Criminal Damage Act 1971: simple damage
D unlawfully, intentionally or recklessly destroys property of another. max 10 years
aggravated damage
in addition intends or reckless , endagers life of another
max sentence is life
arson simple or aggravated
criminal damage caused by fire
max sentence is life, but more likely to receive longer sentence for aggravated.
NOTE: for aggravated do not need to prove property belongs to another.
simple damage : AR
destroy or damage property of another:
damage: even if slight
problems when damage can easily be fixed
CDA: belonging to another similar to theft act,
SEE Activity for differences!!!
TODO
CDA: MR
intention or recklessness
not enough to prove intended conduct, must prove that D intended by his conduct to damage property belonging to another.
Recklessness: advertent / inadvertent
R v G 2002
Caldwell 1982
advertent :D knows it is reckless
inadvertent: D does not consider if behaviour is reckless.
Caldwell : inadvertent is sufficient
R v G HL overrules Caldweel. proof required that D was aware.
belonging to another: Smith
must prove that D knew that property belonged to another.
aggravate CD, MR
intentionally or recklessly damage property
D must intend by destruction that life is endangered.
no requirement that life was actually endangered!
Steer: endangerment of life must be related to damage
CD defences: requires unlawful damage
general defences: duress, or self defence
2 excuses for simple damage:
-D believes that owner would have consented to damage
Jaggard v Dickinson 1980: even if mistake due to intoxication, it will excuse.
-D acted in order to protect another's property.
ac
Kelleher 2003 destruction of Margaret Thatcher's statue in gallery
D raises defence that he cut off statue to draw attention to policies which would destroy planet so he argued that he was protecting property.
Lloyd [1992]
...
R v Steer [1987]
he appellant had an argument with a former business partner and went round to his house armed with a gun. He rang the door bell and then fired shots through the windows and doors. He was convicted of aggravated criminal damage under s.1(2
His conviction under s.1(2) was quashed as the danger to life came from the gun and not the damage to the property.
Simple criminal damage
level of damage caused will be one of the factors taken into account by the court when determining the sentence of a person convicted of criminal damage.
1. A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.
2. Sect
Actus reus
1. What is the actus reus of simple criminal damage?
2. What other offence might be committed in circumstances where property is
completely destroyed?
The actus reus of simple criminal damage is the destruction of or damage to property belonging to another. It is necessary to consider the meaning of the terms 'destroy', 'damage', 'property' and 'belonging to another' as they apply under the 1971 Act.
2.
CDA damage
one of fact and degree (Cox v Riley [1986])
Gayford v Choulder [1898]
Hardman v Chief Constable of Avon and Somerset Constabulary [1986]
Morphitis v Salmon [1990]
Roper v Knott [1898]
A (a juvenile) v R [1978]
One of the difficulties with this offence is determining to what extent the property must be interfered with in order to amount to criminal damage.
damage ?a. Bill watered down John's milk.
It is likely that this would amount to criminal damage as it has been held that property may be damaged even though there is no interference with its performance or if it is made less valuable. (King v Lees (1948) 65 TLR 21) and food is likely to be damag
damage ?b Susie was a pavement artist who used water soluble chalks and paints to make pictures on the pavement.
As to whether Susie's pavement pictures constitute criminal damage might depend upon the potential effort and expense which may be involved in rectifying the harm. In Hardman pavement pictures done in water soluble paint were held to amount to damage beca
damage ?c
Jill spat at Tom and her spittle landed on his coat.
In A (a juvenile) v R [1978] it was held that spitting on a policeman's coat would not amount to criminal damage where the spittle could be removed with a damp cloth. It would seem that Jill would not be guilty of criminal damage unless she spat something
damage ?d Brian scratched his initials on some scaffolding which had been erected on the house next door.
In Morphitis v Salmon [1990] it was held by the Divisional Court of the Queen's Bench that as a scratch amounted to a normal incident in relation to scaffolding and would not amount to an impairment of its value or usefulness and was not 'damage' for the
damage: Woolcock [1977]
Impairing the usefulness of property can also amount to 'damage' - for example, removing a part from or dismantling a machine so that it no longer works properly, e.g. removing a rotor arm from a car. In this situation the defendant should be charged with
Lloyd [1992] followed in Mitchell (Carl) [2004]
Can a person consent in law to the damage of their property?
b. Is clamping a car criminal damage?
c. Why did Professor Smith consider the reason for the court rejecting the defendant's argument in this case
Generally a person can, in law, consent to damage to their property. Such a consent is very unlikely to be contrary to public policy. In the case of Lloyd the Queen's Bench Division held that the magistrates' court had rightly found that Lloyd had consent
CDA property
defines what is 'property' for the purposes of the Act. It follows that if something which is destroyed or damaged does not fall within the definition of property contained in that section there can be no offence of criminal damage.
There are some similar
3 differences between s.10(1) of the Criminal Damage Act 1971 and s.4 of the Theft Act 1968?
0
Has there been damage to property in the following situations?
Jane, while on a country walk, finds and eats some wild mushrooms.
Provided these were wild mushrooms Jane will not be guilty of criminal damage as wild mushrooms are specifically excluded by s.10(1)(a) from the definition of property capable of being damaged for the purposes of the Criminal Damage Act.
Has there been damage to property in the following situations?
It is raining so Jane breaks a window to gain entry to a house in order to take shelter.
Jane is guilty of criminal damage; she has damaged property belonging to another. The fact that she might get wet in the rain is unlikely to be sufficient to afford her the defence under s.5(2)(a).
As she leaves, she picks some flowers from the houseowner's garden to take home with her.
Although s.10(1)(b) specifically excludes wild flowers from the definition of property for the purposes of the Criminal Damage Act, these flowers would appear to be cultivated plants which are property belonging to another. As she intended to pick them an
Belonging to another
When, according to s.10(2) will property be treated as belonging to another? Refer now to this section. Once again you will see the similarities between s.10(2) and s.5 of the Theft Act 1968.
has custody or control of it
has a proprietary right or interest in it (this includes the situation where property is subject to a trust and it is provided that the person to whom it belongs is any person having a right to enforce the trust)
has a charge
Find two differences between s.10 of the Criminal Damage Act 1971 and s.5 of the Theft Act 1968 as they relate to 'belonging to another'.
b. Erica destroys her car so that she can claim the insurance money from the insurance company. Has Erica committed t
Section 10(2) of the Criminal Damage Act does not include property got by another's mistake as does s.5(4) of the Theft Act 1968. Section 10(2) makes explicit (s.10(2)(c)), which s.5 does not, that property will be treated as belonging to a person who has
Mens rea
Please go to s.1(1) of the Criminal Damage Act where you will see that the mens rea requirement for this offence is that the defendant 'intentionally' or 'recklessly' destroyed or damaged the property belonging to another. Intention and recklessness are c
EX: A defendant will often be charged with 'intentionally' or 'recklessly' destroying or damaging property belonging to another. What is the effect of this?
ii. What does 'recklessness' mean in this context?
The effect of this is that if the jury is not satisfied beyond reasonable doubt that the defendant intended to cause the damage or destruction of the property but is satisfied beyond reasonable doubt that the defendant was reckless as to the destruction o
Intentional destruction or damage to property belonging to another
John was kicking a ball around in his garden. He aimed for a tree but missed and the ball hit his neighbour's window breaking it. Is John guilty of criminal damage?
Note that it is not sufficient merely to prove that a defendant intended the particular conduct which resulted in the damage. To intend to kick a ball in the street is not to be equated with intending to break a window. Thus, where a defendant has broken
Susie hated criminal law so she decided to destroy her textbook. Unfortunately, she mistakenly destroyed her friend's book. Is she guilty of criminal damage?
It is no offence under s.1(1) where a defendant intends to destroy or damage property which is his own property or which he honestly but mistakenly believes to be his own. As James LJ said in the case of Smith [1974]
Reckless destruction or damage to property belonging to another
Stephenson [1979]
conviction for criminal damage was quashed by the Court of Appeal because the issue of whether he had foreseen a risk of damage had not been clearly left to the jury.
Castle [2004]
Court of Appeal held that the Caldwell definition of recklessness was no longer appropriate and applied the decision of the House of Lords in R v G [2004]. The offence in this case was arson, being reckless as to whether life was endangered (s.1(2) and (3
Aggravated criminal damage
Actus reus
If you consider s.1(2) carefully you will see that the actus reus of the aggravated form of criminal damage is, in most respects, the same as that for simple criminal damage. There is, however, one important differenc
can be guilty of the aggravated form of criminal damage by destroying or damaging his own property; this offence is not restricted to the destruction or damage of another's property. Therefore if D causes damage to an electrical appliance which belongs to
Aggravated criminal damage
MR the
defendant must intend or be reckless as to the damage or destruction of the property.
Cooper [2004] Caldwell loophole
n order to find a defendant guilty of this offence, in addition to proving that the defendant intentionally or recklessly destroyed or damaged property, it must also be proved that s/he was aware of an obvious and significant risk of danger to life.
defen
CUNNINGHAM OR SUBJECTIVE RECKLESSNESS
he question that must be asked is "was the risk in the defendant's mind at the time the crime was committed?" This test was established in:
R v Cunningham [1957]
CALDWELL OR OBJECTIVE RECKLESSNESS
new wider sense when he performs an act which creates an obvious risk, and, when performing the act, he has either given no thought to the possibility of such a risk arising or he recognised that some risk existed, but went on to take it.
R v Steer [1987]
fired a gun intending to injure another person, but missed and hit a window instead; it was held that although the intention to endanger life and the fact of damage coexisted, the damage itself did not endanger life.
The phrase in s.1(2)(b) of the Act of 1971 'by the destruction or damage' refers on its true construction not only to the destruction of or damage to property as the cause of the danger to life on which the mental element in the aggravated offence under t
Arson
destroying or damaging property by fire. Section 1(3) of the Criminal Damage Act 1971 provides that: 'An offence committed under this section by destroying or damaging property by fire shall be charged as arson.'
2 forms
The aggravated form of arson (subs
Arson with endangered life:
arson with intent to endanger life, and u arson being reckless as to whether life would be endangered.
Drayton (Alan Clark) [2005]
without lawful excuse [damaging] by fire property intending to destroy or damage such property or being reckless as to whether such property would be destroyed or damaged. The defendant contended that the provision in s.1(3) of
held that a requirement to charge as arson meant a requirement to charge as damage by fire, rather than damage by any other means as that can materially affect the penalty. To charge as causing damage by fire was to charge arson, because that was exactly
Racially or religiously aggravated criminal damage
A person is guilty of an offence under this section if he commits an offence under Section 1(1) of the Criminal Damage Act 1971...which is racially or religiously aggravated for the purpose of this section.
similar to racially aggravated assault requireme
Defences
A number of general defences (e.g. mistake, self-defence and duress of circumstances) can be pleaded on a charge of criminal damage (see Chapters 12-13).
Lawful excuse
Lawful excuse
burden of proof remains on the prosecution to prove that he did not have such lawful excuse. Both subsections (1) and (2) provide that the destruction or damage to property must be 'without lawful excuse' but, given the endangerment to life element of the
ection 5(2)(a) and (b) sets out two situations where a defendant will have a defence to a charge of simple criminal damage. What are these situations?
Where the defendant believes that a person entitled to consent to the destruction or damage has consented to it, or would do so if that person knew of the circumstances, or
b. Where the defendant acted in order to protect property or a property interest (
Jaggard v Dickinson [1980]
D broke into a house when she was drunk. She thought the house belonged to her friend. If the house had belonged to her friend, the friend would have consented to her entering in this way. D argued that she had a defence under t
it did not matter for these purposes that the defendant's mistake was a drunken mistake. You should note here that this decision has 'troubled' the Law Commission as criminal damage is a basic intent offence.
Her intoxication negated her mens rea. The off
Chamberlain v Lindon (1998)
defendant will satisfy the requirement that his property or interest was in immediate need of protection if the threat to his property has already materialised
Lindon demolished a wall to protect a right-of-way, Despite allowing nine months to pass before acting, Lindon honestly believed that it was immediately necessary to protect his legal rights without having to resort to civil litigation. For the purposes o
Hunt [1977]
D wishing to highlight the lack of fire defences in an old people's home, set fire to it to demonstrate the risks. He claimed an honest belief in that by doing this, he had a lawful excuse within section 5(2). It was held, however, that he had not actuall
Why did Mr Hunt fail with his defence?
Here the defendant set fire to some bedding in a block of old people's flats. It was decided that it was to draw attention to the fact that the fire alarm was defective and not to protect property which is the essence of the defence
Who decides whether a defendant's purpose amounts to a purpose of protecting
property?
Hill and Hall
D's were in possession of a hacksaw blade with intent to damage property. Their intention was to cut the fence of a US naval base in England. They were pa
It is for the court to rule as a matter of law whether or not the defendant's purpose amounts to a purpose of protecting property (Hill and Hall [1989] Crim LR 136).
D's acts would be too remote from the eventual harm they were protecting the property fro
In a situation where a person has acted with more than one purpose can he succeed with the defence under s.5(2)
If a person acts with more than one purpose, it is sufficient that one purpose is to
protect property (see Chamberlain v Lindon).
What happened in Kelleher (2003)? Did the defendant succeed with his appeal to the Court of Appeal?
In Kelleher [2003] EWCA Crim 2846 the defendant who decapitated a statue of Margaret Thatcher in an art gallery and was charged with criminal damage contrary to s.1(1) of the Act, failed with his defence under s.5(2)(b). He argued that his damage to the s
Wang [2005]
where there is, in truth, no evidence of lawful excuse that the jury could be asked to consider, the trial judge is entitled to withdraw that issue from the jury but the jury should not be directed by the trial judge to convict
R v Jones and others [2004]
trial judge's ruling on the issue of whether a belief that property is in need of protection has to be justified or merely honestly held and whether the threat to property sought to be protected has to be unlawful for the purpo
Court of Appeal held that the effect of s.5(2)(b) was that a defendant would be treated as having a lawful excuse if, at the time he acted, he believed the property in question was in immediate need of protection and that the means proposed to be adopted
Leila was at a party at Matthew's house when she noticed Olivia's car parked outside. Leila had recently had an argument with Olivia so she let the air out of one of the tyres on Olivia's car. A little later when Olivia discovered what Leila had done she
What follows is not a 'model' answer but rather points to note, i.e. notes of the issues you will need to examine in constructing your answer. You should always analyse each possible offence separately, ensuring that you discuss the elements of each offen