#15620 - Criminal Damage Short - Criminal Law

CRIMINAL DAMAGE

Criminal Damage Act 1971

s.1 Destroying or damaging property.

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.

2. A person who without lawful excuse destroys or damages any property, whether belonging to himself or another—

1. intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and

2. 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.

3. An offence committed under this section by destroying or damaging property by fire shall be charged as arson.

s.2 Threats to destroy or damage property.

A person who without lawful excuse makes to another a threat, intending that that other would fear it would be carried out—

1. to destroy or damage any property belonging to that other or a third person; or

2. to destroy or damage his own property in a way which he knows is likely to endanger the life of that other or third person; shall be guilty of an offence.

s.3 Possessing anything with intent to destroy or damage property.

A person who has anything in his custody or under his control intending without lawful excuse to use it or cause or permit another to use it—

1. to destroy or damage any property belonging to some other person; or

2. to destroy or damage his own or the user’s property in a way which he knows is likely to endanger the life of some other person; shall be guilty of an offence.

BASIC CRIMINAL DAMAGE

AR: destruction of / damage to property belonging to another without lawful excuse

MR: D intended / was reckless that: (a) his action would damage / destroy property; and (b) that property belonged to another.

Damage: This encompasses: (i) a reduction in the value of the item; (ii) a reduction in the usefulness of an item.

Property: This is defined in s.10 of the CDA 1971: s.10(1): In this Act “property” means property of a tangible nature, whether real or personal, including money” and “wild creatures … if they have been reduced into possession” but not including wild mushrooms / wild plants.

Belonging to another: it is not criminal damage to damage your own property, unless it dangers the life of another. Per s.10(2) property belongs to another if he: (a) has custody / control of it; (b) has any proprietary right / interest in it; (c) has a charge on it.

Denton [1981]

• Facts: D, on his employer’s instructions, set fire to his employer’s factory. At the time D knew that his employer was attempting insurance fraud, but though that he was entitled to consent to the damage to the factory. D was convicted of arson —the judge ruled that the employer was not entitled to consent to the damage for a fraudulent purpose.

• CA: Allowed D’s appeal —it is not unlawful to set fire to one’s own property, even as part of an inchoate attempt to commit fraud.

MENS REA

The MR of the offence is set out in s.1(1) — intention or recklessness as to the damaging of property. It requires proof that D foresaw that his / her act would damage property. NB: The MR applies to the damage and the fact that it belonged to another. This is a subjective test, so an honest belief that the property was in fact the Ds would be enough:

Smith [1974]

• Facts: D, a tenant of a flat, made structural additions (e.g. wiring for stereo equiptment). When he moved out, he removed the additions, believing them to be his own property, but in law the additions were part of the house and therefore the property of the landlord. He was convicted with criminal damage under s.1(1).

• CA: Allowed D’s appeal. The intention, recklessness and absence of lawful excuse required to constitute the offence refer to property belonging to another. No offence is committed, therefore, if a person destroys or damages property belonging to another if he does so in the honest though mistaken belief that the property is his own, and, provided that the belief is honestly held, it is irrelevant to consider whether it is justifiable.

Subjective test:

G and R [2003]

• Facts: two boys (11 and 12) set fire to newspapers under a wheelie bin outside a supermarket. The supermarket burns down. They were convicted on the basis that it would have been obvious to a reasonable person that what they were doing was posing a risk to property.

• HL (Bingham): Conviction of serious crime requires you to be culpable. This is why we have mens rea. But it isn’t clearly blameworthy to do something involving a risk of injury to another if you genuinely don’t perceive that risk (unless you are drunk). For the purposes of the CDA 1971, recklessness was defined as: "A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to: (i) a circumstance when he is aware of a risk that it exists or will exist; (ii) result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk."

Archibald:

• “If a defendant closes his mind to a risk, he must be aware that there is a risk, which will usually be decisive on the issue of recklessness.

• R. v. G. does not require the prosecution to prove that D had foreseen an “obvious and significant” risk of the occurrence of a particular result as a consequence of his actions in order to establish recklessness; what was required was proof that he was aware of the risk and, in the circumstances known to him, it was unreasonable to take the risk.”

DEFENCES

In addition to general defences —e.g. duress —there are specific defences found in s.5

2. D will have a lawful excuse if:

1. “at the time of the act … he believed that the person whom he...