Section 1(1) of the criminal damage act 1971 states that:
“Any person who without lawful excuse destroys or damages property belonging to another intending to damage or destroy any such property or being reckless as to the whether any such property would be damaged or destroyed shall be guilty of an offence.”- which thus is the definition or simple criminal damage.
Criminal damage has 2 forms, simple criminal damage, and aggravated criminal damage, both set out in the criminal damage act of 1971. Criminal damage that is caused by fire is known as Arson. There is no difference to the elements of the crime other than the AR requires fire.
Simple Criminal Damage
The Actus Reus of simple criminal damage can be split into comes in 4 sections:
- Damage or destruction
- Belonging to another
And the Mens Rea is:
- The intentional damage or destruction of the property
- Or being reckless as to the damage or destruction of the property
Damage and or destruction is not covered in legislation however it is covered in case law. For someone to be guilty of criminal damage, there must be some damage or destruction of property for some kind. Damage can be caused by an omission (R v Miller). Damage is a broad term, and can include almost any form of loss in use, temporary or permanent of the asset to the owner (R v Fiak). Generally, some form of cost must be incurred by the owner for it to be classed as damage. Only minimal damage must be caused (R v Dudley)
Property as to Criminal damage is defined in section 10.1 of the criminal damage act 1971:
“property means property of a tangible nature, whether real or personal, including money and:
- including wild creatures which have been tamed or are ordinarily kept in captivity, and any other wild creatures or their carcasses if, but only if, they have been reduced into possession which has not been lost or abandoned or are in the course of being reduced into possession; but
- not including mushrooms growing wild on any land or flowers, fruit or foliage of a plant growing wild on any land.
For the purposes of this subsection “mushroom” includes any fungus and “plant” includes any shrub or tree.”
Belonging to another as to criminal damage is set out in section 10.2 of the criminal damage act:
“Property shall be treated for the purposes of this Act 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 on it.”
Intentional destruction or damage to property will occur when it was the defendants Aim, desire and purpose (R v Maloney). This is direct intent.
It can also be seen satisfied through indirect or oblique intent, if the defendant was ‘virtually certain’ that the damage or destruction would occur due to their conduct (R v Woolin).
This is a crime of basic intent, meaning it can also be satisfied with recklessness. This is where the defendant realised that there was a chance that they would destroy or damage the property due to their actions or omissions, and carried on anyway (subjective risk taking) taken from the case of R v G.
If both the AR and the MR are satisfied, then it will be a Prima Fashe case.
Simple criminal damage also has the additional defence of Lawful excuse. This is laid out in section 5 of the Criminal Damage Act 1971. There are 2 situations set out in the legislation that can be classed as a lawful excuse to damage or destroy another’s property. There’s are set out in section 5.2 of the act:
- “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
- 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 section 3 above, 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—
- that the property, right or interest was in immediate need of protection; and
- that the means of protection adopted or proposed to be adopted were or would be reasonable having regard to all the circumstances.”
In simple terms, the defendant will have lawful excuse if:
- They believe that the owner of the property would have consented. Jaggared v Dickinson
- They were acting in order to protect property belonging to him or another or property that they had an interest in. R v Hill and Hall
Aggravated criminal damage
The AR for aggravated criminal damage is the same as that for Simple criminal damage without the need for the property to belong to another. The property can belong to the defendant or not belong to anyone.
The MR for Aggravated Criminal Damage is the same as that for simple CD, with the addition of the intention or recklessness as to the endangerment of life caused by the destruction or damage to property (section 3 CDA 1971)
Because this is an element of the Mens Rea, there is no requirement for there to actually be an endangerment to life (R v Sangha), however the defendant must have intended too or been reckless as to endangering life (R v Steer) . The same cases would be applied as to the test for direct intent, indirect intent and recklessness as in the first element of the MR (R v Cunningham).
The defence of Lawful excuse does not apply for Aggravated criminal damage.
Other general defences to criminal damage (will be covered in a later post)
- Protection of property
- Prevention of crime