adopted a reasonable course of action.

23. Aggravated Offences Criminal Damage Endangering Life Arson

24.  S.1(2) Criminal Damage Act 1971  “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.”

25. S.1(2) CDA 1971 Must commit Criminal Damage as defined by S.1(1) CDA 1971 + Intended or was reckless as to endangering life

26.  Do not have to actually endanger life  Just have to intend to do so or be reckless as to whether life would be endangered or not. R v Dudley (1989)  There must be a link between the damage to property and the endangerment of life R v Steer (187)

27.   known by aggravated criminal damage, is covered by Section 1(2) of the Criminal Damage Act 1971 which provides;   A person who without lawful excuse destroys or damages any property, whether belonging to himself or another—so can apply to damaging own property.   intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and   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; - there is no actual need for life to be in danger it just has to be reckless as to endangering life   shall be guilty of an offence.

28.   This is similar to criminal damage but is regarded much more serious as the d’ intended to or was reckless with regard to endangering life. This crime carries a maximum sentence of life imprisonment. The other main difference is that the damage does not have to be to property belonging to another. It is also important to note that there does not have to be danger to life, it is enough that the d’ realised that life would be endangered.   “intending by the destruction or damage to endanger the life of another” can be illustrated by the case of Steer (1987) where the d’ shot a window of a former business partner. He appealed and was successful. HL held that the danger had to come from the damage to the property (broken glass) rather than the original action (firing the shot.)

29. Task  Read cases of:  Webster 1995  Warwick 1995

30. ARSON  Considered aggravated offence due to unpredictable and dangerous nature of fire.  Arson = all elements of S.1(1) CDA 1971 but where the destruction or damage is caused by fire.

31. Section 1(3) provides; An offence committed under this section by destroying or damaging property by fire shall be charged as arson.   This again is considered a very serious offence carrying a maximum sentence of life. It is criminal damage but if the damage is caused by fire it is considered arson.   MPC v Caldwell (1982) where the d was convicted of arson when he set fire to a chair in a hotel he worked in. The fire was put out before anyone was injured but he had endangered the lives of the residents.   Elliot v C (1983) a 14 year old girl with very low intelligence was convicted of arson by setting her neighbour’s shed alight. She put white spirit on the floor and set fire to it to stay warm. The old test of objective reasonableness was used and she was judged by the standard of the reasonable person. Would the reasonable person had done the same? Under the more recent test she would not have been convicted.

32.   Denton (1982) d set fire to his employer’s mill and successfully argued that the owner had consented as he wanted to fraudulently claim money through the insurance. The court said that if the damage was caused with the intent to endanger life, then no defence would have been available.

33. Activity  Consider the following situation:  Gary had a grudge against Henry. Whilst Henry was busy, Gary loosened the wheel nuts on a bicycle that Henry frequently used. When Henry fell off the bicycle, narrowly avoiding a serious incident.

34. Activity  In Pairs create your own scenarios- one must create a scenario of basic criminal damage and the other an aggravating offence.  Then swap scenarios and try and answer each other  Don’t forget! You must be able to answer your own scenario to see if your partner gets it correct!