The Possibility of Criminal Damage Being Caused - Case Study Example

CRIMINAL LAW The issue in this question relate to a possible of criminal damage being caused. The essential elements that are required for proving criminal damage are actus reus, mens rea and the absence of any defences. The mens rea, actus reus will be discussed and any possible defences will be stated alongside. The burden is on the prosecution to prove beyond reasonable doubt all of the elements of an offence with which a defendant is charged (Woolmington v DPP)1 Under s.1(1) of Criminal Damage Act 1971, the actus reus for simple criminal damage is destruction of or damage to property belonging to another. Destruction can include demolishing a building. The meaning of destroy is clearly astute in itself, but the level of damage caused by a person is taken into account when determining the sentence of a person convicted of criminal damage. The level of interference with property which is required to prove criminal damage is a cause of difficulty. However, slight damage to property like scratching a car can result in a person being charged with the offence. The question of whether the property has been damaged under Criminal Damage Act 1971 is one of fact and degree (Cox v Riley)2. Further it needs to be determined whether the level of interference caused has reached a point, which is beyond repair. s.10(1) defines property and it is clear that the head office building of Egg Oil constitutes property. Further the property does belong to another person (s.10(2)). The act of spray paint on the head office of Egg Oil might be constituted as damage, however it might be argued that the degree of damage is not beyond repair and so can be repainted, even though it is half a metre high. If on the facts and the degree of the offence, that the damage by spray paint has caused damage beyond repair, it would be sufficient actus reus for criminal damage. The mens rea of criminal damage requires proving, that the defendant ‘intentionally’ or ‘recklessly’ destroyed or damaged the property belonging to another. The jury must be satisfied beyond reasonable doubt of either the intention of the defendant or that the defendant was being reckless (R v. G)3 as to destruction or damage contrary to s.1(1) Criminal Damage Act 1971. It is required to be proved that the defendant intended by his conduct to destroy or damage property which must belong to another and therefore it would not suffice that that defendant had the intention of the particular conduct which resulted in the damage. Recklessness under s.1 of the Criminal Damage Act 1971 is where a circumstance when a person is aware of a risk of a circumstance occurring, a result when he is aware of a risk that it will occur and under the circumstance known to him, it would be unreasonable to take such a risk. This is known as subjective recklessness. Tony clearly sets fire to newspapers and the property of Egg Oil has been damaged. However, for simple criminal damage to be proved the mens rea element requires to be proved. Clearly, Tony may not be said to have the requisite intention of causing damage to the building, as from the facts, he merely wanted to draw more attention. However, recklessness would be argued and the jury would decide on whether the risk of the circumstance and foreseeability of such a risk was undertaken by the defendant. The issue of whether Sally was a party to crime, even though she fled away. It is evident that she was clearly not involved in the actions of setting fire to the newspaper and therefore she would not be liable for the acts. The next liability is that under s.1(2) of the Criminal Damage Act 1971 which provides that if a person without lawful excuse destroys or damages any property, whether belonging to himself or another with the requisite intention or being reckless as to such an act and intending that such destruction or damage to endanger the life of another or being reckless of such endangerment will be liable. The actus reus would be easily be proved for Tony, as it is the same for simple criminal damage. Further, the basic mens reas is the same, however, ulterior intent is required, that is which goes beyond the mens rea. Therefore, what is required is that the defendant was aware of an obvious and significant risk of danger to life. In the case of Tony, it can be argued that he did not have the intention or was reckless as to endangerment of life of Daljit by his conduct of setting newspapers on fire. It is a strong argument which would allow him to negate the mens rea and therefore avoid liability under aggravated criminal damage. The final liability for Tony would be arson, which is destroying or damaging property by fire. Section 1(3) of Criminal Damage Act 1971 states that ‘an offence committed under this section by destroying or damaging property by fire shall be charged as arson’. The statute is silent as to the requirement of any mens rea for the offence of fire, but the view of Smith and Hogan and the case of Drayton (Alan Clark)4 is, that it intention or recklessness as destruction or damage to property and the intention or reckless destruction of or damage to property by fire. Separate claims for endangerment of Daljit’s life would be made, which would require arson with intent to endanger life and arson being reckless as to whether life would be endangered. Clearly, Tony set fire to the newspapers and this resulted in damage to the head office. If the approach of statute is followed, there is no requirement of mens rea, however, if approach of Smith and Hogan is followed, the requirement of intention would be difficult to prove, but recklessness may be proved as to destruction of property, and this would be proved if foreseeability is found. Further, the endangerment of life Daljit would also be considered. Similarly, the intention would be difficult to prove. However, recklessness might be proved, if it can be shown that Tony had foreseen the destruction or damage of property and had foreseen that there would be someone in the head office. The possibility of such an offence being proved are slight, but would be decided upon by the jury. Tony cannot argue on any defence, as he does not have any lawful excuse. Tony would be liable under simple criminal damage and a possible liability under arson. The maximum sentence is 10 years’ imprisonment. However, if he is found liable under arson, he would sentenced to life imprisonment. References: Ashworth, A. Principles of criminal law. (Oxford: Oxford University Press, 2006) fifth edition [ISBN 0199281149] Clarkson, C.M.V. and H. Keating Criminal law: texts and materials. (London: Sweet & Maxwell, 2006) sixth edition [ISBN 0421947802] Ormerod, D.C., Smith J.C. and Hogan B. Smith and Hogan criminal law. (Oxford ; New York : Oxford University Press, 2008) twelfth edition. Simester, A.P. and G.R. Sullivan Criminal law: theory and doctrine. (Oxford: Hart Publishing) second edition [ISBN 1901362604] Read More