Liability of Frank for Criminal Damage and Aggravated Criminal Damage

(a) The s1(1) and s1(3) offences:

To be guilty of simple criminal damage under s1(1) Criminal Damage Act 1971 (CDA 1971) it must be established beyond reasonable doubt that Frank:

• Intentionally or recklessly (mens rea)…

• destroyed or damaged property belonging to another without lawful excuse (actus reus).

The additional requirement under s1(3) of the Act is that the destruction / damage of the property in question must have been caused by fire (i.e. simple arson).

The actus reus and mens rea must be considered in turn.

Actus Reus

• Destroy / damage property belonging to another without lawful excuse:

In order for property to fall under the definition of ‘destroyed’ or ‘damaged’ for the purposes of CDA 1971 some physical harm or deterioration must occur, even if nothing is actually broken or deformed.

In this scenario it is clear that the fire destroyed the notes belonging to Frank’s tutor. The books on the tutor’s desk also caught fire and were damaged / destroyed.

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

Mens Rea

• Intention or recklessness as to the property damage:

Frank clearly intended to destroy the notes belonging to his tutor since he deliberately pulled out a cigarette lighter and set them alight.

Thus it can be concluded that Frank 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) Intoxication

Given that Frank had taken a handful of Valium prior to the meeting with his tutor, can he rely on intoxication to negate his mens rea? To answer this question it is necessary to determine whether Frank’s intoxication was ‘voluntary’ or ‘involuntary.’

Given the fact that Frank took “a handful” of Valium, as opposed to the prescribed dose, it is likely that his intoxication will be deemed voluntary. If this is the case Frank cannot claim that intoxication negated his mens rea since intoxication cannot be relied upon in this way for offences of non-specifc mens rea (which includes criminal damage) .

Frank’s intoxication may be treated as involuntary if his taking of the Valium, a normally non-dangerous drug, caused him to hallucinate, provided he was not reckless in taking the Valium. Therefore Frank might argue that his depression caused him to take the excess Valium without realising that his behaviour may become unpredictable or dangerous. If he succeeds in this argument his taking of the Valium will not be deemed reckless and he will be able to claim successfully that any mens rea was negated. If, on the other hand, his taking of excess Valium is deemed reckless then Frank cannot claim his intoxication was involuntary.

(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 an intoxicated defendant such as Frank the defendant can rely on the lawful excuse defence where, as a result of being intoxicated, he mistakenly believed that the owner had (or would have) consented to the damage.

If Frank 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 Frank was in a secure environment and was having a one-to-one meeting with his tutor. There is nothing to suggest that the circumstances would have led Frank to believe that his tutor was consenting to the damage. Consequently, it is likely that the prosecution would be able to discharge the burden quite easily.

Frank 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, given the environment Frank was in at the time it is likely that the prosecution could discharge this burden quite easily.

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

(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 Frank:

• 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(3) of the Act is that the destruction / damage of the property in question must have been caused by fire and that life must have been endangered by the property damage that was caused by fire (i.e. aggravated arson).

Again, the actus reus and mens rea must be considered in turn.

Actus Reus

The actus reus of aggravated criminal damage / aggravated arson is the same as that of simple criminal damage / simple arson, as discussed above. It has already been established that Frank’s actions constituted the actus reus of simple arson. Therefore, his actions also constitute the actus reus of aggravated arson.

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 Frank to be found guilty of aggravated criminal damage the prosecution must prove that he:

(i) intentionally or recklessly damaged his tutor’s notes; 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, Frank pulled out a cigarette lighter and set fire to his tutor’s notes.

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 the tutor’s notes. In other words, the only way Frank could be guilty of aggravated criminal damage was if he intended to endanger life by destroying his tutor’s notes. Therefore, Frank is not guilty of aggravated criminal damage.

Is Frank guilty of aggravated arson? It might be possible to argue that Frank is guilty of aggravated arson by claiming that the damage to his tutor’s notes caused damage to the books and other materials on the tutor’s desk (since if the notes were not damaged by the initial fire then the books and any other property would not have been damaged either) through a chain reaction. This chain reaction of damage endangered life by causing the fire to spread. Although Frank may not have intended to endanger life the fact that he chose to set fire to the notes, and the fact that fires can spread easily in paper-clad offices, may mean that he is deemed reckless as to life being endangered.

In case it can be established that Frank’s behaviour met the requirements of aggravated arson, it is again necessary to consider any potential defences.

Defences

(i) Intoxication

Frank may use the same argument outlined above to claim that his intoxication was involuntary and it negated any mens rea for aggravated arson.

(ii) Lawful excuse

The lawful excuse defence is only available for simple criminal damage and simple arson, not for the aggravated offences.

Conclusion

On the whole, it appears that Frank is guilty of simple criminal damage and simple arson. He is not guilty of aggravated criminal damage and his liability for aggravated arson is arguable.

Bibliography

Legislation Consulted

• Criminal Damage Act 1971

Cases Consulted

• Hardie [1985] 1 WLR 64

Texts Consulted

• Allen, M.J. – Textbook on Criminal Law (6th Edition), Oxford University Press (2001), pp.489-503