Criminal Liability Under the Criminal Damage Act 1971 - Assignment Example

Answer the following question The 2008 Turnip Prize for promising new artists has recently taken place at the Right Gallery in Stratford, where all the entrants’ works are being exhibited. Janet Picton is this year’s winner with her work of six naked life-size dolls sitting on toilets with dog collars and leads attached to their necks and “This is Art” written in lipstick on the dolls’ heads. Lisa Stocton, who entered the competition with a ruby encrusted cat’s paw, is enraged that she has not won. One evening when the gallery is almost empty she uses her lipstick to write “NOT” in large capital letters on each doll at the end of the “This is Art” captions. Shannon Lennon, a famous art critic, is tired of the ‘new wave’ of so-called ‘art’ and prefers more traditional works. One evening, when she thinks the gallery is empty, she sets fire to one of the dolls and leaves. Luckily, Tom and Jim, security guards who are on duty in the basement of the gallery hear a fire alarm and put the fire out quickly. Damage is caused to part of the doll exhibit only. Discuss the criminal liability (if any) of Lisa and Shannon under the Criminal Damage Act 1971. In order to be able to discuss the criminal liability of Lisa and Shannon it is necessary to examine the Criminal Damage Act 1971 to determine the criteria that the Crown Prosecution Service will be considering in their charging decision. Under s1 of the 1971 Act the legislation states that (1) 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. Using the above definition it could be argued that Lisa should be charged with criminal damage as she deliberately wrote on the dolls, thereby defacing the work. Bringing a charge in this manner could prove problematic since the medium used to deface the dolls could be regarded as removable. Had Lisa used a permanent marker it would be easy to prove the allegation of criminal damage as the art work would have been permanently destroyed. When considering whether charges for criminal damage should be brought against Lisa it is necessary to consider case law in this area. Given that the lipstick can easily be removed from the dolls it is likely that Lisa would argue that this should not be regarded as criminal damage as the damage is not permanent. This same defence was offered in the case of Roe v Kingerlee [1986]1 in which the appeal court decided that the justices had been wrong in their earlier decision where they had held that the smearing of mud on the prison cell walls could not be regarded as criminal damage. At the appeal the earlier case of A v R [1978]2 was cited as an authority that damage that can easily be removed should not be regarded as criminal damage. In this case the defendant had spat on the overcoat of a policeman. The judges decided that the spittle could easily be removed with a damp cloth and so therefore a charge of criminal damage could not be founded. Despite the ruling in A v R the appeal court stated that this ruling did not set a precedent and that each case should be judged on its individual merits. In reaching their decision reference was made to the case of Hardman v County Council of Avon and Somerset [1986]3 in which the court found Hardman to be guilty of criminal damage despite the fact that the whitewash graffiti the accused had done on the pavement would be washed away in time by the elements. The court stated that the council had had to pay a substantial amount to have the graffiti removed and that the graffiti amounted to criminal damage under s1 of the 1971 Act. By contrast in the case of R v Fancy [1980]4 the court ruled that the whiting out of National Front graffiti on a wall should not be regarded as criminal damage as the aim of the accused was to remove the offending graffiti. From the above it is possible that Lisa might be charged with criminal damage. In order to prove this the courts would have to show that Lisa intended to damage property belonging to another5 or that her actions were reckless with regard to the damage likely to be caused. In this case Lisa could not argue that she had a lawful excuse for damaging the property as this can only be relied upon if it is necessary in order to protect her own property6. Such defences can only be used if the measures the defendant takes are objectively reasonable7. It is unlikely that Lisa would attempt to rely on this defence as there is no need for her to damage the dolls in this manner. The decision to prosecute is therefore likely to be based on the opinion of the court as to whether it is in the public interest to bring such charges based on the fact that the damage is not irreparable. In the case of Shannon she is likely to be charged under s1(3) of the Criminal Damage Act 1971 which states (3) An offence committed under this section by destroying or damaging property by fire shall be charged as arson. In this particular instance Shannon could face further charges if the courts can prove that her actions could have led to the death of others in the building under s1(2) of the 1971 Act. The endangerment to life element exists whether the person setting the fire intended to endanger the lives of others or whether such endangerment was purely reckless. One of the main cases used to demonstrate where the reckless actions of the accused can be charged as endangering life is the case of R v Cunningham8. In this case the defendant damaged a gas pipe which caused the victim to inhale coal gas and the courts attempted to charge the defendant under s23 of the Offences Against the Person Act 1861 for maliciously causing the victim to take a noxious thing. As the prosecution could not prove that Cunningham foresaw the likelihood of such an event he was acquitted of the s23 offence. Had he been charged under s1(2) of the CDA 1971 he would have been unlikely to have avoided liability if the courts could prove that the risk was obvious. When establishing a charge of endangerment the courts must prove that the danger was created by the defendant damaging the property. In the case of R v Steer9 the court accepted that the defendant had not intended to endanger the victim by firing his gun at the bedroom window but that he had been reckless with regard to the potential his actions had to harm the victim. The court stated that the shot was not the relevant danger and that the danger came from the harm that might be caused through the flying grass. The court stated that the defendant ought to have foreseen the potential harm that might be caused by flying glass as a result if firing at the window. For the defendant to be charged with endangering life through criminal damage the courts do not have to prove that the defendant intended to cause harm to anyone as was the case in R v Merrick10. In this case the defendant had removed electrical equipment from the ground and had left lives electric cables exposed. The defendant realised the danger he had created but did not take steps to make the cables safe for approximately 6 minutes. The courts stated in this case that despite the efforts of the defendant to make the cables safe he should be found guilty of endangerment as he did not take such steps to lessen the danger immediately. The defendant lost his right to appeal against conviction on the grounds that he had created the danger by exposing the live cables and failed to take immediate action to remedy this. When considering whether the defendant needs to be aware of the potential danger that their actions might cause cases such as R v Miller11 can be referred to. In this case the defendant was found guilty of arson despite the fact that the fire was started accidentally. In this case the defendant had dropped a lighted cigarette in a mattress which subsequently caught alight. The defendant realised that the mattress was burning and instead of taking steps to out the fire out he just went into another room of the unoccupied house. The court in this case said that defence in this case where challenging the prosecution on the legality of finding the defendant guilty because he failed to take action to prevent the damage caused by the fire. In coming to their decision the court were asked to consider ‘whether the actus reus of the offence of arson is present when a defendant accidentally starts a fire and thereafter, intending to destroy or damage property belonging to another or being reckless as to whether any such property will be destroyed or damaged, fails to take any steps to extinguish the fire or prevent damage to such property by that fire.’ In this case the court held that it would be obvious to anyone that failing to extinguish the fire would cause the property to be damaged and so therefore once the defendant had become aware that the mattress was on fire he should have taken steps to extinguish the flames in order to avoid liability for the damage caused. In R v Willoughby12 the court found the defendant guilty of manslaughter when the person who was assisting him in lighting the fore was trapped inside the building and was killed. In this case the defendant and the victim had plotted to set fire to the property in order to claim against an insurance policy when the defendant was having difficulty making the mortgage payments on the property. The victim became trapped inside when parts of the building collapsed and the defendant was found guilty of endangering the life of the victim by setting the property alight. In the scenario above it could be argued that Shannon should be charged with endangering the life of the people inside the gallery by setting the dolls on fire. Even if Shannon did not intend to endanger the lives of others in the gallery it would be obvious that such actions are likely to endanger the lives of others. Even though no one was harmed because the guards were able to extinguish the fire Shannon is likely to be found guilty of endangering life through setting fire to the dolls. From the above it can be concluded that both girls are likely to be charged with criminal damage as both had the intention of destroying or damaging the dolls either permanently or temporarily. In the case of Lisa she might be able to avoid liability if the courts accept that the damage can easily be rectified without any adverse effects to the finished product. Shannon is unlikely to be able to avoid charges as she has no lawful excuse and she also endangered the lives of others by setting the fires. Bibliography Allen, C, Practical Guide to Evidence, 2nd Ed, 2001, Cavendish Publishing Cook, K, James, M, and Lee, R, Core Statutes on Criminal Law, 2006-2007, Law Matters Publishing Elliott, C & Quinn, F, Criminal Law, 3rd Ed, 2000, Pearson Education Glanville Williams, Textbook of Criminal Law, 2nd Ed, 1983, London: Stevens & Sons Glazebrook, P R, Statutes on Criminal Law, 10th Ed, 2001, Blackstone Press Limited Herring, J, Criminal Law, 4th Ed, 2005, Palgrave Macmillan Law Masters Inns of Court School of Law, Criminal Litigation & Sentencing, 2003, Oxford University Press Murphy, P, Blackstone’s Criminal Practice, 2002, Oxford University Press Smith, J.C. and Hogan, B, Criminal Law, 7th Ed, 2002, London: Butterworths Smith & Hogan, Criminal Law, 2005 11th Ed, Oxford University Press Cases A v R [1978] Crim.L.R. 689 (Crown Ct.). A-G for Northern Irelands Ref. (No. 1 of 1975) [1977] A.C. 105 (H.L.) Hardman v. Cc of Avon and Somerset [1986] Crim.L.R. 331. Pike v. Morrison [1981] Crim.L.R. 492 (Div. Ct.). R v Cunningham [1957] 2 Q.B. 396 (C.A.). R v Hunt (1977) 66 Cr.App.R. 105; [1977] Crim.L.R. 740 (C.A). R v McInnes [1971] 1 W.L.R. 1600 (C.A.). R v Merrick [1996] 1 Cr. App. R. 130 R v Steer [1987] 2 All E.R. 833; [1987] Crim.L.R. 684 (H.L.). R. v. Fancy [1980] Crim.L.R. 171, a case under s.3. Roe v Kingerlee [1986] Crim.L.R. 735 (Div.Ct.) Read More