Criminal Law Lecture 10: Criminal Damage By Feruza Bobokulova

Criminal Damage The law on criminal damage is contained in the Criminal Damage Act 1971 The Criminal Damage Act creates four offences which are: the basic offence of criminal damage aggravated criminal damage arson aggravated arson

Basic Offence The basic offence is set out in s 1(1) of the Criminal Damage Act 1971: “1(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.” The actus reus is made up of three elements. These are that D must destroy or damage property belonging to another

Basic Offence: Destroy or Damage This phrase is not defined in the 1971 Act Old cases ruled that even slight damage was sufficient to prove damage. For example, in Gayford v Chouler (1898), trampling down grass was held to be damage. The cases prior to the Criminal Damage Act 1971 are, of course, no longer binding, but they may still be used as persuasive precedent. ‘Destroy’ is a much stronger word than ‘damage’, but it includes where the property has been made useless even though it is not completely destroyed.

Basic Offence: Destroy or Damage Damage covers a wide range, and in Roe v Kingerlee (1986), the Divisional Court said that whether property has been damaged was a ‘matter of fact and degree and it is for the justices to decide whether what occurred was damage or not’. In that case D had smeared mud on the walls of a police cell. It had cost ￡7 to have it cleaned off and it was held that this could be damage even though it was not permanent In English cases under the Criminal Damage Act 1971, although it has been held that non-permanent damage can come within the definition of ‘damage’, the courts’ approach seems to be based on whether it will cost money, time and/or effort to remove the damage If so, then an offence has been committed, but if not then there is no offence

Basic Offence: Destroy or Damage In Hardman v Chief Constable of Avon and Somerset Constabulary (1986), protesters, to mark the 40th anniversary of the dropping of the atomic bomb on Hiroshima, painted silhouettes on the pavement with water- soluble paint. The local council had the paintings removed with water jets. The defendants argued that the damage was only temporary and the paintings would have quickly been erased by the weather and by people walking on them and there was no need for the local council to go to the expense of having the paintings removed by high-pressure water jets. The court held that this was damage

Basic Offence: Destroy or Damage The ‘temporary impairment of value or usefulness’ was the key factor in Fiak (2005) In Fiak (2005), D was arrested on suspicion of being in charge of a vehicle when he was over the limit for alcohol and for assault on a police officer. He was taken to a police station and placed in a cell. He put a blanket in the toilet in the cell and flushed the toilet several times. This caused water to overflow and flood the cell and two adjoining cells. The blanket was not visibly soiled but it had to be cleaned and dried before it could be used again. The cells had to be cleaned. This was held to be criminal damage

Basic Offence: Destroy or Damage In A (a Juvenile) v R (1978) Crim LR 689, spit which landed on a policeman’s uniform was not damage as it could be wiped off with a wet cloth with very little effort. But what if the spit had landed on a light coloured T- shirt and left a stain, so that the T-shirt needed washing or dry cleaning? It seems that could be enough to constitute damage

Basic Offence: Destroy or Damage Computer disks and programs Altering computer programs was held to be within the definition of criminal damage in Whiteley (1991), when a computer hacker had altered and deleted files and changed some passwords. It was held that there was damage to the magnetic particles on the hard disk which made the computer inoperable

Basic Offence: Property ‘Property’ is defined in s 10(1) of the Criminal Damage Act 1971: ‘10(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.’

D must intend to destroy or damage property belonging to another Basic Offence: Mens Rea The defendant must do the damage or destruction either intentionally or recklessly D must intend to destroy or damage property belonging to another Where D intends to do what is caused then, if this is damage, D has the mens rea for the offence. This was seen in Seray- White (2012)

Basic Offence: Mens Rea In Seray-White (2012), Dr Seray-White wrote with a black marker pen on two parking notices, which had been placed by the management company in the estate where D lived. He said he did not intend to cause damage nor was he reckless as to whether damage was caused. He was convicted and appealed first to the Crown Court and from there to the Divisional Court. The Crown Court had found the writing to be damage and this was confirmed by the Court of Appeal. As D had intended to do the writing the Court of Appeal held that he had intention to cause criminal damage. They held that no question of recklessness arose as the case concerned an act with an intended result

Basic Offence: Without Lawful Excuse ‘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 as having 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 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 was 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 was in need of immediate protection; and (ii) that the means of protection adopted or proposed to be adopted were or would be reasonable in 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.’

Basic Offence: Without Lawful Excuse There is therefore a defence under s 5 in two circumstances. D must honestly believe either that the owner (or another person with rights in the property) would have consented to the damage; or other property was at risk and in need of immediate protection and what he did was reasonable in all the circumstances

Basic Offence: Without Lawful Excuse Belief in consent In Denton (1982), D, who worked in a cotton mill, thought that his employer had encouraged him to set fire to the mill so that the employer could make an insurance claim. The Court of Appeal quashed his conviction as he had a defence under s 5(2)(a). The combination of s 5(2)(a) and s 5(3) allows a defence of mistake to be used, even where the defendant makes the mistake because they are intoxicated as seen in Jaggard v Dickinson (1980)

Basic Offence: Without Lawful Excuse In Jaggard v Dickinson (1980), D, who was drunk, went to what she thought was a friend’s house. There was no one in and so she broke a window to get in as she believed (accurately) her friend would consent to this. Unfortunately in her drunken state she had mistaken the house and had actually broken into the house of another person. The Divisional Court quashed her conviction, holding that she could rely on her intoxicated belief as Parliament had ‘specifically required the court to consider the defendant’s actual state of belief, not the state of belief which ought to have existed’ The Divisional Court in Jaggard pointed out that a belief may be honestly held whether it is caused by intoxication, stupidity, forgetfulness or inattention

Basic Offence: Without Lawful Excuse Belief that other property was in immediate need of protection Under s 5(2)(b) there is a defence where D believes the destruction or damage of property is needed for the immediate protection of other property This could give a defence in situations where trees are cut down or a building demolished to prevent the spread of fire A case, in which the defence was successfully pleaded in a jury trial was in April 2000 when Lord Melchett and several other members of Greenpeace damaged genetically modified (GM) crops in order to prevent non-GM crops in neighbouring fields being contaminated with pollen from the GM crops.

Basic Offence: Without Lawful Excuse The judge allowed the defence to go to the jury, but they were unable to agree on a verdict. A retrial was ordered and this time the jury acquitted the defendants If D has another purpose in doing the damage, then the court may rule that the defence is not available to him Also there is an objective test to decide whether the act that the defendant did was done for the immediate protection of other property. This was stressed in Hunt (1977)

Basic Offence: Without Lawful Excuse In Hunt (1977), D helped his wife in her post as deputy warden of a block of old people’s flats. He set fire to some bedding in order, as he claimed, to draw attention to the fact that the fire alarm was not in working order. The judge refused to allow a defence under s 5(2)(b) to go to the jury as his act was not done in order to protect property which was in immediate need of protection. The Court of Appeal upheld his conviction, despite the very subjective wording of s 5(2)(b). They held that the question whether or not a particular act of destruction or damage or threat of destruction or damage was in order to protect property belonging to another must be, on the true construction of the statute, an objective test. In this case the damage was done in order to draw attention to the defective fire alarm

Basic Offence: Without Lawful Excuse In the case of Blake v DPP (1993), the defendant put forward defences under both s 5(2)(a) and s 5(2)(b). D was a vicar who believed that the Government should not use military force in Kuwait and Iraq in the Gulf War. He wrote a biblical quotation with a marker pen on a concrete post outside the Houses of Parliament. He claimed that he was carrying out the instructions of God and this gave him a defence under s 5(2) (a), as God was entitled to consent to the damage of property and the damage he did was in order to protect the property of civilians in Kuwait and Iraq and so he had a defence under s 5(2)(b).

Basic Offence: Without Lawful Excuse He was convicted and appealed, but both the claims were rejected. The court held that God could not consent to damage and that what the vicar had done was not capable of protecting property in the Gulf judged objectively No defence to protect a person Oddly enough the Act does not provide a defence where D believes he is acting to protect a person from harm

Basic Offence: Without Lawful Excuse No defence to protect a person In Baker and Wilkins (1997), the two defendants believed that Baker’s daughter was being held in a house. They tried to enter the house, causing damage to the door. They were convicted and their conviction was upheld on appeal as s 5(2)(b) only provides a defence where other property is in immediate need of protection

Endangering Life This is an aggravated offence of criminal damage under s 1(2) Criminal Damage Act 1971, which states: ‘1(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; shall be guilty of an offence.’ This offence is regarded as much more serious than the basic offence and it carries a maximum sentence of life imprisonment.

Endangering Life: Own Property Section 1(2) applies where the property damaged is the defendant’s own This can be justified in most situations, as the aim of the section is to make D guilty where he has intended or been reckless as to whether life is endangered by the damage he does It does not matter whether the damage is to his property or someone else’s However, the case of Merrick (1995) shows how the section can be extended to absurd lengths

Endangering Life: Own Property In Merrick (1995), D was employed by a householder to remove some old television cable. While doing this D left the live cable exposed for about six minutes. The Court of Appeal upheld his conviction under s 1(2) of the 1971 Act. In this case the householder was using Merrick (1995) as an agent, but if the householder had done the work personally it seems that he would equally have been guilty. The other anomaly shown by this case is that Merrick (1995) was guilty only because he was removing old cable and ‘damaging’ it by this process. If he had been installing new wiring and left that exposed for six minutes it would have been diffi cult to argue that there was any damage and so he would have been not guilty. Yet the action and the danger in both situations are the same

Endangering Life: Mens Rea There are two points which the prosecution must prove. These are: 1. intention or recklessness as to destroying or damaging any property 2. intention or recklessness as to whether the life is endangered by the destruction or damage

Arson Under s 1(3) Criminal Damage Act 1971, where an offence under s 1 Criminal Damage Act 1971 is committed by destroying or damaging property by fire, the offence becomes arson The maximum penalty is life imprisonment The basic offence of criminal damage must be destruction or damage by fire All the other ingredients of the offence are the same as for the basic offence

Arson Where aggravated arson is charged then it is necessary for the prosecution to prove that the defendant intended or was reckless as to whether life was endangered by the damage or destruction by fire In Miller (1983) 1 All ER 978, the House of Lords held that arson could be committed by an omission where the defendant accidentally started a fire and failed to do anything to prevent damage from that fire

Reading Materials Allen, M., 2003. Textbook on Criminal Law, 7th edn. Oxford: Oxford University Press. Elliott, C. and Quinn, F., 2004. Criminal Law, 5th edn. Essex: Pearson Education. Martin, J. and Storey, T., 2013. Unlocking Criminal Law, 4th edn. Oxon: Routledge.

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