Criminal Law – 4ed (2024) Chapter 8 Criminal Damage

• Criminal damage is a common offense, ranging from minor graffiti to significant riot damage.
• Offenses are outlined in the Criminal Damage Act (CDA) 1971.
• Offenses include simple criminal damage, aggravated criminal damage, simple arson, and aggravated arson.

Simple Criminal Damage

• Defined as destroying or damaging property belonging to another without lawful excuse, either intentionally or recklessly.
• The actus reus consists of destroying or damaging property belonging to another without lawful excuse.
• Destruction or damage includes physical harm, whether permanent or temporary, and impairment of value or usefulness.
• Whether criminal damage occurred is a matter of fact and degree, often determined by whether expense is incurred in rectifying the consequences.
• Drawing on a pavement with soluble chalk can constitute damage if the local authority cleans it.
• Spitting on clothing is not damage if it can be easily wiped off.
• Property includes tangible property, both real (land and buildings) and personal (including money).
• Animals are included if tamed/ordinarily kept in captivity or reduced into possession.

Belonging to Another

• The simple offense cannot be committed against one's own property.
• Property belongs to anyone with legal ownership, custody, control, a proprietary right/interest, or a charge.
• Ayesha scribbling on a textbook borrowed by Patsy from the library. Patsy has custody/control, and the library has a proprietary right.
• Daljit kicking in the door of a house which they own with a mortgage, the lending company has a charge and a proprietary interest. If Daljit rents the house the landlord has a proprietary interest.

Mens Rea

• Requires intention or recklessness as to the destruction or damage of property belonging to another, combined with knowledge or belief that the property belongs to another.
• RvG [2003] UKHL 50 ruled that the test of recklessness was subjective for criminal damage and as the judges accepted that neither boy appreciated the risk of damaging property, the defendants were not guilty of this offence.
• The defendant is judged subjectively based on their honest belief.
• Proof that the defendant intentionally or recklessly destroys or damages property belonging to another 'without lawful excuse' is required.

Lawful Excuse

• The law outlines two non-exhaustive situations in s 5 of the CDA 1971.
• These do not apply to aggravated criminal damage.

Belief in Consent

• Under s 5(2)(a), a defendant is not guilty if they honestly believed the person entitled to consent to the damage/destruction had consented/would have consented if they had known of the circumstances, this is a subjective test.
• Marietta sees a dog in a hot car, looking distressed, and smashes the window to free it, believing the owner would approve.

Need of Protection

• S 5(2)(b) states the defendant may argue that they believed the property was in immediate need of protection and adopted means were reasonable.
• The first question: was the defendant's real purpose the protection of their own/another's property? This occurs in 2 stages.
• Hill and Hall (1989) Crim LR 136 are authority for this, the defendants cut the fence surrounding a US naval base, stating that they wanted to protect properties nearby, a judge found that this was not something done to protect property as, even if the defendants genuinely believed this, on an objective test, the action was far too remote from the eventual aim of protecting property.
• Defendant must honestly believe the property was in immediate need of protection, this is a subjective test.
• The defendant would need to satisfy the court that they honestly believed the damage/destruction was reasonable in the circumstances, again this is a subjective test so that the defendant will be judged on their own beliefs.

Arson

• Arson is criminal damage committed by fire under s 1(3).
• All other elements of criminal damage apply.
• The defence of lawful excuse is available for arson.

Aggravated Criminal Damage

• Section 1(2) of the CDA 1971 creates the offense of destroying or damaging property with intent to endanger life.
• Property can belong to the defendant or another and this contrasts with the actus reus for simple criminal damage where the property must belong to someone else.
• The statutory defense of lawful excuse does not apply, but this does not preclude the defendant from relying upon a general defense.

Mens Rea For Aggravated Criminal Damage

• The defendant must either intend the damage/destruction or be reckless as to it.
• The defendant intended by the destruction or damage, to endanger the life of another or they were reckless, there is an additional mens rea element for the prosecution to prove.
• As for simple criminal damage, the test for recklessness is subjective.
• The question to be considered is what is required for endangerment to life.
• In Rv Dudley [1989] Crim LR 57, the defendant threw a firebomb at a house due to a grievance and the victim quickly extinguished the fire, the defendant submitted that he was not guilty because the fire did not spread, in which the argument failed.
• To satisfy the mens rea for the aggravated offense, the defendant must intend/be reckless as to the damage/destruction of property, but also intend by that damage to endanger life or be reckless as to this. Otherwise the defendant would not be liable.
• In Ry Steer [1987] 2 All Er 833, the defendant fired a shot through a window pane where people were standing, it was accepted that the Defendant did not intend to endanger life, but he was convicted, nevertheless, because he was reckless.
• The House of Lords allowed the appeal because it must be shown that the endangering of life arose from the damage and not from the act that caused the damage. The endangerment to life must come from the broken glass.

Aggravated Arson

• It is considered aggravated arson if fire it added into the offense, like in the case of R v Dudley.
• Key differences with the less serious simple offenses include:
  • The property damaged/destroyed does not have to belong to another
  • The statutory defenses of lawful excuses are not available, although the general defenses are.
  • There is an 'extra' requirement to the mens rea of endangerment to life.