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Showing posts from September, 2019

Crime CLXX-Criminal Damage X

In R v Smith (1974) the defendant was a tenant in a ground floor flat. He obtained the permission of the landlord to install some sound equipment and sound proofing equipment.
When his tenancy was up, and he had to vacate the property, the tenant not only uninstalled the sound equipment and sound proofing equipment, but he also ripped out the wires that ran below the flooring.
Unknown to the defendant the sound equipment and the soundproofing equipment had become a permanent feature of the flat and were thus regarded as the property of the landlord (a similar situation would apply to renovations done to a rental property and while the tenant is entitled to enjoy the benefits of the renovations while he is there, when he decides to leave or has to vacate he cannot try and undo the renovations for the simple reason that it might damage the property).
The tenant was convicted for criminal damage and appealed on the grounds that since he’d paid for the sound equipment and soundproofing equip…

Crime CLXIX-Criminal Damage IX

In Samuels v Stubbs (1972) the defendant trampled on a policeman’s cap. The damage was nominal, and the cap could easily have been pushed back into place, but the defendant was charged nonetheless and was convicted.
The defendant appealed, and it was decided that the defendant’s actions did indeed constitute criminal damage. It is difficult to express in advance what damage is, and it covers a wide range of things, and not all of them need to put the victim out of pocket. Even if the damage is nominal, the defendant could still be charged and convicted for criminal damage.
However, it could be said with some degree of certain that the defendant’s actions were willful and malicious as opposed to accidental or unintentional and that in itself, regardless of the type of damage that is done or caused or the severity of the damage, whether the victim is put out of pocket or otherwise, is sufficient to render the defendant liable under the Criminal Damage Act 1971.
Copyright © 2019 by Dyarne W…

Crime CLXVIII-Criminal Damage VIII

List of Cases for Criminal Damage
In R v Cunningham (1957), the appellant ripped a gas meter from a wall in an attempt to steal money that was deposited in a coin box attached to the meter and as a result gas seeped through fissures in the wall and escaped to the neighboring property where Mrs. Wade (Sarah) was sleeping.
“The appellant was convicted upon an indictment framed under s 23 of the Offences against the person Act (1861) which charged that he unlawfully and maliciously caused to be taken by Sarah Wade a certain noxious thing, namely, coal gas, so as thereby to endanger the life of the said Sarah Wade”.
In any statutory definition of a crime, malice must be taken not in the old vague sense of wickedness in general but as requiring either
(1) An actual intention to do the particular kind of harm that in fact was
done; or
(2) Recklessness as to whether such harm should occur or not. It is neither limited to nor does it indeed require any ill will towards the person injured.
Copyright …

Crime CLXVII-Criminal Damage VII

The actus reus or the physical element that the prosecution is required to establish to successfully obtain a conviction for criminal damage as per the Criminal Damage Act of 1971 is simply damaging or destroying property. Damage as far as the act is concerned can be temporary and need not be permanent.
In Roe v Kingerlee (1986) the defendant smeared some mud on the walls of a police cell. The cost of cleaning the walls was nominal, but the defendant was nonetheless tried and convicted for causing criminal damage. The defendant appealed on the grounds that the damage was not permanent and therefore he ought not to be found guilty of criminal damage.
The conviction was upheld. The damage need not be permanent or long lasting and what amounts to criminal damage or otherwise, for the purposes of the Criminal Damage Act 1971 is for the courts to decide after taking into account all the facts that are made available to them.
Copyright © 2019 by Dyarne Ward

Crime CLXVI-Criminal Damage VI

Property with regards to the Criminal Damage Act 1971 is defined by s.10(1) and s.10(2) of the act. S.10(1) and s.10(2) read as follows: -
s.10(1) In this Act “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.
For the purposes of this subsection “mushroom” includes any fungus and “plant” includes any shrub or tree.
s.10(2) Property shall be treated for the purposes of this Act as belonging to any person—
(a) Having the custody or control of it;
(b) Having in it any proprietary right or interest (not being an equitable interest arising only from an …

Crime CLXV-Criminal Damage V

Recklessness
In R v Caldwell (1982) the accused, an employee of a hotel who had some grievances against the owners, got very drunk and set fire to the property. There were 10 guests in the hotel at the time. Fortunately, the fire was discovered in time and no harm had befallen any of the guests.
Caldwell was convicted upon two counts of arson. The second count was laid under section 1 (1) of the Criminal Damage Act 1971 – arson destroying property belonging to another. The first and more serious count was laid under section 1 (2) of the 1971 act – arson endangering life. The accused appealed,
The House of Lords upheld the conviction and defined recklessness as follows: –
(1) A person is guilty of recklessness when he does an act which in fact creates a risk that property will be destroyed or damaged and
(2) when he does the act, he either has not given any thought to the possibility of there being any such risk or has recognized that there was some risk involved and has nonetheless gone on…

Crime CLXIV-Criminal Damage IV

The mens rea for criminal damage or the mental element that the prosecution needs to satisfy before it can obtain a conviction for criminal damage is either: -
1) intention i.e. the defendant intended to cause the damage that resulted
or
2) recklessness i.e. the defendant did not give any thought to the damage that would result from his actions or having given it some thought, dismissed it.
Intention
In R v Smith (1974) the defendant was a tenant in a ground floor flat. He obtained the permission of the landlord to install some sound equipment and sound proofing equipment.
When his tenancy was up, and he had to vacate the property, the tenant not only uninstalled the sound equipment and sound proofing equipment, but he also ripped out the wires that ran below the flooring.
Unknown to the defendant the sound equipment and the soundproofing equipment had become a permanent feature of the flat and were thus regarded as the property of the landlord (a similar situation would apply to renovations…

Crime CLXIII-Criminal Damage III

1 (2) of the Criminal Damage Act reads as follows: -
1 (2) 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.
Much of the case law with regards to criminal damage relates to property that belongs to another and property that the defendant does not have a proprietary interest in.
However, under certain circumstances it might be an offence to destroy one’s own property though it might be difficult to envisage such a situation arising.
It would be an offence to do so (destroy one’s own property) when doing so would endanger the life of another for example when squatters move into vacate land. While the owner of the land has ri…

Crime CLXII-Criminal Damage II

The cases of Hall v Richardson (1889) and Roper v Knott (1898), though the facts occurred decades before the passing of the Criminal Damage Act 1971, can be cited as examples of damage that could be done to property.
In Hall v Richardson (1889) it was held that a milkman who damages his employer’s milk by adding water to it, with no intention of injuring the employer in anyway (though it could be argued that adding water to milk would injure that employer’s business and cause the employer to incur financial damage) but with the intention to make a profit for himself is guilty under s.52 of the Malicious Damage Act 1861.
In Roper v Knott (1898), the defendant a milkman was watched by his employer and a policeman following complaints with regards to the quality of the milk that was being delivered. The defendant was caught adding water to the milk that was being delivered and he was charged under s.52 of the Malicious Damage Act 1861.
The defendant was convicted under the said act for mali…

Crime CLXI-Criminal Damage I

Criminal Damage is defined by section 1 of the Criminal Damage Act 1971. Section 1 of the Criminal Damage Act 1971 reads as follows: -
Destroying or damaging property.
(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.
(2) 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.
(3) An offence committed under this section by destroying or damaging property by fire shall be charged as arson.
Copyright © 2019 by Dyarne Ward

Crime CLX-Insanity XVII

For anyone who is wondering why the defendant would rather be found not guilty by way of automatism instead of not guilty by way of insanity (see R v Kemp (1957), R v Sullivan (1983), R v Hennessy (1989), R v Burgess (1991) and R v Johnson (2007)), the answer is because, if the defendant is found not guilty by way of insanity he or she may have to spend some time in a mental institution (a secure detention facility) as per s.5 of the Criminal Procedure (Insanity) Act 1964.
Whereas, if the defendant is found not guilty by way of automatism, he or she is absolved of all criminal charges and the judge is not empowered to detain the defendant in a mental institution. Therefore, whether the defendant is found not guilty by way of insanity or not guilty by way of automatism becomes crucial, to the defendant, during sentencing.
S.5 of the Criminal Procedure (Insanity) Act 1964 reads as follows:-
Powers to deal with persons not guilty by reason of insanity or unfit to plead etc.
(1) This section …

Crime CLIX-Insanity XVI

In R v Johnson (2007) we look at the defense of insanity as it applies to those who suffer from schizophrenia and if the principle that was set in R v Windle (1952) applies or extends to paranoid schizophrenics or if an exception can be made for those who suffer from the ailment.
As per the rule in R v Windle (1952) the defense will not be made available to the defendant if the defendant knew what he was doing or had cognizance of his actions.
In R v Johnson (2007), the defendant was charged with wounding to cause grievous bodily harm (GBH) as per s18 & s20 of the Offences Against Person Act (1861). He was suffering from paranoid schizophrenia but at the trial the defense of insanity was not made available to him because medical evidence suggested that the defendant knew or was aware of what he was doing.
The defense appealed on the grounds that the defense of insanity should have been made available to the defendant and the issue at hand was whether the scope or the parameters of th…

Crime CLVIII-Insanity XV

With regards to the defendant’s fitness to plead, and with reference to s.4 of the Criminal Procedure (Insanity) Act 1964 (unfitness to plead - s.4 only applies to those with disabilities) whether a defendant is fit to plead or otherwise is determined on a balance of probabilities i.e. the test that is used is the objective test or the reasonable man’s test.
In R v M (John) (2003) the defendant was tried on various sexual offences committed against a minor when she was aged between the ages of 8 – 10. The defendant was her grandfather. According to medical reports the defendant suffered from short term memory loss which was the result of excessive drinking over a prolonged period. The trial judge set a threshold to determine if the defendant was fit to plead, given his circumstance (if the defendant cannot understand the charges against him than he is unfit to plead see R v Pritchard (1836) and the verdict that is to be returned is not guilty by virtue of insanity 1831 (York assizes)).…

Crime CLVII-Insanity XIV

When the defendant’s actions are caused by both internal and external factors, the jury should be directed on both insanity and automatism.
In R v Roach (2001) the defendant was suffering from an anti-social personality disorder and while working as a caterer he stabbed a colleague in the hand over a missing mop. The defendant was arrested and charged.
During the trial the defendant claimed that he had no recollection of what had transpired and the fact that he was suffering from an anti-social personality disorder was supported by medical evidence (internal factor).
At the time of the incident the defendant had also been drinking and taking prescribed drugs (external factors).
During the trial the judge directed the jury on insanity but did not direct the jury on automatism. The jury convicted and the defense appealed on the grounds that the trial judge did not direct the jury on the defense of automatism.
The appeal was allowed and it was held that the jury should also have been directed…

Crime CLVI-Insanity XIII

Sleepwalking (somnambulism) is another disorder (behavioral) that can cause the defendant to perpetrate criminal acts. It is caused by internal or inherent factors and as a result the defense that is available to the defendant is insanity.
In R v Burgess (1991) the defendant injured a woman while she was sleeping by hitting her over the head with a whisky bottle and striking her with a video recorder. The defendant was charged under s.18 and s.20 of the Offences Against the Person Act (1861) for wounding with intention to cause grievous bodily harm.
The defendant had no recollection of the event and his claim was supported by medical evidence. The defendant sought to rely on the defense of automatism but the trial judge directed the jury on insanity instead and the jury found that that the defendant was guilty by virtue of insanity.
The defendant appealed on the grounds that he should have been found not guilty by way of automatism contending that both defenses were a result of a disorde…

Crime CLV-Insanity XII

When the defendant’s actions are due to post traumatic stress (a mental disorder that is triggered by a horrifying or terrifying event) the defense that is available to the defendant is automatism because despite the seriousness of the illness, it is brought on by external factors and often factors that are beyond the defendant’s control.
In R v T (1990) the defendant was a rape victim who a few days after the incident was involved in a robbery which included causing actual bodily harm as defined by s.47 of the Offences Against Person Act (1861). During the trial the defendant claimed that she was in a dream like state or in another reality and medical evidence showed that at the time she was suffering from post-traumatic stress as a consequence or result of which she was in a dis-associative state.
The trial judge directed the jury on automatism, in line with the decision in R v Quick (1973) i.e. a disorder that has been brought on by external factors, in this case a horrible and terri…

Crime CLIV-Insanity XI

As we’d mentioned earlier when the defendant’s actions are caused by hyperglycemia or an excess of sugar in the body the defense that is available to the defendant is insanity.
In R v Hennessy (1989) the defendant was arrested while driving a stolen car and was subsequently taken to the police station. The defendant’s wife had just left him and as a result the defendant was depressed and had failed to take his prescribed dose of insulin – the defendant was a diabetic.
The defendant was lethargic, drowsy (symptoms of hyperglycemia) and suffered from temporary memory loss. The defendant could not remember taking the car. The defendant raised the defense of automatism, but the trial judge directed the jury on insanity instead. The defendant was convicted, and the defense appealed.
The appeal was dismissed, and the Court of Appeal held that the trial judge had been correct in his direction. Automatism only arises when the defendant’s actions are caused by external factors and in this instanc…

Crime CLIII-Insanity X

In instances where the defendant inflicts some sort or type of harm to another during an epileptic fit (a subtle momentary loss of awareness, which causes the body to jerk and tremble), we once again have to look into the facts to determine which of the following defenses would apply: -
1) Automatism 2) Insanity
When the epileptic fit is brought on by external factors for example from the excessive taking of drugs or drinking the defense that is available is automatism.
When the epileptic fit is brought on by internal factors or inherent factors the defense that is available is insanity.
In R v Sullivan (1983) the defendant in an epileptic fit kicked the victim a 86-year-old man in the head and body. The defendant was charged under section 18 and 20 of the Offences Against Persons Act (1861) and during the trial, the trial judge directed the jury on insanity based on the fact that the epileptic fit that the defendant suffered from was caused by internal or inherent factors. The issue on ha…

Crime CLII-Insanity IX

With regards to the defense of automatism, in instances of hypoglycemia, it is worth asking the question if the defense should still be allowed, given the fact that medical science has come forward in leaps and bounds and almost everyone on insulin or other types of medication to reduce sugar levels in the body is warned beforehand of what could happen if they take these medications without eating.
A defendant on insulin could always knowingly commit a crime and then seek to rely on the defense of automatism but we have to look at it in light of Sir William Blackstone’s principle i.e. “it is better to let ten guilty persons escape than to let one innocent man suffer”.
It is up to the prosecution on a criminal charge to proof beyond reasonable doubt (burden of proof) that the defendant did indeed commit the crime and all the defense has to do, is to raise reasonable doubt.
Because the courts cannot risk wrongfully convicting someone, the defense of automatism is allowed. To do otherwise m…

Mens Rea V - Negligence (II) – The Neighborhood Principle (I)

The neighborhood principle was established by Lord Atkins in the case of Donoghue v Stevenson (1932). Under normal circumstances for a consumer to claim damages for the purchase of a defective item, there has to be a valid contract in place.
There are five elements to a contract, offer, acceptance, consideration, intention, and form. Offer is the act of making an offer to sell or displaying an item for sale. Acceptance is the act of accepting the item or buying or purchasing the item that is on display and consideration is paying the offeror (the person who is selling the item) for the purchase of the item.
Consideration has to be in monies or monies worth. In addition to that, there is also a general undertaking that is given by the offeror, at the time of the purchase, to the offeree (the person who is purchasing the item) that the item is of merchantable quality or fit for its purpose i.e. the purpose for which it was purchased or intended.
Intention simply means that there is an inte…

Mens Rea IV - Negligence (I) (Blyth v Birmingham Waterworks Co. (1856))

The next type, class or category of Mens Rea is negligence. Negligence is defined as a breach of a legal duty to take care which results in damages to the claimant.
In Blyth v Birmingham Waterworks Co. (1856) (Court of Exchequer) * – The defendants were a body incorporated by statute to supply the town of Birmingham with water. According to s 84 the company should at the time of laying down any main pipe or any other main pipe on the street, fix at the time of laying down of the pipe a proper and sufficient fire-plug (a hydrant for a fire hose) in each street.
According to s 87, pipes were to be eighteen inches beneath the surface of the soil and according to s 89 the mains were at all times to be kept charged with water. The defendants derived no profit from the maintenance of the plugs distinct from the general profits of the whole business, but such maintenance was one of the conditions under which they were permitted to exercise the privileges given or granted by the Act.
On February…