Criminal Damage Flashcards
What is the law on simple criminal damage?
Criminal Damage Act 1971, s1(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
What is the sentence for simple damage?
Triable either way
10 years’ imprisonment on indictment
How does adding racially or religiously aggravated elements to criminal damage alter the sentencing?
Crime and Disorder Act 1998, s30(1)
Triable either way
14 years’ imprisonment and/or a fine on indictment
Where will the case be tried if the damage is less than £5,000? What if it was caused by arson?
Although triable either way, if the value of the property destroyed or the damage done is less than £5,000, the offence is to be tried summarily (Magistrates’ Courts Act 1980, s. 22). If the damage in such a case was caused by arson or was racially or religiously aggravated this rule will not apply
Case- D attempted a summary offence
R v Bristol Magistrates’ Court [1999]- D tried to damage a bus shelter in a way that would have cost far less than £5,000 to repair, his argument that he had only attempted what was in fact a ‘summary offence’ was dismissed by the Divisional Court
What if the damage is less than £300?
Where the damage caused is less than £300, the offence can be dealt with by way of fixed penalty notice
When does a graffiti notice apply?
If the offence involves only the painting or writing on, or the soiling, marking or other defacing of, any property by whatever means, the power to issue a graffiti notice may apply (under s. 43 of the Anti-social Behaviour Act 2003)
What is the AR of the offence?
Destroys or damages
Property
Belonging to Another
What does the term destroy or damage mean?
Not defined.
‘Destroying’ property suggests that it has been rendered useless but there is no need to prove that ‘damage’ to property is in any way permanent or irreparable
Damaging means the item can be restored and doesn’t have to be visible- courts have accepted minor damage
Cases- defacing pavements and graffiti smeared in mud
Defacing of a pavement by an artist using only water-soluble paint (Hardman [1986]) and graffiti smeared in mud can amount to damage, even though it is easily washed off (Roe v Kingerlee [1986])
Case- damaging
R v Fiak [2005]- D was arrested and placed in a police cell, which he flooded by stuffing a blanket down the toilet and repeatedly flushing. D argued there was no evidence the cell or blanket had been damaged, as the water was clean and the blanket/cell could be used again when dry
COA disagreed and held that while the effect of D’s actions in relation to the blanket and the cell was remediable, the reality was that the blanket could not be used until dried and flooded cell was out of action until the water had been cleared. Both had sustained damage for the purposes of the Act. Putting property temporarily out of use, even for a short time and in circumstances where it will revert to its former state of its own accord, may fall within the definition of ‘damage’
What is the definition of property?
s10
(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 . . . 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
Can land and intangible property be damaged?
Land can be damaged even though it cannot be stolen
Intangible property (such as copyright) can be stolen but cannot be damaged.
Property must be tangible in order to be damaged!!!
What about harming nature or animals?
Trampling flower beds, digging up cricket pitches, chopping down trees in a private garden and pulling up genetically modified crops could potentially amount to criminal damage.
4 F’s are excluded from criminal damage- they are not property.
Pets or farm animals are property for the purposes of this Act. Cases of horses being mutilated would, in addition to the offence of ‘cruelty’ itself, amount to criminal damage
What does belonging to another?
s10
(2) 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 (not being an equitable interest arising only from an agreement to transfer or grant an interest); or
(c) having a charge on it
Summary of belonging to another.
Property belongs to its owner, but it doesn’t just belong to the owner. It also belongs (for purposes of simple criminal damage) to anyone else who has any other kind of proprietary right to it and anyone who has actual physical custody of it at the time.
If someone has control over or a legal charge it then it belongs to them.
Can someone be guilty of damaging their own property?
You can damage your own property if at the time of your damage, it was in someone else’s custody or under someone else’s control or someone else had a legal charge on it.
Eg: take car to garage for repair and break the lock on it to sneak out without payment- you have damaged your own car whilst it was in the garage’s control.
Can someone be guilty of destroying their own property if it is jointly owned?
If a person damages his/her own property, he/she may still commit the offence of simple criminal damage if that property also ‘belongs to’ someone else.
Whose consent is needed for a prosecution of criminal damage between spouses?
Where property belongs to your spouse or civil partner, any prosecution for criminal damage has to have the consent of the DPP.
Will not apply to someone jointly charged with spouse or partner or someone divorced.
What are the 2 defences of lawful excuse?
s5 CDA 1971 provides 2 occasions where D may have a lawful excuse
1. Permission s5(2)(a)
2. Protection s5(2)(b)
Both involve the belief of D
What is the defence of permission?
A person shall be treated as having lawful excuse under s. 5(2)
(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 . . .
You must believe you had the consent of the owner to damage the property!!!
Does it matter if the defendant is mistaken about who owns the property?
No! It does not matter if the defendant is wrong- only if his belief is honestly held.
Doesn’t matter if the actual owner would not have consented.
Can an intoxicated belief still be an honest belief?
Yes- so drunken mistake is allowed!!!
Stupid mistakes are also allowed when damaging property- as long as the person they honestly believed to be the owner of the property would have consented to the damage in the circumstances.
What is the defence of protection?
A person shall be treated as having lawful excuse under s. 5(2)
(b) if he destroyed or damaged or threatened to destroy or damage the property in question or, intended to use or cause or permit the use of something to destroy or damage it, 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
What are the 2 parts to this defence?
- D must honestly believe that someone’s property needs immediate protection (subjective belief)
- What D does to protect the property must be reasonable in all the circumstances- his honest action to protect property must be reasonable.
What does a right or interest in property mean?
A ‘right or interest in property’ includes any right or privilege in or over land, whether created by grant, licence or otherwise (s. 5(4))
What are the key features of s5(2)?
Key features of this defence are the immediacy of the need to protect the property and the reasonableness of the means of protection adopted
Case- s5(2)
Held that the threat presented by a possible nuclear attack in the future did not excuse the carrying of a hacksaw for cutting through the perimeter fence of an airbase (R v Hill (1989))
What is the importance of ‘belief’?
It is immaterial whether a ‘belief’ was justified as long as it was honestly held (s. 5(3)). Although this test is supposed to be an objective one, the evidence will be based largely on what was going through a defendant’s mind at the time
Case- honest held belief
Jaggard v Dickinson [1981]- D broken a window to get into a house. She was drunk and had got the wrong house, but the court accepted that her belief (that it was the right house and that the owner would have consented) had been honestly held, and that it did not matter whether that belief was brought about by intoxication, stupidity, forgetfulness or inattention
Case- honest held belief may not always suffice
Blake v DPP [1993]- unsuccessfully claimed a defence under both s5(2)(a) and (b). D (vicar) wished to protect against GB’s involvement in the Gulf War. In order to mark his disapproval, D wrote a quotation from the Bible in ink on a pillar in front of Parliament. He claimed he had lawful excuse based on his belief that God would have consented (2a) and he had damaged property as a reasonable means of protecting other property in the Gulf being damaged (2b). Divisional Court did not accept either proposition holding that God’s consent was not a lawful excuse and D’s conduct was too remote from any immediate need to protect property in the Gulf.
What was the test in relation to D’s belief in Blake?
Test appeared to be largely subjective (i.e. what was/was not going on in the D’s head at the time) but with an objective element in that the judge/magistrate(s) must decide whether, on the facts as believed by D, his acts were capable of protecting property
Case- taking a different approach to the test in Blake
R v Jones (Margaret) [2004]- peace campaigners argued that their fear of the consequences of war in Iraq, which they claimed to be illegal, prompted them to conspire to cause damage at an airbase and that such fear amounted both to duress and lawful excuse under s. 5(2)(b). COA held that a jury would be entitled to consider some of the subjective beliefs of D’s in determining the reasonableness of their actions
Is it an offence to damage your own property? Case?
It is not an offence to damage your own property unless there are aggravating circumstances. This is the case even if the intention in doing so is to carry out some further offence such as a fraudulent insurance claim (R v Denton [1981])
