Crime CLXXX-Criminal Damage XX

The endangerment to life, in order to obtain a conviction under the Criminal Damage Act 1971, (s.1(2)) must be endangerment that was the result of damage to property and not endangerment that arose through any other means.

In R v Steer (1987) the defendant had a dispute with his business partner and as a result the disgruntled defendant went over to his business partner’s residence armed with a shotgun and fired shots at his sitting room and bedroom windows and at his door. The defendant was charged and convicted for causing criminal damage and the defendant appealed.

The conviction was quashed. It was held that endangerment to life as per s.1(2)(b) of the Criminal Damage Act 1971 must arise from damage to property and not through or via any other means and in this instance because the damage that was done to the windows and door did not endanger the life of the defendant’s business partner, the defendant was found to be not guilty.

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Crime CLXXIX-Criminal Damage XIX

The decision in Roe v Kingerlee (1986) was similar to the decision in Hardman v Chief Constable of Avon and Somerset (1986) and both decisions reaffirmed the principle that the defendants could be found guilty of criminal damage as per the Criminal Damage Act (1971) even if the damage is temporary and while reading the facts of the cases we also have to look at matters from the public policy perspective.

In Hardman v Chief Constable of Avon and Somerset (1986) the appellants were protestors who called themselves the nuclear disarmament group and in line with their cause they painted depictions of the Hiroshima and Nagasaki bombings, in soluble paint, on the pavement. There was no lasting or permanent damage done to the payment and the paint would have disappeared in a matter of days.

The council nonetheless had the paintings cleaned up and employed a team of cleaners who used high pressure washers to do the cleaning and incurred costs for doing so. The appellants were charged and convicted for criminal damage and they appealed.

The appeal was dismissed, and the conviction was upheld. Regardless of whether the damage was short-term or permanent, easily rectified or otherwise, defendants could be found guilty of criminal damage if the courts deem it necessary to do so.

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Crime CLXXVIII-Criminal Damage XVIII

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.

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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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