CRIM 8 - Questions/Answers PDF

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TASK 1: Criminal Damage: Offences (25 minutes) Assume that you are a trainee with the Crown Prosecution Service in Newcastle. You have been asked by your supervisor to consider the documents relating to the case of R v Renshaw, Doherty & Jones with a view to advising the police on certain aspects of the case. Using the statements of the witnesses in your Criminal Law Scenario Booklet, consider the potential offence(s) committed by David Renshaw, Mary Doherty and William Jones under the Criminal Damage Act 1971. You should be prepared to discuss any relevant case law or statutory authority that helps to inform your view of their potential liability. NB Do not consider the potential liability of the parties for offences under the Theft Act 1968 or issues relating to the liability of accomplices/secondary parties or the law relating to joint enterprise.

TASK 2: Criminal Damage: Lawful Excuses (20 minutes) In R v B [2013] EWCA Crim 3, [2013] 1 Cr. App. R. 36, Court of Appeal, Hughes LJ said, in the context of s.5(2)(a) of the 1971 Act: “Consent is a defence to criminal damage. So is belief that the owner has consented. So, moreover, is belief that the owner would consent if asked, even though he has not been asked. The belief here in question is a genuine belief, whether reasonable or not. The law here is akin to the law of self-defence. D is to be judged on the facts as he honestly believed them to be, whether his belief is reasonable or not.” In R v Hunt (1978) 66 Cr App R 105, Court of Appeal, Roskill LJ said, in the context of s.5(2)(b) of the 1971 Act: “The question whether or not a particular act of destruction or damage… was done or made ‘in order to protect’ property… must be, on the true construction of the statute, an objective test.” 1. Why is there a subjective test for s.5(2)(a) but an objective test for s.5(2)(b)?

2. Which lawful excuse was relied upon in the following cases, and was it successful? (a) Jaggard v Dickinson [1981] QB 527; [1981] 2 WLR 118; [1980] 3 All ER 716 (b) R v Denton [1981] 1 WLR 1446; [1982] 1 All ER 65; (1982) 74 Cr. App. R. 81 (c) R v Hill; R v Hall (1989) 89 Cr. App. R. 74 (d) Blake v DPP [1993] Crim LR 586 (e) R v Baker & Wilkins [1997] Crim LR 497 (f) R v Kelleher [2003] EWCA Crim 3525

ANSWERS TASK 1 Three possible offences arise in relation to the following damage caused by the incident: 1. 2. 3.

The letters “AAN” are sprayed in water-based red paint on the walls of the Medical School. This cost £20 to clean. Fred Hancock’s uniform is stained in water-based red paint. The security vehicle has a shattered windscreen, indentation of the bonnet; scratches and indentation on the side, and the door is stuck shut.

Identify: Simple criminal damage (x3) Define: ‘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’ – s.1(1), CDA 1971

Explain: ‘Damage’  ‘Damage’ is not defined in the CDA 1971. However, there is case law… o “What constitutes criminal damage is a matter of fact and degree and it is for the [jury or magistrates], applying their common sense, to decide whether what occurred was damage or not” (Roe v Kingerlee (1986)) o “the term ‘damage’ … should be widely interpreted so as to conclude not only permanent or temporary physical harm, but also permanent or temporary impairment of value or usefulness” (Morphitis v Salmon (1990)) o “Any alteration to the physical nature of the property concerned may amount to ‘damage’. Whether it does so or not will depend upon the effect that the alteration o has had upon the owner” (R v Whiteley (1991). Property:  ‘In this Act ‘property’ means of a tangible nature, whether real or personal’ – s.10(1) CDA 1971

Belonging to another:  ‘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; or (c) having a charge on it’ – s.10(2) CDA 1971. Mens rea  ‘…intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged’ – s.1(1) CDA 1971.  D must intend to destroy / damage property belonging to another, i.e. a genuine but mistaken belief that another person’s property is D’s own provides a defence (R v Smith



(1974). The fact that D might not regard what they have done as ‘damage’ is immaterial (Seray-Wurie v DPP (2012)). Recklessness is tested subjectively, i.e. it is based on D’s foresight/appreciation of risk (R v Stephenson (1979); R v G & Another (2003)).

Apply:  ‘Damage’ is most likely satisfied in all three situations.  The walls, the uniform and the vehicle are all property.  The property all belongs to ‘another’. The walls are part of the university building, the uniform is in the custody and control of Fred although it may belong to the university too and the security vehicle is in the custody/control of the security man (it may also belong to the security company).  Spraying “AAN” appears to be intentional damage. he fact that the defendants might not regard what they have done as ‘damage’ is immaterial.  The damage to Fred’s uniform may not be intentional but could be reckless.  Damage to the car may not be intentional either but could be reckless – did they foresee a risk of damage to the vehicle in throwing the traffic cone yet carry on regardless? ___________________________________________________________________________ Identify: Aggravated Simple criminal damage Define: ‘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; shall be guilty of an offence’ – s.1(2), CDA 1971 Explain:  Actus reus: as above (although the property can belong to anyone, including D).  There is no necessity that life actually BE endangered; the aggravating feature of the s.1(2) offence relates to mens rea, not actus reus: R v Sangha (1988); R v Parker (1993).  

Mens rea: as above, PLUS intention to endanger life by the damage, or recklessness as to whether life would be endangered by the damage In R v Warwick (1995) the Court of Appeal stated that, “The circumstances in this case are clearly distinguishable from those in R v Steer (1988). To shower the driver of a moving vehicle with broken glass or ram his vehicle in moving traffic are clearly distinguishable from merely piercing the window or door of a stationary house by discharging an airrifle…”

Apply:  Aggravated CD not applicable to the “AAN” graffiti nor the damage to Fred’s uniform  Damaging the car windscreen may be aggravated CD if Billy intended to, or was reckless whether, life would be endangered by that damage, as in Warwick. TASK 2 Defence of lawful excuse available to simple criminal damage:

Criminal Damage Act 1971 5(2) ‘A person charged with an offence to which this section applies, shall, whether or not he would be treated for the purposes of this Act as having a lawful excuse apart from this subsection, be treated for those purposes as having a lawful excuse… ‘…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 had so consented, or would have so consented to it if he or they had known of the destruction or damage and its circumstances’ – s.5(2)(a) CDA 1971 ‘…if he destroyed or damaged… the property in question… in order to protect property belonging to himself or another… and at the time of the act or acts alleged to constitute the offence he believed – (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.’ – s.5(2)(b) CDA 1971

3. Why is there a subjective test for s.5(2)(a) but an objective test for s.5(2)(b)? Section 5(2)(a) is subjective because it specifically refers to D’s belief. This is backed up by s.5(3) which emphasises that ‘it is immaterial whether a belief is justified or not if it is honestly held’. As Hughes LJ explained in R v B [2013] EWCA Crim 3, [2013] 1 Cr. App. R. 36: “Consent is a defence to criminal damage. So is belief that the owner has consented. So, moreover, is belief that the owner would consent if asked, even though he has not been asked. The belief here in question is a genuine belief, whether reasonable or not. The law here is akin to the law of self-defence. D is to be judged on the facts as he honestly believed them to be, whether his belief is reasonable or not.” Section 5(2)(b) is actually partly subjective and partly objective. It is subjective insofar as it refers to D’s belief, but objective insofar as the question whether the property damaged was so damaged ‘in order to’ protect other property is concerned. This phrase is not prefaced by any reference to D’s belief. As Roskill LJ explained in R v Hunt (1978) 66 Cr App R 105: “The question whether or not a particular act of destruction or damage… was done or made ‘in order to protect’ property… must be, on the true construction of the statute, an objective test. Therefore we have to ask ourselves whether, whatever the state of this man’s mind and assuming an honest belief, that which he admittedly did was done ‘in order to’ protect this particular property.” As to why it is objective, Professor John Smith explained it as follows in his commentary on Hill & Hall [1989] Crim LR 136: “The judgment makes it clear that the first matter to be decided is what the defendant actually thought – a subjective question. Whether the defendant’s state of mind, when ascertained, is the state of mind required by the definition of the defence is indeed an objective question, a question of law or mixed law and fact.”

However, the fact that Professor Smith felt able to explain it does not mean that he agreed with it. In his earlier commentary on R v Ashford & Smith [1988] Crim LR 682, he said: “Though the Court expresses its agreement with the reasoning in Hunt, it is submitted that that reasoning is indefensible. The question whether D acted ‘in order to protect property belonging to another’ can be answered only by determining the purpose with which D acted.” Other commentators have struggled to explain why the test is objective. Herring, Criminal Law Text Cases & Materials, 7th ed. (2016) at p. 614 says: “The decision (in Hill & Hall) is controversial because it takes a very narrow interpretation of ‘acting in order to protect property’. Rather than seeing this test as being about the motive of D (which might be thought to be the natural meaning of the words) the court interpreted it to be asking whether objectively (but on the facts as understood by D) the act could be said to cause the protection of property.” Ormerod & Laird, Smith & Hogan’s Criminal Law, 14th ed. (2015) at pp.1157, 8 say: “In a series of cases the courts have said that the words ‘in order to protect property’ have an objective meaning. The insistence that the test is objective is difficult to reconcile with the wording of the statute which suggests a purely subjective test… A purpose can exist only in the mind; it need not have an objective existence… This issue should be assessed on D’s subjective belief.”

4. Which lawful excuse was relied upon in the following cases, and was it successful? (g) Jaggard v Dickinson [1981] QB 527; [1981] 2 WLR 118; [1980] 3 All ER 716 Section 5(2)(a) – successful. “The court is required by s.5(3) to focus on the existence of the belief, not its intellectual soundness; and a belief can be just as much honestly held if it is induced by intoxication, as if it stems from stupidity, forgetfulness or inattention.”

(h) R v Denton [1981] 1 WLR 1446; [1982] 1 All ER 65; (1982) 74 Cr. App. R. 81 Section 5(2)(a) – successful. (i) R v Hill; R v Hall (1989) 89 Cr. App. R. 74 Section 5(2)(b) – unsuccessful. “[The judge] had to decide, as a matter of law, which means objectively, whether it could be said that, on those facts as believed by [D], snipping the strand of the wire… could amount to something done to protect either [her] own home or the homes of her

friends. He decided, quite rightly in our view, that that proposed act on her part was far too remote from the eventual aim at which she was targeting her actions to satisfy the test. [Later] the judge had to determine whether, on the facts as stated by [D], there was any evidence on which it could be said that she believed there was a need of protection from immediate danger. In our view that must mean evidence that she believed that immediate action had to be taken to do something which would otherwise be a crime in order to prevent the immediate risk of something worse happening… that there was no evidence on which it could be said that there was that belief.”

(j) Blake v DPP [1993] Crim LR 586 Section 5(2)(a) – unsuccessful. “A belief, however powerful, however genuine and however honestly held, that [D] had the consent of God… to damage the pillar and that God had the requisite authority did not raise or amount to a lawful excuse under the domestic law of England.” (Extract from the Criminal Law Review summary of the case.) Section 5(2)(b) – unsuccessful. “Even if [D] honestly believed that he had a lawful excuse under s.5(2)(b) it was necessary for the court to adopt an objective view when considering if, on the facts believed by [D], the action taken did protect, or was capable of protecting, property. The act complained of was not capable of such protection of property in the Gulf States as it was too remote.” (Extract from the Criminal Law Review summary of the case.)

(k) R v Baker & Wilkins [1997] Crim LR 497 Section 5(2)(b) – unsuccessful. “The defence of lawful excuse provided for in s.5(2)(b) did not arise in the present case since the child was not ‘property’ within the meaning of the Act.” (Extract from the Criminal Law Review summary of the case.)

(l) R v Kelleher [2003] EWCA Crim 3525 Section 5(2)(b) – unsuccessful. “We, too, are bound by the decisions in R v Hunt, R v Ashford & Smith and R v Hill & Hall… We would also agree with the construction of the section adopted by this Court in those cases... In our view the trial judge was right to conclude that [D’s] stated purpose in damaging the statue did not raise the defence of lawful excuse for the jury’s consideration.”...