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Syllabus content |
For 2007 onwards Criminal
Damage is necessary only in relation to Burglary.
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Criminal Damage.
Criminal Damage Act 1971, s. 1(2)
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“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.”
Maximum 10 years
imprisonment
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Racially aggravated offence |
The Crime and Disorder Act 1998 creates a racially aggravated form of this
offence which carries 14 years. |
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Section 1 (2)
Aggravated damage, intent to endanger life |
Aggravated offence to
unlawfully destroy or damage property with the intention of endangering
the life of another, whether the property belongs to the offender, or to
another.
Maximum life
imprisonment
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Section 1(3)
Fire = Arson |
If the damage or
destruction to property in the above offences is by fire, the charge shall
be arson.
Maximum life
imprisonment
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Mode of trial.
>£5,000 it is summary only, unless by fire. |
Criminal damage is,
triable either way.
However, criminal
damage is triable only summarily. Unless
1. The value of the
property destroyed or damaged is not more than
£5,000
2. Or the destruction
or damage was by fire – and thus
constitutes arson.
When tried on
indictment it is a class 4 offence. |
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And
even then should be tried summarily unless… |
a. Deliberate
fire-raising
b. Committed
by a group.
c. Damage
of a high value (at least £10,000).
d. The
offence has clear racial motivation. |
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Actus reus
of Criminal Damage |
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What is ‘Damage’ is
loosely interpreted. |
‘Damage’ is not
defined in the Act.
It is not limited to
permanent damage, so damage has included
In
Roe v Kingerlee [1986] QBD Woolf LJ said:
"...what
constitutes criminal damage is a matter of fact and degree and it is for
the justices, applying their common sense, to look at what occurs and
decide whether it is damage or not."
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The
damage need not be tangible or visible |
If it affects the
value or performance of the property:
A plastic circuit
card for controlling a computerised saw was held to have been damaged by
the erasure of the programs electronically written on it.
Nor did it matter
that the damage was not permanent in that it could be remedied, as
restoring the programs necessitated ‘time, labour and expense’.
A computer disk was
held to be damaged by the addition and deletion of files. The interference
with the disk amounted to an ‘impairment of the value or usefulness of the
disk to the owner’.
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Computer misuse now separate offence. |
The Computer
Misuse Act 1990, restricts the meaning of damage where it is done by
‘the modification of the contents of a computer’ |
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Destroys |
This appears to add nothing since in
destroying property it will be damaged. |
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Property
Means real and personal tangible objects,
including money and wild animals and unlike theft, includes land.
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Criminal Damage Act 1971, s. 10 |
(1) In this Act ‘property’ means 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 . . .;
but
(b) not including
mushrooms growing wild on any land or flowers, fruit or foliage or a plant
growing wild on any land.
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This definition of property is wider than that in the Theft Act 1968, but
in parts narrower |
On the one hand it
lacks the restrictions on stealing land.
On the other hand, is
narrower in that it does not include ‘things in action and other
intangible property’.
Thus,
land can be damaged
by, e.g., dumping on it, even
though it cannot be stolen.
However, a
copyright cannot
be damaged by infringing it even though it can in theory be
stolen.
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Cresswell v DPP
(2006) CA |
For the purposes of s10 Criminal Damage Act 1971, badgers did not
constitute property. Nor were badgers property at common law.
Therefore a person who destroyed badger traps could not rely upon s.5 of
the Act, or the common law defence of protection of property.
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‘Belonging to Another’ |
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Criminal
Damage Act 1971, s. 10
1.
Custody & control
2.
Proprietary right or interest
3. Having charge on it |
(2) Property shall be
treated for the purposes of this Act as belonging to any person–
(a) having the
custody or control of it;
(b) having in it
any proprietary right or interest (not being an equitable interest
arising only from an agreement to transfer or grant an interest); or
(c) having a charge
on it.
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Damage to
ones own property? |
The effect, as with
theft, is that an owner can be guilty of criminal damage to his own
property if at the time it belongs to someone
else within the extended meaning of
s.10. |
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Mens Rea |
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Can be committed
intentionally or recklessly (Cunningham
recklessness)
R v Caldwell has been overruled by
R v G and another (2003) HL |
Recklessness in this
context requires subjective appreciation of the risk of causing damage.
The unfairness in
Elliott v C [1983] R (Stephen Malcolm (1984);
Miller [1983]; Coles [1995] have been corrected by
R v G.
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Intoxication no defence.. |
Lord
Diplock
said that it is unnecessary to classify the offence as one of specific or
basic intent, since, as far as recklessness is concerned, evidence of
intoxication is logically irrelevant
and therefore no defence anyway.
This latter
observation must now be doubted. |
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“Caldwell Lacuna” |
Appears to have no relevance now. |
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Intoxicated belief would be a defence. |
Certainly where the
intoxication contributes to a belief in lawful excuse under the Criminal
Damage Act 1971, s. 5, rather than negativing recklessness, it can form
the basis of a defence as in
Jaggard v Dickinson [1981]. |
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‘Without Lawful Excuse’ |
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Criminal Damage Act 1971, s. 5
OK
1.Belief that owner consented
2.To protect property
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The meaning of ‘lawful
excuse’ is specially provided for in relation to this offence in the Act,
(but it does not apply to the aggravated offence of criminal damage).
a) if he believed that
the person or persons whom he believed to be entitled to consent .. had so
consented, or would have so consented
to it if he or they had known of the destruction or damage and its
circumstances; or
(b)
if he
[did the acts] in order to protect property
belonging to himself or another
Provided he
believed–
(i) there was
immediate need of protection; and
(ii) that
the means of protection…were… reasonable having regard to all the
circumstances.
(3) For the purposes
of this section it is immaterial whether a belief is justified or not if
it is honestly held.
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Not
intended to be an exhaustive account of the circumstances of lawful
excuse. |
General defences such
as duress or prevention of crime are not excluded.
In
Lloyd v Director of Public Prosecutions [1992]
it was held that a motorist who damages a wheel clamp in removing it
(knowing of the risk of being clamped), does not have a lawful excuse
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Belief that it action is necessary to protect other property is
subjective. |
Section 5(3)
emphasises that the question is the purely
subjective one of whether the belief is honestly held, not
whether it is justified or reasonable.
In
Jaggard v Dickinson [1981, D was drunk and mistakenly believed she
would have had the owner’s consent to breaking a window in order to gain
access to a house (unfortunately she tried to break into the wrong house).
The Divisional Court quashed her conviction, saying
‘. . . the court
is required by section 5(3) to focus on the existence of the belief, not
its intellectual soundness; and a belief can be just as much honestly
held if it is induced by intoxication, as if it stems from stupidity,
forgetfulness or inattention’.
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But, there is an objective aspect, protecting property to be
reasonable. |
Although the test
under s. 5(2)(b)(ii) is clearly subjective and the question is not whether
the accused’s action is in fact reasonable but whether the accused
believed it to be reasonable, whether an accused is acting ‘in order to
protect property’ under s. 5(2)(b) does seem to have an objective aspect.
In Hunt (1977),
the accused set fire to bedding to draw attention to a defective fire
alarm in old people’s accommodation which the court ruled was not ‘in
order to protect property’, despite the accused’s belief that it would
ultimately have that effect.
Hill (1988) the accused’s beliefs about the ultimate effects of
damaging perimeter fencing at a United States naval base were held not to
amount to a purpose of protecting property, or to a belief that property
was in imminent need of protection under s. 5(2)(b)(i).
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A
belief tainted with fraud, still OK. |
If the accused does
hold a belief provided for in s. 5, it is immaterial as far as his
liability for criminal damage is concerned that he has some ulterior
fraudulent or criminal purpose.
Denton [1981] D set fire to the cotton mill where he worked, because
he believed he had been asked to do so by his employer with a view to
gaining the insurance money on the property.
Held: If the
owner himself had caused the damage he would have committed no offence
(under s. 1(1), though other charges might be possible), since he was not
damaging property ‘belonging to another’, and hence the accused, who
believed he was acting on behalf of the owner and with his consent, should
be in no worse position.
Whereas in
Appleyard (1985), a managing director was convicted of destroying the
company’s store, and was not allowed to claim that he himself was the
person entitled to consent to the damage.
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Intending.. |
This has the same meaning as intention discussed
before, usually direct intention because the need to apply
indirect/oblique intention has no relevance because the offence can be
committed recklessly. |
