Criminal damage
From CrimeLine from Andrew Keogh
- Criminal Law: Report on Offences of Damage to Property (Report) [1970] EWLC 29 (01 January 1970)
- Husband and wife Section 30 Theft Act applies….
- Respect Tackling criminal damage
- Regina v. G & Anor [2003] UKHL 50 (16 October 2003)
Butterworth’s, tenth edition. "the ammount and cost of rectification are relevant factors in determining whether there has been damage; if they are minimal it may be found that that the property has not been damaged."
Criminal damage contrary to Section 1 Criminal Damage Act 1971
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.
Racially or religiously aggravated criminal damage
Section 30 Crime and Disorder Act 1998 created a new offence of racially or religiously aggravated criminal damage. This offence carries a maximum prison term of 6 months in the magistrates' court and or a Level 5 fine. In the Crown Court the offence carries a maximum prison term of 14 years and/or an unlimited fine. The prosecution must prove that without lawful excuse the defendant intentionally or recklessly destroyed or damaged property belonging to another person.
Possessing anything with intent to destroy or damage property
Section 3 Possessing anything with intent to destroy or damage property. A person who has anything in his custody or under his control intending without lawful excuse to use it or cause or permit another to use it —
- (a) to destroy or damage any property belonging to some other person; or
- (b) to destroy or damage his own or the user’s property in a way which he knows is likely to endanger the life of some other person;
shall be guilty of an offence.
Section 1 Criminal Justice Act 2003 Extends the powers to stop and search to include articles made, adapted or intended for use in causing criminal damage.
Section 54 Anti-social Behaviour Act 2003 introduced a new offence of selling aerosol paint to children under the age of 16. The penalty for this offence is a Level 4 fine.
Without lawful excuse
Section 5(3) of the Act states that it is immaterial whether the defendant's belief is justified as long as it is an honest belief, and therefore creates a subjective test to be assessed by the court or jury. In Chamberlain v Lindon [1998 EWHC Admin 329 (18th March, 1998), Lindon demolished a wall to protect a right of way, honestly believing that it was a reasonable means of avoiding litigation. It was said that:
- "50. In the criminal context the question is not whether the means of protection adopted by the respondent were objectively reasonable, having regard to all the circumstances, but whether the respondent believed them to be so, and by virtue of section 5(3) it is immaterial whether his belief was justified, provided it was honestly held.”
Lawful excuse
means that the defendant had permission or believed he had permission; or believed he would have had permission to destroy or damage the property had the person entitled to give permission known of the circumstances; or he believed the property was in immediate need of protection and the destruction or damage was caused as a consequence of his efforts to protect the property.
Intentionally
is a question of fact to be decided by the Court or jury and it will decide the issue on all the evidence and whether it is proved that the defendant did intend or did foresee that the result of the his actions that the property would be destroyed or damaged. See: Intention in English law
Recklessly
The defendant would be reckless if he was aware that there was a risk or would be a risk that the property would be destroyed or damaged and it was unreasonable in the circumstance for him to take that risk. See: Recklessness
Property belonging to another
means anyone having custody or control of it; or having a propriety interest in it; or having a charge on it.
Cresswell v Director of Public Prosecutions, AC, 30 November 2006. For the purposes of section 10 Criminal Damage Act 1971 badgers did not constitute property. Nor were badgers property at common law. Therefore a person who destroyed badger traps could not rely upon section 5 of the Act, or the common law defence of protection of property.
So what is an attempt to cause criminal damage?
A person is guilty of attempting to commit an indictable offence if they engage in a course of conduct that would, if allowed to continue uninterrupted, have resulted in the full commission of the offence. The prosecution must prove that the defendant intended to commit criminal damage and with that intention, he did something which was more than mere preparation for committing that offence. See: Attempt
What is vandalism / criminal damage?
Criminal damage refers to crimes where any person without lawful excuse intentionally or recklessly destroys or damages any property belonging to another. Activities resulting in non permanent damage (i.e. that can be rectified, cleaned off or removed at no cost) such as letting down of car tyres should not be classed as criminal damage, nor should accidental damage. Home Office Environmental approaches to tackling vandalism / criminal damage
Meaning of 'property'
Property is defined in Section 10 of the Act and is wider than the Theft Act definition in that it includes land. Thus land can be damaged; for example, by dumping chemicals on it. Property does not however include intangibles or things in action.
Meaning of 'damage'
Damage is not defined by the Act. The courts have construed the term liberally. Damage is not limited to permanent damage, so smearing mud on the walls of a police cell may be criminal damage. What constitutes damage is a matter of fact and degree and it is for the court, using its common sense, to decide whether what occurred is damage (Archbold 23-6).
The damage need not be visible or tangible if it affects the value or performance of the property.
As regards the offence of criminal damage, you should note that by Section 3(6) Computer Misuse Act, a modification of the contents of a computer will not be regarded as damaging any computer or computer storage medium unless its effect on the computer or computer storage medium impairs its physical condition. Damage or changes to software etc. are now to be dealt with under the Computer misuse act.
In R v Whiteley [1991] 93 CAR 25; 93 Cr. App R. 25, CA (Archbold 23-6) (Blackstone’s B8.5 and B8.6) Lord Lane CJ dismissing the appeal, stated that:
- "the Act required that tangible property had been damaged, not that the damage itself should be tangible."
He added that:
- "there could be no doubt that the magnetic particles upon the metal discs were a part of the discs and if the defendant was proved to have altered the particles in such a way as to cause an impairment of the value and usefulness of the disc to the owner, there would be damage within the meaning of section 1."
Lord Lane CJ then referred specifically to the judgment in Morphitis v Salmon [1990] Crim LR 48, where Auld J said:
- "damage should be interpreted so as to include not only permanent or temporary physical harm, but also permanent or temporary, impairment of value or usefulness."
Lord Lane CJ's conclusion was that:
- "any alteration to the physical nature of the property concerned may amount to damage within the meaning of the section. Whether it does so or not will depend upon the effect that the alteration has had upon the legitimate….owner"
After a comprehensive examination of the authorities, Lord Lane CJ summarised their effect.
- "Any alteration to the physical nature of the property concerned may amount to damage within the meaning of the section. Whether it does so or not will depend on the effect that the alteration has had upon the legitimate operator (who for convenience may be referred to as the owner) ... where ... the interference ... amounts to an impairment of the value or usefulness of the [property] to the owner, then the necessary damage is established."
Denton, R. v [1981] EWCA Crim 4 (22 October 1981) The defendant had been asked by his employer to set fire to the employer's factory to facilitate an insurance claim. Despite this, it was held that the owner of the factory was entitled to have it burned down – as the Lord Chief Justice put it, "t is not an offence for a man to set light to his own ... property" – and therefore the defendant, knowing this, had a lawful excuse independent of section 5.
Cases
Booth v Crown Prosecution Service (30 January 2006)
Booth v Crown Prosecution Service [2006] EWHC 192 (Admin) (30 January 2006) In the circumstances known to him it was unreasonable to take the risk. The defendant conviction on a charge that, without looking to see whether it was safe to cross collided with a motor vehicle he recklessly damaged the vehicle that hit him because "the appellant was aware of the risk and closed his mind to it".
Fiak, R v (11 October 2005)
Damage involves "permanent or temporary physical harm but also permanent or temporary impairment of value or usefulness"
Fiak, R v [2005] EWCA Crim 2381 (11 October 2005) The appellant was detained in a police cell. In relation to the charge of criminal damage he explained that he had put a blanket down the lavatory, and flushed it, "essentially to get my rights". He was quite upset and angry, a bit awkward, and not "the most co-operative", but he did not deliberately want to cause damage to police property, he had pressed the buzzer and banged on the cell door for attention. Applying the principles in the cases below to the present case, while the effect of the appellant's actions in relation to the blanket and the cell were both remediable, the simple reality is that the blanket could not be used as a blanket by any other prisoner until it had been dried out (and, we believe, also cleaned) and the flooded cells remained out of action until the water was cleared. In our judgment it is clear that both sustained damage for the purposes of the 1971 Act. There plainly was a case to answer.
18. In the 1971 Act, hardly surprisingly, the word "damage" itself is not further defined. The Concise Oxford Dictionary explains damage as "harm or injury impairing the value or usefulness of something ...". We need refer to only two authorities. The first is Morphitis v Salmon [1990] Crim LR 48, where the transcript of Auld J's judgment reads:
- "The authorities show that the term "damage" for the purpose of this provision, should be widely interpreted so as to conclude not only permanent or temporary physical harm, but also permanent or temporary impairment of value or usefulness."
19. This analysis was approved in R v Whiteley [1991] 93 CAR 25; 93 Cr. App R. 25, CA (Archbold 23-6) (Blackstone’s B8.5) and B8.6) where, after a comprehensive examination of the authorities, Lord Lane CJ summarised their effect.
- "Any alteration to the physical nature of the property concerned may amount to damage within the meaning of the section. Whether it does so or not will depend on the effect that the alteration has had upon the legitimate operator (who for convenience may be referred to as the owner) ... where ... the interference ... amounts to an impairment of the value or usefulness of the [property] to the owner, then the necessary damage is established."
Director of Public Prosecutions v Bayer & Ors (04 November 2003)
Director of Public Prosecutions v Bayer & Ors [2003] EWHC 2567 (Admin) (04 November 2003) This was an appeal by way of case stated by the Director of Public Prosecutions from the decision of District Judge whereby he adjudged the respondents to be not guilty of the offence of aggravated trespass. The respondents had destroyed GM crops. The question for the opinion of the court was:
- "Whether the finding by me that the actions of all four respondents in locking or attaching themselves to the tractors was reasonable in the defence of property was a finding properly open to me, judging the issue of reasonableness objectively."
The answer no the defence was not available. If the answer had been "yes", then the court would have had to go on to consider the facts as the defendants honestly believed them to be, and should then determine objectively whether the force they used was no more than was reasonable in all the circumstances, given their beliefs. The Bayer case emphasised that, for the common law defence to succeed, a defendant had to believe that unlawful damage was being inflicted or was about to be inflicted on the property of another. Giving the judgment of the court in that case, Brooke LJ said, at paragraph 26:
- "However, it has always been a requisite ingredient of this element of the common law defence that what is being experienced or feared is an unlawful or criminal act..."
Hardman & Others v Chief Constable of Avon & Somerset [1986] Crim LR 330
Graffiti which would be washed away by rain - whether ‘damage
The appellants were convicted by the Justices of causing criminal damage to a pavement. They appealed.
They were members of the Campaign for Nuclear Disarmament. On August 6, 1985 (which was the fortieth anniversary of the Hiroshima bombing) they painted human silhouettes on an asphalt pavement to represent vaporised human remains. The ‘paint’ was a fat free unstable whitewash, which was soluble in water. It was specially mixed in the expectation that rainwater would wash away the markings. The evidence suggested that this was correct and that rainwater and pedestrian traffic would eventually eradicate the markings. However, the Local Authority had acted before this happened and a ‘Graffiti Squad’ was employed to clean the pavement using high pressure water jets.
Held: Notwithstanding the fact that the markings could be washed away there had nonetheless been damage, which had caused expense and inconvenience to the Local Authority. An unduly narrow definition of damage was not appropriate. The approach of Walters J. in Samuels v. Stubbs, 4 S.A.S.R. 200 was approved.
A v R 1978 CLR 689
Spitting on a police officer's coat does not amount to criminal damage where the spit will be removed by a wipe with a damp cloth
Chamberlain v Lindon (18th March, 1998)
Chamberlain v Lindon [1998] EWHC Admin 329 (18th March, 1998) The use of self redress to justify criminal damage by lawful excuse was satisfied if the damage was current at the time of the action. There was no obligation to satisfy alternative possibilities of redress through civil courts.
Lindon was acquitted of criminal damage for removal of a nine-month old unlawful obstruction, on the grounds that his act was to avoid litigation.
Regina v. G & Anor UKHL (16 October 2003)
Regina v. G & Anor [2003] UKHL 50 (16 October 2003) Subjective Mens rea
Pease & Ors, R. v (15 October 2008)
Pease & Ors, R. v [2008] EWCA Crim 2515 (15 October 2008) Criminal Damage- gang defacing trains with graffiti- The Court upheld a sentence of 24 months’ imprisonment against the leader of a gang who had applied graffiti to trains causing substantial damage. The graffiti did not contain racist or offensive material and did not cause any danger to the public. However repairing the damage done cost thousands of pounds as well as causing inconvenience to the general public as trains were taken out of action to be repaired: R v Pease and Others [2009] 1 Cr App R (S) 114.
Denton, R. v (22 October 1981)
Denton, R. v [1981] EWCA Crim 4 (22 October 1981) The defendant had been asked by his employer to set fire to the employer's factory to facilitate an insurance claim. Despite this, it was held that the owner of the factory was entitled to have it burned down – as the Lord Chief Justice put it, "t is not an offence for a man to set light to his own ... property" – and therefore the defendant, knowing this, had a lawful excuse independent of section 5.
Hardie, R. v (31 July 1984)
Hardie, R. v [1984] EWCA Crim 2 (31 July 1984) Arson contrary to section 1(2) and (3) of the Criminal Damage Act 1971. No verdict was taken on an alternative count of arson contrary to section 1(1) and (3) of that Act. the Appellant was sentenced to two years' imprisonment. Appeal against conviction brought by leave of the single judge. The appeal was allowed.
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