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Criminal Damage - simple

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For 2007 onwards Criminal Damage is necessary only in relation to Burglary.
 

Criminal Damage.

Criminal Damage Act 1971, s. 1(2)

 

“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

 

Racially aggravated offence

The Crime and Disorder Act 1998 creates a racially aggravated form of this offence which carries 14 years.

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

 

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

 

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.

 

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.

 

Actus reus of Criminal Damage

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."

 

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’.

 

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’

Destroys

This appears to add nothing since in destroying property it will be damaged.

 

Property

Means real and personal tangible objects, including money and wild animals and unlike theft, includes land.

 

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.

 

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.

 

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.

 

‘Belonging to Another’

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.

 

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.

Mens Rea

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.

 

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.

 “Caldwell Lacuna”

Appears to have no relevance now.

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].

‘Without Lawful Excuse’

Criminal Damage Act 1971, s. 5

 

OK

1.Belief that owner consented

 

 

2.To protect property

 

 

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.

 

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

 

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’.

 

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).

 

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.

 

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.

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