Criminal Damage Notes

The Basic Offence

• S1(1) Criminal Damage Act 1971

• Five Elements:

1. Damage;

2. Property;

3. Belonging to Another;

4. Without lawful excuse; and

5. Intention or reckless as to the damage or destruction

Actus Reus

1. Destroy or Damage

   • 1971 Act does not define ‘damage’ or ‘destroy’ – generally agreed that to destroy something is to damage it

   • Whether property is damaged is a question of fact and degree

     • Samuels v Stubbs: difficult to have a definition – guided by circumstances of each case, the nature of the article and the mode by which it was affected

       • Doesn’t need to render property useless/prevent it from serving normal function

   • A (a juvenile) v R: Spitting on policeman’s coat was not criminal damage – implies that there must be some expense on the part of the owner to restore property to previous condition

   • Hardman v Chief Constable of Avon: damage need not be permanent (soluble paint)

   • Roe v Kingerlee: mud spread on the walls of police cell was damage even though could be easily removed

   • Common sense approach approved by Morphitis v Salmon: Criminal damage includes physical harm and also temporary impairment of value/usefulness – here impairment of usefulness of a barrier

2. Property

   • s10(1) Criminal Damage Act 1971: must be tangible whether real or personal, including money

     • s10(1)(a) – including wild creatures which have been tamed

     • s10(1)(b) – not including mushrooms, fruit, foliage growing wild on any land

   • R v Whitely: information does not fall within definition of ‘property’ in s10(1)

3. Belonging to another

   • s10(2) Criminal Damage Act 1971 – belonging to any person:

1. having the custody or control of it;

2. having in it any proprietary right or interest; or

3. having a charge on it

Mens rea

• Intention (Maloney); or,

• Recklessness as to the destruction of property belonging to another

  • R v G overruling R v Caldwell – prosecution must prove that:

1. At the time of committing the AR the accused was subjectively aware of a risk; and

2. In the circumstances known to him, it was objectively unreasonable to take the risk

   • MR attaches itself to ownership as well as to damage: R v Smith (1974) : here ignorance of the civil law prevented liability (Smith did not know that the stereo system he had installed had become the property of his landlord – so subjectively, was not aware that it was property belonging to another

Without lawful excuse

s5(2)(a) CDA 1971

• Operates where the D believes that the owner would have consented to the damage

• s5(3): D’s belief in s5(2) need not be reasonable, it need only be honestly held

1. Intoxication

   • Jaggard v Dickinson: subjective test – entitled to the defence even if drunk under s5(2)(a) as applying s5(3), it is irrelevant if the belief is unreasonable

2. Motive

   • Motive is irrelevant to s5(2)(a), even where motive is to perpetrate a fraud – criminal damage is not an offence of dishonesty

   • R v Denton: D thought he had received an instruction to set fire to the factory which he did – so his conviction was quashed

3. Limits on the defence

   • Blake v DPP: A belief, however genuine, that God had given consent is not a lawful excuse

s5(2)(b) CDA 1971

• Operates where the D acts to protect his/her or another’s property

• Only relates to the protection of property: R v Baker & Wilkins – could not rely on it when she had kicked open a door to rescue her child from perceived threat (would go to self-defence/necessity)

1. The accused must believe that the property was in immediate need of protection (subjective test) : s5(2)(b)(i)

   • Johnson v DPP: squatter trying to fit locks in a house as there had been theft in the area – not a sufficiently immediate threat

2. The accused must believe that the means of protection adopted are reasonable (subjective test): s5(2)(b)(ii)

3. The damage caused must be...

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