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Property Offences & Recklessness Notes

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This is an extract of our Property Offences & Recklessness document, which we sell as part of our Criminal Law Notes collection written by the top tier of Oxford students.

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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—
a. intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and b. 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;
c. …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] -
a. to destroy or damage any property belonging to that other or a third person; or b. 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;
c. …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—
a. to destroy or damage any property belonging to some other person; or b. 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;
c. …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 —
a. 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 b. 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] — i. that the property, right or interest was in immediate need of protection; and ii. 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—
a. 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 b. not including mushrooms growing wild on any land or flowers, fruit or foliage of a plant growing wild on any land.
i. 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—
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.

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.
___
Summary of substantive law

1. Types of property crimes a. Basic criminal damage, arson, aggravated criminal damage, aggravated arson b. Offence of racially aggravated criminal damage

2. Analysis of property damage a. What is special about damaging property?
i. 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 b. Should it be an offence to damage one's own property?
i. No - fundamental aspect of ownership is that one is free to destroy one's own property c. Nature of damage i. There will be situations where it is unclear whether property has been damaged ii. Graffiti is of particular interest, with 2 general categories - graffiti art, and graffiti vandalism

3. Basic criminal damage a. MR & AR
i. AR is destruction of or damage to property belonging to another without lawful excuse ii. Mens rea is that D intended or was reckless

1. That his or her action would damage or destroy

2. Property

3. Belonging to another b. Damage i. Meaning either - ii.

iii. iv.

v. vi.

1. Reduction in value of the item (Foster), e.g.
denting the door of a car, or

2. Reduction in usefulness of the item (Knott),
e.g. removing a sandbag from a wall of sandbags
Minimal damage may suffice

1. N - In A v R spitting on a police officer's raincoat was held not to amount to damage;
simply wiping would return it to former state

2. Y - other cases take a broader view -
trampling grass on a field was regarded as damage in Gayford and easily removable graffiti on a cell wall (Kingerlee)
Adding to property may be damage

1. N - In Lloyd and Drake it was held that putting a wheel clamp on a car did not constitute criminal damage because the integrity of the car was unaffected - however, arguable that this reduces the car's usefulness

2. Y - In Hardman, painting on a pavement, or dumping rubbish on someone's land, is considered damage
How significant is the opinion of the owner of property in deciding whether there was damage? -
E.g. while V was away D re-wallpapered his bedroom without his permission - if when V returned he was horrified, could he claimed it was damaged?

1. No case law directly addressing this issue - but interesting to note that D's whitewashing over a
National Front slogan that a third party had painted on V's property was not regarded as damage (Fancy)
Modification of contents of a computer not regarded as damage unless it impairs its physical condition
(S.10(5))
Property (S.10 CDA)

1. Property of a tangible nature, real or personal,
including money a. Including wild creatures tamed or ordinarily kept in captivity…
b. Not including plants/fruits growing wild vii. Belonging to another (S.10 CDA)

1. Any person having custody/control, or any proprietary right or interest, or having a charge

2. 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.
c. MR
i. Intent or recklessness ii. Applies to all elements of AR (Smith) - (1) damage,
(2) property, & (3) the fact that it belongs to another -

1. E.g.. if D did it mistakenly thinking that the property to belong to himself, no offence iii. However, D is not required to realize the law would describe what he had done as damage -
held in Seray-Wurie where a man wrote on some signs not knowing that it would contravene the law,
but still convicted d. Defences i. In addition to general defences (e.g. duress), specific defences for criminal damage are in s.5 of CDA

1. For D who honestly believes V was consenting or would consent to damage

2. Damage caused in order to protect your own or another's property - it is sufficient if one acted because he believed he was protecting the property, even if it was not at risk, or not his own a. But it must be an immediate need for protection, and that it would be reasonable ii. On the whole, this is a highly subjective test

1. However, of course, the more outrageous the defendant's alleged belief, the less likely the court is to believe it

4. Arson a. Found in s1(3) of CDA
b. Requirements being the same as that of criminal damage,
only difference is that it must be caused by fire 5. Aggravated criminal damage a. Found in s1(2) of CDA
b. MR & AR
i. Actus reus is the same as criminal damage except the property does not have to belong to another. No need to show that the damage or destruction actually endangers the life of others

1. In Sangha, D convicted of aggravated arson by setting fire to some chairs in a flat with the result that the whole house is burnt down.
Unknown to D, house was empty. However, a reasonable person would have thought there was a risk that people's lives would be endangered ii. Mens rea constitutes 2 parts

1. Intended to destroy or damage or was reckless whether or not he or she did so

2. Intended or was reckless to endangerment of someone's life c. Defences i. Defences in s5 do not apply here ii. However, the use of the phrase 'without lawful excuse' implies that general defences are available

6. Racially aggravated criminal damage a. S30(1) of Crime and Disorder Act 1998 i. A person is guilty of an offence under this section if he commits an offence under s1(1) of CDA…which is racially or religiously aggravated for the purposes of this section

*SMITH (D.R.) [1974] QB 354

1. Legal significance a. Intention and recklessness and the absence of lawful excuse required to constitute the offence have reference to property belonging to another i. **In other words, MR of criminal damage applies to all 3 aspects of AR -

1. Destroys or damages

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