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CRIMINAL DAMAGE– s1 CDA 1971AR: destroys or damage property belonging to another MR: intention to damage or destroy property belonging to another or reckless as to whether property belonging to another was destroyed or damages plus knowledge the property belonged to another, recklessness as to wheth...

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CRIMINAL DAMAGE–

s1 CDA 1971

AR: destroys or damage property belonging to another MR: intention to damage or destroy property belonging to another or reckless as to whether property belonging to another was destroyed or damages plus knowledge the property belonged to another, recklessness as to whether it did Damages: without lawful excuse ‘Damage; (definitions) - Morphitis v Salmon [1990] – the term ‘damage’ should be widely interpreted so as to conclude not only permanent or temporary physical harm but almost permanent or temporary impairment of value or usefulness - R v Whiteley [1991] – Any alteration of the physical nature of the property concerned may amount to damage … Whether or not it does will depend on the effect the alteration has had upon the legitimate ... owner ... where … the interference … amounts to an impairment of the value or usefulness of the property to the owner. - R v Fiak [2005] – CA held a blanket cannot be used again till it is washed and dried. And, a flooded floor puts the room out of action until it is dried. Both would amount to damage as effort was needed to restore them back to use. Damage has to have negative impact on the value or usefulness of the property: it has to matter = so the property cannot perform its function anymore - Morphitis v Salmon [1990] – a scratch on a scaffolding bar did not erode its value because appearance was not important. Damage is contextual: depends on the nature of the property - A (a Juvenile) v R [1978] – spitting on a police uniform was not damage – spitting on someone’s clothes could constitute damage but it would depend on the garment in question. – dress stained = damage Wild animals: if tames or in captivity or reduced into possession are in the course of being reduced into possession Recklessness: subjective R v G test prevails - Objective Recklessness: what the public would foresee as a risk if they were in the defendant’s position. o Caldwell [1982] – HL introduced objective test: just as blameworthy to fail to recognize an obvious risk as it was to knowingly take a recognized risk -

Subjective Recklessness: what the D foresaw as a risk at the time of their conduct o R v G & Another [2003] – HL overruled Caldwell = subjective test: the defendant’s foresight of a risk that property would be harmed.

Defences: Without Lawful Excuse – set out in s5 (1) (CDA)

R v Smith [1974] – D rented a flat + installed wiring w landlord’s permission. Removed it when he moved out + charged with criminal damage. Said, ‘how can I be done for smashing my own property’. - CA quashed conviction: no offence is committed if a person acts in a genuine but mistaken belief that the property they are damaging, or destroying is their own. o D must know the property they are damaging is not their won Section 5 (2) (a) D has lawful excuse for damaging or destroying property; if he believes that the person entitled to consent to the damage would have also done so, if they had known of the circumstances Jaggard v Dickinson [1981] – D broke into the wrong house, intoxicated believing it belonged to a friend who would not mind her smashing a window to gain entry. Unfortunately, it was identical house in the same street. – used lawful excuse, person would have consented - ‘it seems to us that the court is required by s5 (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’. Section 5 (3) this belief does not need to be justified, provided it is honestly held. (subjective) Section 5 (2) (b) has three elements: 1. The defendant must have damaged property in order to protect his own or another’s property (objective) 2. He must genuinely believe that the property is in need of immediate protection (subjective) 3. He must genuinely believe that the steps that he took to protect the property were reasonable having regard to all the circumstances. ( subjective) Unsworth v DPP [2010] – D defendant cut down a neighbour’s trees blocking light into her kitchen – Conviction quashed 1. Protecting a property right – easement of light 2. She believed she needed to take immediate action - lack of light damaged her health 3. She believed her actions were reasonable - her requests to her were ignored. o Irrelevant others may consider that there was no need for immediate action or that her action was not reasonable R v Hill and Hall [1989] – D tried to cut the wire fence surrounding a military base containing nuclear weapons to compromise security so that the weapons could be relocated. Claimed to act to protect property = presence of weapons was a likely target for a nuclear attack - Despite subjective wording of s5 (3) the CA held the assessment of whether damage was capable of protecting property was an objective assessment o Although D believed cutting the fence would protect houses in the local area from attack, an objective view was that this was too remote to satisfy the first part of s5 (2) (b)

ASSAULT AR: an act that causes apprehension of immediate unlawful violence – Collins v Wilcox MR: intention to cause apprehension of immediate unlawful violence or recklessness thereto R v Venna or be aware that there is a risk that the victim will apprehend immediate unlawful violence. AR is based upon the V reaction, otherwise it would be a lawful act = threshold is low The Act: - Doesn’t need to be unlawful, must be a positive act, cannot be an omission, - Historically: Meade v Belt – ‘no words and singing are equivalent to an assault’ - R v. Burstow – ‘a thing said is a thing done’. Apprehension of force: no apprehension = no assault. - Vile threats which do not perturb the victim = can be no assault. - must be imminent harm, must expect violence and not fear it - Apprehension that one might suffer a psychological injury caused by the defendant should be sufficient for an assault. Immediacy - Constanza: CA held it would be satisfied if D’s conduct caused a generalised state of fearfulness, including a specific concern that violence was about to occur. - Ireland: HL confirmed only fear of immediate violence will suffice – immediate fear of violence will not. - Smith v Chief Superintendent of Woking Police Station: ‘in a state of terror one is very often unable to analyse precisely what one is frightened of as likely to happen next… it was clearly a situation where the basis of the fear which was instilled in her was that she did not know what the defendant was going to do next, but that, whatever he might be going to do next, and sufficiently immediately for the purpose of the offence, was something of a violent nature.’ - Constanza: CA ruled the immediacy requirement would be satisfied if prosecution prove victim had a ‘fear of violence at some time not excluding the immediate future. - R v Ireland: Victim is assailed by uncertainty about the defendant’s intentions. Fear may dominate her emotions and it may be the fear that the caller’s arrival at her door is imminent. She may fear the possibility of immediate personal violence. Unlawful Force: consensual/authorised by law = lawful - R v Day: Force used in self-defence is not unlawful (). - Force used to arrest a person suspected of an offence is lawful

BATTERY

AR: the actual infliction of unlawful force on another person – Collins v Wilcox MR: intention to inflict unlawful force on another person or reckless thereto – R v Venna Battery can be committed without the victim suffering any injury/touching - Does not necessarily involve harming of the body but more of an ‘invasion of personal space’ - Carried out through as object – Fagan. Spitting/ throwing beer = battery. Necessity: Some everyday touching’s are an essential part of life. - Exception to the offence of battery to cover ‘all physical contact which is generally acceptable in the ordinary conduct of everyday life’ Touching - DPP v K – direct or indirect - DPP v Haystead - Transferred malice – does not matter if the defendant touches someone other than the person he meant to touch - R v Thomas – touching a person’s clothes when they are wearing them Level of Harm: No requirement for harm; touching will suffice. - CPS Charging Standards: minor injuries should be charged as battery – no medical attention needed because of no lasting harm. Consent: all deliberate or foreseeable touching is battery - Implied consent accommodates ‘the exigencies of everyday life’ as an acknowledgement that some unwanted contact in inevitable (Collins v Wilcox). - Unlawfulness of battery can be negated by express or implied consent Collins v Wilcock [1984]: two women of soliciting. Approached one. refused to answer. Officer held her arm and woman scratched officer. Convicted of assaulting the officer for executing of her duty. Appealed that during the assault the officer was not exercising her duty. Necessity: everyday touching is an essential part of life - ‘Everybody is protected not only against physical injury but against any form of physical molestation.’ - ‘The fundamental principle, plain and incontestable, is that every person’s body is inviolate. It has long been established that any touching of another person, however slight, may amount to a battery.’

ABH – s47 OAPA 1861 AR: AR of assault or battery plus actual bodily harm MR: MR of assault or battery – no need to show D intended or foresaw his assault or battery would cause actual bodily harm Half the MR - Two AR components, but only requires MR for one. Bodily harm - R v Miller [1954]: injury to V mind ‘for the time being’ accepted as bodily harm.

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R v Chan Fook [1994]: D accused of stealing from person he was renting from. Bundled up the stairs, locked in the room, attempted to escape sustaining injuries. Charged with causing ABH to the victim’s emotional state. Took principle from Miller to use it as a base of liability. o The C/A resurrected this principle to rule that the body is not limited to the flesh, bones and skin but includes the organs, nervous system and brain. o Mere emotions are excluded so, it must be a severe recognized condition R v Ireland [1998]: the silent phone calls case. HL upheld this principle and recognised that psychological injury can amount to actual bodily harm. R v Burstow [1998]: The H/L stated that psychological injury could be grievous bodily harm if it were serious enough. o The brain is a nervous state – if it suffers sufficient harm then it can constitute harm and will be an offence o No difference for cause and inflict o Colleagues, he liked her, she was just friendly. He found excuses to spend time with her and turned up unannounced. Told her manager and was told to stay away, sat outside her house in his car, marriage broke down, but law couldn’t do anything. R v Morris [1998]: psychiatric evidence is needed to determine the line between ‘mere emotions’ and psychological injury and to provide evidence of causation. o Established that it is important to distinguish between psychological harm and emotional distress using psychiatrist evidence R v Dhaliwal [2006]: abusive controlling spouse, bullied and hurt his wife – wife hung herself. o Fook [1994]: Bodily harm covers recognised psychiatric illness, not emotions. o Touching someone is battery so causing emotional disturbance should be considered as the psychological equivalent. Issue was whether psychological injury that fell short of a recognised psychiatric illness should fall within the meaning of ‘bodily harm’ for the purposes of the Offences against a Person Act 1861 = CA – this ‘introduced a significant element of uncertainty.’

Level of Harm - Donovan: ‘any hurt or injury calculated to interfere with the health or comfort of the victim… it must be more than transient or trifling.’ - R v Chan Fook [1994]: ‘the word “harm” is a synonym for injury. The word “actual” indicates that the injury (no need for it to be permanent) should not be so trivial as to be wholly insignificant.’ - CPS Charging Standards: The degree of harm caused will be more than just the level of injuries sustained. - Although the level of injury may be minor, the circumstances the assault took place make a charge of ABH appropriate rather than assault - Minor threats can be escalated if repeated

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DPP v Smith [2006]: D’s ex-girlfriend went around his house and woke him. He pushed her down the stairs, sat on top of her and cut off her hair from her ponytail. Cutting the hair was bodily harm. o Whether it is alive or beneath the surface of the skin or dead tissue above the surface of the skin, the hair is an attribute and part of the human body. o The meaning of ‘bodily’ in the phrase “actual bodily harm” Is concerned with the body of the individual victim – intrinsic to each individual, their autonomy

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DPP v T: Knocking someone unconscious will amount to ABH even if there is not visible harm suffered from it o The loss of consciousness suffered by the victim in this case fell within the meaning of the word ‘harm’. Nor can it be doubted that that harm was ‘bodily’. It involved an injurious impairment to the victim’s sensory functions. It is axiomatic that the bodily harm was ‘actual’.

The correspondence principle – AR and the MR must match R v Savage [1991]: girlfriend saw boyfriends ex, argument brew, threw her drink – a battery. Glass caused more severe injuries = ABH. Admitted to battery, denied liability to assault (no intention/recklessness) - HL: reviewed conflicting authorities and confirmed that there is no requirement for any mens rea in relation to the harm requirement of s.47. - ‘… once the assault was established, the only remaining question was whether the victim’s conduct was the natural consequence of the assault

GBH –

s20 OAPA 1861

AR: the defendant wounded the victim or inflicted GBH to the victim MR: malice, direct intent or subjective recklessness - Modified Cunningham recklessness: Defendant cannot avoid liability by asserting that ‘he thought he would cause a lesser injury than the one that occurred’ - Legal definition: ‘really serious harm Level of harm - DPP v Smith – Grievous bodily harm is defined as ‘really serious harm’ (legal definition) - JCC v Eisenhower – A wound is ‘a break in the continuity of both layers of the skin’ - CPS Charging Standards: injuries resulting in permanent disability, loss of sensory function or visible disfigurement, broken or displaced limbs or bones, serious psychiatric injury. Malice: intention or recklessness (subjective). D needs to foresee a risk of some harm arising from his actions but not harm of seriousness

GBH with intent– s18 OAPA 1861 AR: the defendant unlawfully wounded or caused grievous bodily harm to any person. MR: Ulterior intent (cause GBH or prevent/resist arrest) and malice (in relation to the injury) Cause and Inflict – currently no distinction - The difference in words between s.18 and s.20 were significant ( R v Mandair) with “cause” being considered wider than “inflict”. - R v Burstow – no meaningful distinction for psychological injury and extended to physical harm in R v Konzani. Ulterior Intent – MR, defendants’ purpose for acting the way he did - D must have an intention to cause GBH rather than a more general intention to cause harm – the intention to wound will not suffice – doesn’t offence the correspondence principle = an additional requirement = harder to convict - Intention to resist an arrest or prevent lawful detention covers the defendant and third parties.

Consent AR: A wound is a break in the continuity of the skin – satisfied by the incision made by a surgeon and by the cut in the skin made by an attacker with a knife MR: The surgeon and the attacker both cut the skin deliberately satisfying the MR, so liability is complete. -

Always a defence to battery, never to offences involving bodily harm

R v Brown [Anthony]; Lucas; Jaggard; Laskey; Carter [1994]: Group of sadomasochists who engaged in consensual acts of violence for sexual gratification; some found pleasure and others pain. Convicted under s20 and s47 and tried to rely on consent. CPS not required to prove consent Consent recognizes individual autonomy but is limited by paternalism as the law places constraints on the ability to consent to harm. Brown [1994] “The criminal law restrains a practice which is regarded as dangerous and injurious to individuals and which if allowed and extended is harmful to society in general’ The police consideration in the area of law is: Attorney Generals Ref No 6 of 1980 [1981] “It is not in the public interest that people should try to cause, or should cause, each other bodily harm for no good reason’ R v Wilson (Alan) [1997] – Convicted of ABH on his wife: branded initials on her bum with a hot knife, apparently at her request. Appealed – had his wife’s consent – assist her in the acquisition of a desirable piece of personal adornment.

R v Emmett [1999] (unreported) – Once the conduct…has gone beyond the permitted limit… in inflicting injury upon or exposing to potential risk or her partner, in the course of sadomasochistic games whether homo-o or heterosexual, so that he or she prima facie has committed an offence of a sufficient degree of seriousness, the institution of criminal investigation and, if appropriate criminal proceedings cannot amount to a breach of article’. Brown – Lord Templeman: ‘Society is entitled and bound to protect itself a cult of violence. Pleasure deprived from the infliction of pain is an evil thing. Cruelty is uncivilised’ Express consent: The victim has explicitly agreed to the imposition of injury in question (there is consent) Consent in fact - The defence may still not be available as the law limits the availability of consent Implied consent: The victim has not agreed to the imposition of the injury in question (there is no consent) Consent in law - The defence is still available as the law limits has deemed it to be a situation where consent is implied R v Richardson [1999] – D was a disqualified dentist who continued to practice. Charged under s47 and relied on consent. CPS said no deception to the nature of the act, only quality. Patient consented to dental treatment and received it. - CPS: patients consented to treatment from a qualified dentist, not disqualified. - Held: this distorts the meaning of the word ‘identity’ and conviction was quashed. Clarence [1888]: D’s conviction for giving his wife gonorrhoea was quashed as she consented to the act that caused her to catch the disease - Overruled in Dica [2004] where it was held that the issue was whether the victim consented to the risk of infection and not to the intercourse Sports: No uniform standard of consent, diff sports = diff degrees of contact = different injury - R v Barnes: Participants may not give explicit consent to harm, but they are deemed to have given implied consent to contact and harm that is part and parcel of the ‘rules of the game’ - Only regulated sporting activities are included. - The same conduct in an unregulated informal setting does not fall within the sporting exception – R v Coney - This principle was upheld recently when CA ruled that consent is not available to either participant in a fight despite the agreement of both taking part and to the risk of injury Attorney Generals Ref No 6 of 1980 [1981] Off the ball incidents: Injuries not part of ordinary play are not covered by implied consent. It is not force that players would reasonably expect to happen in the game – Billinghurst [1978] R v Barnes [2004] factors to be taken into account when deciding if injury was outside the ‘rules of the game’: type, level, nature, degree of force, extent of risk, players state of mind

Expansion of the ‘rules of the game’ H v CPS [2012] attempt to argue a teacher for children with special needs had impliedly consented to violence and reasonably foreseeable violence should be addressed by the school’s governing body, not just the criminal justice system. - Rejected on the basis of lack of r...