Reckless behaviour and criminal damage and arson

The issue in this case is whether the potential defendant (Dot) can be convicted of a simple criminal damage and arson under section 1(1) and (3) of the Criminal Damage Act 1971 on the basis that she was reckless as to whether a property belonging to another would be destroyed or damaged when she started the fire in her back garden.

On the facts of the case at hand, an indictment can be preferred against Dot charging her with arson as per section 1(1) and (3) of the Criminal Damage Act 1971.

The section 1 of the Criminal Damage Act 1971 states:

“1 (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.

(3) An offence committed under this section by destroying or damaging property by fire shall be charged as arson"

It is a well established principle in criminal law that a person may not be convicted of a crime unless he or she has met the requirements of both the actus reus and the mens rea of the crime with which he or she is charged with. So, for this case to prevail in criminal proceedings, the prosecution will have to prove that elements of actus reus and mens rea of the criminal damage has been satisfied. The standard proof to be used here will be beyond reasonable doubt which is the standard of burden of proof for criminal cases following the principle established in Woolmington v DPP [1935] A.C. 462

The court will examine the elements of actus reus first, followed by the element of the mens rea. As stipulated in the criminal damage act 1971 the element of the actus reus are : destroyed or damaged property belonging to another without lawful excuse (actus reus) and the ntentiona to do so or recklessness is the mens rea.For section 1(3) to be at issue there is further requirement that the destruction or damage of the property must have been caused by fire.

Consideration of the Actus Reus

In the consideration of the actus rea requirement the court will first consider the destruction or damage caused the property in question falls with with in the definition of 'destroyed' or 'damaged' for the purposes of CDA 1971. For a property to be damaged or destroyed in the light of this act that item must have been impaired or lost its value as the cases of A v R, hardman.

In this scenario it is clear that the fire destroyed the property which is a shed belonging to Earl. We are told the shed caught fire and was damaged or destroyed.

It is clear that the actus reus requirements have been met. However, in order for Dot to be guilty of the s1(1) and 1(3) offences, mens rea would also need to be established.

Consideration of the Mens rea

Intention or recklessness as to the property damage:

Dot did not intend to destroy the property. But as she refused to act to act to quench the fire she can be said to have acted recklessly as in the case of R v Miller simple .

Thus it can be concluded that Dot will be guilty of both the s1(1) offence of simple criminal damage and the s1(3) offence of simple arson unless he can establish a defence.

Defences

(i)

Given Dots age and the fact that she has a history of forgetfullness she can can try to rely on that to negate her mens rea.

(ii) Lawful Excuse (s5 CDA 1971)

Lawful excuse is only available as a potential defence to simple criminal damage and simple arson, i.e. not the corresponding aggravated offences.

A defendant can rely on the s5(a) defence if he believed at the time of the offence that the person to whom the damaged property belonged had consented to the damage or would have consented to the damage had he known of the circumstances. Any such belief must have been honestly held even if the belief was not a reasonable one. In the case of Dot the defendant she can rely on the lawful excuse defence where, as where as result of the property being an eye sore she mistakenly believed that the owner had (or would have) consented to the damage.

If Dot raises the defence of lawful excuse it is up to the prosecution to prove beyond reasonable doubt the absence of lawful excuse. At the time the damage was done Earl was away and there is nothing to suggest that the circumstances would have led Dot to believe that her neighbour would have consented to the damage. Consequently, it is likely that the prosecution would be able to discharge the burden quite easily.

Dot could potentially argue the s5(2)(b) lawful excuse defence as well. Under s5(2) a defendant is not guilty of criminal damage he destroyed/damaged property in the honest (not necessarily reasonable) belief that it was in immediate need of protection. Again, there is nothing to suggest that property was in immediate need of protection.

Based on the analysis, it appears that Dot is guilty of simple criminal damage and simple arson subject to successfully establishing the defence of omission.

(b) The s1(2) and s(3) offences:

To be guilty of aggravated criminal damage under CDA 1971 it must be established beyond reasonable doubt that Earl:

Intentionally or recklessly (mens rea)

destroyed or damaged property belonging to another without lawful excuse (actus reus) and intentionally or recklessly endangered life by the damage (mens rea)

The additional requirement under s1(2) of the Act is that the destruction / damage of the property in question must have caused a life to endangered . Again, the actus reus and mens rea must be considered in turn.

Actus Reus

The actus reus of aggravated criminal damage is the same as that of simple criminal damage / simple arson, as discussed above. So just in the case of Dot, Earls actions also constitute the actus reus of aggravated criminal Damage.

Mens Rea

Unlike simple criminal damage / simple arson, the mens rea of the aggravated offences is made up of two separate elements. In order for Earl to be found guilty of aggravated criminal damage the prosecution must prove that he:

(i) intentionally or recklessly damaged Dots property; and

(ii) intended to or was reckless as to life being endangered by the property damage.

As with simple criminal damage, the first element of the mens rea seems to be satisfied. After all, Earl hurled a brick at his neighbours window with intention to get his own back.

As for the second element of the mens rea it is worth pointing out that there does not need to be an actual risk to life. It is sufficient that an ordinary, prudent bystander believes that life is endangered by the property damage. Also, any alleged danger to life must come from the destruction or damage itself, rather than from the method used to cause the destruction or damage.

So, in the case of aggravated criminal damage there was obviously no danger to life caused by the damage to Dots property. In other words, the only way earl could be guilty of aggravated criminal damage was if he intended to endanger life by destroying his property. However earl can be said to have been reckeless and would be found guilty of aggravated criminal damage.

In case it can be established that Earls's behaviour met the requirements of aggravated criminal damage, it is again necessary to consider any potential defences.