Criminal Litigation

Criminal Damage | Criminal Law – SQE1 & SQE2 Examinations – solicitorsqualifyingexamination.net

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Criminal Damage
Aggravated Criminal Damage
Aggravated criminal damage is an offence under CDA 1971, s 1(2).
1. Destroys / damages
2. Any property
3. Belonging to himself or another
4. Intention / recklessness as to damage / destruction of any property (s1(2)(a))
5. Intention / recklessness as to endangering life of another by damage / destruction (s
1(2)(b))
5.1. Danger to life arises from the damaged property
6. Without lawful excuse
Differences from basic criminal damage
3 + 4. Property can belong to D
1. Intention / reckless to endanger life
2. S 5(2) defences do not apply
AR – destruction / damage to property
#1 – Destroy or damage
• Destroy implies damage, so focus is on definition of damage
• Damage is not defined in the act, so is a matter of fact and degree
(Samuels v Stubbs).
• There must be some expense to restore to previous condition (A (a
juvenile) v R)
o Spitting on policeman’s coat ≠ criminal damage
o Roe v Kingerlee – Mud spread on walls of police cell, costing £7 to
remove = damage
• Hardman v Chief Constable of Avon – damage need not be permanent, if
there is expense (time, effort, money) in restoration
o Here, whitewash paintings would have washed away in rain, but
were removed by experts
• Morphitis v Salmon – criminal damage includes permanent or temporary
impairment of value / usefulness
o Fiak – flooded cell by shoving blanket down toilet ~ rendered both
temporarily unusable = damage
© Liam Porritt 2020 2
#2 – Property
• CDA 1971, s 10(1) – property:
o Tangible property, real or personal
o Including
§ Money
§ Wild creatures tamed or ordinarily kept in captivity
§ Other wild creatures / carcasses reduced into possession /
in course of being reduced into possession, not lost or
abandoned
o Excluding wild mushrooms, flowers, fruit or foliage
• Information ≠ property (R v Whitely)
#3.1 Property can belong to himself or another
#3.2 – NB irrelevant to AR if life actually endangered (R v Sangha)
© Liam Porritt 2020 3
MR
#4 – Intention / recklessness as to damage / destruction of any property
(s1(2)(a))
• The MR is intention or recklessness as to damaging the property of
another.
• The purpose or objective (R v Moloney) of D is (not) to damage property.
• We therefore consider recklessness.
o Applying R v G, recklessness is (1) being subjectively aware of the
risk of damaging property – here, APPLY; and (2) it being
objectively unreasonable for D to take that risk in the
circumstances known to D – here, APPLY.
#5 Intention / recklessness as to endangering life of another by damage
(s1(2)(b))
• R v Sangha – What is relevant is subjective intention / recklessness as
to endangerment of life, not actual situation
o Sangha set fire to furniture in flat and, although there was no
actual risk to life, Sangha did not know this
• R v Dudley – We must look to the circumstances as they were known to D,
not as they in fact materialised
o Here, fire bomb that caused only trivial damage; what is relevant is
the damage that was intended or as to which D was reckless
(i.e. the possible, considerable damage of a fire bomb)
• Consider intention = aim / purpose (R v Moloney).
• We consider recklessness.
o Applying R v G, (1) D appears (not) to have been subjectively
aware of the risk of endangering life – APPLY; and (2) it was (not)
objectively unreasonable for D to take that risk in the
circumstances known to D – APPLY.
© Liam Porritt 2020 4
#5.1 – Danger to life arises from the damaged property, not the cause of the
damage
• The endangerment of life intended or foreseen must arise from the
damaged property, not the [implement] (R v Steer).
• D must have foreseen the risk of damage to [object], potentially
endangering life. APPLY.
• It is insufficient for D merely to foresee a risk to life from [implement].
• R v Steer – D shot through window; not CDA s 1(2) offence as danger to
life caused by bullets, not damaged property
o Damage by fire = danger from damaged property (R v Steer)
• R v Webster – D pushed stone onto roof of train, showering passengers
with debris
o Intent to endanger life by a stone falling on a passenger ≠ s 1(2)
o Recklessness as to stone moving metal struts in roof, endangering
life = danger to life arising from damaged property
#6 – Without lawful excuse
• Defences under CDA 1971, s 5(2) do not apply (s 5(1) CDA 1971)
• General defences do apply (s 5(5)):
o Self-defence
o Duress by threats
o Necessity (duress of circumstances)
© Liam Porritt 2020 5
Basic Criminal Damage
Basic criminal damage is an offence under Criminal Damage Act 1971 (CDA
1971), s 1(1).
1. Damage / destruction
2. Property
3. Belonging to another
4. Intention or reckless as to the damage / destruction of property belonging to another
5. Without lawful excuse
AR
The AR is damage or destruction of property belonging to another.
#1 – Destroy or damage
• As above.
#2 – Property
• CDA 1971, s 10(1) – property:
o Tangible property, real or personal
o Including
§ Money
§ Wild creatures tamed or ordinarily kept in captivity
§ Other wild creatures / carcasses reduced into possession /
in course of being reduced into possession, not lost or
abandoned
o Excluding
§ Wild mushrooms, flowers, fruit or foliage
• Information ≠ property (R v Whitely)
#3 – Belonging to another
• CDA 1971, s 10(2) – belonging to another:
a) Having the custody or control of it;
b) 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
c) Having a charge on it.
• Note: where D owns property, it can still belong to another
o Mortgaged property belongs to the bank under s 10(2)(c)
© Liam Porritt 2020 6
#4 – MR
• The MR is intention or recklessness as to damaging the property of
another.
• The aim or purpose (R v Moloney) of D is (not) to damage property.
• We therefore consider recklessness.
o Applying R v G, recklessness is (1) being subjectively aware of the
risk of damaging property – here, APPLY; and (2) it being
objectively unreasonable for D to take that risk in the
circumstances known to D – here, APPLY.
• D must additionally know or be reckless as to whether the property
belongs to another (R v Smith).
o Smith fitted electrical wiring + floorboards, wall panels and roofing ~ Smith
smashed these to gain access to wiring, believing them to be his
o His honest belief was that this was his to damage – therefore, not intentional or
reckless as to the property belonging to another
#5 – Without Lawful Excuse
CDA 1971, s 5(2)(a)
• D believes that the person(s) he believes to be the owner would have
consented to damage
• S 5(3) – belief need not be reasonable; just honestly held
• Unreasonable mistaken belief (due to voluntary intoxication) = can still
rely on s 5(2)(a) (Jaggard v Dickinson)
• D’s motive is irrelevant (R v Denton)
o D believed factory owner wanted him to set fire to factory to
commit fraud (insurance), and D was allowed s 5(2)(a) defence
• The belief that God has given consent is not a lawful excuse (Blake v DPP)
© Liam Porritt 2020 7
CDA 1971, s 5(2)(b)
4 requirements
1. D acts to protect his or another’s property
Ø Must be an act to protect property NOT human life for this defence
(R v Baker & Wilkins) => duress of circumstances
2. D believes property in immediate need of protection (subjective)
(s5(2)(b)(i))
Ø Must be immediate – damage to door by squatter when fitting
locks due to high number of thefts ≠ immediate need of protection
3. D believes means of protection adopted is reasonable (subjective)
(s5(2)(b)(ii))
4. Damage caused by D must be capable of protecting the property
(objective) (R v Hunt)
Ø Hunt started fire to show inadequacy of fire alarm in block of flats,
which did not work
Ø Applied in Blake v DPP – action of drawing in protest against Iraq
war on houses of parliament not objectively capable of protecting
property in gulf states
Ø Ditto R v Hill and Hall – possession of hacksaw to cut wire at
nuclear base ~ s 5(2)(b) unavailable because not objectively
capable of having impact on nuclear strike
Ø Note, all these cases could have been decided on the basis of (2)
above.
General defences to criminal offences
• CDA 1971, s 5(5) preserves
o Prevention of crime
o Self-defence
o Duress / necessity
© Liam Porritt 2020 8
Arson
CDA 1971, s 1(3) (brought alongside s 1(1) or s 1(2)):
• Add 4th AR element = damaging property (belonging to another) by fire
• Add to MR = intention or recklessness as to damaging property by fire
Threats to Destroy or Damage Property
D may be liable under CDA 1971, s 2(a)/(b) – cite the right one.
#1 AR
Threat to destroy or damage
a) Property belonging to other / third person; or
Ø If threat to damage another’s property, knowing this will endanger
life, still s 2(a)
b) Own property, knowing this is likely to endanger the life of other /third
person
• The words used must be objectively capable of being understood by an
ordinary person as being a threat (R v Cakmak).
#2 MR
• Intention, i.e. purpose or objective (R v Moloney) that the other would fear
the threat would be carried out.
o NB Oblique intent possible (R v Woollin).
#3 Without Lawful Excuse
• S5(1) – s5(2) defences not available where threat to damage property +
knows this will endanger life under s2(a) or (b)
o Where no danger to life through threatened damage, can be used
to protect own property under s 5(2)(b)
© Liam Porritt 2020 9
Possession with intent to destroy or damage property
D may be liable under CDA 1971, s 3(a)/(b).
#1 AR
Having anything in his custody or under his control
#2 MR
Intending to use it or cause or permit another to use it:
a) To destroy /damage any property belonging to another; or
b) To destroy / damage his own or the user’s property in a way which he
knows is likely to endanger the life of some other person
• NB usually hard to prove, as D may argue that he had no intention of
using the item, merely threatening V with it.
#3 Without Lawful Excuse
• S 5(1) excludes s 5(2) defences where there is intent to damage property
in a way likely to endanger life

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