Elements of the offence under S.1(1) of the CDA (2 MR, 4 AR)?
Criminal Damage
MR:
- Intention or Recklessness as to the damage or destruction
- Knowing or realising that it might belong to another
AR:
- Destroy or damage
- Property - excludes intangible property
- Belonging to another
- Without lawful excuse
Define “destroy or damage” (3 points)
Ordinary English words, but
- Ultimately a question of FACT OR DEGREE
- Evidence of EXPENSE OR EFFORT to remedy the consequences of D’s acts may be indicative of damage
- Damage includes IMPAIRMENT of value and usefulness in addition to physical harm
Elements of the offence under S.1(2) of the CDA (2 MR, 4 AR)?
Aggravated Criminal Damage
MR:
- Intention or recklessness as to destruction or damage of property; and
- Intention or recklessness as to whether the life of another might thereby be endangered
AR:
- Destroying or damaging
- Property
- Belonging to D or another
- Where the danger must arise from the DAMAGE caused, rather than the damage’s CAUSE (cf Steer - Bullets, with Dudley - Fire from firebombs)
Elements of arson (2 MR, 5 AR?)
Same as Criminal Damage, one extra AR
MR:
- Intention or Recklessness as to the damage or destruction of the property by fire
- Knowing or realising that it might belong to another
AR:
- Destroy or damage
- Property - excludes intangible property
- Belonging to another
- Without lawful excuse
- BY FIRE
Elements of aggravated arson (2 MR, 5 AR)?
Same as Aggravated Criminal Damage, one extra AR
MR:
- Intention or recklessness as to destruction or damage of property by fire; and
- Intention or recklessness as to whether the life of another might thereby be endangered by fire
AR:
- Destroying or damaging
- Property
- Belonging to D or another
- Where the danger must arise from the DAMAGE caused, rather than the damage’s CAUSE (cf Steer - Bullets, with Dudley - Fire from firebombs)
- and the damage is caused by fire
Elements of offence under S.2 of the CDA (2MR; 2 AR)
Making Threats to Destroy or Damage Property.
MR:
- Intention that the person to whom the threat is made would fear that it will be carried out.
- If threat is to destroy or damage his own property, he must know that this is likely to endanger the life of that other or a third person
AR:
- Makes a threat to another to (i) destroy or damage property belonging to that other or a third person; or (ii) destroy or damage his own property in a way that he knows is likely to endanger the life of that other or a third person
- Without lawful excuse
Elements of offence under S.3 of the CDA (2 MR; 1 AR)
Possession with Intent to Destroy or Damage Property
MR:
1. Intention to use the item, or permit another to use it to (i) destroy or damage property belonging to another; or (ii) destroy or damage his or the user’s own property in a way that he knows is likely to endanger the life of that other or a third person
AR:
2. D has something in his custody or under his control
For which CDA offences is the defence of lawful excuse NOT available?
Not available for (i) aggravated offences; or (ii) any CDA offence if D additionally knows he is likely to endanger life
What is the lawful excuse under S.5(2)(a) of the CDA? Objective or subjective?
Belief that the owner consented or would have consented had he known. Test is ENTIRELY subjective and requires only an honest, genuine belief - intoxication, immorality or illegality is irrelevant.
What is the lawful excuse under S.5(2)(b) of the CDA? Objective or subjective? 5 elements.
Belief that the damage was necessary to protect other property belonging to D or another.
Mens rea is purely subjective - requires only an honest belief. But there are two objective elements, see below.
5 elements:
- Acted to PROTECT property belonging to himself or another
- Believing the property is in IMMEDIATE need of protection
- Believing that the means of protection adopted are REASONABLE
- Those means are OBJECTIVELY REASONABLE in the circumstances
- Those means must be objectively CAPABLE of protecting the property from further damage
What other defences can D have besides lawful excuse to a charge under CDA?
Any normal defence - self-defence, duress, etc, which can apply to all defences, including aggravated ones.
Define appropriation. When must appropriation take place?
Pursuant to S.3(1) of the Theft Act, appropriation = any assumption by a person of the rights of an owner. Appropriation can take place AFTER the item is found, so long as it coincides at some point with the MR.
When is D never liable for theft?
Where he is an innocent purchaser, i.e., did not know he was buying stolen property (S.3(2)).
Five types of property that cannot be stolen (with appropriate exceptions)?
S.4(1)-S.4(4) -
- Confidential information
- Electricity
- Land, unless the property allegedly stolen is severed from the land
- Wild flowers or fruit unless picked for reward or sale
- Wild animals unless reduced or being reduced into possession by another at the time D appropriates them
What types of property are included in S.4(1) of the Theft Act?
Money, personalty, realty, things in action and intangibles (e.g. patent, but NOT confidential information)
Elements of theft (3 AR; 3 MR)
AR:
- Appropriation
- Of property
- Belonging to another
MR:
- Intention to permanently deprive that other (S.6(1) and (2) - intends to treat the thing as his own to dispose of regardless of that other’s rights; includes disposal or taking the risk of disposal by pawning, lending or borrowing)
- Dishonesty - i.e.
(a) S.2(1) exceptions do not apply - D does not subjectively believe that (i) he had the legal RIGHT to deprive the owner of the property; (ii) that the owner would have CONSENTED had they known of the circumstances; and (iii) the owner could not be found by taking REASONABLE STEPS; and
(b) Ghosh test - D’s behaviour was (i) objectively dishonest by the ordinary standards of reasonable and honest people; and (ii) D subjectively realised this.
What is the definition of “belonging to another”?
Any possession, control, proprietary right or interest (S.5(1)).
Proper chain of inquiry when an item is alleged to have been abandoned?
- Has the owner disclaimed all intention to reclaim the property?
- If the item has been abandoned on land, does it belong to the (i) finder; or (ii) owner (property owner has demonstrated an intention to control things found there or exclude trespassers)?
When will property given to the defendant nevertheless “belong to another” (2 scenarios)?
Normally, belongs to D because civil title has passed. UNLESS
- , D is under a legal obligation to use it for a particular purpose (S.5(3)).
- The property has been given to D by mistake AND D is under an obligation (e.g. pursuant to law of UE).
When will borrowing amount to an intention to permanently deprive?
Only if all the goodness, virtue and practical value has gone. (R v Lloyd)
Effect of S.2(2) on dishonesty?
Paying for the property or being prepared to does not necessarily make D honest.
Elements of the offence under S.9(1)(a) Theft Act (3 AR and 2 MR)?
Burglary
AR:
- Enters by any part of his BODY
- A BUILDING or part of a building (i.e. a structure of considerable size, intended to be permanent or endure for a considerable time)
- As a TRESPASSER (without or in excess of permission) at the time of entry
MR:
- Knowing or being reckless as to the entry being a trespass
- Intending to (i) steal; (ii) inflict GBH; or (iii) damage the building or anything inside (includes conditional intent)
Elements of the offence under S.9(1)(b) Theft Act (5 AR and 2 MR)?
Burglary + offence
AR:
- Enters by any part of his body
- A building or part of a building (i.e. a structure of considerable size, intended to be permanent or endure for a considerable time)
- As a trespasser (without or in excess of permission)
- At the time of entry
- Commits the actus reus of the ulterior offence: theft, attempted theft, inflicting GBH or attempting GBH
MR:
- Knowing or being reckless as to the entry being a trespass
- Has the requisite mens rea to (i) steal; (ii) inflict GBH; or (iii) damage the building or anything inside (includes conditional intent)
Elements of the offence under S.1 Theft Act (3 elements)? Must D intend to use the weapon?
Aggravated Burglary
- D has committed a burglary under either S.9(1)(a) or (b)
- At the time of the burglary - i.e. time of entry for S.9(1)(a); time of commission of ulterior offence for S.9(1)(b)
- D has with him any weapon (includes firearms, imitation firearms, explosives or weapons of offence)
Not necessary that D intends to use the weapon, so long as he has it with him at the time of the burglary.
