The Basic Offence
S1(1) Criminal Damage Act 1971
Five Elements:
Damage;
Property;
Belonging to Another;
Without lawful excuse; and
Intention or reckless as to the damage or destruction
Actus Reus
Destroy or Damage
1971 Act does not define ‘damage’ or ‘destroy’ – generally agreed that to destroy something is to damage it
Whether property is damaged is a question of fact and degree
Samuels v Stubbs: difficult to have a definition – guided by circumstances of each case, the nature of the article and the mode by which it was affected
Doesn’t need to render property useless/prevent it from serving normal function
A (a juvenile) v R: Spitting on policeman’s coat was not criminal damage – implies that there must be some expense on the part of the owner to restore property to previous condition
Hardman v Chief Constable of Avon: damage need not be permanent (soluble paint)
Roe v Kingerlee: mud spread on the walls of police cell was damage even though could be easily removed
Common sense approach approved by Morphitis v Salmon: Criminal damage includes physical harm and also temporary impairment of value/usefulness – here impairment of usefulness of a barrier
Property
s10(1) Criminal Damage Act 1971: must be tangible whether real or personal, including money
s10(1)(a) – including wild creatures which have been tamed
s10(1)(b) – not including mushrooms, fruit, foliage growing wild on any land
R v Whitely: information does not fall within definition of ‘property’ in s10(1)
Belonging to another
s10(2) Criminal Damage Act 1971 – belonging to any person:
having the custody or control of it;
having in it any proprietary right or interest; or
having a charge on it
Mens rea
Intention (Maloney); or,
Recklessness as to the destruction of property belonging to another
R v G overruling R v Caldwell – prosecution must prove that:
At the time of committing the AR the accused was subjectively aware of a risk; and
In the circumstances known to him, it was objectively unreasonable to take the risk
MR attaches itself to ownership as well as to damage: R v Smith (1974) : here ignorance of the civil law prevented liability (Smith did not know that the stereo system he had installed had become the property of his landlord – so subjectively, was not aware that it was property belonging to another
Without lawful excuse
s5(2)(a) CDA 1971
Operates where the D believes that the owner would have consented to the damage
s5(3): D’s belief in s5(2) need not be reasonable, it need only be honestly held
Intoxication
Jaggard v Dickinson: subjective test – entitled to the defence even if drunk under s5(2)(a) as applying s5(3), it is irrelevant if the belief is unreasonable
Motive
Motive is irrelevant to s5(2)(a), even where motive is to perpetrate a fraud – criminal damage is not an offence of dishonesty
R v Denton: D thought he had received an instruction to set fire to the factory which he did – so his conviction was quashed
Limits on the defence
Blake v DPP: A belief, however genuine, that God had given consent is not a lawful excuse
s5(2)(b) CDA 1971
Operates where the D acts to protect his/her or another’s property
Only relates to the protection of property: R v Baker & Wilkins – could not rely on it when she had kicked open a door to rescue her child from perceived threat (would go to self-defence/necessity)
The accused must believe that the property was in immediate need of protection (subjective test) : s5(2)(b)(i)
Johnson v DPP: squatter trying to fit locks in a house as there had been theft in the area – not a sufficiently immediate threat
The accused must believe that the means of protection adopted are reasonable (subjective test): s5(2)(b)(ii)
The damage caused must be...
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