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Problem question on arson, simple and dangerous damage
The offence of criminal damage or so-called ‘malicious damage’ is defined in the Criminal Damage Act 1971 (the CDA). The three main offences under the CDA are: 1) simple damage, 2) dangerous damage, and 3) arson. To analyse this problem question, the definition of each offence will be discussed in turn. Following that, the possible criminal liabilities of Lisa and Shannon under the CDA will be explained separately: 1) Lisa’s criminal liabilities in respect of the damage to six naked life-sized dolls; and 2) Shannon’s criminal liabilities in respect of setting fire to the doll and the gallery.
Lisa may be charged under section 1(1) of the CDA, namely simple criminal damage. This section provides a definition for damage to almost all types of tangible property: ‘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.’ The key elements to the offence, therefore, are: 1) actual damage; 2) the property must be ‘belong’ to another; 3) the defendant has no lawful excuse; or 4) the property was damaged recklessly.
Applying the first element to this particular case, there is a question of causation, i.e. damage must have ‘actually’ been caused. It is a matter of fact and degree, but must be more than de minimis. For example, adding water to someone’s mike, putting sugar on someone’s seat, and urinating in a taxi-cab. However, the question that arises here is the definition of ‘de minimis’. Indeed, the courts may refuse to find damage if such damage is minimal and it has been caused without intent. Lisa’s act may be more than minimal since she ‘destroys’ the appearance of the dolls. The term of ‘destroy’ can be a defence if she can prove her act was to improve the quality of the dolls. In Fancy, the court held that unlawfully daubing a wall would not be damage if it could be regarded as ‘amelioration’. In this particular case, it is arguable whether or not actual damage has been caused. If Lisa can establish that her intended act was aimed to improve the artistic level of the dolls in question and the court accepts that contention, she may not be liable for any criminal damage. However, her defence may not be established and accepted by the court. Indeed, even if she acted with good intentions, it does not mean that she is not liable in criminal damage. In 1981, the court refused to apply the precedent of Fancy, and stated that workmen could be liable for criminal damage where they painted property out of spite.
In order to commit criminal damage, Lisa’s act must also fulfil the requirement of the second and third elements. In the criteria of ‘property must belong to another’, the dolls are owed by Janet Picton. The second element therefore is clearly established. For the question of lawful excuse, several types of excuses may be pursued under the common law. Although ‘lawful excuse’ is not defined in the CDA, two general principles under section 5 thereto, provides some help. They are: 1) property is damaged in a situation of necessity, and 2) on the belief of the owner’s consent. It is hard for Lisa to mount a defence on the belief of Janet’s consent since Janet did not give Lisa any express or implied consent in relation to her act. Furthermore, there is no necessary need to write the word ‘NOT’ on Janet’s dolls. Lisa therefore is unlikely to succeed in any defence of ‘lawful excuse’.
Finally, by reference to the given set of facts, Lisa must have ‘intended’ to write ‘NOT’ in large capital letters on the dolls as she had lost the competition. She brought her lipstick to the gallery in the evening time when the gallery was empty. She obviously acted with a degree of planning and preparation. In those circumstances, the mental element is fulfilled. It is therefore not necessary to consider the ‘recklessness’ requirement in this case.
Nevertheless, it is more than likely that Lisa will be liable for the offence of simple criminal damage under s1(1) of the CDA. According to the Magistrates’ Court Act 1980, the maximum punishment for simple damage is no more than 10 years. However, simple damage is triable only summarily if the damage done is minor, i.e. not exceeding £200.
The first criminal charge against Shannon could be section 1(2) of the CDA. The offence is similar to simple damage, but the difference is the damage is far more serious than simple damage. Section 1(2) offences or ‘dangerous damage’ is applied to cases where ‘a person who without lawful excuse destroys or damages any property, whether belonging to himself or another—a) intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and b) intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered; shall be guilty of an offence.’ This section may be applied due to Shannon’s act which endangered the life of the two security guards. Although Shannon may plead that she had no intention of endangering anyone due to the fact that she had assumed the gallery was empty at the time, the court is unlikely to accept her defence because she recklessly endangered people’s lives. On the other hand, the offence may be committed even if nobody is actually in danger. In other words, Shannon still committed the offence, even though the two security guards may not have been in the gallery. Although lawful excuse can be a defence, lawful excuse under section 5 of the CDA is not applicable here. The excuse must not be something which endangers the life of another. Shannon therefore cannot use ‘lawful excuse’ in this circumstance.
The second criminal charge against Shannon could be under section 1(3) of the CDA. It is ‘an offence committed under this section by destroying or damaging property by fire shall be charged as arson.’ There are two forms of arson which may be combined with either s 1(1) or s 1(2) (therefore charged as ‘simple arson’ or ‘dangerous arson’). Shannon probably committed an offence of dangerous arson since the fire is caused in someone’s property and endangered life. It should be noted that if the defendant intended to cause damage rather than by fire, the offence cannot be transferred to arson if the fire is accidentally caused. Shannon therefore may plead that she did not intend to cause the fire in the gallery. Nevertheless, the fire in the gallery was caused by her recklessness. If the fire did not spread to the gallery, but was only to the doll, Shannon would probably be charged with simple arson rather than dangerous arson.
The defence of ‘lawful excuse’ may not be appropriate in this case. The courts tend to adopt a purposive view in relation to an arson offence. As discussed above, Shannon cannot use ‘the necessity’ or ‘consent’ as an excuse, as the guards’ life had been put in danger.
Shannon therefore is more than likely to be liable for offences of dangerous damage and arson. According to the Magistrates’ Court Act 1980, the maximum punishment for dangerous damage and arson is up to life imprisonment. There can be no summary trial given the level of seriousness of the offence. Her case is triable only on indictment. Indeed, the majority of criminal damage cases are disposed of summarily, even the offence of arson, only if the defendant is not reckless in endangering life. Applying this rule to Shannon’s situation, summary trial is not appropriate since her act did in fact endanger life even though people in the vicinity escaped without injury.
1.G. Williams and P.R. Glazebrook, Reshaping the Criminal Law, Stevens, 1978
2.The Times, ‘The men who painted trees, 3rd November 1981
3.G. Williams, Textbook of Criminal Law (2nd edition), Stephens & Sons, London, 1983
4.A. Ashworth, Principles of Criminal Law (3rd edition), Oxford University Press, Oxford, 1999
5.P. Murphy, Blackstone’s Criminal Practice 2005, Oxford University Press, Oxford, 2005
6.Eley v Lytle (1885) 50 JP 208
7.Roper v Knott  1 QB 868
8.King v Lees (1948) 65 TLR 21, 47 LGR 42
9.R v Hunt (1977) 66 Cr. App. R. 105
10.A (a juvenile) v R (1978) Crim LR 689
11.R v Fancy  Crim LR 171
 S1(1) the Criminal Damage Act 1971
 S1(2) the Criminal Damage Act 1971
 S1(3) the Criminal Damage Act 1971
 A (a juvenile) v R (1978) Crim LR 689
 Roper v Knott  1 QB 868
 King v Lees (1948) 65 TLR 21, 47 LGR 42
 Eley v Lytle (1885) 50 JP 208
  Crim LR 171
  Crim LR 171
 The Times, 3rd November 1981
 S5 the Criminal Damage Act 1971
 Contra, Ashworth in Reshaping the Criminal Law (ed, Glazebrook 1978)92
 R v Hunt (1977) 66 Cr. App. R. 105
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