Criminal Damage Act 1971
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Under English law, the Criminal Damage Act 1971 is the main statute covering damage to property. It repealed the common law and all the statutory offences except some of those under the Malicious Damage Act 1861. It also repealed the offence of arson but allowed the use of the term for charging purposes.
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[edit] The offences
Section 1(1) provides:
- 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 whether any such property would be destroyed or damaged shall be guilty of an offence.
Section 1(2) provides:
- 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 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 whether the life of another would be thereby endangered;
- shall be guilty of an offence.
Section 1(3) provides:
- An offence committed under this section by destroying or damaging property by fire shall be charged as arson.
The first offence is the all-purpose general offence whereas s1(2) the aggravated form because, unlike s1(1), it requires proof of a specific intent at the time the actus reus is committed (see concurrence), that life be endangered or there is an obvious risk that life will be endangered. Lord Taylor CJ. in Webster v Warwick [1995] 2 All ER 168 held that whether life was in fact endangered was irrelevant. The test was how was it intended or risked that life would be endangered. Thus, if the defendant drops a large stone from a motorway bridge intending to break the windscreen of a passing car, he or she may be convicted if the jury finds that there was an intent to shower the driver or passengers with broken glass and that, as a result, control could be lost, thereby endangering life.
[edit] Elements of the offences
[edit] Damage
The word "damage" is not defined in the Act, leaving flexibility to the courts. In Morphitis v Salmon (1990) Crim. LR 48, Auld J. said:
- "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."
Although the damage need not be permanent, it must usually affect the value of the property, so what constitutes damage is a matter of fact and degree using a common sense standard. In R v Whiteley (1991) 93 Cr. App. R. 25 Lane CJ. summarised the law:
- "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."
In R v Fiak (2005) EWCA Crim 2381 the defendant used a clean blanket to block the toilet of the police cell he was occupying, causing the water to overflow and flood his and other cells. The defence argued that clean water had flooded on to a waterproof floor, and that in the process the blanket was soaked by clean water. The blanket would have been reusable when dry. Cleaning up a wet cell floor did not constitute damage to the cell itself. The Court of Appeal noted that this argument assumed the absence of any possible contamination or infection from the lavatory itself, and held that while it is true that the effect of the appellant's actions in relation to the blanket and the cell were both remediable, the simple reality was that the blanket could not be used as a blanket by any other prisoner until it had been dried out and cleaned. Further, the flooded cells remained out of action until the water had been cleared. Thus, both had sustained damage under the 1971 Act.
Note that s3(6) Computer Misuse Act 1990, restricts "damage" to the physical condition of the computer or its storage media. Damage to the software is dealt with under the Act 1990 although it may constitute damage if the computer is rendered inoperable.
[edit] Property
Property is defined in s10 as wider than the Theft Act 1968 in that it includes land which could be damaged by dumping chemicals on it, but narrower in that it does not include intangibles or a chose in action.
[edit] Belonging to another
An owner can damage his or her own property if, at the same time, it belongs to someone else within the meaning of s10(2), e.g. if a person sets fire to his own house which is subject to a mortgage, he can still be charged under ss1(1) and (3) as the mortgagor will have a proprietary right or interest in the property.
[edit] Without lawful excuse
The defendant has a lawful excuse when, under s5(2)(a), he or she believes that the person entitled to give consent would consent to the damage or under s5(2)(b), when he or she believes in the immediate necessity to protect property and that that the means adopted are reasonable in all the circumstances. Section 5(3) emphasises that the belief is subjective and must be honestly held to be a defence, although not to the aggravated offence under s1(2)). In Chamberlain v Lindon (1998) 1 WLR 1252 [1] Lindon demolished a wall to protect a right-of-way, honestly believing that it was a reasonable means of avoiding litigation.
- it is not necessary to decide whether Lindon’s action was justified as a matter of civil law. For the purpose of the criminal law, what matters is whether Lindon believed that his actions were reasonable, i.e. a subjective test.
Note the controversial Jaggard v Dickinson (1980) 3 All ER 716 which held that even a drunken belief will found the defence even though this allows drunkenness to negate basic intent; and Lloyd v DPP (1992) 1 All ER 982 which holds that a motorist who damages a wheel clamp to free his car, having parked on another's property knowing of the risk of being clamped, does not have a lawful excuse under the Act (see mistake of law).
Note that s5(5) confirms that the general excusing defences of infancy, automatism, duress, etc. can be a lawful excuse in addition to the s5(2) situations:
- This section shall not be construed as casting doubt on any defence recognised by law as a defence to criminal charges.
[edit] Mens rea
The mens rea of all the offences is direct or oblique intention, or subjective recklessness as defined by the House of Lords in R v G [2003] 4 All ER 765. Bingham LJ. stated that a person acts 'recklessly' 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.
In Booth v Crown Prosecution Service (2006) All ER (D) 225 (Jan), the Divisional Court upheld the defendant pedestrian's conviction on a charge under the Criminal Damage Act 1971 that, by rashly dashing into the road, he recklessly damaged the vehicle that hit him. This result must be correct if a pedestrian does actually consider the possibility of damage any vehicle that might become involved in an accident, but it seems more likely that, if the defendant stopped to consider any risks at all, it would surely have been confined to the risk of his own injury.
[edit] Threat to destroy or damage property
Section 2 of the Act creates two offences: With the intention that another will fear it would be carried out, threatening to destroy or damage:
- property belonging to the person threatened or a third person; or
- the defendant's own property in a way which he knows is likely to endanger the life of the person threatened or a third person.
If such threats occur in a public place, a charge under s4 Public Order Act 1986 might be more appropriate given that s8 Act 1986 confirms that violence includes violence towards property.
[edit] Possessing anything with intent to destroy or damage property
The offence under s3 provides:
- 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.
This will be an appropriate charge where the evidence falls short of an attempt to destroy or damage provided the necessary specific intent can be established, e.g. when a defendant is stopped with petrol and matches before a fire has been started. The s3(a) requires damage to property belonging to another, whereas the aggravated offence under s3(b) includes the defendant's own property or the property of the user.
[edit] Racially aggravated criminal damage
Section 30 Crime and Disorder Act 1998 creates an offence of racially and religiously aggravated criminal damage based on s1(1) Act 1971.
