Criminal Damage Notes

• Criminal Damage Act 1971 – Offences.

  • Criminal Damage: s1(1).

  • Aggravated Criminal Damage: s1(2).

  • Arson: s1(1) + s1(3).

  • Aggravated Arson: s1(2) + s1(3).

  • Making threats to destroy or damage property: s2.

  • Possession with intent to destroy or damage property: s3.

  (Basic) Criminal Damage: s1(1) Criminal Damage Act 1971.

  • s1(1) CDA 1971: d. without lawful excuse damages or destroys 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.

  • max. sentence: 10 years imprisonment.

  Actus Reus: destroy or damage property belonging to another.

  - Destroy or damage: not defined in Act – case law re: def. of ‘damage’.

  • no general rule: matter of fact + degree – Samuel v Stubbs [1972]: (circs., nature of article + mode affected).

    • might include: injury, mischief, harm to property.

    • no need to render property useless / prevent it from serving normal function.

  • need not be permanent:

    • Hardman v CC of Avon [1986]: CND protesters painted silhouettes on pavement using soluble paint (would eventually wash away); council did not wait + used high-pressure hoses to remove CoA: damage.

      • expense + inconvenience: useful ev. of damage, but not conclusive.

    • Roe v Kingerlee [1986]: d. spread mud on police cell wall; cost just 7 to remove damage.

    • Morphitis v Salmon [1990]: M. removed scaffolding bar forming part of barrier blocking way; charged with damage to bar not damage (but would have been damage to barrier).

      • damage inc. ‘permanent or temporary impairment of value or usefulness’.

  • expense/effort to remedy useful ev. but not necessary:

    • A (a juvenile) v R [1978]: spitting on policeman’s coat not criminal damage.

  - Property: s10(1) CDA 1971: property of tangible nature, whether real or personal, inc. money.

  • (a): inc: tamed/kept animals; other wild creatures or carcasses but only if reduced into possession.

  • (b): not inc: mushrooms; plant’s flowers, fruit or foliage.

  • not information – R v Whitely [1991].

  - Belonging to another: s10(2) CDA 1971: property belongs to person if person has:

  • (a): custody/control of it;

  • (b): any proprietary interest or right in it – but not equitable interest from agreement to transfer/grant; or

  • (c): charge on it.

  Mens Rea: intention or recklessness as to destroying/damaging property belonging to another.

  - Intention: normal rules for direct intent apply.

  - Recklessness: subjective test – R v G [2003; HoL]:

  • (original objective test overruled: R v Caldwell [1982]: obvious risk to property – reasonable man test).

  • subjective test: (MR applies to whole AR)

    • 1. d. aware of risk (that circumstance: existed or would exist; that result: would occur).

    • 2. unreasonable to take risk in circs. known to d.

  - Application to criminal damage:

  • 1. d. must know property belongs to another or realise it might.

    • e.g. R v Smith [1974]: d. smashed floorboards, wall panels + roofing material he had installed in rented flat to remove wiring he had fitted (fixtures: belong to landlord) CoA: not guilty – [James LJ]: MR app. to whole AR – honest but mistaken belief that property belonged to d. no offence.

  • 2. d. must intend to damage/destroy that property or realise that his actions might result in damage.

  • 3. (for reckless MR): risk of damage to property must be unreasonable one to take in circs. known to d.

  Defences: ‘without lawful excuse’ – s5 CDA 1971 (application: s1(1) + s2 + s3 offences – not aggravated offences).

  - s5(2)(a) CDA 1971: d. believes ‘owner’ (in d’s belief) consented or would have consented had he known.

  • subjective test – s5(3): belief need only be honestly held, not justified.

    • even mistake because of voluntary intoxication – Jaggard v Dickinson [1980]: d. broke window; wrongly thought house was friend’s where d. was staying not guilty: could rely on defence.

  • motive irrelevant (even if criminal) – R v Denton [1982]: d. believed owner of cotton mill instructed him to set fire to it; d. did so CoA: not guilty (rationale: if mill owner had participated, could not be guilty).

  • God’s consent insufficient – Blake v DPP [1993]: vicar protesting about military in middle east wrote Biblical quotation on pillar at Parliament; claimed carrying out God’s instructions QBD: guilty.

  - s5(2)(b) CDA 1971: d. believes damage necessary to protect other property belonging to d. or another.

  • only applies to protection of property, not people – R v Baker & Wilkins [1997]: d. kicked open door to rescue her child from perceived threat from husband could not rely on s5(2)(b) – child not property (but other defences).

  • 1. d. must believe property in immediate need of protection (subjective) – s5(2)(b)(i).

    • Johnson v DPP [1994]: d. damaged door while trying to fit locks; claimed necessary to protect property from spate of thefts QBD: guilty – perceived need not immediate.

  • 2. d. must believe means of protection reasonable in the circs. (subjective) – s5(2)(b)(ii).

  • 3. objective element: damage caused by d. capable of protecting the property (arguable inconsistent with s5(3)).

    • R v...

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