Criminal Damage

Lesson Objectives I will be able to state the definitions of the 3 types of criminal damage I will be able to explain the actus reus and mens rea of the 3 types of criminal damage I will be able to explain cases that illustrate the law on the 3 types of criminal damage

Criminal Damage Criminal damage consists of 3 separate offences that cover a range of activities from minor vandalism to arson All offences are dealt with in the Criminal Damage Act 1971 They are basic criminal damage, aggravated criminal damage (correctly called destroying or damaging property with intent to endanger life) and arson

The basic offence of criminal damage Set out in s1(1) of the Criminal Damage Act 1971 as: 1. A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property would be destroyed or damaged shall be guilty of an offence

The actus reus of the offence has the following elements: –Destroy or damage –Property –Belonging to another –Without lawful excuse The mens rea of the offence is either: –Intention to destroy or damage property belonging to another –Or –Recklessness as to whether such property is destroyed

Actus reus – destroy or damage Destruction or damage is a question of fact and degree including temporary or permanent physical harm to property, reduction in value or usefulness Damage is not defined by the Act. The courts have construed the term liberally What constitutes damage is a matter of fact and degree and it is for the court, using its common sense, to decide whether what occurred is damage It is also the case that the damage need not be visible or tangible if it affects the value or performance of the property

Hardman v Chief Constable of Avon and Somerset (1986) – the meaning of damage within the Criminal Damage Act 1971 includes temporary damage that will naturally disappear; in this case it involved water-soluble paint on a pavement Morphitis v Salmon (1990) – this case decided that there must be some reduction in usefulness or value of an item to amount to criminal damage; a scratch to a scaffold pole was, therefore, insufficient Be careful with computer related damage Destruction of property includes removing parts from a car, killing an animal or killing plants or crops

Actus reus - property Section 10(1) of the Criminal Damage Act 1971 defines property as: …property of a tangible nature, whether real or personal, including money and – A) including wild creatures which have been tamed or are ordinarily kept in captivity, and any other wild creatures or their carcasses if, but only if, they have been reduced into possession which has not been lost or abandoned or are in the course of being reduced into possession; but B) not including mushrooms growing wild on any land or flowers, fruit or foliage of a plant growing wild on any land For the purposes of this subsection ‘mushroom’ includes any fungus and ‘plant’ includes any shrub or tree this is therefore wider than the Theft Act 1968 s4 definition as it includes land itself, but excludes wild plants.

Actus reus – belonging to another This is much the same as in the Theft Act 1968 s5 and is set out in s10 of the Criminal Damage Act The main difference is that criminal damage requires custody and control of property rather than possession or control. The effect is that there can be an offence of criminal damage whenever some person has any rights over property, but it is not possible to cause criminal damage to abandoned property

Actus reus – without lawful excuse This is set out in s5 of the Criminal Damage Act Section 5(2) defines lawful excuse where there is belief in consent or belief in the immediate necessity to protect property Section 5(3) makes it clear that the belief is subjective and must be honestly held

Jaggard v Dickinson (1980) – the defence to a charge of criminal damage of lawful excuse is effective if the defendant honestly believes that he has consent of the owner to carry out the damage; in this case, it was destroying property to get into a house Denton (1982) – here the defendant's employer asked him to set fire to his business premises as part of an insurance fraud; this raised the defence of lawful excuse because he was asked to do it and the fact that the outcome was intended by the person making the request to be unlawful is irrelevant

With respect to protection of property, this covers events such as emergency services damaging property to get in a fight a fire The problem here is not the defendant’s belief in the means used were reasonable, but the immediacy of the necessity which is objective Lloyd v DPP (1985) Hill and Hall (1989)

Mens rea This is straightforward – either intention to destroy or damage property belonging to another or recklessness as to whether such property is destroyed. In both cases, the recklessness is Cunningham (1957) subjective recklessness

The aggravated offence of criminal damage This offence is set out in s1(2) of the Criminal Damage Act 1971 as: 2. 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

The key aspects of this more serious offence are the intention or recklessness as to endanger life. It should also be noted that a person can be guilty if he destroys or damages his own property with intent to endanger life There is no need to prove that a life was in fact endangered The mens rea is not just the intention to damage or destroy property or be reckless thereto, the defendant must also be shown to have intended or been reckless thereto by that damage

Steer (1987) – the aggravated criminal damage offence must arise from the damage caused rather than the cause of the damage However, a defendant may be guilty, either if he intended to endanger life by the damage, which was intended to be done, or was reckless that life would be endangered by the damage Warwick (1995) – the aggravated criminal damage offence requires that the defendant’s act was done with the intention or recklessness as to endanger life by the damage done The defence of lawful excuse does not apply to the aggravated offence

Arson This offence is set out in s1(2) of the Criminal Damage Act 1971 as: 3. An offence committed under this section by destroying or damaging property by fire shall be charged as arson This offence is the same as the basic offence but requires that the damage is caused by fire. As this offence is related to the basic offence, the lawful excuse offence is available – Denton (1982)

Exam Q