Criminal damage in English law

In English law, causing criminal damage was originally a common law offence. The offence was largely concerned with the protection of dwellings and the food supply, and few sanctions were imposed for damaging personal property. Liability was originally restricted to the payment of damages by way of compensation.

As time passed, specific laws were introduced to deal with particular situations as they were judged to require intervention, most particularly alongside the rise of mechanisation and urbanisation during the Industrial Revolution.

The modern law of criminal damage is mostly contained in the Criminal Damage Act 1971, which redefines or creates several offences protecting property rights. The Act provides a comprehensive structure covering merely preparatory acts to the most serious offences of arson and causing damage with intent to endanger life. As such, punishments vary from a fixed penalty to life imprisonment, and the court may order payment of compensation to a victim.

Schaufenster.eingeschl.
A smashed shop window – photographed on 7 May 2005

History

Common law

FrameBreaking-1812
A contemporary engraving of machine-breaking textile workers

The common law generally treated damage to another's chattels as a civil matter leading only to a right to damages in trespass or nuisance; in the 18th century, Blackstone stated: "The rights of personal property in possession are liable to two species of injuries: the amotion [carrying away][1] or deprivation of that possession; and the abuse or damage of the chattels, while the possession continues in the legal owner."[2] Blackstone clearly labelled these as "Private Wrongs" in his commentaries, emphasising that property rights were enforced inter partes, and that the State was not necessarily one of the involved parties.[2] In fact, the criminal law only intervened in the case of arson, defining it as "the malicious and wilful burning of the house or outhouses of another man". This protection extended to barns and even "stacks of corn". Arson traditionally attracted the death penalty,[3] and had done so in Roman law.[4]

Early legislation

Whereas the common law protected habitation and sources of wealth and food in a largely agricultural society, the Industrial Revolution, especially the Luddism resulting from workers' perceived threats to their livelihood, required new legislation to match the circumstances. The reaction of Parliament to Luddism was to criminalise machine-breaking – the destruction of textile-making machinery – as early as 1721.[5] Initially the punishment was transportation to the Colonies but as a result of continued opposition to mechanisation the Frame-Breaking Act of 1812 made the death penalty available.[6]

Consolidation

A number of statutory provisions creating offences of damaging specific types of property were consolidated by 7 & 8 Geo.4 c.30 (1827) (Malicious injuries to property) which was one of Peel's Acts. This Act and a number of subsequent statutes were consolidated by the Malicious Damage Act 1861.[7]

Malicious Damage Act 1861

The Malicious Damage Act 1861[8] was a Victorian consolidation statute which set out detailed protections of property, most of which have now been superseded by the Criminal Damage Act 1971. The remaining provisions applicable in England and Wales are:

Criminal Damage Act 1971

Definition

Whereas the 1861 Act protected in detail many different types of property, the Criminal Damage Act 1971[9] provided a definition wide enough to apply to any tangible property. By section 1(1) of the Act:

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.

"Without lawful excuse"

Apart from the general self-defence excuse applicable to any offence involving violent acts, section 5 of the Act sets out specific provisions in relation to criminal damage: a defendant will have "lawful excuse" if

(a) at the time ... he believed that the person ... believed to be entitled to consent to the destruction or damage ... had so consented, or would have consented had they known ..., or
(b) he destroyed or damaged ... the property in question ... in order to protect property ... and at the time ... he believed—
(i) that the property ... was in immediate need of protection; and
(ii) that the means of protection ... were ... reasonable having regard to all the circumstances.[9]

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),[10] 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:

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.[11]

However, in R v Hill and Hall (1989),[12] the Court of Appeal introduced an objective element to part (b) of the defence. The defendants had been convicted of possession of a hacksaw blade outside a US naval base in Wales, having admitted an intention to use the blade to cut through the base's perimeter fence. They claimed a lawful excuse in that they had acted to protect their own property located near the base; their reasoning was that the base would at some point in the future attract a nuclear attack by the Soviet Union. Given that Hill was "forced to admit that she did not expect a nuclear bomb to fall today or tomorrow",[13] the Court concluded that this threat to property was too remote and thus the defence had not been made out, however honest the belief had been.

The case of Jaggard v Dickinson (1980)[14] held that even a drunken belief will support the defence even though this allows drunkenness to negate basic intent; and Lloyd v DPP (1992)[15] ruled 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 even if he makes a mistake of law.

The courts have said that a defendant relying upon lawful excuse as a defence need not necessarily seek to put himself within section 5. In R v Denton (1981),[16] 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, "[i]t is not an offence for a man to set light to his own ... property" – and therefore Denton, knowing this, had a lawful excuse independent of section 5.

"Destroys or damages"

DamagedBicycle
The front wheel of this bicycle has arguably been "destroyed", but the bicycle itself has not been destroyed since the wheel could be replaced. However, as a whole, the bicycle has clearly been "damaged".

Whether destruction or damage has occurred is an issue of fact and degree in each case and case law suggests that damage must be more than de minimis. In A (a juvenile) v R (1978),[17] the defendant spat on a police officer's raincoat, which was easily wiped clean; it was held that this did not amount to damage within the 1971 Act. Similarly, in Morphitis v Salmon (1990),[18] a scratch to a scaffolding pole did not affect its value or usefulness and thus damage had not been proved. The court 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.[19]

A different conclusion was reached in Hardman v Chief Constable of Avon and Somerset Constabulary (1986),[20] where graffiti, although eventually removable by action of rainfall, was actually washed away by the local authority, incurring expense, and was held to be criminal damage.

It is sufficient that any damage be merely temporary: in Cox v Riley (1986),[21] the deletion of the program from a computer-controlled machine, rendering it unusable, was held to constitute damage. This decision was followed in R v. Whiteley (1991) in relation to computer hacking,[22] although that conduct is now dealt with under the Computer Misuse Act 1990.[23] In that case it was said 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 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.[24]

In R v Fiak (2005),[25] 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, albeit temporary.

"Property"

The definition of property in the 1971 Act differs slightly from the Theft Act 1968[26] in that it only includes "property of a tangible nature".[27] Land can be damaged, as in Henderson and Batley (1984),[28] where the defendants had dumped rubble on a development site which cost a substantial sum to clear; it was held that this constituted damage to the land.

"Belonging to another"

Section 10(2) of the Act specifies that property shall be regarded 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.

These provisions are similar to those set out in section 5 of the Theft Act 1968 in relation to theft. It is clearly a right of property ownership to deal with property as one wishes, including its damage or destruction. However a person setting fire to his own house which is subject to a mortgage can be charged because the mortgagee will have a proprietary right or interest in the property.[29] Property that is abandoned has no owner, and cannot be stolen;[30] it follows that such property cannot be the subject of a charge of criminal damage.

Intent and recklessness

The mens rea of all offences in the Act is direct or oblique intention, or subjective recklessness as defined by the House of Lords in R v G (2003).[31] Bingham L.J. 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; or
(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.[32] In Booth v. Crown Prosecution Service (2006)[33] the Divisional Court upheld the defendant pedestrian's conviction on a charge that, by rashly dashing into the road, he recklessly damaged the vehicle that hit him because "the appellant was aware of the risk and closed his mind to it".

Aggravated criminal damage

Section 1(2) of the Act creates an offence which includes all the elements of the section 1(1) offence with an additional element of intending or being reckless as to the endangering of life. The offence lies in possible effects of the defendant's actions and it is not therefore necessary to prove an actual danger to life. However, there must be a connection between the damage and the mental state of the defendant. In R v Steer (1986),[34] the defendant fired a gun intending to injure another person, but missed and hit a window instead; it was held that although the intention to endanger life and the fact of damage coexisted, the damage itself did not endanger life. This approach was extended in R v Webster (1995),[35] in which the relationship between the damage caused and the damage intended was explored. That case involved the throwing of heavy items into the paths of moving vehicles, and it was held that a defendant may be guilty if he intends to endanger life by the actual damage intended, or is reckless that life will be endangered by that damage. Therefore, although a defendant does not necessarily intend to endanger life when he intends to break a car window, ignoring the likely risk that this will cause the driver to swerve into the path of another vehicle, perhaps fatally, constitutes recklessness and is a sufficient causative nexus.

Attempts

Proof of specific intent to endanger life is unnecessary on a charge of attempting this offence. In Attorney General's Reference No. 3 of 1992 (1994),[36] on a charge of attempted aggravated arson, it was held to be sufficient for the prosecution to establish a specific intent to cause damage by fire and that the defendant was reckless as to whether life would thereby be endangered.

Arson

Section 1(3) of the 1971 Act specifies that offences under section 1, where the destruction or damage is caused by fire, shall be charged as arson. It would seem that courts adopt a purposive view in relation to the lawful excuse defence in relation to arson, as in R v Hunt (1977).[37] The defendant, wishing to highlight the lack of fire defences in an old people's home, set fire to it to demonstrate the risks. He claimed an honest belief in that by doing this, he had a lawful excuse within section 5(2). It was held, however, that he had not actually been acting so as to protect property. Although the court assumed that his belief was honest, it ruled that his intention was to draw attention to faulty fire defences rather than to defend the property itself.

Threats

Section 2 provides that a person threatening another, with the intent that the other would fear the threat would be carried out

(a) to destroy or damage any property belonging to that other or a third person; or
(b) to destroy or damage his own property in a way which he knows is likely to endanger the life of that other or a third person;

shall be guilty of an offence.

Possession of items

Section 3 provides that 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.

As to the mens rea for an offence under section 3(a), see R v Buckingham, 63 Cr App R 159, CA.

Extent, penalties and procedure

The 1971 Act applies in England and Wales, and also to Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977.[38]

Certain types of minor damage, such as graffiti, may be dealt with by the issue of fixed penalty notices as an alternative to prosecution.[39]

Non-aggravated offences involving damage valued at less than £5,000 are triable only summarily by magistrates and the maximum sentence is three months' imprisonment and a fine of £2,500. If the value of the property damaged exceeds £5,000, the defendant is entitled to claim trial on indictment by a jury, but if tried summarily, may be sentenced to up to six months in jail and a £5,000 fine. Where the value of the property is unclear, the court may hear representations as to value, but may also offer the defendant the option of summary trial, with limited penalties.[40]

Section 4 of the 1971 Act sets out that offences under sections 1(2) and 1(3) are punishable by a maximum term of life imprisonment and all others by a maximum of ten years' imprisonment. Section 30 of the Crime and Disorder Act 1998[41] sets out a higher maximum of 14 years' imprisonment for racially or religiously aggravated offences other than those already carrying a maximum of life imprisonment.

Courts are empowered by sections 130 to 133 of the Powers of Criminal Courts (Sentencing) Act 2000[42] to order payment of compensation by a convicted defendant. The limit is £5,000 per offence in a magistrates' court; the powers of the Crown Court are unlimited.

The Criminal Damage Act 1971 repealed the Dockyards, etc. Protection Act 1772,[43] which created the capital offences commonly known collectively as "arson in royal dockyards"; these had been overlooked when the death penalty for murder was abolished in 1965.

See also

Notes

  1. ^ Amotion, The Free Dictionary, 2008, retrieved 10 March 2008.
  2. ^ a b William Blackstone (1765–1769), "Of Injuries to Personal Property [Book the Third, Chapter the Ninth]", Commentaries on the Laws of England, Oxford: Clarendon Press (reproduced at The Avalon Project at Yale Law School), retrieved 1 June 2008.
  3. ^ William Blackstone (1765–1769), "Of Offenses against the Habitations of Individuals [Book the Fourth, Chapter the Sixteenth]", Commentaries on the Laws of England, Oxford: Clarendon Press (reproduced on The Avalon Project at Yale Law School), retrieved 1 June 2008.
  4. ^ Adolf Berger (1953), Encyclopedic Dictionary of Roman Law, Philadelphia, Pa.: American Philosophical Society, ISBN 1-58477-142-9.
  5. ^ Marjorie Bloy, The Age of George III, A Web of English History, retrieved 1 June 2008.
  6. ^ Karly Walters (2004), Law, "Terror", and the Frame-Breaking Act, Economic History Society, retrieved 1 June 2008.
  7. ^ "Report on Malicious Damage 6". The Law Reform Commission of Ireland. Archived from the original on 7 February 2008. Retrieved 21 April 2009.
  8. ^ Malicious Damage Act 1861 (24 & 25 Vict. c. 97).
  9. ^ a b Criminal Damage Act 1971 (1971 c. 48).
  10. ^ Chamberlain v. Lindon [1989] EWHC 329.
  11. ^ Chamberlain v. Lindon per Sullivan J. at para. 50.
  12. ^ R v. Hill and Hall [1989] 89 Cr. App. Rep. 74.
  13. ^ Tony Storey; Alan Lidbury (2004), Criminal Law (3rd ed.), Cullompton, Devon: Willan, p. 204, ISBN 1-84392-100-6.
  14. ^ Jaggard v Dickinson [1980] 3 All E.R. 716.
  15. ^ Lloyd v. DPP [1992] 1 All E.R. 982.
  16. ^ R v. Denton [1981] EWCA 4.
  17. ^ A (a juvenile) v. R [1978] Crim. L.R. 689.
  18. ^ Digested as Morphitis v. Salmon [1990] Crim. L.R. 48, Q.B.D.
  19. ^ Morphitis v. Salmon per Auld J., transcript of unreported judgment cited in R v Whiteley (1991) 93 Cr. App. R. 25 at 29. See also the digest [1978] Crim. L.R. 48 at 49.
  20. ^ Hardman v. Chief Constable of Avon and Somerset Constabulary [1986] Crim. L.R. 330.
  21. ^ Cox v. Riley [1986] 83 Cr. App. R. 54.
  22. ^ Bloy, Duncan; Denis Lanser; Philip Parry (2000), Principles of Criminal Law, Routledge-Cavendish, p. 382, ISBN 978-1-85941-580-1, retrieved 4 September 2010
  23. ^ Computer Misuse Act 1990 (1990 c. 18).
  24. ^ R v Whiteley, at 29 per Lord Lane C.J.
  25. ^ R v. Fiak [2005] EWCA 2381.
  26. ^ Theft Act 1968 (1968 c. 60).
  27. ^ Section 10 of the Act.
  28. ^ 1984, unreported, C.A., cited in R v. Whiteley (1991) 93 Cr. App. Rep. 25.
  29. ^ There will arise "a right to the purchase-money, a charge or lien on the estate for the security of that purchase-money, and a right to retain possession of the estate until the purchase-money is paid", per Lord Jessel M.R. in Lysaght v. Edwards (1876) 2 Ch. D. 499.
  30. ^ "Theft Acts, Incorporating the Charging Standard: Legal Guidance: The Crown Prosecution Service". Crown Prosecution Service. Archived from the original on 6 May 2009. Retrieved 7 May 2009.
  31. ^ R v. G [2003] UKHL 50.
  32. ^ R v. G, at para. 41.
  33. ^ Booth v. Crown Prosecution Service [2006] EWHC 192.
  34. ^ R v. Steer [1986] UKHL 6.
  35. ^ R v. Webster [1995] 2 All E.R. 168, C.A.
  36. ^ Attorney General's Reference No. 3 of 1992 [1993] 2 All E.R. 121.
  37. ^ R v Hunt (1977) 66 Cr. App. R. 105.
  38. ^ Criminal Damage (Northern Ireland) Order 1977 (S.I. 1977 No. 426 (N.I. 4)).
  39. ^ Tackling vandalism, Home Office, 16 November 2006, retrieved 2 June 2008.
  40. ^ Magistrates' Courts Act 1980 (1980 c. 43), section 22. See also "Magistrates' Courts Act 1980".
  41. ^ Crime and Disorder Act 1998 (1998 c. 37).
  42. ^ Powers of Criminal Courts (Sentencing) Act 2000 Archived 7 June 2008 at the Wayback Machine (2000 c. 6).
  43. ^ Dockyards, etc. Protection Act 1772 (12 Geo. III c. 24).

Further reading

History of English criminal law

English law did not originally make a distinction between criminal and civil proceedings.

The first signs of the modern distinction between crimes and civil matters emerged during the Norman conquest of England in 1066. The earliest criminal trials had very little, if any, settled law to apply. However, the civil delictual law was highly developed and consistent in its operation (except where the King wanted to raise money by selling a new form of Writ).

The development of the state dispensing justice in a court only emerged parallel to or after the emergence of the concept of sovereignty. It was only in the 18th century that European countries began operating police forces. From this point, criminal law had the mechanisms for enforcement.

Life imprisonment

Life imprisonment (also known as imprisonment for life, life in prison, whole-life tariff, a life sentence, a life term, lifelong incarceration, life incarceration or simply life) is any sentence of imprisonment for a crime under which convicted persons are to remain in prison either for the rest of their natural life or until paroled or otherwise commuted to a fixed term. Crimes for which, in some countries, a person could receive this sentence include murder, attempted murder, conspiracy to commit murder, blasphemy, apostasy, terrorism, severe child abuse, rape, child rape, espionage, treason, high treason, drug dealing, drug trafficking, drug possession, human trafficking, severe cases of fraud, severe cases of financial crimes, aggravated criminal damage in English law, and aggravated cases of arson, kidnapping, burglary, or robbery which result in death or grievous bodily harm, piracy, aircraft hijacking, and in certain cases genocide, ethnic cleansing, crimes against humanity, certain war crimes or any three felonies in case of three strikes law. Life imprisonment (as a maximum term) can also be imposed, in certain countries, for traffic offenses causing death. The life sentence does not exist in all countries: Portugal was the first to abolish life imprisonment, in 1884.

Where life imprisonment is a possible sentence, there may also exist formal mechanisms for requesting parole after a certain period of prison time. This means that a convict could be entitled to spend the rest of the sentence (until that individual dies) outside prison. Early release is usually conditional on past and future conduct, possibly with certain restrictions or obligations. In contrast, when a fixed term of imprisonment has ended, the convict is free. The length of time served and the conditions surrounding parole vary. Being eligible for parole does not necessarily ensure that parole will be granted. In some countries, including Sweden, parole does not exist but a life sentence may - after a successful application - be commuted to a fixed-term sentence, after which the culprit is released as if the sentence served was that originally imposed.

In many countries around the world, particularly in the Commonwealth, courts have the authority to pass prison terms which may amount to de facto life imprisonment. For example, courts in South Africa have handed out at least two sentences that have exceeded a century, while in Tasmania, Australia, Martin Bryant, the perpetrator of the Port Arthur massacre in 1996, received 35 life sentences plus 1,035 years without parole, while Aurora Cinema shooter James Holmes received 12 consecutive life sentences plus 3,318 years without the possibility of parole for killing 12 and injuring 70 in a shooting spree and booby trapping his apartment with explosives. Sentence without parole effectively means a sentence can not be suspended; the prisoner may, however, effectively in any particular case released following a pardon, either on appeal, retrial or on humanitarian grounds, such as imminent death. In several countries where ‘’de facto’’ life terms are used this is commonplace, such as in the case of Abdelbaset al-Megrahi.

Few countries allow for a minor to be given a lifetime sentence with no provision for eventual release; these include Antigua and Barbuda, Argentina (only over the age of 16), Australia, Belize, Brunei, Cuba, Dominica, Saint Vincent and the Grenadines, the Solomon Islands, Sri Lanka, and the United States.

According to a University of San Francisco Law School study, only the U.S. had minors serving such sentences in 2008. In 2009, Human Rights Watch estimated that there were 2,589 youth offenders serving life sentences without the possibility for parole in the U.S. The United States leads in life sentences (both adults and minors), at a rate of 50 people per 100,000 (1 out of 2,000) residents imprisoned for life.

Luddite

The Luddites were a secret oath-based organization of English textile workers in the 19th century, a radical faction which destroyed textile machinery as a form of protest. The group was protesting against the use of machinery in a "fraudulent and deceitful manner" to get around standard labour practices. Luddites feared that the time spent learning the skills of their craft would go to waste, as machines would replace their role in the industry. Over time, however, the term has come to mean one opposed to industrialisation, automation, computerisation, or new technologies in general. The Luddite movement began in Nottingham in England and culminated in a region-wide rebellion that lasted from 1811 to 1816. Mill and factory owners took to shooting protesters and eventually the movement was suppressed with legal and military force.

Malicious Damage Act 1861

The Malicious Damage Act 1861 (24 & 25 Vict c 97) is an Act of the Parliament of the United Kingdom of Great Britain and Ireland (as it then was). It consolidated provisions related to malicious damage from a number of earlier statutes into a single Act. For the most part these provisions were, according to the draftsman of the Act, incorporated with little or no variation in their phraseology. It is one of a group of Acts sometimes referred to as the criminal law consolidation Acts 1861. It was passed with the object of simplifying the law. It is essentially a revised version of an earlier consolidation Act, the Malicious Injuries to Property Act 1827 (7 & 8 Geo 4 c 30) (and the equivalent Irish Act), incorporating subsequent statutes.The Act applied in the Republic of Ireland until 1991 and still applies in some Commonwealth countries which were parts of the British Empire in 1861, such as Sierra Leone.

Metal theft in the United Kingdom

Metal theft in the United Kingdom is the systematic and organised theft of high-value metal (mostly copper) in the United Kingdom.

Property damage

Property damage (or, in England and Wales, criminal damage) is damage to or the destruction of public or private property, caused either by a person who is not its owner or by natural phenomena. Property damage caused by people is generally categorized by its cause: neglect (including oversight and human error), and intentional damage. Intentional property damage is often, but not always, malicious. Property damage caused by natural phenomena may be legally attributed to a person if that person's neglect allowed for the damage to occur.

Route crime

Route crime is a phrase used by the British rail industry to denote trespass and vandalism. It is believed to be the cause of most deaths to members of the public on the railways in Britain. Most Route Crime-related deaths are suicides with the rest being trespass-related.

Timeline of labour issues and events

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