Property Offences Lecture

1.0 Theft

The offence of theft is set out under the s.1 of the Theft Act 1968 which provides:

(1) A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly.

1.1 Actus Reus

• Appropriation;
• Of property;
• Belonging to another.

Appropriation

Section 3(1) of the Theft Act 1968 defines this as:

(1) Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner.

(2) Where property or a right or interest in property is or purports to be transferred for value to a person acting in good faith, no later assumption by him of rights which he believed himself to be acquiring shall, by reason of any defect in the transferor’s title, amount to theft of the property.

Put simply this means acting in relation to the property as if you are the owner of said property and indeed R v Morris [1983] 3 WLR 697 confirmed that an appropriation was not just physically taking the property, but could be achieved for example by doing any act that only the owner has the right to do, for example by selling it.

An appropriation will still occur where the defendant has the property with the owner’s permission but then exceeds this permission by assuming the rights of the owner, for example they have been lent a DVD and have it in their possession with the permission of the owner but then exceed the permission by deciding not to give it back or by putting it on eBay!

R v Gomez [1993] AC 442 confirms that an appropriation can occur even when the owner of the property gives consent. This extends even to situations where the owner gifts the property to the defendant, as was confirmed in R v Hinks [2000] UKHL 53.

Property

Section 4 of the Theft Act 1968 defines property in great depth, stating:

Property includes money and all other property, real or personal, including things in action and other intangible property.

This definition is very wide and most objects will fall within the scope of it. The incorporation of the words ‘things in action’ and ‘intangible objects’ extend the meaning of property to cover rights such as those provided by shares or copyright.

There are some quirks in the law regarding what is and is not property and accordingly the remainder of s.4 provides further explanation to cover specific examples. These are now set out as follows.

Section 4 (2) states a person cannot steal land, or things forming part of land except in the following cases:

• He has legal authority to sell or dispose of land belonging to another and he appropriates the land or something forming part of it by dealing with it in breach of the confidence in which the authority was given.
• He is not in possession of the land but appropriates anything forming part of it by removing it, causing it to be removed or even after it has been removed.
• In his capacity as a tenant on land he appropriates the whole of part of any fixture or structure let with the land.

Section 4 (3) provides:

A person who picks mushrooms, flowers, fruit and foliage from a plant growing wild on any land for his own personal, non-commercial use does not steal what he picks.

Section 4 (4) provides:

Wild creatures, tamed or untamed, shall be regarded as property; but a person cannot steal a wild creature or the body of a creature that is not tamed or ordinarily kept in captivity, unless it is in the possession of another person.

Case law provides further specific definitions of what is or is not property:

• Following the ruling in R v Sharp1857 Dears & Bell 160, human body will not be treated as property, unless it has been altered for scientific purposes. This was confirmed in R v Kelly and Lindsay [1998] 3 All E.R. 741
• Illegal substances will not be prevented from being classed as property meaning that a drug dealer could be a victim of theft if his drugs are taken. This was illustrated in R v Smith [2011]1 Cr App R 30
• Information is not property.  This was confirmed in Oxford v Moss (1979) 68 Cr App Rep 183 where a student accordingly could not be guilty of theft of the contents of an exam paper.

Belonging to another

Section 5 of the Theft Act 1968 states that another person must have possession or control of the property in order for it to be considered to belong to another.

The effect of the requirement of possession or control and not simply ownership means that a defendant could be liable for the theft of his own property! This was demonstrated in R v Turner (No 2) [1971] 1 WLR 901where the defendant who had left his car at a garage for repair picked it up without paying for the repairs. As the car was in the possession and control of the garage at the time in question, the defendant was liable for the theft of his car.

Section 5(3) of the Act states that where the possession of the property is given to another with instructions to deal with it in a certain way, the ownership in the property is deemed to remain with the giver. If the receiver then deals with the property in a way which is inconsistent with this then this can amount to theft. For example, using the car in the garage from above, had the car which was left in the mechanic’s possession and control for the purposes of repair then been given to one of the mechanic’s employees this would have been inconsistent with the instructions and the mechanic would be guilty of theft.

Section 5(4)of the Act further provides that where a person receives property by mistake they have an obligation to return the property and it will remain deemed to be belonging to another. A failure to return the property in this instance will amount to theft. For example, in A-G Ref (No 1 of 1983) [1985] QB 182 an employee received an overpayment of their wages from their employer. The realised this mistake and said nothing, which amounted to theft as the money rightly belonged to the employer.

Where property is abandoned it is deemed in law to have no owner and thus cannot be held to belong to another. R v Rostron [2003] All ER (D) 269 held that whether property is abandoned is a question of fact for the jury to decide and property that seems abandoned may not be where the owner still retains some legal right to it.

Where property has been lost it will still be regarded as belonging to the owner unless the owner cannot be located by taking reasonable steps. What is reasonable will depend on the facts of each case. For example, if the defendant found a £1 coin in the street it might be reasonable for him to ask the people around if they have dropped it and nothing more, if on the other hand they found £50,000 it would be reasonable to take it to the police station even if that meant going some distance out of their way. In any such instances the finder of the property has better title than the owner of the land, that is if the owner could for any reason not be located the £50,000 would belong to the finder, even where the money was found on land belonging to someone else.

1.2 Mens Rea

• Dishonesty
• With the intention to permanently deprive

Dishonesty

Section 2 of the Theft Act 1968 provides a negative definition of what constitutes dishonesty by setting out three situations where a defendant will not be deemed dishonest:

(a) if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or

(b) if he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it; or

(c) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.

It is important to note that these are all judged subjectively and there is no requirement that the defendant’s beliefs were reasonably held.

In addition to the above guidance, s.2(2) provides that a willingness to pay for the property will not negative any dishonesty. For example, taking a mug from a colleague’s desk and leaving a £5 note to account for it would not remove the dishonesty of taking the mug.

Outside of the specific situations provided for by the Act, the courts apply a common law test set out by Lord Lane in R v Ghosh [1982] EWCA Crim 2. The test provides a two stage assessment in determining dishonesty:

1. Was the defendant dishonest by the ordinary standards of reasonable and honest people?
2. Did the defendant realise that he had been dishonest by those standards?

With the intention to permanently deprive

The victim need not actually be permanently deprived of their property, so long as the defendant held the intention of permanently depriving them of it.

In accordance with the wording of this element of the mens rea borrowing, even without permission, will not amount to such intention as if the defendant intended to give it back then he clearly does not intend to permanently deprive.

Section 6 of the Theft Act 1968 provides two caveats to this.

(1) A person appropriating property without intended to permanently deprive the other of it will be treated as having such intention if he treats the property as his own to dispose of. A borrowing or lending of it may amount to so treating it as such if the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal.

This covers situations such as taking a football ticket, going to the match and then returning it to the owner at a point in time that it has lost all value.

(2) Where a person takes the property without intention to permanently deprive then parts with the property under a condition as to its return which he may not be able to perform, this will be treated as an intention to permanently deprive.

This covers situations such as putting it up as collateral in a bet or taking it in to a pawnbrokers.

1.3 Charging and Sentencing

Theft is a triable either way offence and upon conviction the defendant is liable to 7 years imprisonment.

2.0 Burglary

The offence of burglary is set out in s.9 of the Theft Act 1968. There are two offences of burglary set out under s.9. Burglary under s.9(1)(a) and burglary under s.(9)(1)(b), and a third offence of aggravated burglary set out under s.10 of the Theft Act 1968.

2.1 Section 9(1)(a)

A defendant commits burglary under this section if they enter into a building, or any part of a building, as a trespasser, with intent to either:

• steal anything in the building; or
• inflict grievous bodily harm on any person in the building; or
• do unlawful damage.

2.1.1 Actus Reus

• Enters;
• A building or part of a building;
• As a trespasser

Enters

Initially it was considered that entry must be substantial and effective, however the evolvement of case law in this area suggests this is no longer necessary. In R v Brown [1985] Crim LR 212smashing a window and leaning through was sufficient for entry and further in R v Ryan [1996] Crim LR 320the defendant’s head and right arm being inside the property whilst the defendant himself remained outside was sufficient.Furthermore, in Ryan the defendant was stuck and unable to move, which meant his entry was far from effective, however this did not prevent it from being held to have occurred.

Whether or not the defendant will be deemed to have entered the building is a question of fact the jury to decide.

A building or part of a building

Building

The Theft Act 1968 provides no statutory definition of building and for the most part the term is quite self-explanatory, taken as the ordinary meaning of the word.

Section 9(4) of the Theft Act 1968 does provide that an inhabited vehicles or vessels will be classed as a building even where they are not inhabited at the time of the offence. For example, a caravan would be classed as such.

Part of a Building

Entering part of a building covers situations where there is permission to be in the building, but only certain areas. For example, permission to be in a shop but not in the areas marked ‘staff only’, or permission to be in a restaurant but not the kitchen.

The case of R v Walkington [1979] 1WLR 1169considers that in order to constitute a part of a building it must be physically separated from the rest of the building, however there is no authority that states what this physical separation must constitute and it will be left to a considered argument on the facts of each case.

As a trespasser

This carries the same definition as for civil law trespass.

If the owner provides permission to be in the building or part of it then no trespass will occur. This was demonstrated in the case of R v Collins [1973] 3 WLR 243

There may be instances where the defendant has permission to be in the building but exceeds this permission by doing something which they were not invited to do. For example, they may have permission to go to their office after hours to pick up something they left behind at work, but they will exceed that permission by going to your office after hours to steal a computer!

2.1.2 Mens Rea

• Intent to steal, inflict grievous bodily harm or commit criminal damage,
• At the point of entry,
• Knowing or being reckless as to trespassing.

Intent to steal, inflict grievous bodily harm or commit criminal damage

In order for this to be satisfied the mens rea for each of the three qualifying offences must be established.

Intent upon entry

Section 9(1)(a) is wholly concerned with the intent of the defendant at the point which he enters the building or part of the building as a trespasser. There is no need to prove that the intended offence was actually committed as the intention alone is sufficient.

It is vital for this section that the intention is formed at the point in time of entering the building. If a person is already inside the building when they form the intention this will be insufficient and the actus reus will not be established. 

Knowing or being reckless as to trespassing

This is a straight forward element. Often the defendant will know they are a trespasser but they may also be subjectively reckless as to whether they are. If they stumble into the wrong house drunk for example, this is reckless trespassing. 

2.2 Section 9(1)(b)

A person commits a burglary under this section if, having entered as a trespasser, he steals, attempts to steal anything in the building or inflict or attempts to inflict grievous bodily harm on any person therein.

Two things should be noted here:

(i) unlawful damage is excluded from this section as a qualifying offence.

(ii) The intention to commit one of the qualifying offences does not have to be held at the point of entry into the building. It can be formed by the defendant at a later point.

2.2.1 Actus Reus

• Entry
• Into a building or part of a building;

• As a trespasser;
• Attempt to, or indeed does, steal or inflict grievous bodily harm.

Entry, into a building or part of a building as a trespasser

These elements carry the same definition as with the s.9(1)(a) provision.

Attempts to, or does indeed, steal or inflict grievous bodily harm

This requires the attempt or the successful completion of one of these two qualifying offences. It is therefore necessary to establish the commission of the offence itself or in relation to the attempt, that the defendant held the mens rea for the offence. In order to do this it is necessary to assess the elements of the offences set out under s.1 Theft Act 1968 (steals or attempts to steal); or s.18 and 20 Offences Against the Persons Act 1861 (inflicts or intends to inflict GBH).

2.2.2 Mens Rea

• Knowing or being reckless as to trespassing
• Holding the mens rea for either of the qualifying offences

Knowing or being reckless as to trespassing

This is applied in the same way as for the s.9(1)(a) offence.

Holding the mens rea for either of the qualifying offences

This will require establishing either:

(i) A dishonest intention to permanently deprive another of property; or

(ii) Intention to commit grievous bodily harm; or

(iii) Recklessness as to whether grievous bodily harm is committed.

2.3 Aggravated burglary

Section 10 of the Theft Act 1968 provides that a person will be guilty of aggravated burglary if he:

commits any burglary and at the time of the burglary has with him any firearm or imitation firearm, any weapon of offence or any explosive.

“firearm” includes an airgun or air pistol.

“imitation firearm” means anything which has the appearance of being a firearm, whether capable of being discharged or not.

“weapon of offence” means any article made or adapted for use for causing injury to or incapacitating a person, or intended by the person having it with him for such use.

“explosive” means any article manufactured for the purpose of producing a practical effect by explosion, or intended by the person having it with him for that purpose.

The point at which the weapon must be possessed for the purposes of the offence depends wholly on whether the charge is under s.9(1)(a) or s.9(1)(b):

• If the charge is under s.9(1)(a) then the possession of the weapon must be effective at the time of entry into the building or part of it as a trespasser.
• If the charge is under s.9(1)(b) then possession of the weapon need only occur at point in which the qualifying offence is committed, once inside the building.

There is no need to establish any intention to actually use the weapon.

Charging and Sentencing

The s.9 offences are triable either way and charged under the Theft Act 1968 in conjunction with the relevant sections. In relation to the s.9 offences the maximum imprisonment is 10 years which rises to 14 years in the case of a dwelling property.

The s.10 offence is indictable only and carries a maximum sentence of life imprisonment.

The sentencing guidelines were set out in R v Saw [2009] EWCA Crim 1 and are designed to reflect the impact of the burglary rather than the value of what is taken. Accordingly, aggravating factors that will increase the sentence are set out and include things such as targeting a vulnerable victim, or targeting victims out of spite or on racial grounds

3.0 Robbery

Section 8 of the Theft Act 1968 provides that,

A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force.

In lay terms this can be essentially described as a form of aggravated theft, or theft with force. 

3.1 Actus Reus

• Steals, and;
• Immediately before or at the time of stealing and in order to steal;
• Uses or threatens force;
• Against any person

Steals

This requires the offence of theft to be satisfied in accordance with the definition provided in s.1 Theft Act 1968. Both the actus reus and mens rea must be present.

Immediately before or at the time of stealing

This is for the most part straight forward. The force will occur before stealing, for example say the defendant punches someone to the floor and then takes their wallet, or at the time of stealing, for example the defendant holds a necklace around a woman’s neck and then pushes her backwards so it snaps and comes off in the defendant’s hand.

Where the force comes after the theft the law is a little more complicated. For the purposes of theft, the act is complete upon the occurrence of the appropriation. Thus it would seemingly follow that with regards to robbery, using force in order to get away after the theft, for example picking up a woman’s purse from the table and then pushing her off her chair to get past and escape would be insufficient for the actus reus.

This approach however would clearly lead to some absurdities, such as the example above and would not be what parliament intended when enacting the offence. Accordingly, the case law has adopted a flexible approach whereby in R v Hale [1978] 68 Cr App R 415 appropriation was held to be a continuing act and that it is a matter for the jury to decide whether or not it has been completed.

Hale was confirmed in R v Lockley [1995] Crim LR 656 where the defendant was caught shoplifting and effectuated his escape by using force against the security guards.

And in order to steal

According to the strict wording of the provision undue force applied at the time of the theft but not in order to effectuate it would fall outside the boundaries of robbery. Similarly, if a person sets out to inflict grievous bodily harm and then opportunistically takes the victim’s possessions whilst they are out cold then they would also not be guilty of robbery.

Force or threat of force

The Theft Act 1968 negates to provide a definition of force and the requisite level of force needed for the purposes robbery is a question of fact for the jury to decide on a case by case basis. Even very slight touching can qualify, for example in R v Dawson and James [1976] 64 Cr App R 150 a slight nudge was sufficient.

There is no requirement that the force needs to be applied directly to the person. R v Clouden [1987] Crim LR 56 held that merely yanking a bag could suffice.

3.3 Mens Rea

The defendant must possess the mens rea for the qualifying offence of theft, that is a dishonest intention to permanently deprive another of property.

3.4 Charging and Sentencing

Robbery is an indictable only offence and carries a maximum sentence of life imprisonment.

4.0 Handling Stolen Goods

This offence is set out under s.22 of the Theft Act 1968 which provides as follows:

A person handles stolen goods if (otherwise than in the course of the stealing) knowing or believing them to be stolen goods he dishonestly receives the goods, or dishonestly undertakes or assists in their retention, removal, disposal or realisation by or for the benefit of another person, or if he arranges to do so.

4.1 Actus Reus

Stolen goods are those goods that have been the subject of a theft of any kind. They are defined in s.24(2) of the Theft Act 1968 to further include:

(a) any other goods which directly or indirectly represent or have at any time represented the stolen goods in the hands of the thief as being the proceeds of any disposal or realisation of the whole or part of the goods stolen or of goods so representing the stolen goods; and,

(b) any other goods which directly or indirectly represent or have at any time represented the stolen goods in the hands of a handler of the stolen goods or any part of them as being the proceeds of any disposal or realisation of the whole or part of the stolen goods handled by him or of goods so representing them.

This definition is very wide and effectively traces the goods so that any goods or profits that result from stolen goods are encapsulated.

A person completes the actus reus of handling stolen goods by undertaking any of the following acts:

• Receiving stolen goods, or;
• Arranging to receive them, or;
• Undertaking to keep, remove or dispose of the goods or realising those goods either for your own purposes or for the benefit of another; or
• Arranging or assisting with any of the above.

4.2 Mens Rea

• Dishonesty
• Knowing or believing goods to be stolen.

Dishonesty

This carries the common law definition of dishonest set out in Ghosh.

Knowing or believing goods to be stolen

This is a subjective element. As per R v Hall [1973] 1 QB 496 the defendant himself must possess the knowledge or actual belief that the goods are stolen. R v Moys [1984] 79 Cr App R 72 clarifies that mere suspicion as to their status is not sufficient.

4.3 Charging and Sentencing

Handling stolen goods is a triable either way offence and carries a maximum sentence of 14 years, a higher penalty than that afforded to the offence of theft.

5.0 Making Off Without Payment

This offence is set out under s.3 of the Theft Act 1978 which provides:

A person who, knowing that payment on the spot for any goods supplied or service done is required or expected from him, dishonestly makes off without having paid as required or expected and with intent to avoid payment of the amount due shall be guilty of an offence.

It essentially covers situations such as in restaurants where a service is provided without payment upfront and a bill is produced upon which payment is required.

5.1 Actus Reus

• Making off on the spot when payment is required
• Without having paid as required for goods supplied or services done

Making off on the spot when payment is required

On the spot is defined in s.3(2) of the Act as a point in time including any payment due at the time of collecting goods on which work has been done or in respect of which service has been provided.

Making off was defined in R v Brooks(1983) 76 Cr App R 66to mean departing or disappearing.

Without having paid as required for goods supplied or services done

This is a simple case of failing to pay as required in return for the goods or services, and is satisfied at the point the defendant fails to provide the correct remuneration needed from him.

Goods and services that are illegal are excluded in s.3(3) of the act as qualifying matters.

5.2 Mens Rea

• Dishonestly
• Knowing the payment is due; and,
• Intending to avoid the payment

Dishonestly

It is necessary to apply the Ghosh test to establish dishonesty

Knowing payment is due

This is a subjective element. The defendant must be aware that payment is due.

Intending to avoid payment

If the defendant was to leave to withdraw cash for example and pay at a later date, then this will be insufficient.

5.3 Charging and Sentencing

This is a triable either way offence and the defendant is liable upon conviction of a maximum 2 years imprisonment.

6.0 Criminal Damage and Arson

The Criminal Damage Act 1971 sets out three offences of criminal damage:

Section 1 (1) Simple criminal damage

Section 1 (2) Aggravated criminal

Section 1 (3) Criminal damage by arson

6.1 Simple Criminal Damage

S.1(1) Criminal Damage Act 1971 provides:

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.

6.1.1 Actus Reus

• Destroys or damages
• Property
• Belonging to another

Destroys or damages

The statue negates to provide a definition for this, however the case of Roper v Knott [1898] 1 QB 868 clarifies that it is not necessary for the property to become totally useless, a decrease in the value will be sufficient.

If the harm done to property does not have a degree of permanence, then it is not destroyed or damaged as per the offence and no liability can arise. This is demonstrated in the case of A v R [1978] Crim LR 689 where the defendant spat on a raincoat. As the coat was waterproof the saliva could be wiped clean off and left no stain. Accordingly, there was no destruction or damage to the property so no offence. 

However, this is not to say that all temporary harm is prevented from being classified as damage.  Temporary impairment or loss of use may amount to damage.

In addition to this, where expense is incurred in order to restore the property to its original state, this will constitute damage and this was demonstrated in Roe v Kingerlee [1986] Crim LR 735 where money was spent in order to wash mud off of a wall. Further to this, the expense incurred does not have to be necessary or reasonable, for example in Hardman v Chief Constable of Avon [1986] Crim LR 330 the council’s expense in arranging for a special cleaning process to be undertaken in order to remove water soluble substance that would have washed away naturally in the rain was sufficient to cause the harm to property to amount to damage.

The damage or destruction does not have to be caused by a positive act as an omission will suffice. This was established in R v Miller [1983] 2 AC 161.

Property

Section 10(1) of the Criminal Damage Act 1971 sets out that:

“property” means property of a tangible nature, whether real or personal, including money and—

(a) including wild creatures which have been tamed or are ordinarily kept in captivity, and any other wild creatures or their carcasses if, but only if, they have been reduced into possession which has not been lost or abandoned or are in the course of being reduced into possession; but

(b) not including mushrooms growing wild on any land or flowers, fruit or foliage of a plant growing wild on any land and;

For the purposes of this subsection “mushroom” includes any fungus and “plant” includes any shrub or tree.

Belonging to another

Section 10(2) of the Criminal Damage Act 1971 provides that property will be taken to belong to any person in law that has:

(a) the custody or control of it;

(b) any proprietary right or interest in it (not being an equitable interest arising only from an agreement to transfer or grant an interest); or

(c) a charge on it.

6.1.2 Mens rea

• Intention to damage property belonging to another, or;
• Being recklessness as to whether that property is damaged.

Intention to damage property belonging to another

If the defendant honestly believes that the property is their own, then they are not liable for any subsequent damage.

Recklessness

The correct approach to this in relation to criminal damage is to apply the test set out by Lord Bingham at paragraph 41 of R v G and R [2003] WLR, in which he stated:

"A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to: (i) a circumstance when he is aware of a risk that it exists or will exist; (ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk."

6.2 Aggravated Criminal Damage

Section 2 of the Criminal Damage Act 1971 provides that:

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.

In simple terms, aggravated criminal damage occurs where the offence of criminal damage set out above has been completed, but there is an additional element present in that the destruction or damage results in an endangerment of life. 

6.2.1 Actus Reus

• Destroys or damages and property
• Endangers life

Destroys or damages and property

Note here that for the purposes of the s.2 offence, any property is sufficient and not only property which belongs to another, thus a person can be liable here for the destruction or damaging of their own property.

Endangers life

The test for this is set out in R v Sangha [1988] 2 All ER 385 and it is to ask whether an ordinary prudent bystander would, at the time perceive an obvious risk that property would be damaged and life would thereby be endangered. There is therefore no requirement that a particular life is in fact endangered a general risk is sufficient.

Any endangerment must occur as a result of the destruction of or damage to the property. This was demonstrated in R v Steer [1988] 1 AC 111where the defendant was charged with aggravated criminal damage having fired a gun through the windows and doors of a house. The charge was not upheld as the endangerment of life did not come from the smashing of the windows but from the firing of the gun. This ruling was confirmed in R v Wenton [2010] EWCA Crim 2361where smashing a window and throwing a petrol bomb was not aggravated criminal damage as the bomb endangered life and not the damage to the windows.

6.2.2 Mens Rea

• Intention or recklessness as to the destroying or damaging of property, and;
• Intention or recklessness as to the endangering of life.

Whether or not the defendant is reckless should be established in accordance with the R v G and R test.

6.3 Criminal Damage by Arson

Where the destruction or damage to property under either s.1(1) or S.1(2) Criminal Damage Act 1971 arises through fire, the defendant will also be liable under s.1(3) of criminal damage by arson, or as it is commonly referred to, arson.

6.4 Lawful excuse

Section 5(2) establishes sets out a defence of lawful excuse which can arise in two circumstances.

(i) Section 5(2)(a) belief in consent of the owner

(ii) Section 5(2)(b) belief that property was in immediate need of protection

Section 5(3) clarifies that these are to be assessed subjectively and the case of Jaggard v Dickinson [1981] 1 QB 527 has established that even a drunken incorrect belief will suffice

6.5 Charging and Sentencing

The offence is triable either way and the maximum for all three offences is 10 years which raise to life imprisonment in relation to aggravated criminal damage and criminal damage by arson.

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