The Criminal Damage Act of 1971 - Essay Example

Criminal Law The issue in this question relates to possible liability of Dot and Earl in respect of the Criminal Damage Act 1971. The liabilities of both the individuals would be discussed separately along with any defences that are applicable. The starting point for criminal law is Article 6(2) ECHR which states that “Everyone shall be presumed innocent until proved guilty according to the law. The burden of proof is on prosecution who has to prove it beyond all reasonable doubt, or satisfy the jury of the guilt of the defendant. (Woolmington v. DPP)1 The main elements required to prove an offence are actus reus, mens rea and the absence of any defence. (Lord Diplock in R v Miller)2 The actus reus and mens rea need to coincide, however the requirement is interpreted broadly. (Fagan v. Commissioner of Police3) In certain circumstances omissions can count as sufficient actus reus. One of the situation is where the conduct of the defendant created a situation of danger. (R v. Miller)4 The acts of Dot attract s.1(1) the actus reus of which requires a person destroying or damaging any property which belongs to another. The actus reus must be voluntary. (Woolmington v. DPP)5 The destruction or damage of the property must impair the value or usefulness of the property. (A v R)6. Such destruction or damaged must be without lawful excuse that is there is no honest belief on the part of the defendant that the owner consented to such destruction or damage. (Denton)7 The question of property is clearly satisfied in respect of the properties in question, when looked into by the interpretation that has been provided under section 10. In the current situation the actus reus of Dot was by way of an omission as he was the one who created the situation of danger. The next element in actus reus is that he of destruction or damage, clearly the fire had led to damage being caused to the shed. Clearly Dot did not have any lawful excuse to cause such destruction as he merely wanted such destruction so as to further the value of his property. The mens rea for s.1(1) requires intention being reckless so as to cause damage to the property of another. Failure to minimise damage will also constitute as mens rea (Miller)8 Dot acquired the intention of such destruction when he refrained to constrain the damage by letting the fire to grow and destruct the shed and therefore the mens rea of the offence would be proved. (Cunliffe v Goodman)9 Since the elements of actus reus and mens rea are proved it is pertinent to point to s.1(3) which states that destruction by fire would be charged as arson which, if proved, carries a maximum sentence of life imprisonment. Furthermore such an offence is to be treated separately from criminal damage.(R v. Booth)10. Causation would not be a factor affecting the action is the but for test would be negative and the act was the substantial and the operating cause and there was no third party intervention. It is clear that the destruction caused was by fire and therefore Dot would be charged under arson. He clearly does not have any defence to rely upon and therefore, since the actus reus and mens rea of the offence have been prove, he would be held liable for arson. The punishment for the offence of arson on conviction on indictment as stated in section 4(1) is imprisonment for life. Thus since the offence has been established Dot would be imprisoned for life. In respect of Earl an argument under s.1(2) as well as s.1(1) can be made. In respect of s.1(2) the actus reus is where a person ‘destroys’ or ‘damages’ any property. Clearly by throwing bricks so as to break the glass Earl committed the actus reus of the offence. The mens rea of the s.1(2) required intention of such destruction/damage or being reckless as to whether any property would be destroyed or damaged and intention or recklessness of endangerment of life. The mens rea of s.1(2) would be satisfied till the point that there had been intention on the part of Earl to break the glass. However, since he thought that Dot was out shopping, he neither intended nor was subjectively reckless so as to endanger life. Thus the mens rea is likely to fail and the offence would not be proved. However, Earl can be prosecuted under s.1(1), the actus reus and mens rea of which has already been discussed. Clearly Earl caused destruction of the property that is by breaking the glass. He had the intention to break the glass which he succeeded in doing, therefore the men rea of the offence is proved. Causation would not be a factor affecting the action is the but for test (R v. White)11would be negative and the act was the substantial and the operating cause and there was no third party intervention (R v. Cheshire)12.The act was done without any lawful excuse as he did it merely to take revenge thus criminal damage is proved. However, Earl can rely on provocation as a defence for his act, but this is likely to fail as the defence is specific and applies only to homicide. The liability of Earl in respect of s.1(1) has been stipulated in s.4(2) which states that on conviction on indictment there is a liability of imprisonment which would not exceed a term of ten years. Thus the sentence of Earl would be determined in accordance with the gravity of the offence and the fact that he did so because he was provoked might be considered as a lowering ground in sentencing. References Herring, J. (2010) Criminal Law. Text, Cases and Materials. 4th Edition. Oxford:OUP. Read More