Transcript Slide 1

Criminal Damage
In this lecture we will:
• Consider the offences under the
Criminal Damage Act 1971
• Explore the concept of recklessness
• Consider the lawful excuses provided
under the statute
Criminal Damage
• The simple offence of criminal damage is
contrary to s.1(1) CDA 1971.
• Definition – The intentional/reckless damage
or destruction of property belonging to
another without a lawful excuse.
• Only one offence is created by the section - it
is the same offence whether there is damage
or destruction and whether there was
intention or recklessness.
What constitutes damage?
• Relevant caselaw:
• A (a juvenile) v The Queen (1978) - the court adopted a
definition of damage in terms of rendering imperfect or
inoperative.
• Roe v Kingerlee (1986) - damage is a question of fact and
degree for the jury, applying their own common sense.
• Hardman v Chief Constable of Avon and Somerset (1986)
• Clear from these cases that the fact the harm is not
permanent and is rectifiable does not prevent there being
damage for the purposes of the statute. The amount of
rectification required and the cost will be relevant.
What constitutes damage?
• Another relevant consideration is
whether there has been impairment of
the value or usefulness of the property.
See:
• Cox v Riley (1986);
• Whiteley (1991);
• Morphitis v Salmon (1990).
What about removal of
parts from a machine?
• Fisher (1865) - removal of parts
necessary for a machine to work
constituted damage to the machine.
• This would seem to be an application of
the “rendering inoperative” test.
Does clamping a car
constitute damage?
• Drake v DPP (1994) - clamping a car did not
constitute damage to the car as it did not
involve any “intrusion into the integrity of the
object”.
• Prof Smith argues that clamping is damage
as:
• “if the car can be damaged by removing
something, it seems logical that it can be
damaged by adding something. The effect of
attaching the clamp is no less drastic than
removing the rotor arm.”
PROPERTY BELONGING TO
ANOTHER
• Defined in s.10 but if the subject matter
is clearly property/clearly belongs to
another, do not refer to s.10. Only refer
to the section where the issue is
contentious.
MENS REA
• Intention to do damage /destroy
property belonging to another etc
• Or
• Recklessness as to damage etc
INTENTION
• It must be proved by the prosecution that D
not only intended the act which caused the
damage but also to have intended that the act
should cause damage to property belonging
to another.
• If D mistakenly believes he is damaging his
own property, he will lack intent, see Smith
(1974).
RECKLESSNESS
• Recklessness involves foreseeing and taking
an unjustifiable risk.
• Who must have foreseen the risk - D or the
reasonable man?
• The leading case on recklessness is now R
v G (2003) HL which overruled Caldwell (1981).
• Recklessness is now subjective only.
The history of recklessness
under the CDA 1971
• Following the coming into force of the
CDA 1971, recklessness in criminal
damage was held to be subjective only
(often termed Cunningham
recklessness) as illustrated by
Stephenson (1979).
Caldwell Recklessness
• A person was Caldwell reckless for the
purposes of the CDA 1971 if:
• He does an act (or fails to act when under a
legal duty to act) which in fact creates an
OBVIOUS risk that property will be destroyed
or damaged AND when he does that act he
EITHER:
• (a) gives no thought to the possibility of there
being any such risk OR
• (b) recognises that there is some risk
involved but nevertheless goes on to take it.
What was wrong with
Caldwell recklessness?
• Obvious risk and the identity of the
reasonable man
• Relevant caselaw:
• Elliot v C (A minor) (1983);
• R v R (1984);
• Sangha (1988)
What was wrong with
Caldwell recklessness?
• The Caldwell lacuna or loophole
• Relevant caselaw:
• Chief Constable of Avon and Somerset
Constabulary v Shimmen (1986);
• Merrick (1996)
Why did the HL overrule
Caldwell?
• Parliament had intended that recklessness
under the CDA 1971 be subjective.
• Conviction of serious crime should require
proof of a culpable state of mind.
• The Caldwell direction was criticised by
academics, judges and practitioners alike.
• Retaining Caldwell recklessness
but in a modified form would have
overcomplicated the task of the
jury/magistrates:
• “It is one thing to decide whether [D]
can be believed when he says that the
thought of a given risk never crossed
his mind. It is another, and much more
speculative, task to decide whether the
risk would have been obvious to him if
the thought had crossed his mind.”
S.1(2) CDA 1971
• Definition - the intentional/reckless damage or
destruction of property without a lawful
excuse and with the intention/recklessness as
to endangering life thereby.
• Differences between s1(1) and s1(2)?
• (a) Under s1(2) one may be liable for
damaging one’s own property.
• (b) Aggravating feature of intent /
recklessness as to endangering life.
MUST LIFE BE
ENDANGERED FOR
LIABILITY UNDER S1(2)?
• No one’s life need be endangered. All
that needs to be established is that D
intended to endanger life or was
reckless as to life being endangered
(Parker (1993)).
“BY THE DAMAGE OR
DESTRUCTION”
• It is not sufficient that D merely intends to, or
is reckless as to, endangering life by his act.
D must intend to, or be reckless as to,
endangering life by the damage he causes.
• Relevant caselaw:
• Steer (1987);
• Webster & Warwick (1995)
ARSON - S1(3)
• Definition
• How should D be charged?
• Under section 1 (1) and (3) or under
section 1 (2) and (3), as appropriate.
What type of fire damage
will constitute arson?
• The damage may be insignificant (it
could just be charring of wood) but it is
not arson if all that occurs is that
property is merely blackened by smoke
(would still be the simple offence of
criminal damage, though.)
LAWFUL EXCUSE
• S5(2)(a) - belief that person(s) D believed
entitled to consent to the damage has
consented / would consent.
• S5(2)(b) - where damage was in order to
protect (anyone’s) property which D believed
was in immediate need of protection and D
further believed that the means of protection
adopted were reasonable in the
circumstances.
• These lawful excuses are only available to
the simple, not the aggravated offence.
S.5(2)(a)
• Belief in the consent of someone with
authority to give consent, even if given
for the purposes of perpetrating a fraud
will suffice (Denton (1982).
• Belief in the consent of God is no
defence (Blake v DPP (1993)).
S.5(2)(b)
• If D’s purpose is anything other than the
protection of property, he cannot rely on
this lawful excuse (Hunt (1977)).
• In Hill & Hall (1989), the court set out a 2
stage test:
• (1) What was D’s actual state of mind when
he damaged the property i.e. why did he do
the damage? (the subjective question) AND
• (2) Was the damage capable of protecting
property in immediate need of protection?
(the objective question - one of law for judge).
• The defence failed in Blake but was
successful in Chamberlain v Lindon
(1989).
• For the purposes of s.5 it is immaterial
whether the belief is justified or not if it
is honestly held (s.5(3)).
• Thus, the belief under s.5 need only be
an honest belief. The lawful excuses
are, therefore, available even where the
belief is due to voluntary intoxication,
see Jaggard v Dickinson (1980).