Criminal Damage

Basic Offence

S1(1) Criminal Damage Act 1971

• “A person without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless ... shall be guilty of an offence”

Actus Reus

Destroy or damage

• Slight damage was sufficient to prove damage (Gayford v Ghouler)
• Includes non-permanent damage if it requires effort, or money to remove it (A (a juvenile) v R)
  
• (Roe v Kingerlee) mud on cell walls
• (Hardman) graffiti, although goes away naturally, removed by council (incurring cost) thus damage
• (Blake v DPP) biblical quote on concrete pillar
• (Fiak) flooded cell, flushed blanket, required effort clean
• (Morphitis v Salmon) type and purpose of property may be relevant. Held scratch on a scaffolding pole does not affects its usefulness or integrity

Destroy includes making an item useless even if it is not completely destroyed

Property

• S10(1) Must be tangible, includes real and personal property. Includes animals in captivity or possession of another.

Belonging to another

• S10(2) Having:
• Custody or control
• Any proprietary right or interest
• Having a charge on it
• Co-owner can be guilty of criminal damage as property also belongs to the other (other co-owner)
• Smith (1974) Smith is not guilty as he believed property was his own

Mens Rea

• Intention or recklessness in doing the damage
• Prior to the act, ‘malicious’ in Malicious Damage Act 1861 held to mean intent or recklessness

Intention

• Must be intent to cause damage (Pembliton) (i.e. not transferred malice)
• Must intend to damage property belonging to another (Smith 1974)

Reckless

• Initially courts used subjective recklessness (Stephenson)
• However House of Lords changed to  (Caldwell) objective in 1981:
• D is reckless if
• He had not given any thought to the possibility of there being any risk (objective); or
• Had recognised that there was a risk, but went on to take it (subjective)
• Objective test considered whether risk was obvious for an ordinary prudent person.
• Leads to harsh decisions as seen in (Elliott v C) where D was incapable of foreseeing risk
• Therefore changed back to subjective in 2003 (Gemmell and Richards) (G and R)

Without lawful excuse

S5(2)(a) Belief in consent from owner (Denton)

• Can be genuine belief caused by intoxication, stupidity, forgetfulness, or inattention (Jaggard v Dickinson)

S5(2)(b) Belief that other property was in immediate need of protection (Hunt) (Blake). However decisions where quite objective despite subjective wording of Act.

• Item D is trying to protect must be property (Currie & Cresswell). In this case wild animals not considered property.

Not a defence if D trying to protect a person from harm. (Baker and Wilkins) although defence of necessity/duress of circumstances may have been used.

Aggravated criminal damage s1(2) CDA 1971

• Consists of
• Basic offence
• Intention or recklessness as to whether another’s life is endangered. Reckless is subjective
• Danger must come from damage (Steer)
• Only sufficient that dangerous intended, not caused (Warwick)
• D had to be at least reckless as to whether life might be endangered, thus would be guilty even if there was no actual risk (Sangha)
• Can damage own property (Merrick)

Arson

S1(3) Basic offence committed by fire

• Must be property belonging to another
• Can be an omission where D accidentally set fire and failed to do anything to prevent it (Miller)

Aggravated arson

• Arson +
• Intent/Recklessness as to whether life is endangered
• Must be subjective recklessness (Cooper)
• Can be own property