#19113 - 7 Criminal Damage - Criminal Law

7 Criminal Damage

• Criminal Damage + fire = arson > i.e. the damage or destruction was by fire

• Criminal Damage + ‘extra’ MR + fire = aggravated arson

CRIMINAL DAMAGE ACT 1971

SIMPLE CRIMINAL DAMAGE - s 1(1) (either way; max 10 years)

• AR: Damage or destroy property belonging to another

• Damage or destroy

• For court to determine based on common sense (Roe v Kingerlee)

• Damage doesn’t have to be extensive

• if VICTIM INCURS EXPENSES TO REMEDY THE DAMAGE (even if small) = damage

• Damage includes any ‘mischief done to property’ even if it doesn’t make the property unusable or unable to serve its normal purpose (e.g. stepping on policeman’s cap causing dent which was easily fixable by pushing it back out = damage)

• Damage doesn’t need to be permanent

• Spitting on police raincoat wasn’t damage because easily wiped off to leave no stain

• Property

• s 10(1) property is any tangible property (real or personal, including money and property)

• includes tamed animals, creatures ordinarily kept in captivity, and wild animals which have reduced into possession that haven’t been lost or abandoned, or animals in the course of being reduced into possession

• includes non-wild plants

• Belonging to another

• s 10(2) property belongs to a person if they have:

1. custody or control of it

2. proprietary right or interest in it

3. have a charge on (e.g. mortgage)

• if renter, mortgage borrower, or co-owner, if you cause damage to property you live in, it is also belonging to another (the landlord, lender, or co-owner)

• MR: two elements

• Intention to damage or destroy property, or reckless as to the damage or destruction

• subjective Cunningham test for recklessness applies (R v G)

• Know the property belongs to another, or reckless as to whether the property belongs to another

• subjective Cunningham test for recklessness applies (R v G)

• If D wrongly believed property was theirs = no MR

• Defences: s 5 – Lawful excuse:

• Evidential burden on D to raise some evidence to raise the issue

• Legal burden on prosecution to disprove that D defendant had a lawful excuse beyond reasonable doubt

• s 5(2)(a) lawful excuse if at the time of the act they:

• believed they had the consent of the person who was entitled to consent to the damage

• believed they had the consent of the person who they thought was entitled to consent

• believed they would have had the consent of the person who was entitled to give permission if the person knew the damage and the circumstances

• believed they would have had the consent of the person who they thought was entitled to give permission if the person knew the damage and the circumstances

• s 5(2)(b) lawful excuse if at the time they:

1. believed that property (or a right or interest) (belonging to himself or another) was in need of immediate protection, and

2. believed the means of protection they used (which caused the damage) was reasonable having regard to all the circumstances

• s 5(3) D’s belief doesn’t have to be reasonable, just honestly held the belief

• D’s real purpose must have been to protect property (objective test)

• whether D believed property was in need of immediate protection and whether they believed the means of protection were reasonable are judged subjectively

• belief must be that property was in need of immediate protection

• beliefs induced by voluntary intoxication can be used for lawful excuse

• property includes any rights or privileges in/over land

• s 5(5) other general defences

AGGRAVATED CRIMINAL DAMAGE - s 1(2)

• AR: damage or destruction of property (property doesn’t have to belong to another)

• MR: two elements

• Intent to destroy or damage any property or recklessness as to whether any property is damaged or destroyed

• Intend by the destruction or damage to endanger another’s life, or be reckless as to whether another’s life might be endangered (ulterior MR)

• subjective Cunningham test for recklessness applies (R v G)

• doesn’t matter if the no one’s life was actually put in danger (Dudley)

• must have intended or reckless as to life being endangered by the damage or destruction (Steer)

• Defences:

• Self-defence & prevention of crime, duress, intoxication etc

• s 5 lawful excuse doesn’t apply

• SIMPLE ARSON – s 1(3) & 1(1)

• simple criminal damage by fire

• same defences apply

• AGGRAVATED ARSON – s 1(3) & 1(2)

• Aggravated criminal damage by fire

• D might foresee risk of endangering life of...