Investigative Skills Criminal Damage PDF

INV12 Investigative Skills Criminal Damage Introduction A large number of criminal damage offences are reported to the police every day. On average there are 21,000 reported incidents of criminal damage and arson reported to police in Northern Ireland every year. Statistics indicate that many offe...

INV12 Investigative Skills Criminal Damage Introduction A large number of criminal damage offences are reported to the police every day. On average there are 21,000 reported incidents of criminal damage and arson reported to police in Northern Ireland every year. Statistics indicate that many offences of criminal damage never get reported to the police. Criminal damage is the largest offence committed under the umbrella of what police call “volume crime”. This is a group of offences which include burglary and theft. As police officers it is important that we are able to identify the offence and are familiar with the various elements. The law on this subject is contained in the Criminal Damage (NI) Order 1977. 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. Article 3(1) Criminal Damage (NI) Order 1977 Without lawful excuse Damage becomes an offence when committed without lawful excuse. A person is deemed to have lawful excuse if: (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; or OFFICIAL [SENSITIVE] Page 106  INV12 (b) if he destroyed or damaged or threatened to destroy or damage the property in question or, in the case of a charge of an offence under Article 5, 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 or a right or interest in property which was or which he believed to be vested in 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. Article 7 Criminal Damage (NI) Order 1977 The two key elements of the lawful excuse are Permission and Protection. Permission – An example would be a police officer being asked to help a motorist into his / her car who has locked their keys inside. Whilst doing this you damage the rubber surround at the window. The defence for you being: You gained consent from a person whom you believed to be entitled to consent to that damage. The circumstances under which it was caused. Protection – This is basically causing damage to property in order to protect other property. The key features here are: The immediacy of the need to protect the property. The reasonableness of the means of protection adopted. OFFICIAL [SENSITIVE] Page 107  INV12 Belief It is immaterial whether a belief was justified as long as it was honestly held!! An example of this is the case of a woman who broke a window to get into a house. Being intoxicated at the time she had got the wrong house. The court held that her belief at the time had been honestly held and it was irrelevant whether the belief held was brought about by intoxication, stupidity, forgetfulness or inattention (Jaggard vs Dickinson 1981). It will be for the court to decide. Remember if you caught someone in a house who was a prolific criminal with previous convictions for similar offences, would the defence be relevant? Owned There is no offence if the person acts in the honest though mistaken belief that the property is their own. R v Smith 1974. Destroys The court would state that the property would be rendered “useless” It can also mean:  pull down/demolish structures  lay waste to crops  break up machines  deprive animals of life Damages To ‘damage’ property has a much wider meaning. It can mean that the property has been harmed, made less useful, made less valuable, made unworkable, or just defaced such as by graffiti. The damage does not have to be permanent in fact it can be temporarily damaged, however it must render the property: imperfect inoperative less valuable OFFICIAL [SENSITIVE] Page 108  INV12 Property The damage must be to something ‘real’; that is, something that you can touch i.e. ‘property of a tangible nature’. It can be land (‘real estate’) or personal items including money (e.g. a wad of bank notes). It includes wild animals kept in captivity (but not wild flowers). Criminal damage also includes destroying an item (i.e. the property is no longer any use and cannot be repaired). The cost of such ‘damage’ would be the cost of replacing the item. It is possible for a person to criminally damage their own property but only if it also belongs to somebody else (e.g. if the property is jointly owned). Example: Land and things attached to it are property that can be damaged, such as trampling flowerbeds, digging up cricket pitches and chopping down trees in a private garden. Belonging to Another Property will be treated as belonging to any person:  having the custody or control of it,  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  having a charge of it. Proprietary Right or Interest This could cater for jointly owned property, therefore a joint owner whether in marriage or otherwise could be convicted of destroying or damaging partnership property. Intending In this context, intentional means deliberately meaning to destroy or damage the property of another. If the object is to damage another’s property, it does not matter if that particular person’s property is actually damaged, as long as it is another’s property. OFFICIAL [SENSITIVE] Page 109  INV12 Example Ferguson throws a stone intending to damage Robson’s greenhouse, but misses and damages Reid’s greenhouse instead. This is still intentional damage, as Ferguson intended to damage Robson’s property; it is immaterial whose property was damaged. Reckless A person acts recklessly in the following ways when:  With respect to a circumstance when he/she is aware of a risk that existed or would exist;  With respect to a result or consequence when he/she is aware of a risk that it would occur;  And it is, in the circumstances known to him/her, unreasonable to take the risk. Example: R v Booth The defendant had been drinking and had smoked cannabis. He described himself as tipsy but not completely unaware of events around him. He saw someone over the other side of the road and shouted to them. He then ran across the road without looking. A car was approaching at the time and did not have time to stop. The defendant managed to avoid being struck, by jumping onto the bonnet of the car, causing £517 worth of damage. He was convicted of criminal damage as the damage caused by his act was an obviously foreseeable consequence. The defendant would have appreciated the risk of damage to the vehicle, by his actions and he deliberately closed his mind completely to the risks and ran out in front of the car. His actions were deemed to be reckless Whether the person intended or was reckless is normally proved by questioning the suspect, but may be proved by witness statements or a combination of both. OFFICIAL [SENSITIVE] Page 110  INV12 Arson Arson is destroying or damaging property by fire. For a person to be found guilty of this offence at least some of the damage must have been caused by fire (excluding smoke damage). For the offence to be proven there must be intent or an element of recklessness in relation to the use of fire. If the offence of arson is tried summarily the maximum penalty is six months imprisonment and/or a fine. If tried on indictment the penalty can be life imprisonment. Possession of Articles A person who has anything in his custody or under his control intending without lawful excuse to use it or cause or permit another to use it: to destroy or damage any property belonging to some other person; or to destroy or damage his own or the user’s property in a way which he knows is likely to endanger the life of some other person, shall be guilty of an offence. Article 5 Criminal Damage (NI) Order 1977 The key element here is intention. This time the required intention is that the article is to be used to cause criminal damage to another’s property or the defendants own property in a way which he / she knows is likely to endanger the life of another. Lawful Excuse The lawful excuses outlined earlier in the notes are applicable to this offence but only if the offence was one which did not involve endangering the life of some other person. OFFICIAL [SENSITIVE] Page 111  INV12 Power of Search Article 3-5 PACE (NI) Order 1989 provides a power of stop, search and seizure for offences under the Criminal Damage (NI) Order 1977. Power of Arrest Article 26 PACE (NI) Order 1989, Arrest without warrant -subject to necessity criteria Offence/penalty/mode of trial - Summary: 2 years. On indictment: 14 years. Triable either way. A Person who without lawful excuse makes to another a threat, intending that the other would fear it would be carried out: To destroy or damage any property belonging to that other, or a third person Or To destroy or damage his own property, in a way which he knows is likely to endanger the life of that other, or a third person, shall be guilty of an offence. Article 4 Criminal Damage (NI) Order 1977 OFFICIAL [SENSITIVE] Page 112  INV12 Threats to Destroy or Damage Property Therefore, you can commit an offence of ‘threats to damage property’ even though you are threatening to damage your own property. Again ‘likely to endanger the life’ is an important element in that case. It does not matter how the threat is received; a letter, a telephone call, a verbal threat or any other means of conveying a message from one to another will suffice. It is interesting to note that the victim of the threat does not have to believe the threat would be carried out. It is sufficient for the person threatening to intend that the victim would fear it would be carried out. OFFICIAL [SENSITIVE] Page 113