Criminal Damages to Property PDF

Preview

Summary

Detailed notes on Criminal Damages to Property such as Arson...

Description

Week 20 – Seminar 16 Criminal Damage & Oral Presentations There are three offences of destroying or damaging property under the Criminal Damage Act 1971 – there is simple and an aggravated form of criminal damage, and then there is arson. You need to understand the elements of each to decide which relevant offence is to be charged.

Criminal Damage: 

Criminal Damage Act 1971 governs four offences:

-

Basic criminal damage

-

Arson

-

Aggravated criminal damage

-

Aggravated arson

-

(also racially aggravated criminal damage)



Basic criminal damage:

-

Section 1(1) of the CDA 1971 provides that: "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."

-

Maximum punishment is ten years’ imprisonment. The actus reus of this offence consists of:

1)

destroying or damaging

2)

property

3)

belonging to another

4)

without lawful excuse.

1. Destroys or damages

- There is no legal definition of "destroys or damages". According to Smith & Hogan, Criminal Law, 1996, p694: - 'What is contemplated by "destroy or damage" is actual destruction or damage; that is, some physical harm, impairment or deterioration which can be usually perceived by the senses.' - The damage or destruction in issue will normally arise from the defendant's freely willed act. However, a defendant may be held responsible for failing to halt the spread of harm started accidentally: R v Miller [1983] 2 WLR 539. 2. Property - The basic definition of property, for the purposes of this offence, is provided by s10(1) of the Criminal Damage Act 1971 which states: 'In this Act "property" means property of a tangible nature, whether real or personal, including money anda) 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. For the purposes of this subsection "mushroom" includes any fungus and "plant" includes any shrub or tree.'

3. Belonging to another - Section 10(2) provides the basic definition of belonging to another. It states: "Property shall be treated for the purposes of this Act as belonging to any persona) having the custody or control of it; b) having in it any proprietary right or interest ...; or c) having a charge on it."

4. Without Lawful Excuse -

Criminal Damage Act 1971 s 5(2) defines lawful excuse:

-

S 5(2)(a): If at the time of the act or acts he believed that the person or persons whom he believed to be entitled to consent to the damage or destruction consented, or would have consented had they known of the circumstances.

-

Subjective

-

Under s 5(3) the belief doesn’t have to be reasonable so long as it is honestly held.

-

Jaggard v Dickinson [1981] QB 527

-

R v Denton [1982] 1 All ER 65

S 5(2)(b): If he destroyed or damaged or threatened to destroy or damage in order to protect property belonging to himself or another, provided at the time of the acts alleged to constitute the offence he believed 



That the property, right, or interest was in immediate need of protection



R v Hill; R v Hall (1989) Cr App R 74



R v Kelleher [2003] EWCA Crim 2846

That the means of protection adopted or proposed were reasonable in the circumstances Johnson v DPP [1994] Crim LR 673

Mens Rea: This offence requires either 1) intention or 2) Recklessness 1. Intention - The defendant must be proved to have intended the damage or destruction of property. - Since a defendant commits no offence under s1(1) in damaging or destroying his own property, it follows in principle that he should not be guilty of an offence where he destroys another person’s property under the mistaken belief that it is his own. Whether the defendant's mistake is one of fact or law he commits no offence for he lacks mens rea.

DEFENCES (lawful excuse defence): - In addition to the general defences (e.g. duress), some defences can be found specifically for criminal damage, under s5.

- Under s5(2) there are two situations where an accused will be treated as having a lawful excuse to destroying or damaging property. First, where the defendant believed that the owner would consent. Secondly, where the defendant did it to protect some other property.

-

Section 5(2) provides that a person is to be treated as having a lawful excuse, whether or not he would be so treated apart from its provisions:



"(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 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; or



(b) if he destroyed or damaged or threatened to destroy or damage the property in question ...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- (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."

-

On the basis of s5(1), the s5(2) defence applies to ss 1(1), 2(a) and 3(a) only. Under s5(3) it is immaterial whether a belief is justified or not if it is honestly held. Section 5(5) makes it clear that these provisions operate without prejudice to any other defence available to a criminal charge.

-

Belief in the owner's consent: Section 5(2)(a) covers the situation where a defendant believes that the owner has consented to the destruction or damage, or would have consented if asked. E.g. : Jaggard v Dickinson [1981] QB 527 / Blake v DPP [1993] Crim LR 586.

-

Defence of property: A person is entitled to take steps to protect his own property from harm caused by property belonging to another.

-

In Johnson v DPP [1994] Crim LR 673, the Divisional Court held that: The Court first had to ask itself the objective question of whether the act of damage was done in order to protect property.

-

e.g.R v Hun t(1978) 66CrAppR105.

-

There was then the subjective question ( in Johnson) as to whether the defendant believed that the property was in immediate need of protection and the means of protection were reasonable. The test to be applied was whether he believed 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; R v Hill

-

No requirement that the person entitled to consent be honest: R v Denton [1981] 1 WLR 1446.

(EXTRA LAWFUL EXCUSE STUFF) 

Defence for a D who honestly believes that the victim was consenting or would consent to the damage. Also a defence to damage property in order to protect your own or another’s property.



It is enough if you act because you believe that you were protecting the property (subjective), even if in fact your property was not at risk or was not your own.



But must be shown that D believed the property was in immediate need of protection and the protection was reasonable in all circumstances.



Highly subjective s5.



Cases: Jaggard v Dickinson : a defendant who has a drunken belief that the owner is consenting to the damage has a defence. But, decision was doubted in Magee v CPS. Blake v DPP : Div Court rejected argument that he believed God owned the property and had consented to the damage. Baker and Wilkins : section 5(2)(b) does not apply if the D is acting to portect a person and not property. Chamberlain v Lindon : property is widely defined and can include an interest in the property. : jury is not required to assess the legitimacy of the D’s belief. : must be reasonable in all circumstances.

: used wire cutters on the fence of a military compound, honestly believing that the act was protecting their own properties. Acts done to protect properties from immediate damage must not be too remote, conviction upheld, no lawful excuse.

Arson: -

Regarded as a species of criminal damage – under s1(3) of CDA 1971: “An offence committed under this section by destroying or damaging property by fire shall be charged with as Arson” Requirements of Arson are same as Criminal Damage, only difference is that the damage/destruction was caused by fire: R v Drayton 2006

Aggravated Criminal Damage: -

Section 1(2) of the CDA 1971 provides that: “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

-

B) intending by 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.”

-

The “aggravating” factor of this offence is the intention to endanger life, or recklessness as to whether this occurs.

ACTUS REUS: -

The prosecution does not have to show that life was in fact endangered by the damage nor that the damage in fact done created any risk to life so long as the defendant, by damaging the property, intended or was reckless as to the endangering of life: R v Dudley [1989] Crim LR 57

-

There must be a causal connection between the destroying or damaging of the property and the endangering of life, ie the danger to life must come directly from the damage.

MENS REA:

-

The mens rea is intention to endanger life or recklessness as to whether this occurs.

-

R v Caldwell [1981], establishes that a defendant is reckless for the purposes of s1(2) if his conduct:  (1) creates an obvious risk of endangering life by damaging property; and  (2) he either (a) gives no thought to the possibility of there being any such risk, or (b) recognising that there is some risk goes on to take it.

-

For a case on the lacuna in Lord Diplock's definition, see: R v Merrick [1996] 1 Cr App R 130.

- Racially - Section 30 (1) of the Crime and Disorder Act 1998 states: - “A person is guilty of an offence under this section if he commits an offence under section 1(1) of the CDA 1971... which is racially or religiously aggravated for the purposes of this section”.

Prepare the following questions: 1. What constitutes damage under the Criminal Damage Act 1971? Cite authorities to support your answer.

Any alteration to the physical nature of the property concerned may amount to damage within the meaning of the section. The courts have construed the term liberally and included damage that is not permanent such as smearing mud on the walls of a police cell. Where the interference amounts to an impairment of the value or usefulness of the property to the owner, then the necessary damage is established - R v Whiteley [1991] 93 CAR 25. Prepare an answer to the following: 2. Fred was attending Kung Fu lessons. He decided to show off his skills to his friends after going down the pub one night. He told his friends that he could kick towards the laundrette window and exercise enough control to stop just before the glass. Unfortunately, he did not stop just before the glass and completely shattered the whole window.

Offence: Basic criminal damage: Fred is liable

-

Section 1(1) of the CDA 1971 "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." actus reus:

-

destroying or damaging

-

property

-

belonging to another

-

without lawful excuse.

Destruction of window – element of finality/totality

Mens Rea: -

intention or Recklessness as to the damage or destruction

-

knowledge or belied that the property belongs to another

-

subjective recklessness in this case [Cunningham]

3. Mark was walking home late one night after watching a football match where his team lost. He passed a bus shelter and took a can of spray chalk out of his pocket and painted “Rovers Rule!” on it. He then kicked in the side of the bus shelter causing a small crack in the perspex window. 4. Charlotte was incensed (enraged) that a cosmetic company in her town was using animals in testing their products. In protest, she sprayed “Murdered animals make your lipstick”. She then decides to take it further and set fire to the head office. She sees the light on in the reception but does not see anyone at the desk. Unbeknown to Charlotte, Pete, the night security guard, is having a nap on the sofa opposite the reception desk. She throws a petrol bomb through the window towards the reception area which explodes and the building catches fire. Pete escapes but suffers severe burns. First Offence: Criminal Damage by spraying “Murdered animals make your lipstick” Offence 2: Aggravated Arson s.1(2) and (3) of Criminal Damage Act 1971 -

A person who without lawful excuse destroys or damages any property, whether belonging to himself or another with fire A) intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged

-

-

B) intending by 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.” The “aggravating” factor of this offence is the intention to endanger life, or recklessness as to whether this occurs.

R v Wenton...