Crimes Against Property - Vandalism and Malicious Mischief (PDF)

OFFICIAL Unit 4 Lesson 6.1...

OFFICIAL Unit 4 Lesson 6.1 Crimes Against Property - Vandalism and Malicious Mischief Lesson Aim: The learner will be able to differentiate between different types of crimes against property Learning Outcomes: Introduction On successful completion of the lesson, students will be able to:- Acts of vandalism and malicious mischief can have serious implications not just for the 1. Differentiate between Vandalism and individual or company whose property has Malicious Mischief been affected by the act but also for the quality of life within communities. The offence of vandalism and the common law crime of malicious mischief are reported to the police daily. Irrespective of where you live, work or visit, you can see obvious signs of vandalism and destruction. This damage can range from simple graffiti sprayed on walls to far more serious malicious acts. When you travel home from the college look around. The various acts of vandalism you see will show you just how common it is in communities. Each year, incidents of vandalism accounts for approximately 20% of all crime recorded in Scotland. 1 th Amended 25 April 2024 v.5 OFFICIAL  OFFICIAL Unit 4 Lesson 6.1 Crimes Against Property - Vandalism and Malicious Mischief Activity 1 A1 In your group discuss the following:- 1. What do you think constitutes vandalism? 2. Have you or someone you know been the subject of vandalism and what were the circumstances? Did you contact the police and if so, what was the response? Definition of Vandalism Vandalism is defined by Section 52 of the Criminal Law (Consolidation) (Scotland) Act 1995 creates an offence for:- “any person to wilfully or recklessly destroy or damage the property of another without reasonable excuse.” 2 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 6.1 Crimes Against Property - Vandalism and Malicious Mischief The Essential Elements for Vandalism The offence is constituted when the following three elements are all present:- There must be either a deliberate intention to damage the property or an act so reckless as to show utter disregard for the consequences There must be actual damage or destruction of property The damage or destruction must be to property which does not belong to the accused The reference to 'reasonable excuse' would cover instances where the accused had a belief that the property was their own or the damage was caused for a good reason. An example of the latter would be damaging a door to allow people to escape when there is a fire. There must also be actual damage to property. For example, if eggs were thrown at a door and there is no damage, then this is recorded as Antisocial Behaviour, and would be recorded as Section 38, not Vandalism. If, however a cost is incurred to clean the eggs from the door, a crime of Vandalism is recorded. Police Powers The offence created by Section 52 Criminal Law (Consolidation) (Scotland) Act 1995 is punishable by imprisonment. Where a Constable has reason to believe that a person has committed such a crime, they may issue a Recorded Police Warning, Fixed Penalty Notice or arrest the offender under Section 1, Criminal Justice (Scotland) Act 2016. Example Charge EC “On 10th July 2020, at Brookbank Close, Brookbank, you CHARLES WELSH, did wilfully or recklessly damage or destroy the property of another, namely motor vehicle registered number SH20WBL, by smashing window of same, contrary to Section 52 Criminal Law (Consolidation) (Scotland) Act 1995.” 3 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 6.1 Crimes Against Property - Vandalism and Malicious Mischief Feedback 1 F1 1. It is possible to create an extensive list of what can be regarded as vandalism, e.g. a broken window, damaged street signs, damaged vehicle, slashed tyre and many more. Broken Window Damaged Vehicle Slashed Tyre Graffiti Damaged Street Sign 2. As you can see the amount of people who have been affected by some act of vandalism or malicious mischief is staggering and many acts of vandalism are never reported to the police. The cost of vandalism in Scotland runs into millions of pounds each year. Minor damage to property can appear trivial, however it is important that the victims of vandalism are assured that the matter will be dealt with effectively. You should always take time to listen to victims and be prepared to take positive action. Extra patrols in the area may be sufficient to deter the culprits and reassure those affected. 4 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 6.1 Crimes Against Property - Vandalism and Malicious Mischief Case Law Section 52 of the Criminal Law (Consolidation) (Scotland) Act 1995 makes it an offence to destroy or damage property “wilfully or recklessly”. In a case where in the course of horseplay, one youth jumped on to and was thrown off the back of another so that he fell into a window and damaged it, the Justice held that the window had been broken as a direct result of reckless horseplay and convicted the youths of vandalism. Held, on appeal:- 1. that the offence of vandalism was not merely an echo of the offence of malicious mischief but stood on its own terms; and, 2. that the justice had failed to ask whether the conduct had created an obvious and material risk of damage to the window and accordingly could not determine whether the appellants had acted recklessly. The convictions were quashed. (Black and Ors. v Allan, 1985, S.C.C.R. 11) A sincere belief in the illegality of nuclear weapons and their potential catastrophic effect was not a reasonable excuse for vandalism (the cutting of a perimeter fence of an armaments depot) for the purposes of Section 52 of the Criminal Justice (Scotland) Act 1995. (John v. Donnelly, 1999, S.C.C.R. 802) Definition of Malicious Mischief “Malicious Mischief is a crime at common law constituted by wilful, wanton and malicious destruction of, or damage to the property of another.” 5 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 6.1 Crimes Against Property - Vandalism and Malicious Mischief Essential Elements for Malicious Mischief There must be malice; either actual or inferred, on the part of the perpetrator. Destruction or damage caused by accident or under a reasonable belief of right, i.e., the person causing the destruction or damage believed that they had a right to do this, is not criminal. Spite is not essential; it is only evidence of motive. It is enough if the damage is done by a person who shows a deliberate disregard for or indifference to the property or possessor rights of others. Police Powers In more serious cases where the circumstances could apply equally to both the common law crime and the statutory offence, the police may choose to caution and charge an accused with the crime of malicious mischief, as opposed to the offence of vandalism. Although a Fixed Penalty Notice may be issued for the crime of Malicious Mischief, the Lord Advocate’s guidelines indicate that this is unlikely to be an appropriate course of action given the possible severity of the crime. Example Charge EC “On 10th October 2020 at Brookbank High School, Elm Street, Brookbank you CHRISTOPHER EVANS and MICHAEL PRATT did wilfully, wantonly and maliciously destroy property of another by causing flood. Difference Between Malicious Mischief and Vandalism The main difference between the common law crime of malicious mischief and the offence of vandalism is with vandalism there must be damage to actual property whereas with malicious mischief financial damage brought about by a criminal act would suffice in the absence of actual damage to property (see pg. 8 - HMA v Wilson, 1983). 6 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 6.1 Crimes Against Property - Vandalism and Malicious Mischief Malicious Mischief should only be recorded where widespread damage is caused, where the value of the damage is considerable, or where there is disruption of the power supply, flooding or similar. There is no specific monetary amount where vandalism stops and malicious mischief takes over but any cause of damage would require to be significant before a crime of malicious mischief is recorded. The damage or destruction of property which has originally been stolen is not malicious mischief provided that the damage is caused by the thief. This means that where a person steals property and that person subsequently damages or destroys it, e.g., out of malice, to dispose of the property, etc., this does not constitute malicious mischief. However, where a person steals property and the property is subsequently damaged or destroyed by a person other than the thief, then that other person could be charged with malicious mischief. Activity 2 A2 Give some examples of Malicious Mischief. 7 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 6.1 Crimes Against Property - Vandalism and Malicious Mischief Case Law It was held on appeal that a person who wilfully, recklessly and maliciously pressed a button whereby an electric generator was brought to a halt causing a loss of electricity amounting to £147,000, had committed a crime of malicious mischief. In this case no structural damage was caused to the machines, the damage caused being in the sense of legal damages recoverable by the civil courts due to the loss of production of electricity. (HMA v Wilson, 1983) A farmer shot and killed a neighbour’s sheep which was trespassing and doing damage on his land. The High Court held that the farmer was rightly convicted of malicious mischief. (Clark v Syme, 1957) Feedback 2 F2 You may have thought of many more examples but here are some typical acts of malicious mischief:- Smashing a window of a particularly high value or a very large number of windows Damaging growing trees Killing or maiming expensive animals e.g. prize bull etc. Opening up a diesel tank and allowing the contents to pour out Stopping any machinery resulting in lost production 8 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 6.1 Crimes Against Property - Vandalism and Malicious Mischief For further information, use the resources shown below:- Legal Database – Criminal Law - Vandalism Review: You can differentiate between Vandalism and Malicious Mischief Learning Log: How will what you have learned in this module impact your day-to- day role? Are there any skills or knowledge you would like to develop further following this module? End of Module 9 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 6.1 Crimes Against Property - Vandalism and Malicious Mischief 10 Scots Criminal Law: Introduction and Investigation OFFICIAL