Criminal Damage

Notes:Criminal Damagecriminaldamagelaw04.doc

Criminal damage consists of three separate offences that cover a range of activities from minor vandalism to arson. All the offences are dealt with in the Criminal Damage Act 1971. The law has been subject to scrutiny recently as there have been a number of well publicised cases of arson where the fires have been started by a young person, and the fires rapidly spread causing damage worth millions of pounds, and more importantly death or injuries to firefighters.

The three offences are basic criminal damage, aggravated criminal damage (correctly called destroying or damaging property with intent to endanger life) and arson.

 

Key Facts

 

  1. Involves a person damaging/destroying property without lawful excuse.
  2. Triable either way offence if damage over £5000, summary offence if less.
  3. Max sentence is 6mnths or £5000 fine, summary 3 months or £2500 fine

 

 

The definition basic criminal damage

 

The basic offence is 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 or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.

 

The actus reus of the offence has the following elements:

 

  1. destroy or damage
  2. property
  3. belonging to another
  4. without lawful excuse.

 

The mens rea of the offence is either:

 

  1. intention to destroy or damage property belonging to another
  2. or  recklessness as to whether such property is destroyed.

 

The 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. In one case, smearing mud on the walls of a police cell was considered to be criminal damage. 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.

 

There are a number of aspects to this. One case is Hardman v Chief Constable of Avon and Somerset (1986), which decided that there was criminal damage where a pavement had been painted with water-soluble paint and chalks, even though the natural elements would eventually remove all trace of the paint on the pavement.

 

In Morphitis v Salmon (1990), a scaffold pole was used to block an access road. A scratch on a metal scaffolding bar could not amount to criminal damage because it did not reduce its usefulness or value. However, the removal of the scaffold bar impaired the usefulness of the roadblock, and that would amount to criminal damage.

 

Dumping of rubbish on land may amount to criminal damage if the owner of the land will be put to expense in removing it. However, spitting on a person’s clothing is not criminal damage, however unpleasant it might be, unless the clothing is damaged by the spittle, as in the case of A v R 1978, where a PC’s raincoat was spat on but not considered damaged. The key to damage appears to be whether it means a cost to removal, so mud smeared on a police cell costing £7 to clean off would be regarded as damage, as in Roe v Kingerlee 1986. Many of the problems associated with damage to computer data is now covered by the Computer Misuse Act 1990, and, under the Police and Justice Act 2006, criminal damage to computers is limited to physical damage to the computer.

 

Destruction of property includes removing parts from a car, killing an animal or killing plants or crops. In Roper v Knott 1898 watering down beer was classed as destruction.

 

The 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 definition of property that we considered under the Theft Act 1968 s4 in the Theft as it includes land itself, but excludes wild plants.

 

The 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 1971. 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.

 

The actus reus – without lawful excuse

 

This is set out in s5 of the Criminal Damage Act 1971. 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. This has led to some interesting cases involving this defence to a charge of criminal damage.

 

In Jaggard v Dickinson (1980), the defendant, having been drinking, took a taxi to 67 Carnach Green, South Ockendon, a house occupied by Mr RF Heyfron, with whom she had a relationship such that, in the words of the magistrates, she had his consent at any time to treat his property as if it was her own. She got out of the taxi, entered the garden but was asked to leave by a Mrs Raven, whom she did not know. She carried on trying to get into the house and in doing so broke the glass in the hallway of the house. She then went to the back door, where she broke another window and got into to the house, damaging a net curtain in the process. She then realised that the house was not 67 Carnach Green but 35 Carnach Green, a house which looked identical, occupied by Mrs Raven. There was lawful excuse here as she honestly believed she had consent.

 

In the case of Denton (1982), the defence was successfully used where the defendant set fire to his employer’s factory, having been asked to do so as part of an insurance fraud. The way that the employer put it was: ‘There is nothing like a good fire for improving the financial circumstances of a business’! Denton was not guilty of criminal damage (arson) despite causing £40,000 of damage to the premises. He could have been found guilty of other offences relating to the fraud.

 

With respect to protection of property, this covers events such as emergency services damaging property to get in to fight a fire as where they push a badly parked car out of the way with a fire engine. The main problem here is not the defendant’s belief in the means used were reasonable, but the immediacy of the necessity which is objective. Thus, removing a wheel clamp on a car which has been illegally parked is criminal damage as in the case of Lloyd v DPP (1985), where Lloyd had parked in a private car park without permission, and returned to find his car clamped. He refused to pay the £25 fee to have the clamp removed, instead returning later that night to remove it with a disc cutter. He was subsequently prosecuted, and convicted of criminal damage.

 

In Hill and Hall (1989), the judge had to determine whether, on the facts as stated, there was any evidence on which it could be said that the defendant believed there was a need of protection from immediate danger. This means evidence that immediate action had to be taken to do something which would otherwise be a crime in order to prevent the immediate risk of something worse happening. In this case the something worse was nuclear war, as the defendants were protesting at a naval base for nuclear submarines.

 

The 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 confirmed by R v G & other .

Aggravated Criminal Damage

The definition of aggravated offence of criminal damage

 

This offence is set out in s1(2) of the Criminal Damage Act 1971 as:

 

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, for example, cutting the brake lines of your car before someone else borrows it. 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.

 

This can be seen in the case of Steer (1987) where, in the early hours of the morning, the defendant went to the bungalow of his former business partner, David Gregory, against whom he bore some grudge. He was armed with an automatic .22 rifle. He rang the bell and woke Mr and Mrs Gregory, who looked out of their bedroom window. The defendant fired a shot aimed at the bedroom window. He then fired two further shots, one at another window and one at the front door. Fortunately no one was hurt. It was never suggested that the first shot had been aimed at Mr or Mrs Gregory.The prosecution had to prove that the danger to life resulted from the actual destruction of, or damage to, property. In this case, the shooting, not the broken window, endangered life, so the defendant was not guilty of the aggravated offence.

 

However, the 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. This can be seen from the case of Warwick (1995), where the defendant was a passenger in a stolen car. He threw bricks at a pursuing police car, smashing a window and showering a policeman with glass. As this could cause the driver to lose control it would endanger the life of the driver and any passengers. Therefore, there was a conviction under s1(2) of the Criminal Damage Act 1971.

 

Thus, if a person drops something from a bridge onto cars passing below, or throws missiles at, or rams, police cars there can be a conviction for the aggravated offence. If the intent is to break the windscreen or window, a jury is entitled to infer that there was an intention to shower the driver or passengers with glass and that as a result control could be lost, thereby endangering life. The danger would be caused, and intended to be caused, by the broken glass.

 

Finally, it should be noted that the defence of lawful excuse does not apply to the aggravated offence.

 

 

 

Arson

 

This offence is set out in s1(3) of the Criminal Damage Act 1971 as:

 

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 defence is available as was seen in the case of Denton (1982).

 

The definition of aggravated offence of criminal damage

 

This offence is set out in s1(2) of the Criminal Damage Act 1971 as:

 

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, for example, cutting the brake lines of your car before someone else borrows it. 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.

 

This can be seen in the case of Steer (1987) where, in the early hours of the morning, the defendant went to the bungalow of his former business partner, David Gregory, against whom he bore some grudge. He was armed with an automatic .22 rifle. He rang the bell and woke Mr and Mrs Gregory, who looked out of their bedroom window. The defendant fired a shot aimed at the bedroom window. He then fired two further shots, one at another window and one at the front door. Fortunately no one was hurt. It was never suggested that the first shot had been aimed at Mr or Mrs Gregory.The prosecution had to prove that the danger to life resulted from the actual destruction of, or damage to, property. In this case, the shooting, not the broken window, endangered life, so the defendant was not guilty of the aggravated offence.

 

However, the 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. This can be seen from the case of Warwick (1995), where the defendant was a passenger in a stolen car. He threw bricks at a pursuing police car, smashing a window and showering a policeman with glass. As this could cause the driver to lose control it would endanger the life of the driver and any passengers. Therefore, there was a conviction under s1(2) of the Criminal Damage Act 1971.

 

Thus, if a person drops something from a bridge onto cars passing below, or throws missiles at, or rams, police cars there can be a conviction for the aggravated offence. If the intent is to break the windscreen or window, a jury is entitled to infer that there was an intention to shower the driver or passengers with glass and that as a result control could be lost, thereby endangering life. The danger would be caused, and intended to be caused, by the broken glass.

 

Finally, it should be noted that the defence of lawful excuse does not apply to the aggravated offence.

 

 

 

 

 

 

 

Arson

 

This offence is set out in s1(3) of the Criminal Damage Act 1971 as:

 

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 defence is available as was seen in the case of Denton (1982).

 

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