Property Offences & Recklessness Notes

Property offences & Recklessness generally

[Criminal damage to property]

Criminal Damage Act 1971 ss. 1-3, 5, 10

Red = no specific defenses under S5

[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;

   3. …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

[2] – Threats to destroy or damage property.

1. A person who without lawful excuse makes to another a threat [AR], intending that that other would fear it would be carried out [MR] –

   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;

   3. …shall be guilty of an offence.

[3] – Possessing anything with intent to destroy or damage property.

1. 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;

   3. …shall be guilty of an offence.

[5] – “Without lawful excuse.”

1. This section applies to any offence under section 1(1) above and any offence under section 2 or 3 above other than one involving a threat by the person charged to destroy or damage property in a way which he knows is likely to endanger the life of another or involving an intent by the person charged to use or cause or permit the use of something in his custody or under his control so to destroy or damage property

2. A person has a lawful excuse —

   1. if at the time of the act or acts alleged to constitute the offence he believed that the person or persons whom he believed to be entitled to consent to the destruction of or damage to the property in question (1) had so consented, or (2) would have so consented to it if he or they had known of the destruction or damage and its circumstances; or

   2. if he destroyed or damaged or threatened to destroy or damage the property in question or, in the case of a charge of an offence under section 3 above, intended to use or cause or permit the use of something to destroy or damage it, in order to protect property belonging to himself or another or a right or interest in property which was or which he believed to be vested in himself or another, and at the time of the act or acts alleged to constitute the offence he believed [subjective] —

      1. that the property, right or interest was in immediate need of protection; and

      2. that the means of protection adopted or proposed to be adopted were or would be 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.

4. For the purposes of subsection (2) above a right or interest in property includes any right or privilege in or over land, whether created by grant, licence or otherwise.

5. This section shall not be construed as casting doubt on any defence recognised by law as a defence to criminal charges.

[10] – Interpretation.

1. In this Act “property” means property of a tangible nature, whether real or personal, including money and—

   1. including wild creatures which have been tamed or are ordinarily kept in captivity, and any other wild creatures or their carcasses if, but only if, they have been reduced into possession which has not been lost or abandoned or are in the course of being reduced into possession; but

   2. not including mushrooms growing wild on any land or flowers, fruit or foliage of a plant growing wild on any land.

      1. For the purposes of this subsection “mushroom” includes any fungus and “plant” includes any shrub or tree.

2. Property shall be treated for the purposes of this Act as belonging to any person—

   1. having the custody or control of it;

   2. 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

   3. having a charge on it.

3. Where property is subject to a trust, the persons to whom it belongs shall be so treated as including any person having a right to enforce the trust.

4. Property of a corporation sole shall be so treated as belonging to the corporation notwithstanding a vacancy in the corporation.

5. For the purposes of this Act a modification of the contents of a computer shall not be regarded as damaging any computer or computer storage medium unless its effect on that computer or computer storage medium impairs its physical condition.

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Summary of substantive law

1. Types of property crimes

   1. Basic criminal damage, arson, aggravated criminal damage, aggravated arson

   2. Offence of racially aggravated criminal damage

2. Analysis of property damage

   1. What is special about damaging property?

      1. S&S argue that criminal damage is different from theft or other offences involving property interests for 2 reasons

         1. Linked to offences against the person – e.g. fire, explosions, etc.

         2. Criminal damage such as vandalism can contain an expressive dimension – contempt for society or victim

   2. Should it be an offence to damage one’s own property?

      1. No – fundamental aspect of ownership is that one is free to destroy one’s own property

   3. Nature of damage

      1. There will be situations where...

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