Crime CLXXVII-Criminal Damage XVII

In R v Miller (1983) the defendant was a vagrant who returned to the property he was squatting in after he’d been out drinking. He went to sleep with a lit cigarette in his hand or while he was smoking and woke up to find that he’d started a fire. Instead of putting the fire out, he moved to another room without giving any thought to the fire he’d started and ended up causing damage in excess of £800.

At the trial the prosecution did not rely on the fact that the defendant had started the fire but based their case on the fact that having started the fire the defendant took no steps to put it out i.e. omission and the damage that occurred was caused by the defendant’s omission.

It was held that in instances where the defendant had created a dangerous situation, he is under a duty to ensure that he takes reasonable steps to resolve the situation. The defendant can be found guilty of criminal damage via omission if it was his actions that caused the dangerous situation and his omission further aggravated or exacerbated the situation.

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Crime CLXXVI-Criminal Damage XVI

In Elliott v C (1983) – a 14-year-old girl of lower intelligence had started a fire. She entered a shed and found a bottle of spirit. She poured the contents on the floor and threw two lighted matchsticks at the emptied contents. The second matchstick started a fire and burnt the shed down. When questioned, she said she had no idea why she had started the fire and that she did so simply because she had felt like it.

At her trial she was charged with arson but she was acquitted. The judge applied the Caldwell test and said that the defendant could only have acted recklessly if she was able to appreciate the risk or the risk would have been obvious to her if she had given the matter some thought.

The prosecution appealed the case on a point of law. The appeal was allowed …. “if the risk is one which would have been obvious to a reasonably prudent person, once it has been proved that the particular defendant gave no thought to the possibility of there being such a risk, it is not a defense that because of limited intelligence or exhaustion she would not have appreciated the risk even if she had thought about it.”

In Elliott v C (1983) the judges had broadened the subjective recklessness test in R v Caldwell (1982) by taking into account the conduct of the “reasonably prudent person” (the judge in the first instance had applied the Caldwell test strictly and had found the defendant not guilty but on appeal the judges found it best to broaden the scope of the Caldwell test. We have to keep in mind that some of these decisions could have been made for public policy reasons i.e. to deter or prevent arson).

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Crime CLXXV-Criminal Damage XV

In R v Caldwell (1982) the accused, an employee of a hotel who had some grievances against the owners, got very drunk and set fire to the property. There were 10 guests in the hotel at the time. Fortunately, the fire was discovered in time and no harm had befallen any of the guests.

Caldwell was convicted upon two counts of arson. The second count was laid under section 1 (1) of the Criminal Damage Act 1971 – arson destroying property belonging to another. The first and more serious count was laid under section 1 (2) of the 1971 act – arson endangering life. The accused appealed,

The House of Lords upheld the conviction and defined recklessness as follows: –

(1) A person is guilty of recklessness when he does an act which in fact creates a risk that property will be destroyed or damaged and

(2) when he does the act he either has not given any thought to the possibility of there being any such risk or has recognized that there was some risk involved and has nonetheless gone on to commit the act.

– Caldwell recklessness broadens the scope of subjective recklessness and according to most scholars incorporates an objective element, but the question of awareness still remains. Awareness is important with regards to criminal damage that is caused by a defendant who is suffering from a mental illness.

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Crime CLXXIV-Criminal Damage XIV

In R v Denton (1981) an employee of a company set fire to the business premises on the instructions of the owner causing damages to the amount of £40,000. The business was in financial difficulty and the employer had hinted that there was nothing like a good fire to get the business on its feet again i.e. the fire was set in order to obtain an insurance payout or as part of an attempt to perpetrate fraud. The employee was arrested and charged under the Criminal Damage Act 1971.

It was held that despite the fact that the employee had set fire to the premises, he was not guilty because he was either instructed to set fire to the property or persuaded to do so by the owners.

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Crime CLXXIII-Criminal Damage XIII

In Jaggard v Dickinson (1981) the appellant had been out drinking and she came home without any money and was left stranded. She knocked on the door of her friend’s house and there was no answer and believing that her friend would have consented to her breaking into the house under the circumstances, she broke in, when in actual fact the house did not belong to her friend and she’d broken into the wrong house.

It was held that parliament had expressly provided a defense under section 5(2)(a) of the Criminal Damage Act (1971) to cover instances of honest and genuine mistakes and the courts were bound to honor the intentions of parliament.

The section and subsection read as follows: –

s.5(2) A person charged with an offence to which this section applies, shall, whether or not he would be treated for the purposes of this Act as having a lawful excuse apart from this subsection, be treated for those purposes as having a lawful excuse—

(a) 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.

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Crime CLXXII-Criminal Damage XII

In R v Stephenson (1979) the defendant was a homeless schizophrenic who had sought refuge in a haystack. He lit a fire to keep himself warm and unfortunately in so doing set fire to the whole haystack. The defendant was charged under s1.1 of the Criminal Damage Act (1971) for causing damage to the amount of £3500. He was convicted in the first instance by a jury and the defense appealed.

The conviction was quashed by the Court of Appeal on the grounds that the test that should have been applied was the subjective test (subjective recklessness) i.e. the court should look at it from the perspective of the defendant and not the perspective of the ordinary man or the reasonable man.

As per R v Cunningham (1957) (subjective recklessness), in order to obtain a conviction, the prosecution must establish: –

(1) An actual intention to do the particular kind of harm that in fact was

done; or

(2) Recklessness as to whether such harm should occur or not. It is neither limited to nor does it indeed require any ill will towards the person injured.

In order to satisfy either of the two limbs above, the prosecution must establish that the defendant was aware of his actions, or at the very least be aware that his actions would cause some sort of damage. If the defendant lacked awareness that it would be difficult to establish subjective recklessness.

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Crime CLXXI-Criminal Damage XI

In A (a Juvenile) v R (1978) the defendant spat on a policeman’s raincoat. There was a small mark on it but because the raincoat was subsequently sent for dry cleaning, the mark or the stain was barely visible and the prosecution was unable to use it as evidence to show that the defendant had caused criminal damage.

It was held that there was no criminal damage or the defendant’s action(s) did not cause any criminal damage because the spittle could easily be wiped off.

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Crime CLXX-Criminal Damage X

In R v Smith (1974) the defendant was a tenant in a ground floor flat. He obtained the permission of the landlord to install some sound equipment and sound proofing equipment.

When his tenancy was up, and he had to vacate the property, the tenant not only uninstalled the sound equipment and sound proofing equipment, but he also ripped out the wires that ran below the flooring.

Unknown to the defendant the sound equipment and the soundproofing equipment had become a permanent feature of the flat and were thus regarded as the property of the landlord (a similar situation would apply to renovations done to a rental property and while the tenant is entitled to enjoy the benefits of the renovations while he is there, when he decides to leave or has to vacate he cannot try and undo the renovations for the simple reason that it might damage the property).

The tenant was convicted for criminal damage and appealed on the grounds that since he’d paid for the sound equipment and soundproofing equipment he was entitled to damage them. He honestly believed that they belonged to him and therefore he was entitled to do with them as he liked.

The conviction was quashed. A mistaken but honest belief in such situations is a defense to a charge of causing criminal damage. However, that mistaken belief has to be reasonable (reasonable implying that it is a mistake than a normal person or an average person would make), and in this instance the court held that it was.

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Crime CLXIX-Criminal Damage IX

In Samuels v Stubbs (1972) the defendant trampled on a policeman’s cap. The damage was nominal, and the cap could easily have been pushed back into place, but the defendant was charged nonetheless and was convicted.

The defendant appealed, and it was decided that the defendant’s actions did indeed constitute criminal damage. It is difficult to express in advance what damage is, and it covers a wide range of things, and not all of them need to put the victim out of pocket. Even if the damage is nominal, the defendant could still be charged and convicted for criminal damage.

However, it could be said with some degree of certain that the defendant’s actions were willful and malicious as opposed to accidental or unintentional and that in itself, regardless of the type of damage that is done or caused or the severity of the damage, whether the victim is put out of pocket or otherwise, is sufficient to render the defendant liable under the Criminal Damage Act 1971.

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Crime CLXVIII-Criminal Damage VIII

List of Cases for Criminal Damage

In R v Cunningham (1957), the appellant ripped a gas meter from a wall in an attempt to steal money that was deposited in a coin box attached to the meter and as a result gas seeped through fissures in the wall and escaped to the neighboring property where Mrs. Wade (Sarah) was sleeping.

“The appellant was convicted upon an indictment framed under s 23 of the Offences against the person Act (1861) which charged that he unlawfully and maliciously caused to be taken by Sarah Wade a certain noxious thing, namely, coal gas, so as thereby to endanger the life of the said Sarah Wade”

In any statutory definition of a crime, malice must be taken not in the old vague sense of wickedness in general but as requiring either

(1) An actual intention to do the particular kind of harm that in fact was

done; or

(2) Recklessness as to whether such harm should occur or not. It is neither limited to nor does it indeed require any ill will towards the person injured.

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