Crime CLXXXX-Theft III

Section 3 of the Theft Act 1968 reads as follows: –

“Appropriates”

(1) Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner.

(2) Where property or a right or interest in property is or purports to be transferred for value to a person acting in good faith, no later assumption by him of rights which he believed himself to be acquiring shall, by reason of any defect in the transferor’s title, amount to theft of the property.

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Crime CLXXXIX-Theft II

The five following sections given in section 1 of the Theft Act 1968 are as follows: –

2. “Dishonestly”

(1) A person’s appropriation of property belonging to another is not to be regarded as dishonest—

(a) If he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or

(b) If he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it; or

(c) (except where the property came to him as trustee or personal representative) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.

(2) A person’s appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property.

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Crime CLXXXVIII-Theft I

The definition of theft is given in section 1 of the Theft Act 1968. The section reads as follows:-

1. Basic definition of theft.

(1) A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly.

(2) It is immaterial whether the appropriation is made with a view to gain, or is made for the thief’s own benefit.

(3) The five following sections of this Act shall have effect as regards the interpretation and operation of this section (and, except as otherwise provided by this Act, shall apply only for purposes of this section).

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Crime CLXXXVII-Criminal Damage XXVII

The decision in R v Steer (1987) was reaffirmed in the case of R v Wenton (2010) in that the endangerment to life must come from damage done to property or must be the result of damage that was done to property and not through some other means.

In R v Wenton (2010) the defendant threw a brick through a window of a residence that was home to a couple and their three children who were sleeping at the time. The defendant then threw a petrol canister into the house and pieces of lighted paper but fortunately the fire died away before the canister was set alight. The defendant’s fingerprints were found on the paper and the canister and the defendant was charged under s.1 of the Criminal Damage Act (1971) with emphasis given to s.1(2) of the act which is in reference to criminal damage endangering life. The defendant was convicted in the first instance and the defendant appealed.

The conviction was quashed on appeal. Despite the fact that the defendant had thrown a brick threw the window, the endangerment to life did not result from the broken window. The court reaffirmed the decision in R v Steer (1987). As far as s.1(2) of the Criminal Damage Act (1971) is concerned endangerment to life must come from the damage.

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Crime CLXXXVI-Criminal Damage XXVI

In Booth v Crown Prosecution Services (2006) the defendant had been drinking and smoking drugs, so he was fairly intoxicated at the time. The defendant saw some people across the road and for some reason or other ran across towards them failing to notice the traffic and as a result was about to be hit by an oncoming car. The defendant however managed to avoid the collision by jumping on to the bonnet of the car, but the windscreen of the car was shattered as a resulted of the defendant’s actions. The defendant was charged and convicted. The Caldwell test was applied i.e. the defendant would have been able to appreciate the risk had he given the matter some thought, or the risk would have been obvious to him if he’d thought about it. The defendant appealed.

The appeal was dismissed and the conviction was upheld. The damage was a result of the defendant’s recklessness and it could have been prevented or averted if he had given the matter some thought. The fact that the defendant was intoxicated did not help the defendant in anyway because self-intoxication is generally not a defense. In fact, it might even have acted against the defendant.

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Crime CLXXXV-Criminal Damage XXV

In R v Fiak (2005) the defendant was sitting in a parked car outside his house, following an argument with his wife. He was approached by police officers who suspected him of being in charge of a vehicle while he was drunk, the defendant had been drinking prior to the incident.

The defendant resisted, and a police officer was injured in the scuffle that followed. The defendant was arrested and taken to a cell and while in the cell, he flooded the cell by putting a blanket down the toilet and repeatedly flushing. The defendant was charged with criminal damage and the defense argued that no criminal damage had occurred because the cell floor was waterproof.

The defendant was convicted. His conviction was on the grounds that while the cell floor was waterproof and may not have sustained any long-term damage, the toilet and the blanket on the other hand had been damaged. Following the decision in Morphitis v Salmon (1990), it was clear that the value of the items had been reduced and the defendant’s actions had impaired their usefulness.

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Crime CLXXXIV-Criminal Damage XXIV

In R v Gemmell and Richards (2003) – two boys aged 11 and 12 respectively, went camping without their parents’ permission. They found themselves behind a Co-op shop and discovered bundles of newspaper stacked up nearby. They opened the newspapers to read and later lit up some of the newspaper. They then threw some of the lit paper under a large plastic wheelie-bin and left the yard without putting out the fire. The wheelie-bin caught fire and spread to another bin, a shop and adjoining buildings causing damages worth £1 million.

The defendants were charged with arson as per s 1 (1) and 1 (3) of the Criminal Damage Act 1971. The defendants were convicted, and the Court of Appeal upheld the conviction because it felt that it was bound by the decision in Caldwell. The defendants appealed.

The House of Lords quashed the appellants’ convictions – “Can a defendant properly be convicted under section 1 of the Criminal Damage Act 1971 on the basis that he was reckless as to whether property was destroyed or damaged when he gave no thought to the risk but, by reason of his age and/or personal characteristics the risk would not have been obvious to him, even if he had thought about it?”.

“A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to –

(i) a circumstance when he is aware of a risk that it exists or will exist;

(ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk.” – Lord Bingham.

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Crime CLXXXIII-Criminal Damage XXIII

The property that is damaged must be tangible i.e. property that is discernable and quantifiable and therefore it is possible to put a monetary value on it.

In R v Whiteley (1991) the defendant, a hacker was convicted for damaging the information in a computer disc. The defendant argued that for the purposes of the Criminal Damage Act (1971) the property must be tangible as per s. 10 (1) of the act. The section reads as follows: –

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 defendant argued that he damaged only the intangible information in the disk and not the disk itself. The argument was rejected in the first instance and the defendant appealed.

On appeal the conviction was upheld. “What the act requires to be proved is that tangible property had been damaged, not necessarily that the damage itself should be tangible” – Lord Lane, C.J.

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Crime CLXXXII-Criminal Damage XXII

If the damage that was done did not reduce the value of the property that was damaged in any way, shape or form than the damage may not be considered or regarded as criminal damage or fall within the scope or ambit of criminal damage.

In Morphitis v Salmon (1990), a scaffold pole was used to block an access road. It was scratched and it was held that the scratch did not amount to criminal damage because it did not reduce the value of the scaffold pole or impair its usefulness in any way. Its value remained intact, as did its usefulness. However if the usefulness of the scaffold pole had been impaired i.e. if it was no longer an effective roadblock, than the actions of the defendant may amount to criminal damage.

Likewise if the item that was scratched was a car, than it might be construed as criminal damage because it reduces the value of the car.

The two factors below will be taken into consideration:-

1) Reduction in value

2) Impairment of usefulness

before it is decided whether the defendant’s actions amounted to criminal damage or otherwise.

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Crime CLXXXI-Criminal Damage XXI

The decision in R v Steer (1987) must be compared with the decision in R v Sangha (1988) and if it is not possible to reconcile the decisions in both cases than we have to look into the possibility of distinguishing both cases on the facts.

In R v Sangha (1988) the defendant set fire to a mattress in a flat that was normally occupied by squatters. The only other furniture in the flat were a couple of armchairs and the flat was constructed in such a way that it would prevent fire from spreading or would contain the fire. The defendant was arrested and tried, and his counsel argued that the defendant was not liable under s.1 (2) of the Criminal Damage Act 1971 i.e. criminal damage endangering life because the possibility of that happening was minimal or there was no endangerment to life. The defendant was convicted anyway, and the defense appealed.

The conviction was upheld, on appeal, and the judges reverted to the Caldwell test as it was applied in Elliott v C (1983) and decided that the test is not whether life was endangered or otherwise but was whether a “reasonably prudent person” would have acted in the way the defendant did. Once again, we have to look at the decision in light of public policy.

Copyright © 2018 by Dyarne Ward