AIMS AND OBJECTIVES
After reading this chapter you should be able to:
Understand the actus reus and mens rea of the basic offence of criminal damage
Understand the actus reus and mens rea of the offence of endangering life when committing criminal damage
Understand the actus reus and mens rea of arson
Understand other offences related to criminal damage Analyse critically all offences in the Criminal Damage Act 1971
Apply the law to factual situations to determine whether there is criminal liability for an offence under the Criminal Damage Act 1971
The law on criminal damage is contained in the Criminal Damage Act 1971. This created a complete code for this area of the law, just as the Theft Act 1968 did for the law on theft. The Criminal Damage Act was the result of a report by the Law Commission, Offences of Damage to Property (Law Com No 29) (1970). As well as codifying the law on criminal damage, one of the aims of the Law Commission was to bring the law in line with the law on theft, so far as was practicable. For this reason some of the words used in the Act are the same as the words used in the Theft Act 1968.
The Criminal Damage Act creates four offences which are:
the basic offence of criminal damage
aggravated criminal damage
The basic offence is set out in s 1(1) of the Criminal Damage Act 1971:
‘1(1) 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.’
The actus reus is made up of three elements. These are that D must
destroy or damage
belonging to another
This phrase is not defined in the 1971 Act. However, the same phrase was used in the law prior to 1971 (the Malicious Damage Act 1861), and old cases ruled that even slight damage was sufficient to prove damage. For example, in Gayford v Chouler (1898) 1 QB 316, trampling down grass was held to be damage. The cases prior to the Criminal Damage Act 1971 are, of course, no longer binding, but they may still be used as persuasive precedent.
‘Destroy’ is a much stronger word than ‘damage’, but it includes where the property has been made useless even though it is not completely destroyed.
Damage covers a wide range, and in Roe v Kingerlee (1986) Crim LR 735, the Divisional Court said that whether property has been damaged was a ‘matter of fact and degree and it is for the justices to decide whether what occurred was damage or not’. In that case D had smeared mud on the walls of a police cell. It had cost £7 to have it cleaned off and it was held that this could be damage even though it was not permanent.
In an Australian case, Samuels v Stubbs (1972) SASR 200 it was stated that:
‘[I]t is difficult to lay down any very general rule and, at the same time, precise and absolute rule as to what constitutes “damage”. One must be guided in a great degree by the circumstances of each case, the nature of the article and the mode in which it is affected or treated… [T]he word is sufficiently wide in its meaning to embrace injury, mischief or harm done to property, and that to constitute “damage” it is unnecessary to establish such definite or actual damage as renders property useless, or prevents it from serving its normal function.’
In Samuels v Stubbs (1972) D had jumped on a policeman’s cap, denting it. There was no evidence that it was not possible to return the cap to its original shape without any cost or real trouble. Even so the judge ruled that there was damage, as there was a ‘temporary functional derangement’ of the cap.
In English cases under the Criminal Damage Act 1971, although it has been held that non-permanent damage can come within the definition of ‘damage’, the courts’ approach seems to be based on whether it will cost money, time and/or effort to remove the damage. If so, then an offence has been committed, but if not then there is no offence. This is illustrated in the following case.
Hardman v Chief Constable of Avon and Somerset Constabulary (1986) Crim LR 330 CND
Protesters, to mark the 40th anniversary of the dropping of the atomic bomb on Hiroshima, painted silhouettes on the pavement with water-soluble paint. The local council had the paintings removed with water jets. The defendants argued that the damage was only temporary and the paintings would have quickly been erased by the weather and by people walking on them and there was no need for the local council to go to the expense of having the paintings removed by high-pressure water jets. The court held that this was damage.
Similar decisions were made in Blake v DPP (1993) Crim LR 586. D wrote a biblical quotation on a concrete pillar. This needed to be cleaned off and so was held to be criminal damage. The same decision was reached in Roe v Kingerlee (1986) where it cost £7 to remove mud from a cell wall.
The ‘temporary impairment of value or usefulness’ was the key factor in Fiak (2005) EWCA Crim 2381.
Fiak (2005) EWCA Crim
D was arrested on suspicion of being in charge of a vehicle when he was over the limit for alcohol and for assault on a police officer. He was taken to a police station and placed in a cell. He put a blanket in the toilet in the cell and flushed the toilet several times. This caused water to overflow and flood the cell and two adjoining cells. The blanket was not visibly soiled but it had to be cleaned and dried before it could be used again. The cells had to be cleaned. This was held to be criminal damage.
However, in A (a Juvenile) v R (1978) Crim LR 689, spit which landed on a policeman’s uniform was not damage as it could be wiped off with a wet cloth with very little effort. But what if the spit had landed on a light coloured T-shirt and left a stain, so that the T-shirt needed washing or dry cleaning? It seems that could be enough to constitute damage.
A debatable decision is that in Fancy (1980) Crim LR 171 where D was charged under s 3 of the Criminal Damage Act 1971 with possessing an article with intent to damage property. D was found in possession of a bucket of paint and a roller. He admitted that he had painted over National Front slogans on walls. The judge at the Crown Court ruled that there was no case to answer. The judge said he was not satisfied that applying white paint over ‘mindless National Front graffiti could constitute damage to a wall per se’. This decision was criticised by the editors of Smith and Hogan Criminal Law in the following way:
‘The defendant’s opinion that what he did was not damage is irrelevant if damage is i caused in law and fact. V’s wall is damaged by D’s graffiti irrespective of whether D regards I it as an improvement.’
Smith and Hogan Criminal Law (13th edn, OUP, 2011) p 1015
So, even though the application of white paint was to cover a previous layer of graffiti, the white paint should still have been classified as damage. Indeed it would cost money to have the paint removed. The only possible argument might be where the white paint did no new damage to the wall. That would have to mean that it exactly covered the graffiti without doing any further damage to the wall. So there would be no extra cost of cleaning. Even so, it is probable that having to clean two layers of paint off would take more effort than removing just the original.
The type and purpose of the property may be relevant, as in Morphitis v Salmon (1990) Crim LR 48, DC, where it was held that a scratch on a scaffolding pole was not damage. Scaffolding poles are likely to get quite scratched in the ordinary course of use and it does not affect their usefulness or integrity. However, a scratch on a car would almost certainly be considered damage.
Computer disks and programs
Altering computer programs was held to be within the definition of criminal damage in Whiteley (1991) 93 Cr App R 25, when a computer hacker had altered and deleted files and changed some passwords. It was held that there was damage to the magnetic particles on the hard disk which made the computer inoperable. However, it was recognised that there were problems in proving damage in some cases of computer hacking, and the Computer Misuse Act 1990 was passed to clarify the law. This Act creates an offence of ‘unauthorised modification of computer material’. It also makes it clear that the Criminal Damage Act no longer applies as s 3(6) provides that ‘[F]or the purposes of the Criminal Damage Act 1971 a modification of the contents of a computer shall not be regarded as damaging any computer or computer storage medium unless its effect on that computer or computer storage medium impairs its physical condition’.
Applying the law
Explain whether there is ‘damage’ within the meaning of the Criminal Damage Act 1971 in each of the following situations.
1.Aisha throws a bucket of clean water over Bess. The water thoroughly wets Bess’s jacket and skirt. Would it make any difference to your answer if the water was muddy?
2.Conrad writes on the brick wall of the local town hall with white chalk.
3.Dan is working on a construction site. He throws a spanner down. It hits a wall which is being constructed and causes a small piece of brick to chip off. The spanner also hits a scaffolding post and causes a small dent in it.
‘Property’ is defined in s 10(1) of the Criminal Damage Act 1971:
‘10(1) In this Act “property” means property of a tangible nature, whether real or personal, including money and —
(a) 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
(b)not including mushrooms growing wild on any land or flowers, fruit or foliage of a plant growing wild on any land.’
The wording of this is similar to the Theft Act 1968 but there are two main differences. First, land is property which can be damaged although it cannot normally be stolen and second, intangible rights cannot be damaged, though they may be stolen.
Again, the definition of ‘belonging to another’ set out in s 10(2) is similar to the definition which is used for the purposes of theft.
‘10(2) Property shall be treated for the purposes of this Act as belonging to any person —
(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.
(3) Where property is subject to a trust, the person to whom it belongs shall be so treated as including any person having a right to enforce the trust.’
This gives the same wide definition of ‘belonging to’ as in theft. It is not restricted to the owner. In fact a co-owner can be guilty of criminal damage as the other co-owner has a proprietary right in the property, as shown in Smith (1974) 1 All ER 632.
Smith (1974) 1 All ER 632
D removed some electrical wiring, which he had earlier fitted in the flat which he rented. In doing this he damaged some of the fixtures he had put in. In civil law these fixtures belong to the landlord and this was property ‘belonging to another’. However, D was found not guilty because he lacked the necessary mens rea (see section 16.1.5).
It is important to note that for the purposes of the basic offence the property affected must belong to another. A person cannot be guilty of the basic offence if the property he destroys or damages is his own. But for the aggravated offence a person can be guilty even though it is his own property (see section 16.2).
The defendant must do the damage or destruction either intentionally or recklessly. For the meanings of intention and recklessness, the Law Commission meant the previous principles of mens rea used in criminal damage cases to apply. So far as intention is concerned the courts have done this, but the meaning of the word ‘reckless’ has caused problems and debate.
Prior to the passing of the Criminal Damage Act 1971 the law on criminal damage was contained in the Malicious Damage Act 1861 and amending Acts. These used the phrase ‘unlawfully and maliciously’. Maliciously was taken to have the meaning of either intending the damage or knowing there was a risk of damage and taking that risk. This type of risk taking is known as subjective recklessness. When the Law Commission recommended reform of the law they identified the essential mental element in the malicious damage offences as ‘intent to do the forbidden act or recklessness in relation to its foreseen consequences’. They suggested replacing the old-fashioned word of maliciously with the phrase ‘intending or being reckless’. This was meant to have the same meaning as the courts had given to the word ‘maliciously’.
D must intend to destroy or damage property belonging to another. As Professor Sir John Smith pointed out:
‘It is not enough that D intended to do the act which caused the damage unless he intended to cause the damage; proof that D intended to throw a stone is not proof that he intended to break a window. Nor is it enough that D intends to damage property if he does not intend to damage property of another.’
Smith and Hogan Criminal Law (13th edn, OUP, 2011), p 1019
The first point made by Professor Sir John Smith that proving the act is not enough, there must be intention to do the damage, was seen in the old case of Pembliton (1874–80) All ER Rep 1163 where D threw a stone at some men whom he had been fighting with. The stone missed them but hit and broke a window. D was not guilty of causing damage to the window as he had no intention to damage the window (or any other property), even though he intended to throw the stone. (But note that under the Criminal Damage Act 1971 he may have been reckless if he aimed at a person standing in front of a window.)
The second point on the need to intend to damage property belonging to another was illustrated in Smith (1974) 1 All ER 632. Smith mistakenly believed that the property he was damaging was his own. His conviction was quashed by the Court of Appeal, who said:
‘The element of mens rea relates to all the circumstances of the criminal act. The criminal act in the offence is causing damage to or destruction of “property belonging to another” and the element of mens rea, therefore, must relate to “property belonging to another”. Honest belief, whether justifiable or not, that the property is the defendant’s own nega-tives the element of mens rea.’
Seray-White (2012) EWHC 208 Admin
Dr Seray-White wrote with a black marker pen on two parking notices, which had been placed by the management company in the estate where D lived. He said he did not intend to cause damage nor was he reckless as to whether damage was caused. He was convicted and appealed first to the Crown Court and from there to the Divisional Court.
The Crown Court had found the writing to be damage and this was confirmed by the Court of Appeal. As D had intended to do the writing the Court of Appeal held that he had intention to cause criminal damage. They held that no question of recklessness arose as the case concerned an act with an intended result.
The decision in Seray-White can be contrasted with that in Pembliton (1874). In Pembliton D had thrown a stone with the intention of hitting the men with whom he had been fighting. The damage (the broken window) was not an intended result. In Seray-White, D intended to write on the parking notices. As that writing was found to be damage within the meaning of s 1 of the Criminal Damage Act 1971, then D intend to do the damage.
This word has caused problems. In Stephenson (1979) 2 All ER 1198, D was a tramp who sheltered in a hollow in a haystack and, because he was cold, lit a fire there. The haystack caught fire and was destroyed. The Court of Appeal quashed D’s conviction on the grounds that, although an ordinary person would realise the risk of the haystack catching fire, he did not as he suffered from schizophrenia and this point should have been left to the jury to decide. The Court of Appeal was using the subjective test for reckless.
However, in Caldwell (1981) 1 All ER 961, the House of Lords stated that a person is reckless if he did an act which in fact created an obvious risk that property will be destroyed, and when he did the act he either
had not given any thought to the possibility of there being any risk (objective) or
had recognised that there was some risk involved and had nonetheless gone on to take it (subjective).
This became known as Caldwell (1981) recklessness and, as can be seen, it included both subjective and objective recklessness. The objective test considered whether the risk was obvious to an ordinary prudent person. If so, then the fact that the defendant did not give any thought to the possibility of there being any risk was enough to make the defendant guilty.
This objective test was harsh in its application, particularly where the defendant was young or mentally backward. This was seen in Elliott v C (1983) 2 All ER 1005, where the defendant was incapable of appreciating the risk but was still guilty under this test. D was a 14-year-old girl with severe learning difficulties who had been out all night without food or sleep. She got into a garden shed and in an effort to get warm, poured white spirit on to the carpet and set light to it. The magistrates found that she had given no thought to the possibility that the shed might be destroyed. They also found that in the circumstances the risk would not have been obvious to her and they acquitted her. The prosecution appealed by way of case stated to the Queen’s Bench Divisional Court which ruled that as the risk would have been obvious to a reasonably prudent man, the magistrates had to convict the girl. A similar decision was reached by the Court of Appeal in Gemmell and Richards (2002) EWCA Crim 192, but was later reversed by the House of Lords (G and another (2003) UKHL 50).
G and another (2003) UKHL 50; (2002) EWCA Crim 192
The defendants were two boys aged 11 and 12 years. During a night out camping, they went into the yard of a shop and set fire to some bundles of newspapers which they threw under a large wheelie bin. They then left the yard. They expected that as there was a concrete floor under the wheelie bin the fire would extinguish itself. In fact the bin caught fire and this spread to the shop and other buildings, causing about £1 million damage. The boys were convicted under both s 1 and s 3 of the Criminal Damage Act 1971. The Court of Appeal upheld their convictions but the House of Lords quashed the convictions overruling the case of Caldwell (1981).
The trial judge directed the jury that whether there was an obvious risk of the shop and other buildings being damaged should be decided by reference to the reasonable man, ie the reasonable adult. He said: ‘the ordinary reasonable bystander is an adult… He has got in mind that stock of everyday information which one acquires in the process of growing up’ and ‘no allowance is made by the law for the youth of these boys or their lack of maturity or their own inability, if you find it to be, to assess what was going on’.