All posts by Kathiresan Ramachanderam and Dyarne Ward

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.

Copyright © 2018 by Dyarne Ward

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.

Copyright © 2018 by Dyarne Ward

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.

Copyright © 2018 by Dyarne Ward

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.

Copyright © 2018 by Dyarne Ward

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.

Copyright © 2018 by Dyarne Ward

Crime CLXVII-Criminal Damage VII

The actus reus or the physical element that the prosecution is required to establish to successfully obtain a conviction for criminal damage as per the Criminal Damage Act of 1971 is simply damaging or destroying property. Damage as far as the act is concerned can be temporary and need not be permanent.

In Roe v Kingerlee (1986) the defendant smeared some mud on the walls of a police cell. The cost of cleaning the walls was nominal, but the defendant was nonetheless tried and convicted for causing criminal damage. The defendant appealed on the grounds that the damage was not permanent and therefore he ought not to be found guilty of criminal damage.

The conviction was upheld. The damage need not be permanent or long lasting and what amounts to criminal damage or otherwise, for the purposes of the Criminal Damage Act 1971 is for the courts to decide after taking into account all the facts that are made available to them.

Copyright © 2018 by Dyarne Ward

Crime CLXVI-Criminal Damage VI

Property with regards to the Criminal Damage Act 1971 is defined by s.10(1) and s.10(2) of the act. S.10(1) and s.10(2) read as follows:-

s.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.

For the purposes of this subsection “mushroom” includes any fungus and “plant” includes any shrub or tree.

s.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.

Copyright © 2018 by Dyarne Ward

Crime CLXV-Criminal Damage V

Recklessness

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.

Negligence

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. He was convicted in the first instance by a jury but the conviction was quashed by the Court of Appeal on the grounds that the test that should have been applied was the subjective test i.e. we have to look at it from the defendant’s perspective or we have to take into account the defendant’s state of mind at the time he committed the act.

Copyright © 2018 by Dyarne Ward

Crime CLXIV-Criminal Damage IV

The mens rea for criminal damage or the mental element that the prosecution needs to satisfy before it can obtain a conviction for criminal damage is either: –

1) intention i.e. the defendant intended to cause the damage that resulted

or

2) recklessness i.e. the defendant did not give any thought to the damage that would result from his actions or having given it some thought, dismissed it.

Intention

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.

Copyright © 2018 by Dyarne Ward

Crime CLXIII-Criminal Damage III

1 (2) of the Criminal Damage Act reads as follows:-

1 (2) A person who without lawful excuse destroys or damages any property, whether belonging to himself or another—

(a) Intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and

(b) Intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered; shall be guilty of an offence.

Much of the case law with regards to criminal damage relates to property that belongs to another and property that the defendant does not have a proprietary interest in.

However, under certain circumstances it might be an offence to destroy one’s own property though it might be difficult to envisage such a situation arising.

It would be an offence to do so (destroy one’s own property) when doing so would endanger the life of another for example when squatters move into vacate land. While the owner of the land has rights over his land, he cannot set fire to the land or have bulldozers run through it because doing so would endanger the life of another especially in instances where the land is occupied by long term squatters (10 years or more) who can become registered owners of the land or property.

Therefore, technically under the Criminal Damage Act 1971, it is an offence to: –

1) Destroy the property of another

and

2) Destroy one’s own property if it would endanger the life of another.

Copyright © 2018 by Dyarne Ward