User Tools

Site Tools


criminal_damage

Differences

This shows you the differences between two versions of the page.

Link to this comparison view

Both sides previous revision Previous revision
Next revision
Previous revision
criminal_damage [2017/04/21 17:39]
frescom
criminal_damage [2017/05/09 21:01] (current)
barnaby2015
Line 1: Line 1:
 ====== CRIMINAL DAMAGE ====== ====== CRIMINAL DAMAGE ======
  
-== ACT ==  +Criminal Damage Act 1971 Section 1 (1)
-Criminal Damage Act 1971 +
-A. Destroying or Damaging Property- Simple offence+
  
-(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.+ person who without lawful excuse destroys or damages property belonging to another intending to destroy or dame such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of the offence.
  
-== Sentence ==  +Actus reus- “Belonging to another”
-Imprisonment for 10 years: Criminal Damage Act 1971 s4+
  
-== Elements of the Offence ==  +Mens rea- Intention ​or recklessness
-"​Damage"​ is interpreted widely to include not only permanent ​or temporary physical harm, but also permanent or temporary impairment of value or usefulness: Morphitis v. Salmon[1990] Crim. L.R. 48, DC; R. v. Whiteley,93 Cr.App.R. 25, CA (where the authorities are usefully reviewed); and R. v. Fiak[2005] 10Archbold News 1 , CA.+
  
-It is not necessary to prove that the damage itself is tangible, although by section 10 of the 1971 Act (post , §23-54) the property which is damaged must be tangible: Whiteley, ante. 
  
-A modification of the contents of a computer shall not be regarded as damaging any computer or computer storage medium unless its effect on that computer or computer storage medium impairs its physical condition: see the Computer Misuse Act 1990, s.3(6) (post, §23-89), which is repealed and replaced, as from a day to be appointed, by section 10(5) of the 1971 Act (post, §23-54).+Aggravated Criminal damage ​1971 Act Section 1 (2)
  
 +A person who intentionally or recklessly destroys or damage property intending to endanger life thereby or being reckless as to whether life is endangered thereby. ​
  
-commentary023-7+Actus reusIntended to endanger life
  
 +Mens reus- Intention or recklessness
  
 +Lawful Excuse
  
 +Under section 5 (2) of the Act a defence of lawful excuse is available if:
  
-Examples of damage include the following: taking away a part of a machine or other structure so as to make the whole useless (R. v. Tacey(1821Russ. and Ry. 452), although if the removed part is not damaged it is essential to charge damage to the whole rather than to the part (Morphitis v. Salmon ((1990) 154 J.P. 365), ante); disabling a steam engine so as to make it temporarily useless (R. v. Fisher(1865) L.R. 1 C.C.R. 7); diluting milk with water (Roper v. Knott[1898] ​ 1 Q.B. 868); dumping rubbish onto land (Henderson and Batley,​unreported,​ November 27, 1984, CA); applying water-soluble paint to a pavement (Hardman v. Chief Constable ​of Avon and Somerset[1986] Crim.L.R. 330, DC); smearing mud on the wall of a police cell (Roe v. Kingerlee[1986] Crim.L.R. 735DC); and flooding a police cell with clean water by blocking a lavatory with a blanket, thus requiring both the cell and the blanket to be cleaned and the blanket to be dried (R. v. Fiak ([2005] 10 Archbold News 1), ante). But applying a wheelclamp to a car does not intrude into the car's integrity and thus cannot constitute damage to the car under the RTA 1988, s.5(3) (post, §32-75): Drake v. DPP[1994] R.T.R. 411, DC.+(A) the defendant honestly thought he had the consent ​of the relevant personor would have if that person had known the circumstances or
  
- +(B) he acted as he did in order to protect property he thought ​in immediate need of protection, and he believed the means used were reasonable.
-commentary023-8 +
- +
- +
-Mens rea +
- +
-In R. v. Smith (David Raymond)[1974] Q.B. 354,58 Cr.App.R. 320 , CA, it was held that the intention, recklessness and absence of lawful excuse required to constitute the offence refer to property belonging to another. No offence is committed, therefore, if a person destroys or damages property belonging to another if he does so in the honest though mistaken belief that the property is his own, and, provided that the belief is honestly held, it is irrelevant to consider whether it is justifiable. See also post, §§23-48 et seq. +
- +
- +
-commentary023-9 +
- +
- +
- +
- +
-  Recklessness +
- +
-In R. v. G[2004] 1 A.C. 1034, HL, "​recklessness"​ for the purposes of the 1971 Act was defined as follows: +
- +
-"A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 (»»textwith respect to -  +
- +
-(i)  a circumstance when he is aware of a risk that it exists or will exist; +
- +
-(ii)  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."​ +
- +
- +
-The earlier definition of recklessness propounded by the majority in R. v. Caldwell (James)[1982] A.C. 341, HL (see the 2004 edition of this work), was founded on a misinterpretation of section 1 and is no longer good law: ibid. It follows that the acquittal in cases such as Elliott v. C. (A Minor),77 Cr.App.R. 103, DC, would now be upheld on appeal (risk would not have been obvious to 14-year-old of low intelligence). +
- +
-If a defendant closes his mind to a risk, he must be aware that there is a risk, which will usually be decisive on the issue of recklessness:​ R. v. Caldwell (James), ante (per  Lord Edmund-Davies at p.358D); R. v. G ([2003] UKHL 50), ante (per  Lord Steyn at [58], and see also Lord Bingham at [32]); and Booth v. Crown Prosecution Service,170 J.P. 305, DC. +
- +
- +
-commentary023-10 +
- +
- +
- +
- +
-It is submitted that, where a defendant omits to act after accidentally causing a fire, the combined effect of R. v. Miller (James)[1983] 2 A.C. 161, HL, and R. v. G. ((1993) 14 Cr.App.R.(S.) 349), ante, is that he would be guilty under section 1 (»»text)(1),​ in respect of damage to property resulting from the subsequent spread of the fire and occurring after he has realised that he was responsible for starting the fire, if he does not try to prevent or reduce the risk of damage by his own efforts or, if necessary, by sending for the fire brigade, and the reason why he does not is because, having recognised that there is a risk of damage to the property in question, he has decided unreasonably not to try to prevent or reduce it. +
- +
- +
-commentary023-11 +
- +
- +
- +
- +
-  Effect of drink and drugs +
- +
-See generally, ante, §§17-102 et seq. +
- +
-Where the allegation is that the destruction or damage was intentional,​ then self-induced intoxication such as to prevent the defendant from forming the necessary intent will constitute a defence: R. v. Caldwell (James) ([1982] A.C. 341), ante. Where recklessness is relied on, then notwithstanding the generality of the formulation of the test in R. v. G. ((1993) 14 Cr.App.R.(S.) 349), ante, it is apparent that their Lordships had no intention of undermining the decision in DPP v. Majewski ([1977] A.C. 443) (ante , §§17-107 ​ et seq.), to the effect that failure to foresee a risk provides no defence where the failure results from self-induced intoxication. However, the application of the DPP v. Majewski principle will be affected, in that the question for the court in such a case will no longer be as to whether the risk would have been obvious to a sober and reasonable man in the position of the accused; it will be whether the accused would have been aware of the risk had he been sober. It is submitted that similarly there would be no defence where a person mistakenly makes a positive decision that there is no risk, but would not have so decided had he been sober: see ante, §17-16. Cf. Jaggard v. Dickinson ([1981] Q.B. 527), post, §23-48. +
- +
-It makes no difference whether the intoxication was induced by drugs or drink save that, where the drug is a sedative or soporific, as opposed to dangerous, the question for the jury is whether the taking of the drug was itself reckless: R. v. Hardie,80 Cr.App.R. 157, CA (valium) (ante , §17-105). +
- +
- +
-commentary023-12 +
- +
- +
- +
- +
-  Attempts +
- +
-Mere recklessness as to whether criminal damage is caused, as opposed to an intent to cause such damage, is insufficient where the charge is attempting to cause damage: R. v. Millard and Vernon[1987] Crim.L.R. 393, CA. See also post, §23-23. +
- +
- +
- +
-commentary023-13 +
- +
-(2)  Aggravated offence +
- +
- +
- +
-  Criminal Damage Act 1971, s.1(2) +
- +
-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. +
- +
- +
-As to the meaning of "​damage",​ see ante, §§23-6 et seq.; of "​property",​ see section 10, post, §§23-54 et seq.; and of "​reckless",​ see ante, §23-9. +
- +
- +
-commentary023-13a +
- +
- +
-Indictment +
- +
-COUNT 1 +
- +
- +
-commentary023-14 +
- +
- +
- +
-Statement of Offence +
- +
-Destroying ​ [or Damaging] property with intent to endanger life, contrary to section 1 (»»text)(2)of the  Criminal Damage Act1971. +
-Particulars of Offence +
- +
-A B, on the  -  -  day of  -  - , 20 - , without lawful excuse, destroyed ​ [or damaged] a bungalow belonging to him the said A B, intending to destroy [or damage] property or being reckless as to whether property would be destroyed [or damaged], and intending by the said destruction [or damage] to endanger the life of J N. +
- +
-COUNT 2 +
-Statement of Offence +
- +
-Destroying ​ [or Damaging] property being reckless as to whether life would be endangered, contrary to section 1 (»»text)(2)of the  Criminal Damage Act1971. +
-Particulars of Offence +
- +
-A B, on the  -  -  day of  -  - , 20 - , without lawful excuse, destroyed ​ [or damaged] a bungalow belonging to him the said A B, intending to destroy [or damage] property or being reckless as to whether property would be destroyed [or damaged], and being reckless as to whether the life of another would thereby be endangered. +
- +
-Where the aggravated offence is charged and the prosecution rely on the alternatives of intention and recklessness,​ there should be two counts, one charging an intent to endanger life, and the other recklessness as to whether life is endangered (as ante): R. v. Hoof,72 Cr.App.R. 126, CA; R. v. Hardie,80 Cr.App.R. 157, CA. If an indictment is drawn so as to embody the alternatives in one count, the judge should direct that it be amended: Hardie ([1985] 1 W.L.R. 64), ante. +
- +
-Where there are alternative counts, and the jury convict on the more serious charge, the jury should be discharged from giving a verdict on the lesser charge. It is wrong to allow convictions to be recorded in respect of two offences arising out of the same act if one is a lesser form of the other: R. v. Haddock[1976] Crim.L.R. 374, CA. +
- +
-It is open to a jury to convict of criminal damage contrary to section 1 (»»text)(1) of the 1971 Act (the simple offence) as an alternative verdict under section 6 (»»text)(3) of the CLA 1967 (ante, §4-455), notwithstanding that the value of the damage caused is under GBP5,000 (see post, §23-43, as to the significance of this sum); the MCA 1980, s.22 (ante, §1-106), affects mode of trial but has no effect on the classification of criminal damage as an "​offence triable either way": R. v. Fennell (Peter)[2000] 2 Cr.App.R. 318, CA (not following R. v. Burt,161 J.P. 77, CA), and approved in R. v. Alden (Paul Stuart)[2002] 2 Cr.App.R.(S.) 74, CA (see post, §23-44). +
- +
- +
-commentary023-15 +
- +
- +
-Sentence +
- +
-Imprisonment for life: Criminal Damage Act 1971, s.4, post, §23-46. +
- +
-An offence contrary to section 1 (»»text)(2) is a "​specified violent offence"​ within Chapter 5 of Part 12 of the CJA 2003 (life sentences, sentences for public protection and extended sentences): see s.224, and Sched. 15, ante, §§5-292, 5-299. +
- +
-There are no sentencing guidelines for this offence. +
- +
- +
-commentary023-16 +
- +
- +
-Class of offence and mode of trial +
- +
-This offence is a class 3 offence, ante, §2-17. It is triable only on indictment (post , §§23-41 et seq.). +
- +
- +
-commentary023-17 +
- +
- +
-Consent +
- +
-See ante, §23-5. +
- +
- +
-commentary023-18 +
- +
- +
-"​Without lawful excuse"​ +
- +
-For the purposes of section 1 (»»text)(2),​ this phrase is wholly undefined: the partial definition in section 5 (post, §23-47) does not apply to the aggravated offence. +
- +
- +
-commentary023-19 +
- +
- +
-Danger to life must result from destruction or damage intended +
- +
-In R. v. Steer (Dennis)[1988] A.C. 111, HL, it was held that under section 1 (»»text)(2) the danger to life must result from the destruction of, or damage to, the property. It is not sufficient that the danger resulted from the act which caused the destruction or damage. In R. v. Steer (Dennis), the defendant fired a rifle at a bungalow and caused trivial damage. Although in firing the shots he was reckless as to whether the occupants'​ lives would be endangered, that danger was not caused by the damage done by the bullets, and thus he had not committed the offence under section 1 (»»text)(2). By contrast, in R. v. Dudley[1989] ​ Crim.L.R. 57, CA, the defendant was held guilty under section 1 (»»text)(2) where he threw a fire-bomb at a house which the occupants were able to extinguish before it caused more than trivial damage. Distinguishing R. v. Steer (Dennis), the court held that the words "​destruction or damage"​ in section 1 (»»text)(2)(b) refer back to the destruction or damage intended, or as to which there was recklessness,​ in section 1 (»»text)(2)(a). Although the actual damage caused in R. v. Dudley was trivial, the defendant'​s recklessness related to potentially much more serious damage. +
- +
- +
-commentary023-20 +
- +
- +
- +
- +
-R. v. Steer (Dennis) ([1988] A.C. 111) and R. v. Dudley ([1989] Crim. L.R. 57) were applied in R. v. Webster (Andrew);R. v. Warwick[1995] 1 Cr.App.R. 492, CA. In approving R. v. Dudley, the court stated that the true construction of section 1 (»»text)(2) is that the actus reus is defined in the  first two lines of the subsection, while paragraphs (a) and (b) deal with mens rea: +
- +
-"​Otherwise,​ the gravamen of an offence involving damage by a missile would depend not on the defendant'​s intention but on whether he was a good shot in seeking to carry it out. Thus, if a defendant throws a brick at the windscreen of a moving vehicle, given that he causes some damage to the vehicle, whether he is guilty under section 1 (»»text)(2) does not depend on whether the brick hits or misses the windscreen, but whether he intended to hit it and intended that the damage therefrom should endanger life or whether he was reckless as to that outcome"​ (at pp. 496G-497A). +
- +
- +
- +
-commentary023-21 +
- +
- +
-Mens rea of aggravated offence +
- +
-In R. v. Caldwell (James)[1982] A.C. 341, HL (ante , §23-9), Lord Diplock said: +
- +
-"Where the charge is under section 1 (»»text)(2) the question of the state of mind of the accused must be approached in stages, corresponding to paragraphs (a) and (b). The jury must be satisfied that what the accused ​did amounted to an offence under section 1 (»»text)(1),​ either because he actually intended to destroy or damage the property or because he was reckless ​ ...  as to whether it might be destroyed or damaged. Only if they are so satisfied must the jury go on to consider whether the accused also either actually intended that the destruction or damage of the property should endanger someone'​s life or was reckless ​ ...  as to whether a human life might be endangered"​ (at pp. 354-355). +
- +
- +
-It is submitted that this passage remains good law provided that "​reckless"​ is defined in accordance with R. v. G[2004] 1 A.C. 1034, HL (ante , §23-9). It is also subject to the qualification that there are defences to section 1 (»»text)(1) which do not apply to section 1 (»»text)(2),​ i.e. in respect of the latter, it is irrelevant that the property is one's own, and section 5 does not apply: see §23-18, ante. +
- +
- +
-commentary023-22 +
- +
- +
- +
- +
-  Effect of drink and drugs +
- +
-See §23-11, ante. +
- +
- +
-commentary023-23 +
- +
- +
- +
- +
-  Attempts +
- +
-On a charge of attempted criminal damage in the aggravated form, in addition to establishing a specific intent to cause criminal damage, it is sufficient to prove that the defendant was reckless as to whether life would thereby be endangered: Att.-Gen.'​s Reference (No. 3 of 1992),98 Cr.App.R. 383, CA. (See the commentary at [1994] Crim.L.R. 350.) +
- +
- +
- +
-commentary023-24 +
- +
-(3)  By fire +
- +
- +
- +
-  Criminal Damage Act 1971, s.1(3) +
- +
-1.  +
-(3)  An offence committed under this section by destroying or damaging property by fire shall be charged as arson. +
- +
- +
-It is unclear whether this provision means that, in the Crown Court, it is mandatory to use the word "​arson",​ or whether it is sufficient to allege that the destruction or damage was by fire: see R. v. Drayton (Alan Clark)[2006] Crim.L.R. 243, CA, where the position in the Crown Court was left open, notwithstanding the apparently mandatory approach taken in R. v. Booth (Stephen) (Arson or Criminal Damage)[1999] Crim. L.R. 144, CA. In a magistrates'​ court, the use of the word "​arson"​ is not mandatory, although it might be helpful if it were employed: R. v. Drayton (Alan Clark) ([2005] EWCA Crim 2013), ante. +
- +
- +
-commentary023-25 +
- +
- +
-Indictment: simple offence +
-Statement of Offence +
- +
-Arson, contrary to  section 1 (»»text)(1) and (3)of the  Criminal Damage Act1971. +
-Particulars of Offence +
- +
-A B, on the  -  -  day of  -  - , 20 - , without lawful excuse, destroyed ​ [or damaged] by fire a shop belonging to J N, intending to destroy [or damage] such property or being reckless as to whether such property would be destroyed [or damaged]. +
- +
- +
-commentary023-26 +
- +
- +
-Sentence +
- +
-Imprisonment for life: Criminal Damage Act 1971, s.4, post, §23-46. +
- +
-For sentencing, see post, §23-29. +
- +
- +
-commentary023-27 +
- +
- +
-Class of offence and mode of trial +
- +
-This offence is a class 3 offence, ante, §2-17. As to mode of trial, see post, §§23-41 et seq. +
- +
- +
-commentary023-27a +
- +
- +
-Indictment: aggravated offence +
- +
-COUNT 1 +
- +
- +
-commentary023-28 +
- +
- +
- +
-Statement of Offence +
- +
-Arson with intent to endanger life, contrary to  section 1 (»»text)(2) and (3)of the   +
-Criminal Damage Act1971. +
-Particulars of Offence +
- +
-A B, on the  -  -  day of  -  - , 20 - , without lawful excuse, destroyed ​ [or damaged] by fire a bungalow belonging to him the said A B, intending to destroy [or damage] property or being reckless as to whether property would be destroyed [or damaged], and intending thereby to endanger the life of J N. +
- +
-COUNT 2 +
-Statement of Offence +
- +
-Arson being reckless as to whether life would be endangered, contrary to  section 1 (»»text)(2) and (3)of the  Criminal Damage Act1971. +
-Particulars of Offence +
- +
-A B, on the  -  -  day of  -  - , 20 - , without lawful excuse, destroyed ​ [or damaged] by fire a bungalow belonging to him the said A B, intending to destroy [or damage] property or being reckless as to whether property would be destroyed [or damaged], and being reckless as to whether the life of another would thereby be endangered. +
- +
-As to the desirability of having two counts, see ante, §23-14. +
- +
- +
-commentary023-29 +
- +
- +
-Sentence +
- +
-Imprisonment for life: Criminal Damage Act 1971, s.4, post, §23-46. +
- +
-It is unwise to sentence in a case of arson without a psychiatric report: see R. v. Calladine,​The Times, December 3, 1975 , CA. +
- +
-Arson is a "​specified violent offence"​ within Chapter 5 of Part 12 of the CJA 2003 (life sentences, sentences for public protection and extended sentences): see s.224, and Sched. 15, ante, §§5-292, 5-299. +
- +
-There are no Crown Court sentencing guidelines for arson. However, in Attorney General'​s Reference (No.68 of 2008), Re v. Myrie)[2009] 2 Cr.App.R.(S.) 48, CA (following R. v. Frankham (George)[2008] 1 Cr.App.R.(S.) 27, CA), it was said that the starting point should be in the range of eight to 10 years' imprisonment following a trial for arson with intent to endanger life; and that cases of reckless endangerment merit a lower range, although there is a fine line between the most serious cases of reckless endangerment and the least serious cases of intentional endangerment. For illustrative decisions, see CSP, B7-1.3. +
- +
- +
-commentary023-30 +
- +
- +
-Class of offence and mode of trial +
- +
-This offence is a class 3 offence, ante, §2-17. It is triable only on indictment. +
- +
- +
-commentary023-31 +
- +
- +
-Omission to act after accidentally causing fire +
- +
-See R. v. Miller (James) ([1983] 2 A.C. 161), ante, §23-10. +
- +
- +
- +
-fulltext023-31a +
- +
-(4)  Racially or religiously aggravated criminal damage +
- +
- +
- +
-  Crime and Disorder Act 1998, s.30 +
- +
-30.  +
-(1)  A person is guilty of an offence under this section if he commits an offence under section 1(1) of the Criminal Damage Act 1971 (destroying or damaging property belonging to another) which is racially or religiously aggravated for the purposes of this section. +
- +
-(2)  A person guilty of an offence under this section shall be liable -  +
- +
-(a)  on summary conviction, to imprisonment for a term not exceeding six [12] months or to a fine not exceeding the statutory maximum, or to both; +
- +
-(b)  on conviction on indictment, to imprisonment for a term not exceeding fourteen years or to a fine, or to both. +
- +
-(3)  For the purposes of this section, 28(1)(a) above shall have effect as if the person to whom the property belongs or is treated as belonging for the purposes of that Act were the victim of the offence. +
- +
- +
-[Subs. (1) is printed as amended by the Anti-terrorism,​ Crime and Security Act 2001, s.39(5)(b) and (6)(b). In subs. (2)(a), "​12"​ is substituted for "​six",​ as from a day to be appointed, by the CJA 2003, s.282(2) and (3). The increase has no application to offences committed before the substitution takes effect: s.282(4).] +
- +
-  +
- +
-Section 28  of the 1998 Act, which defines "​racially or religiously aggravated",​ is set out at §5-84, ante. +
- +
- +
-commentary023-31b +
- +
- +
-Indictment +
- +
-An indictment for the racially or religiously aggravated version of the offence may be adapted from the specimen indictment for an offence contrary to section 29 (»»text)(1)(b) of the 1998 Act, ante, §19-214b. +
- +
- +
-commentary023-31c +
- +
- +
-Sentence +
- +
-Imprisonment for 14 years: s.30 (»»text)(2)(b),​ ante. +
- +
-There are no Crown Court sentencing guidelines for this offence. For an illustrative decision, see CSP, B7-2.3C. As to sentencing for racially aggravated offences generally, see R. v. Saunders (Joseph Brian)[2000] 1 Cr.App.R. 458, CA, and R. v. Morrison (Jamie Joe)[2001] 1 Cr.App.R.(S.) 5, CA. +
- +
- +
-commentary023-31d +
- +
- +
-Class of offence and mode of trial +
- +
-This offence is a class 3 offence, ante, §2-17. It is triable either way: see subs. (2). For the Sentencing Guidelines Council'​s guideline on mode of trial, see Appendix K-183. The guideline in relation to arson (Appendix K-183) does not apply to the racially or religiously aggravated version of the offence, but it may nevertheless be used as a starting point in making a mode of trial decision. +
- +
- +
-B: Threats to Destroy or Damage Property +
-fulltext023-32 +
- +
- +
-B. Threats to Destroy or Damage Property +
- +
- +
- +
-  Criminal Damage Act 1971, s.2 +
- +
-2.  +
-A person who without lawful excuse makes to another a threat, intending that that other would fear it would be carried out, -  +
- +
-(a)  to destroy or damage any property belonging to that other or a third person; or +
- +
-(b)  to destroy or damage his own property in a way which he knows is likely to endanger the life of that other or a third person; +
- +
-shall be guilty of an offence. +
- +
- +
-As to the meaning of "​lawful excuse",​ see section 5, post, §§23-47 et seq.; of "​damage",​ see ante, §§23-6 et seq.; of "​property"​ and "​belonging to that other",​ see section 10, post, §§23-54 et seq. +
- +
- +
-fulltext023-33 +
- +
- +
-Indictment +
-Statement of Offence +
- +
-Threatening to destroy ​ [or damage] property, contrary to section 2 (»»text)of the  Criminal Damage Act1971. +
-Particulars of Offence +
- +
-A B, on the  -  -  day of  -  - , 20 - , without lawful excuse, threatened J N that he would burn the said J N's house, intending that the said J N would fear that the said threat would be carried out. +
- +
- +
-commentary023-34 +
- +
- +
-Sentence +
- +
-Imprisonment for 10 years: Criminal Damage Act 1971, s.4, post, §23-46. +
- +
-There are no sentencing guidelines for this offence. +
- +
- +
-commentary023-35 +
- +
- +
-Class of offence and mode of trial +
- +
-This offence is a class 3 offence, ante, §2-17. It is triable either way: MCA 1980, s.17(1), and Sched. 1, ante, §1-130. +
- +
- +
-commentary023-35a +
- +
- +
-Mens rea +
- +
-Section 2 (»»text) was examined in R. v. Cakmak (Kenan)[2002] 2 Cr.App.R. 10, CA. Whether an offence under section 2 (»»text)(a) or 2 (»»text)(b) is charged, the jury must be satisfied that the defendant made a threat to another with the intention (recklessness is not enough) that the other would fear that it would be carried out; the nature of the threat must be considered objectively (the actual thoughts and fears of the person threatened are irrelevant);​ whether the threat is capable of coming within paragraph (a) or (b) is a matter of law; and if so capable, whether it did amount to such a threat is a question of fact. Paragraph (a)  deals exclusively with the property of a person other than the defendant, whereas paragraph (b) deals with the defendant'​s property. It is only in relation to the latter paragraph that the prosecution must prove that the defendant knew that the damage or destruction threatened was likely, if carried out, to endanger the life of a person other than the defendant. +
- +
- +
-C: Possessing Anything with Intent to Destroy or Damage Property +
-commentary023-36 +
- +
- +
-C. Possessing Anything with Intent to Destroy or Damage Property +
- +
- +
- +
-  Criminal Damage Act 1971, s.3 +
- +
-3. Possessing anything with intent to destroy or damage property +
- +
-A person who has anything in his custody or under his control intending without lawful excuse to use it or cause or permit another to use it -  +
- +
-(a)  to destroy or damage any property belonging to some other person; or +
- +
-(b)  to destroy or damage his own or the user's property in a way which he knows is likely to endanger the life of some other person; +
- +
-shall be guilty of an offence. +
- +
- +
-As to the meaning of "​lawful excuse",​ see section 5, post, §§23-47 et seq.; of "​damage",​ see ante, §§23-6 et seq.; of "​property"​ and "​belonging to some other person",​ see section 10, post, §§23-54 et seq. +
- +
- +
-commentary023-37 +
- +
- +
-Indictment +
-Statement of Offence +
- +
-Possessing articles with intent to destroy ​ [or damage] property, contrary to section 3of the  Criminal Damage Act1971. +
-Particulars of Offence +
- +
-A B, on the  -  -  day of  -  - , 20 - , had in his custody or under his control a hacksaw and an iron bar intending without lawful excuse to use the said articles or cause or permit another to use them to destroy ​ [or damage] a box belonging to J N [or destroy [or damage) the roof of his own house in a way which he knew was likely to endanger the life of his wife and members of his family]. +
- +
- +
-commentary023-38 +
- +
- +
-Sentence +
- +
-Imprisonment for 10 years: Criminal Damage Act 1971, s.4, post, §23-46. +
- +
-There are no sentencing guidelines for this offence. +
- +
- +
-commentary023-39 +
- +
- +
-Class of offence and mode of trial +
- +
-This offence is a class 3 offence, ante, §2-17. It is triable either way: MCA 1980, s.17(1) and Sched. 1, ante, §1-130. +
- +
- +
-commentary023-40 +
- +
- +
-Mens rea +
- +
-An offence under section 3(a) may be committed only where the defendant intends to use, or cause or permit another to use, the thing to destroy or damage property. It is not enough that the defendant realises that the thing may be so used. It is unnecessary that the defendant should intend an immediate use of the thing; it is enough that he possesses it with the necessary intent even though he contemplates actual use of it at some future time. A conditional intent (an intent to use the thing to cause damage if necessary) will suffice: R. v. Buckingham,​63 Cr.App.R. 159, CA. +
- +
- +
-D: Mode of Trial of Offences Under 1971 Act +
-commentary023-41 +
- +
- +
-D. Mode of Trial of Offences Under 1971 Act +
- +
-Offences triable on indictment only +
- +
-The only offences under the 1971 Act triable on indictment only are the aggravated offences contrary to section 1 (»»text)(2) and (3). +
- +
- +
-commentary023-42 +
- +
- +
-Offences triable either way +
- +
-Offences under sections 1(1), 1(1) and (3), 2 and 3 are triable either way: MCA 1980, s.17(1), and Sched. 1, ante, §§1-130 et seq. As to the maximum penalty on summary conviction, see ibid., s.32(1), ante §1-125. ​ As to the mode of trial guidelines of the Sentencing Guidelines Council, see Appendix K-182, K-183. +
- +
- +
-commentary023-43 +
- +
- +
-Certain offences triable either way to be tried summarily if value involved is small +
- +
-Where a person is charged with an offence contrary to section 1(1) (other than an offence charged as arson), or with aiding, abetting, counselling or procuring such an offence, or with attempting to commit, or inciting, such an offence, and the value involved is less than GBP5,000, he must be tried summarily: MCA 1980, s.22, and Sched. 2 (ante, §§1-106 et seq.), and see R. v. Bristol Magistrates Court Ex p. E[1999] 1 Cr.App.R. 144, DC (attempting to commit low-value criminal damage triable summarily). This does not apply  if: (a) the offence charged is one of two or more such offences which constitute or form part of a series of two or more offences of the same or a similar character and the aggregate of the values involved exceeds GBP5,000; or (b) the offence charged consists in inciting two or more such offences and the aggregate of the values involved exceeds GBP5,000: ibid., s.22(11). +
- +
-As to sentence, where a person is convicted following summary trial in pursuance of section 22, see ibid., s.33, ante, §1-126 (maximum term of imprisonment three months, increased to 51 weeks as from a day to be appointed). The PCC(S)A 2000, s.101(2) (ante, §5-349), precludes the imposition of a detention and training order in the case of an offender aged under 18 convicted of an offence which would be subject to a maximum of three months'​ imprisonment if committed by an adult: P  v. Leeds Youth Court,The Independent (C.S.), October 6, 2006 , DC ([2006] EWHC 2527 (Admin.)). +
- +
- +
-commentary023-44 +
- +
- +
-Power to join in indictment certain summary offences +
- +
-An offence which would otherwise be triable only summarily by virtue of section 22 of the 1980 Act, ante, may in certain circumstances be included as a count in an indictment: see the CJA 1988, s.40 (»»text)(1),​ (3) (ante, §1-133). In the event of conviction, the powers of the Crown Court are limited to those of a magistrates'​ court: ibid., s.40 (»»text)(2). This is so even where a defendant charged, inter alia, with criminal damage is sent to the Crown Court for trial pursuant to the CDA  1998, s.51 (»»text) (§1-24, ante): R. v. Gwynn (Richard Mark)[2003] 2 Cr.App.R. (S.) 41, CA. But where there has been no committal or sending for trial on a charge of criminal damage, and the indictment is amended to add a count of criminal damage, the maximum sentence is 10 years' imprisonment even though the value involved is less than GBP5,000: R. v. Alden (Paul Stuart)[2002] 2 Cr.App.R.(S.) 74, CA (see also ante, §23-14), not following R.  v. McKechnie,​94 Cr.App.R. 51, CA. For criticism of R. v. Alden (Paul Stuart) ([2002] EWCA Crim 421), and a submission that it is inconsistent with R. v. Walker (Alan John)[1996] 1 Cr.App.R.(S.) 447, CA (court in no doubt that maximum sentence for low-value criminal damage is three months), see Criminal Law Week 2002/​15/​06. +
-23-46 +
- +
-E: Miscellaneous Provisions +
-commentary023-46 +
- +
- +
-E. Miscellaneous Provisions +
- +
- +
- +
-  Criminal Damage Act 1971, ss.4, 5 +
- +
-4. Punishment of offences +
- +
-(1)  A person guilty of arson under section 1 (»»text) above or of an offence under section 1 (»»text)(2) above (whether arson or not) shall on conviction on indictment be liable to imprisonment for life. +
- +
-(2)  A person guilty of any other offence under this Act shall on conviction on indictment be liable to imprisonment for a term not exceeding ten years. +
- +
- +
- +
-commentary023-47 +
- +
- +
- +
- +
-5. "​Without lawful excuse"​ +
- +
-(1)  This section applies to any offence under section 1 (»»text)(1) above and any offence under section 2 (»»text) or 3 above other than one involving a threat by the person charged to destroy or damage property in a way which he knows is likely to endanger the life of another or involving an intent by the person charged to use or cause or permit the use of something in his custody or under his control so to destroy or damage property. +
- +
-(2)  A person charged with an offence to which this section applies shall, whether or not he would be treated for the purposes of this Act as having a lawful excuse apart from this subsection, be treated for those purposes as having a lawful excuse -  +
- +
-(a)  if at the time of the act or acts alleged to constitute the offence he believed that the person or persons whom he believed to be entitled to consent to the destruction of or damage to the property in question had so consented, or would have consented to it if he or they had known of the destruction or damage and its circumstances;​ or +
- +
-(b)  if he destroyed or damaged or threatened to destroy or damage the property in question or, in the case of a charge of an offence under section 3 above, intended to use or cause or permit the use of something to destroy or damage it, in order to protect property ​belonging to himself or another or a right or interest in property which was or which he believed to be vested in himself or another, and at the time of the act or acts alleged to constitute the offence he believed -  +
- +
-(i)  that the property, right or interest was in immediate need of protection; and +
- +
-(ii)  that the means of protection adopted or proposed to be adopted were or would be reasonable having regard to all the circumstances. +
- +
-(3)  For the purposes of this section it is immaterial whether a belief is justified or not if it is honestly held. +
- +
-(4)  For the purposes of subsection (2) above a right or interest in property includes any right or privilege in or over landwhether created by grant, licence or otherwise. +
- +
-(5)  This section shall not be construed as casting doubt on any defence recognised by law as a defence to criminal charges. +
- +
- +
- +
-commentary023-48 +
- +
- +
- +
- +
-The fact that a person was suffering from self-induced intoxication at the time of an alleged contravention of section 1 (»»text)(1) does not preclude reliance on the defence afforded by section 5(2) and (3): Jaggard v. Dickinson,​72 Cr.App.R. 33, DC, where a drunken defendant mistakenly but honestly believed that the house into which she was breaking belonged to a friend. +
- +
-Where company property is destroyed or damaged, the individual committing the destruction or damage will have a defence if the company consents to his act. If the destruction or damage is ultra vires the company (e.g.  with a view to making a fraudulent insurance claim) there is no actual consent, but there would still be a defence under section 5(2)(a) if the individual believes (a) that the company is entitled to consent, or that another person (such as the company proprietor) is entitled to consent (see R. v. Denton,74 Cr.App.R. 81, CA), and (b) that such consent exists or would exist if the company or person entitled to consent were to know of the destruction or damage and its circumstances. +
- +
- +
-commentary023-49 +
- +
- +
- +
- +
-Where the defence raise an issue under section 5(2)(b), the judge is only entitled to withdraw the defence from the jury if there is no evidence of lawful excuse; if there is some evidence, however tenuous or nebulous, the question should be left to the jury; on no account should there be a direction to convict: R. v. Wang (Cheong)[2005] 2 Cr.App.R. 8, HL, disapproving the course taken in R. v. Hill;R. v. Hall, 89 Cr.App.R. 74, CA (89 Cr.App.R. 74). +
- +
-The question whether or not a particular act of destruction or damage or threat of destruction or damage was done or made "in order to protect property"​ is not conclusively answered by a defendant'​s genuine beliefs; the test is objective: R. v. Hunt,66 Cr.App.R. 105, CA (setting fire to bed in old people'​s home in order to demonstrate inadequacy of fire alarm - conviction upheld); R. v. Ashford and Smith[1988] Crim.L.R. 682, CA; R. v. Hill; R. v. Hall,ante (campaign of minor criminal damage against United States bases with intent to bring about their closure, and thus lead to reduced risk of the area being target for nuclear attack, with consequent ​ reduced risk of damage to homes in the vicinity); Johnson v. DPP[1994] Crim.L.R. 673, DC (squatter damaging door frame in changing locks to secure his belongings when he moved them in); and R. v. Kelleher (Paul)(2003) 147 S.J. 1395, CA. Similarly, a defendant'​s genuine belief that property was "in immediate need of protection"​ (s.5(2)(b)(i)) is not conclusive. There is an objective aspect to the word "​immediate";​ the defence is only made out where there is evidence on which it could be said that the defendant ​believed ​that immediate action had to be taken to do something which would otherwise be a crime in order to prevent the immediate risk of something worse happening: R. v. Hill;  R. v. Hall,ante, at pp. 79-80. See also Johnson v. DPP, ante: the squatter'​s belief that a lock was necessary to secure his belongings was not a belief that they were in "​immediate need of protection"​. +
- +
-There is no basis under section 5(2)(b) for requiring the defendant to show that the threat is of unlawful damage to his or another'​s property: R. v. Jones (Margaret);​R. v. Olditch and Pritchard;​R. v. Richards[2005] 1 Cr.App.R. 12, CA (legality of Iraq war irrelevant to s.5(2)(b) defence). This ruling, in the defendants'​ favour and not appealed by the prosecution,​ was not examined in the House of Lords, where the defendants'​ appeals on other grounds were dismissed (R. v. Jones (Margaret);​R. v. Olditch and Pritchard;​R. ​ v. Richards;​Ayliffe v. DPP;Swain v. Same[2007] 1 A.C. 136): see ante, §19-39; but Lord Hoffmann'​s observations in relation to the unavailability of a defence under section 3 of the CLA 1967 (»»text) (reasonable force for the prevention of crime) in the case of direct action protesters leaves little, if any, scope for a successful defence under section 5 where a defence under section 3 of the 1967 Act (»»text) would fail. Although he left the position under section ​ 5 open (see [73]), it seems clear that his Lordship would have held that property could not be said to be "in immediate need of protection"​ where the state authorities could have, if they had so chosen, taken action to avoid what the defendant asserted to be the greater evil. In one respect, however, the defence under section 5 does differ from that under section 3 (»»text). Under section 5, there is no requirement that the steps actually taken should be reasonable. It is enough that the defendant believed that they were reasonable (the fact that they may have been totally unreasonable going only to the question whether the defendant genuinely held any such belief). +
- +
- +
-commentary023-49a +
- +
- +
- +
- +
-In Chamberlain v. Lindon[1998] 1 W.L.R. 1252, DC, the respondent demolished a wall erected on the appellant'​s land some nine months previously. The respondent'​s defence to a charge of criminal damage was that he had demolished the wall to protect his right of way over the land. It was held in the magistrates'​ court that he came within the section 5(2)(b) defence in that he honestly believed that his right or interest was in immediate need of protection and that the means adopted were reasonable having regard to all the circumstances. The appeal against the respondent'​s acquittal was dismissed. It was held: (1) that the fact that the respondent damaged the wall in the hope of avoiding civil litigation did not prevent his purpose being to protect his right of way (which qualified as a right or interest in property by virtue of section 5(4)); and (2)  that the right of way was in immediate need of protection within the meaning of section 5(2)(b)(i), because there was a present need to remove the wall, and the longer it remained the more urgent the need to remove it so as to avoid any suggestion of acquiescence in the obstruction. +
- +
- +
-commentary023-50 +
- +
- +
- +
- +
-A motorist parking in a private car park displaying clear warnings that unauthorised vehicles would be wheel clamped, consented to the risk of his car being clamped. He had no lawful excuse for damaging the clamp. Causing damage in such circumstances can only be contemplated when there is no reasonable alternative:​ Lloyd v. DPP[1992] 1 All E.R. 982, DC; R. v. Mitchell (Carl)[2004] R.T.R. 14, CA. +
- +
- +
-commentary023-51 +
- +
- +
- +
- +
-A defendant'​s genuine belief that he was carrying out God's instructions does not provide a defence of lawful excuse to a charge of criminal damage: Blake v. DPP[1993] Crim.L.R. 586, DC. +
- +
-The defence of damaging property to protect property (s.5(2)(b)) does not extend to the protection of the person: R. v. Baker (Janet)[1997] Crim.L.R. 497, CA. +
- +
-The words "​property belonging to himself or another"​ (section 5(2)(b)) specify two requirements of the thing sought to be protected. It must be "​property"​ and it must belong to the person charged or another: Cresswell v. DPP;Currie v. DPP,171 J.P. 233, DC. Keene L.J. was of the opinion that the section 5(2)(b) defence cannot apply where both the destroyed property and the thing to be protected are in the ownership of the same person, whereas Walker J. left this point open. As to this case, see also post, §23-55. +
- +
-Section 5(2) and (5) make it clear that the common law defence of protection of property remains, but it has always been an ingredient of that defence that what is being experienced or feared by the defendant is an unlawful or criminal act: Cresswell v. DPP;Currie v. DPP ([2006] EWHC 3379), ante (in contrast to the position under section 5: see R. v. Jones (Margaret) ([2006] UKHL 16), ante, §23-49). +
- +
- +
-commentary023-52 +
- +
- +
- +
- +
-  Criminal Damage Act 1971, ss.6, 9, 10 +
- +
-6. Search for things intended for use in committing offences of criminal damage +
- +
-(1)  If it is made to appear by information on oath before a justice of the peace that there is reasonable cause to believe that any person has in his custody or under his control or on his premises anything which there is reasonable cause to believe has been used or is intended for use without lawful excuse -  +
- +
-(a)  to destroy or damage property belonging to another; or +
- +
-(b)  to destroy or damage any property in a way likely to endanger the life of another, +
- +
-the justice may grant a warrant authorising any constable to search for and seize that thing. +
- +
-(2)  A constable who is authorised under this section to search premises for anything, may enter (if need be by force) and search the premises accordingly and may seize anything which he believes to have been used or to be intended to be used as aforesaid. +
- +
-(3)  [Application of  Police (Property) Act1897.] +
- +
- +
- +
-commentary023-53 +
- +
- +
- +
- +
-9. Effect on civil proceedings +
- +
-[Identical to  s.31(1)of the  Theft Act1968, ante, §21-336 (including the amendments). ] +
- +
- +
- +
-commentary023-54 +
- +
- +
- +
- +
-10. Interpretation +
- +
-(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. +
- +
-(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 agreement to transfer or grant an interest); or +
- +
-(c)  having a charge on it. +
- +
-(3)  Where property is subject to a trust, the person to whom it belongs shall be so treated as including any person having a right to enforce that trust. +
- +
-(4)  Property of a corporation sole shall be so treated as belonging to the corporation notwithstanding a vacancy in the corporation. +
- +
-[(5)  For the purposes of this Act a modification of the contents of a computer shall not be regarded as damaging any computer or computer storage medium unless its effect on that computer or computer storage medium impairs its physical condition.] +
- +
- +
-[This section is printed as amended, as from a day to be appointed, by the PJA 2006, s.52, and Sched. 14, para. 2 (insertion of subs. (5)).] +
- +
-  +
- +
- +
-commentary023-55 +
- +
- +
- +
- +
-Cf.  sections 4 (»»text) and 5 of the Theft Act 1968 (»»text), ante, §§21-48, 21-58. +
- +
-As to the relationship between mens rea and "​property belonging to another",​ see R. v. Smith (D.R.),58 Cr.App.R. 320, CA (ante , §23-8). +
- +
-In Cresswell v. DPP;Currie v. DPP ([2006] EWHC 3379), ante, §23-51, Keene L.J. held that badgers for which traps had been set, but which had not yet been trapped, ​were not "​property"​ as defined by section 10(1)(a) ("wild creatures ​ ...  if, but only if, ...  they are in the course of being reduced into possession"​),​ even if particular badgers had entered a trap prior to it being set. Walker J. expressed no concluded view on this point. However, both judges agreed that the badgers did not belong to anybody, as nobody had custody or control of them, nor any proprietary right or interest in them (see s.10(2)); so the defendants who  destroyed the traps could not rely on the section 5(2)(b) defence: see ante, §23-51. +
- +
- +
-II: Malicious Damage Act 1861 +
-fulltext023-56 +
- +
- +
-II. Malicious Damage Act 1861 +
- +
- +
- +
-  Malicious Damage Act 1861, ss.35, 36 +
- +
-35. Placing wood, etc. on railway, etc. +
- +
-Whosoever shall unlawfully and maliciously put, place, cast, or throw upon or across any railway any wood, stone, or other matter or thing, or shall unlawfully and maliciously take up, remove, or displace any rail, sleeper, or other matter or thing, belonging to any railway, or shall unlawfully and maliciously turn, move, or divert any points or other machinery belonging to any railway, or shall unlawfully and maliciously make or show, hide, or remove, any signal or light upon or near to any railway, or shall unlawfully and maliciously do or cause to be done any other matter or thing, with intent, in any of the cases aforesaid, to obstruct, upset, overthrow, injure, or destroy any engine, tender, carriage, or truck using such railway, shall be  ...  liable, at the discretion of the court, to imprisonment for life  ...  . +
- +
- +
- +
-fulltext023-57 +
- +
- +
- +
- +
-36. Obstructing engines or carriages on railways +
- +
-Whosoever, by any unlawful act, or by any wilful omission or neglect, shall obstruct or cause to be obstructed, any engine or carriage using any railway, or shall aid or assist therein, shall be guilty of an offence, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years  ...  . +
- +
- +
- +
-commentary023-58 +
- +
- +
-Indictment +
- +
-Specimen counts under both sections 35 (»»text) and 36 (»»text) are contained in the repealed Schedule to the Indictments Act 1915. +
- +
-An acquittal on an indictment framed under section 35 (»»text) is no bar to a subsequent indictment upon the same facts for an offence under section 36 (»»text): R. v. Gilmore(1882) 15 Cox 85. +
- +
- +
-commentary023-59 +
- +
- +
-Class of offence and mode of trial +
- +
-The offences contrary to sections 35 and 36 are class 3 offences, ante, §2-17. The latter is triable either way: MCA 1980, s.17(1), and Sched. 1, ante, §1-130. The penalty on summary conviction is six months'​ imprisonment (increased to 12 months, as from a day to be appointed, by the CJA 2003, s.282(2) and (3), but  not in relation to any offence committed before the date of commencement:​ s.282(4)), a fine not exceeding GBP5,000, or both: ibid., s.32(1), ante, §§1-125 et seq. +
- +
- +
-commentary023-60 +
- +
- +
-Mens rea +
- +
-As to the meaning of "​maliciously",​ see generally, ante, §§17-45 et seq. and, in particular, R. v. Cunningham[1957] 2 Q.B. 396,41 Cr.App.R. 155 , CCA. Section 58 of the Act provides that where malice is an ingredient of an offence under the Act it is immaterial whether the offence is committed "from malice conceived against the owner of the property in respect of which it shall be committed, or otherwise"​. +
- +
-As to the meaning of "​wilful",​ see R. v. Holroyd(1841) 2 M. & Rob. 339, R. v. Senior[1899] 1 Q.B. 283 and R. v. Sheppard (James Martin)[1981] A.C. 394, HL, ante, §17-47. +
- +
-In R. v. Gittins[1982] R.T.R. 363, CA, it was held (applying R. v. Sheppard (James Martin), ante) that in order to be guilty of wilful neglect (s.36 (»»text)),​ the accused must know that his conduct involves the risk of an obstruction to the railway unless he takes reasonable ​care and yet, knowing that, he deliberately falls short of exercising it. +
- +
- +
-commentary023-61 +
- +
- +
-Actus reus +
- +
-On a prosecution under section 36 (»»text), it would seem not to be necessary to prove that any train was obstructed in fact: see R. v. Bradford(1860) 8 Cox 309; R. v. Gatenby[1960] Crim.L.R. 195, Assizes (Thesiger J.). +
- +
-Where a defendant unlawfully causes a train to slow down or stop, whether by altering some railway signals (R. v. Hadfield(1870) L.R. 1 C.C.R. 253) or imitating an inspector'​s hand signals (R. v. Hardy(1870) L.R. 1 C.C.R. 278), he is guilty of "​obstructing"​ a train within the meaning of section 36 (»»text). "Any unlawful act" in section 36 (»»text) includes each of the acts mentioned in section 35 (»»text): Hadfield ​ ((1870) 1 L.R. C.C.R. 253) and Hardy ((1870) 1 L.R. C.C.R. 278), ibid. +
- +
-It does not matter whether the railway is public or private: O'​Gorman v. Sweet,54 J.P. 663. +
- +
- +
-III: Explosive Substances Act 1883 +
-fulltext023-62 +
- +
- +
-III. Explosive Substances Act 1883 +
- +
- +
- +
-  Explosive Substances Act 1883, s.2 +
- +
-2. Causing explosion likely to endanger life or property +
- +
-A person who in the United Kingdom or (being a citizen of the United Kingdom and Colonies) in the Republic of Ireland unlawfully and maliciously causes by any explosive substance an explosion of a nature likely to endanger life or to cause serious injury to property shall, whether any injury to person or property has been actually caused or not, be guilty of an offence and on conviction on indictment shall be liable to imprisonment for life. +
- +
- +
-[This section is printed as substituted by the Criminal Jurisdiction Act 1975, s.7.] +
- +
-  +
- +
-An offence contrary to section 2 is a "​Convention offence"​ for the purposes of Part 1 of the Terrorism Act 2006: see s.20(2) and Sched. 1, para. 1(2)(a). +
- +
- +
-fulltext023-63 +
- +
- +
-Indictment +
-Statement of Offence +
- +
-Causing an explosion, contrary to  section 2 (»»text)of the  Explosive Substances Act1883. +
-Particulars of Offence +
- +
-A B, on the  -  -  day of  -  - , 20 - , maliciously caused by gunpowder or other explosive substance an explosion of a nature likely to endanger life or to cause serious injury to property. +
- +
- +
-commentary023-64 +
- +
- +
-Sentence +
- +
-Imprisonment for life: s.2 (»»text) (ante). +
- +
-This offence is a "​specified violent offence"​within Chapter 5 of Part 12 of the CJA 2003 (life sentences, sentences for public protection and extended sentences): see s.224, and Sched. 15, ante, §§5-292, 5-299. +
- +
-For sentencing guidelines, see CSP, B7-3.2; R. v. Martin (Patrick Hugh Sean)[1999] 1 Cr.App.R.(S.) 477, CA; and R. v. Jalil (Abdul Aziz)[2009] 2 Cr.App.R.(S.) 40, CA (R. v. Martin (Patrick Hugh) no longer to be regarded as a valid guideline for terrorist conspiracies where the potential for mass injury and loss of life was vastly greater, and where the planning had reached a more advanced stage, even if, as in that case, the offenders had no intention to kill). +
- +
- +
-commentary023-65 +
- +
- +
-Class of offence and mode of trial +
- +
-This offence is a class 3 offence, ante, §2-17. It is triable only on indictment: s.2 (»»text), ante. +
- +
- +
-commentary023-65a +
- +
- +
-Ingredients +
- +
-  "​Maliciously"​ +
- +
-See ante, §§17-45 et seq., and, in particular, R. v. Cunningham (Roy)[1957] 2 Q.B. 396,41 Cr.App.R. 155 , CCA. +
- +
-  "Who in the United Kingdom"​ +
- +
-In R. v. Ellis,95 Cr.App.R. 52 at 66, CCC, Swinton Thomas J. observed obiter that it "would be quite extraordinary if, in the circumstances prevailing in 1975, Parliament when enacting the new section 2 (»»text) intended to limit the crime so as to require the physical presence of the offender as opposed to defining the place where the damage occurred"​. +
- +
- +
-commentary023-66 +
- +
- +
- +
- +
-  Explosive Substances Act 1883, s.3 +
- +
-3. Attempt to cause explosion, or making or keeping explosive with intent to endanger life or property +
- +
-(1)  A person who in the United Kingdom or a dependency or (being a citizen of the United Kingdom and Colonies) elsewhere unlawfully and maliciously -  +
- +
-(a)  does any act with intent to cause, or conspires to cause, by an explosive substance an explosion of a nature likely to endanger life, or cause serious injury to property, whether in the United Kingdom or elsewhere, or +
- +
-(b)  makes or has in his possession or under his control an explosive substance with intent by means thereof to endanger life, or cause serious injury to property, whether in the United Kingdom or elsewhere, or to enable any other person so to do, +
- +
-shall, whether any explosion does or does not take place, and whether any injury to person or property is actually caused or not, be guilty of an offence and on conviction on indictment shall be liable to imprisonment for life, and the explosive substance shall be forfeited. +
- +
-(2)  In this section "​dependency"​ means the Channel Islands, the Isle of Man and any colony, other than a colony for whose external relations a country other than the United Kingdom is responsible. +
- +
- +
-[This section is printed as substituted by the Criminal Jurisdiction Act 1975, s.7; and as subsequently amended by the CLA 1977, s.65(4) and Sched. 12; and the Terrorism Act 2006, s.17(5).] +
- +
-  +
- +
-An offence contrary to section 3 is a "​Convention offence"​ for the purposes of Part 1 of the Terrorism Act 2006: see s.20(2) and Sched. 1, para. 1(2)(b). +
- +
- +
-commentary023-66a +
- +
- +
-Indictment +
- +
-COUNT 1 +
- +
- +
-commentary023-67 +
- +
- +
- +
-Statement of Offence +
- +
-Conspiracy to cause an explosion, contrary to  section 3(1)(a)of the   +
-Explosive Substances Act1883. +
-Particulars of Offence +
- +
-A B, on the  -  -  day of  -  - , 20 - , unlawfully and maliciously conspired with J N to cause by an explosive substance an explosion of a nature likely to endanger life or cause serious injury to property in the United Kingdom or the Republic of Ireland. +
- +
-COUNT 2 +
-Statement of Offence +
- +
-Possession of an explosive substance with intent, contrary to  section 3(1)(b)of the   +
-Explosive Substances Act1883. +
-Particulars of Offence +
- +
-A B, on the  -  -  day of  -  - , 20 - , unlawfully and maliciously made or had in his possession or under his control an explosive substance with intent by means thereof to endanger life or cause serious injury to property in the United Kingdom or the Republic of Ireland. +
- +
- +
-commentary023-68 +
- +
- +
-Sentence +
- +
-Imprisonment for life and forfeiture of the explosive substance: s.3 (ante). +
- +
-This offence is a "​specified violent offence"​ within Chapter 5 of Part 12 of the CJA 2003 (life sentences, sentences for public protection and extended sentences): see s.224, and Sched. 15, ante, §§5-292, 5-299. +
- +
-For sentencing guidelines, see ante, §23-64. +
- +
- +
-commentary023-69 +
- +
- +
-Class of offence and mode of trial +
- +
-This offence is a class 3 offence, ante, §2-17. It is triable only on indictment: s.3, ante. +
- +
- +
-commentary023-70 +
- +
- +
-Ingredients +
- +
-  "​Maliciously"​ +
- +
-See ante, §23-65a. +
- +
- +
-commentary023-71 +
- +
- +
- +
- +
-  "Who in the United Kingdom"​ +
- +
-In R. v. Ellis (95 Cr.App.R. 52), ante, it was held that the word "​who"​ in section 3 governs the acts described in the section rather than the person. If the intended explosions were planned to take place in the United Kingdom, therefore, it would be no defence to show that the defendant had not been in the United Kingdom at the relevant time. +
- +
- +
-commentary023-72 +
- +
- +
- +
- +
-  Explosive Substances Act 1883, s.4 +
- +
-4. Making or possession of explosive under suspicious circumstances +
- +
-(1)  Any person who makes or knowingly has in his possession or under his control any explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object, shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, be guilty of [an offence] and liable to imprisonment for a term not exceeding fourteen years, and the explosive substance shall be forfeited. +
- +
-(2)  [Repealed by  PACE Act1984, s.119(2)and ​ Sched. 7, Pt V.] +
- +
- +
- +
-commentary023-73 +
- +
- +
-Indictment +
-Statement of Offence +
- +
-Making ​ [or Possessing] explosives, contrary to section 4of the  Explosive  +
-Substances Act1883. +
-Particulars of Offence +
- +
-A B, on the  -  -  day of  -  - , 20 - , made  [or knowingly had in his possession or under his control] a certain explosive substance, to wit [describe the explosive substance] in such circumstances as to give rise to a reasonable suspicion that he had not made it [or that it was not in his possession or under his control] for a lawful object. +
- +
-Where the charge is that of possessing explosives, the omission of the word "​knowingly"​ from the indictment renders the indictment defective (R. v. Stewart and Harris,44 Cr.App.R. 29, CCA), but not a nullity (R. v. McVitie,44 Cr.App.R. 201, CCA). +
- +
- +
-commentary023-74 +
- +
- +
-Sentence +
- +
-Imprisonment not exceeding 14 years and forfeiture of the explosive substance: s.4 (ante). +
- +
-There are no sentencing guidelines for this offence. For illustrative decisions, see CSP, B7-3.3B. +
- +
- +
-commentary023-75 +
- +
- +
-Class of offence and mode of trial +
- +
-This offence is a class 3 offence, ante, §2-17. It is triable only on indictment. +
- +
- +
-commentary023-76 +
- +
- +
-Ingredients +
- +
-  Possessing explosives +
- +
-The prosecution must prove: +
- +
-(a)  that the defendant was knowingly in possession of a substance which is an explosive substance as defined by section 9 (post, §23-84), and +
- +
-(b)  that the possession was in such circumstances as to give rise to a reasonable suspicion that he did not have it in his possession for a lawful object. +
- +
- +
-The prosecution must prove both that the defendant knew that he was in possession of the substance and also that he knew that it was an explosive substance; though, if the prosecution establish (b) as set out above, the jury may easily infer knowledge that the substance was explosive: R. v. Hallam,41 Cr.App.R. 111, CCA. It then lies on the defendant to show that he had it in his possession for a lawful object. +
- +
- +
-commentary023-77 +
- +
- +
- +
- +
-  Making explosives +
- +
-The prosecution must prove: +
- +
-(a)  that the defendant knew that the substance he made was an explosive substance as defined by section 9 (post, §23-84), and +
- +
-(b)  that he made it in such circumstances as to give rise to a reasonable suspicion that he did not make it for a lawful object. +
- +
- +
-Mens rea  is a specific ingredient of the offence of making explosives, even though the word "​knowingly"​ in section 4(1) qualifies only "has in his possession or under his control":​ R. v. Berry,99 Cr.App.R. 88, CA. +
- +
- +
-commentary023-78 +
- +
- +
- +
- +
-  Lawful object +
- +
-Self-defence is a defence to a charge under section 4. The defendant must satisfy the jury on the balance of probabilities that his object was to protect himself or his family or his property against imminent apprehended attack and to do so by means which he believed were no more than reasonably necessary to meet the force used by the attackers: Att.-Gen'​s. Reference (No. 2 of 1983)[1984] Q.B. 456,78 Cr.App.R. 183 , CA (petrol bombs). The court observed, applying R. v. Fegan,78 Cr.App.R. 189, CCA (N.I.), that the object or purpose or end for which the explosive substance was made was not in itself rendered unlawful by the fact that it could not be fulfilled without the commission of another offence (in Fegan  (78 Cr.App.R., 189), possession of a firearm without a certificate). Further, an explosive substance may be made with a lawful object, but if it is retained after the threat has passed which justified the making of it, the continued retention will be an offence under section 4. +
- +
-In R. v. Berry (John Rodney Francis) (No.1)[1985] A.C. 246, HL, it was held that the "​lawful object"​ specified in section 4(1) is not confined to a purpose which takes place in the United Kingdom and the lawfulness of which is to be defined by English law. Accordingly,​ if the evidence is that the accused manufactured an explosive substance for use abroad and he cannot show, on the balance of probabilities,​ that such use was lawful outside the United Kingdom, he is liable to conviction. +
- +
- +
-commentary023-79 +
- +
- +
-Common design +
- +
-If several persons are concerned in a common design to have articles amounting to an explosive substance made for an unlawful purpose, each is responsible in respect of such articles as are in the possession of others connected in the carrying out of their common design: R. v. Charles(1892) 17 Cox 499. +
- +
- +
-commentary023-79a +
- +
- +
-Aiding and abetting +
- +
-The aiding and abetting of an offence contrary to section 4 is an offence known to the law and is established where it is proved that the defendant:​ +
- +
-(a)  knew that the principal offender had the explosive substance in his possession or under his control; +
- +
-(b)  knew facts giving rise to a reasonable suspicion that the principal offender did not have the substance in his possession or under his control for a lawful object; and +
- +
-(c)  was present actively encouraging or in some way helping the principal offender in the commission of the offence: R. v. McCarthy,48 Cr.App.R. 111, CCA (applied in Tek v. Queen, The[1990] 2 A.C. 333, PC). +
- +
- +
- +
-commentary023-80 +
- +
- +
- +
- +
-  Explosive Substances Act 1883, ss.5, 7 +
- +
-5. Punishment of accessories +
- +
-Any person who within or (being a subject of Her Majesty) without Her Majesty'​s dominions by the supply of or solicitation for money, the providing of premises, the supply of materials, or in any manner whatsoever, procures, counsels, aids, abets, or is accessory to, the commission of any crime under this Act, shall be guilty of [an offence] and shall be liable to be tried and punished for that crime, as if he had been guilty as a principal. +
- +
- +
-An offence contrary to section 5 is a "​Convention offence"​ for the purposes of Part 1 of the Terrorism Act 2006: see s.20(2) and Sched. 1, para. 1(2)(c). +
- +
- +
-commentary023-81 +
- +
- +
- +
- +
-7. No prosecution except by leave of Attorney-General +
- +
-(1)  Proceedings for a crime under this Act shall not be instituted except by or with the consent of the Attorney-General. +
- +
-(2)  [Repealed by  Indictments Act1915, s.9and ​ Sched. 2.] +
- +
-(3)  [Repealed by  Criminal Law Act1967, s.10(2)and ​ Sched. 3, Pt III.] +
- +
-(4)  [Repealed by  Statute Law (Repeals) Act1989, s.1(1)and ​ Sched. 1, Pt I.] +
- +
- +
-[Subs. (1) is printed as substituted by the Administration of Justice Act 1982, s.63(1).] +
- +
-  +
- +
- +
-commentary023-82 +
- +
- +
- +
- +
-Section 7(1) does not prevent the arrest without warrant, or the issue or execution of a warrant for the arrest, of a person for any offence, or the remand in custody or on bail of a person charged with any offence: Prosecution of Offences Act 1985, s.25(2), ante, §1-364. +
- +
-For authorities on the form of, and time for, the Attorney-General'​s consent to the institution of proceedings,​ see ante, §1-319. +
- +
- +
-commentary023-83 +
- +
- +
-Search for and seizure of explosive substances +
- +
-Section 8(1)  of the 1883 Act provides that sections 73, 74, 75, 89 and 96 of the Explosives Act 1875 (which sections relate to the search for, seizure and detention of explosive substances, and the forfeiture thereof, and the disposal of explosive substances seized or forfeited), shall apply as if a crime or forfeiture under the 1883 Act were an offence or forfeiture under the 1875 Act. +
- +
- +
-commentary023-84 +
- +
- +
- +
- +
-  Explosive Substances Act 1883, s.9 +
- +
-9. Definitions +
- +
-(1)  In this Act, unless the context otherwise requires -  +
- +
-The expression "​explosive substance"​ shall be deemed to include any materials for making any explosive substance; also any apparatus, machine, implement, or materials used, or intended to be used, or adapted for causing, or aiding in causing, any explosion in or with any explosive substance; also any part of any such apparatus, machine, or implement. +
- +
-The expression "​Attorney-General"​ means Her Majesty'​s Attorney-General for England or Ireland, ...  +
- +
-(2)  [Scotland. ] +
- +
- +
-[This section is printed as amended by the Law Officers Act 1997, s.3(2), and Sched.] +
- +
-  +
- +
-The 1883 Act does not define "​explosive"​. In R. v. Wheatley,68 Cr.App.R. 287, CA, it was held that the Act should be construed in the light of the definition of "​explosive"​ in section 3 of the Explosives Act 1875, viz.: +
- +
-"This Act shall apply to gunpowder and other explosives as defined by this section. The term '​explosive'​ in this Act - (1) Means gunpowder, nitroglycerine,​ dynamite, gun-cotton, blasting powders, fulminate of mercury or of other metals, coloured fires and every other substance, whether similar to those above mentioned or not, used or manufactured with a view to producing a practical effect by explosion or a pyrotechnic effect; and (2) includes fog-signals,​ fireworks, fuzes, rockets, percussion caps, detonators, cartridges, ammunition of all description,​ and every adaptation or preparation of an explosive as above defined."​ +
- +
- +
- +
-commentary023-85 +
- +
- +
- +
- +
-Wheatley ([1979] 1 W.L.R. 144 ) was applied in R. v. Bouch,76 Cr.App.R. 11, CA (petrol bomb consisting of some petrol in a bottle with a rag rammed into its neck to form a wick is an "​explosive substance"​ within the 1883 Act). Bouch ([1983] Q.B. 246) was followed in R. v. Howard[1993] Crim.L.R. 213, CA, in respect of the Offences ​ against the Person Act 1861, s.29 (ante, §19-232). +
- +
- +
-commentary023-86 +
- +
- +
- +
- +
-The term "​explosive substance"​ has been held to include a shot gun (R. v. Downey[1971] N.I. 224) and a part of a vessel which itself is filled with an explosive substance (R. v. Charles(1892) 17 Cox 499). +
- +
- +
-IV: Computer Misuse Act 1990 +
-A: Computer Misuse Offences +
-fulltext023-87 +
- +
- +
-IV. Computer Misuse Act 1990 +
- +
-A. Computer Misuse Offences +
- +
- +
- +
-  Computer Misuse Act 1990, s.1 +
- +
-1. Unauthorised access to computer material +
- +
-(1)  A person is guilty of an offence if -  +
- +
-(a)  he causes a computer to perform any function with intent to secure access to any program or data held in any computer; +
- +
-(b)  the access he intends to secure is unauthorised;​ and +
- +
-(c)  he knows at the time when he causes the computer to perform the function that that is the case. +
- +
-(2)  The intent a person has to have to commit an offence under this section need not be directed at -  +
- +
-(a)  any particular program or data; +
- +
-(b)  a program or data of any particular kind; or +
- +
-(c)  a program or data held in any particular computer. +
- +
-(3)  A person guilty of an offence under this section shall be liable -  +
- +
-(a)  on summary conviction in England and Wales, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum or to both; +
- +
-(b)  [Scotland. ] +
- +
-(c)  on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both. +
- +
- +
-[This section is printed as amended by the PJA 2006, s.35(1) and (3). Subs. (2) (which effected further prospective amendments) was itself repealed without ever having been brought into force by the SCA 2007, ss.61(1) and (2), and 92, and Sched. 14.] +
- +
-  +
- +
-The amendments effected by the 2006 Act are subject to transitional provisions. By section 38(2)(a), the substitution of section 1(3) does not apply in relation to an offence committed before the substitution took effect (viz. October 1, 2008: Police and Justice Act 2006 (Commencement No. 9) Order 2008 (S.I. 2008 No. 2503)). By section 38(6), in the case of an offence committed before the CJA 2003, s.154(1), comes into force, the new subsection (3) has effect as if for "12 months",​ there were substituted "six months"​. +
- +
-The words of section 1(1)(a) should be given their plain and ordinary meaning: Att.-Gen.'​s Reference (No. 1 of 1991)[1993] Q.B. 94, CA. An offence under the section need not involve the use of one computer to secure access to another; the section is also contravened where a person causes a computer to perform a function with intent to gain unauthorised access to any program or data held in the same computer: ibid. +
- +
-It is unclear whether an offence is committed under section 1 by a person who is authorised to secure access to computer material, but does so for unauthorised purposes. In DPP v. Bignall[1998] 1 Cr.App.R. 1, DC (police officers for undisclosed private purposes procuring innocent computer operator to extract details of cars from Police National Computer), it was held that the offence was not committed in such circumstances,​ but some of the court'​s reasoning in relation to section 17(5), albeit not the result, was disapproved in R. v. Bow Street Metropolitan Stipendiary Magistrate Ex p. United States (No.2)[2000] 2 A.C. 216, HL (an extradition ​ case: see post, §23-101). See the commentaries at [1999] Crim.L.R. 971 and Criminal Law Week 1999/​32/​16. +
- +
- +
-commentary023-88 +
- +
- +
- +
- +
-  Computer Misuse Act 1990, ss.2, 3, 3A +
- +
-2. Unauthorised access with intent to commit or facilitate commission of further offences +
- +
-(1)  A person is guilty of an offence under this section if he commits an offence under section 1 above ("the unauthorised access offence"​) with intent -  +
- +
-(a)  to commit an offence to which this section applies; or +
- +
-(b)  to facilitate the commission of such an offence (whether by himself or by any other person); +
- +
-and the offence he intends to commit or facilitate is referred to below in this section as the further offence. +
- +
-(2)  This section applies to offences -  +
- +
-(a)  for which the sentence is fixed by law; or +
- +
-(b)  for which a person of twenty-one years of age or over (not previously convicted) [who has attained the age of twenty-one years (eighteen in relation to England and Wales) and has no previous convictions] may be sentenced to imprisonment for a term of five years (or, in England and Wales, might be so sentenced but for the restrictions imposed by section 33 of the Magistrates'​ Courts Act 1980). +
- +
-(3)  It is immaterial for the purposes of this section whether the further offence is to be committed on the same occasion as the unauthorised access offence or on any future occasion. +
- +
-(4)  A person may be guilty of an offence under this section even though the facts are such that the commission of the further offence is impossible. +
- +
-(5)  A person guilty of an offence under this section shall be liable -  +
- +
-(a)  on summary conviction in England and Wales, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum or to both; +
- +
-(b)  [Scotland. ]; +
- +
-(c)  on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine or to both. +
- +
- +
-[This section is printed as amended by the PJA 2006, s.52, and Sched. 14, para. 17; and as amended, as from a day to be appointed, by the CJCSA 2000, s.74 and Sched. 7, para. 98 (substitution of words in square brackets for italicised words in subs. (2)). The reference to "12 months"​ in subs. (5) should be read as "six months"​ in relation to any offence committed before the commencement of the CJA 2003, s.154(1): 2006 Act, s.38(6)).] +
- +
- +
-commentary023-89 +
- +
- +
- +
- +
-3. Unauthorised acts with intent to impair, or with recklessness as to impairing, operation of computer, etc. +
- +
-(1)  A person is guilty of an offence if -  +
- +
-(a)  he does any unauthorised act in relation to a computer; +
- +
-(b)  at the time when he does the act he knows that it is unauthorised;​ and +
- +
-(c)  either subsection (2) or subsection (3) below applies. +
- +
-(2)  This subsection applies if the person intends by doing the act -  +
- +
-(a)  to impair the operation of any computer; +
- +
-(b)  to prevent or hinder access to any program or data held in any computer; or +
- +
-(c)  to impair the operation of any such program or the reliability of any such data. +
- +
-(3)  This subsection applies if the person is reckless as to whether the act will do any of the things mentioned in paragraphs (a) to (c) of subsection (2) above. +
- +
-(4)  The intention referred to in subsection (2) above, or the recklessness referred to in subsection (3) above, need not relate to -  +
- +
-(a)  any particular computer; +
- +
-(b)  any particular program or data; or +
- +
-(c)  a program or data of any particular kind. +
- +
-(5)  In this section -  +
- +
-(a)  a reference to doing an act includes a reference to causing an act to be done; +
- +
-(b)  "​act"​ includes a series of acts; +
- +
-(c)  a reference to impairing, preventing or hindering something includes a reference to doing so temporarily. +
- +
-(6)  A person guilty of an offence under this section shall be liable -  +
- +
-(a)  on summary conviction in England and Wales, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum or to both; +
- +
-(b)  [Scotland ]; +
- +
-(c)  on conviction on indictment, to imprisonment for a term not exceeding ten years or to a fine or to both. +
- +
- +
-[This section is printed as substituted by the PJA 2006, s.36; and as subsequently amended by the SCA 2007, ss.61(1) and (3), and 92, and Sched. 14.] +
- +
-  +
- +
-An offence is not committed under the new section 3 unless every act or other event proof of which is required for conviction of the offence takes place after the substitution took effect (viz. October 1, 2008: Police and Justice Act 2006 (Commencement No. 9) Order 2008 (S.I. 2008 No. 2503)): 2006 Act, s.38(3). Where, by reason of section 38(3), an offence is not committed under the new section 3, the old section 3 has effect: ibid., s.38(4). ​ In the case of an offence committed before the CJA 2003, s.154(1), comes into force, the new section 3(6)(a) has effect as if for "12 months"​ there were substituted "six months":​ ibid., s.38(6). +
- +
-If a computer is caused to record information which shows that it came from one person, when it in fact came from someone else, that manifestly affects its reliability,​ and thus the reliability of the data in the computer is impaired within the meaning of section 3(2)(c): Zezev v. Governor of Brixton Prison[2002] 2 Cr.App.R. 33, DC. +
- +
-In DPP v. Lennon,170 J.P. 532, DC, it was held that a person causing a substantial number of e-mail messages to be sent to a computer server committed the actus reus of the offence contrary to the original section 3(1), where the addition of the data from the e-mail messages was "​unauthorised"​ within the meaning of section 17(8): see post, §23-101. +
- +
- +
-commentary023-89a +
- +
- +
- +
- +
-3A. Making, supplying or obtaining articles for use in offence under section 1 or 3 +
- +
-(1)  A person is guilty of an offence if he makes, adapts, supplies or offers to supply any article intending it to be used to commit, or to assist in the commission of, an offence under section 1 or 3. +
- +
-(2)  A person is guilty of an offence if he supplies or offers to supply any article believing that it is likely to be used to commit, or to assist in the commission of, an offence under section 1 or 3. +
- +
-(3)  A person is guilty of an offence if he obtains any article with a view to its being supplied for use to commit, or to assist in the commission of, an offence under section 1 or 3. +
- +
-(4)  In this section "​article"​ includes any program or data held in electronic form. +
- +
-(5)  [Identical to  s.1(3), ante, §23-87.] +
- +
- +
-[This section was inserted by the PJA 2006, s.37.] +
- +
-  +
- +
-An offence is not committed under section 3A unless every act or other event proof of which is required for conviction of the offence takes place after section 37 of the 2006 Act came into force (as to which, see ante, §23-89): 2006 Act. s.38(5). As to the effect of section 38(6), see ante, §23-89. +
- +
- +
-B: Jurisdiction +
-commentary023-90 +
- +
- +
-B. Jurisdiction +
- +
- +
- +
-  Computer Misuse Act 1990, ss.4-9 +
- +
-4. Territorial scope of offences under sections 1 to 3 +
- +
-(1)  Except as provided below in this section, it is immaterial for the purposes of any offence under section 1 or 3 above -  +
- +
-(a)  whether any act or other event proof of which is required for conviction of the offence occurred in the home country concerned; or +
- +
-(b)  whether the accused was in the home country concerned at the time of any such act or event. +
- +
-(2)  Subject to subsection (3) below, in the case of such an offence at least one significant link with domestic jurisdiction must exist in the circumstances of the case for the offence to be committed. +
- +
-(3)  There is no need for any such link to exist for the commission of an offence under section 1 above to be established in proof of an allegation to that effect in proceedings for an offence under section 2 above. +
- +
-(4)  Subject to section 8 below, where -  +
- +
-(a)  any such link does in fact exist in the case of an offence under section 1 above; and +
- +
-(b)  commission of that offence is alleged in proceedings for an offence under section 2 above; +
- +
-section 2 above shall apply as if anything the accused intended to do or facilitate in any place outside the home country concerned which would be an offence to which section 2 applies if it took place in the home country concerned were the offence in question. +
- +
-(5)  [Scotland. ] +
- +
-(6)  References in this Act to the home country concerned are references -  +
- +
-(a)  in the application of this Act to England and Wales, to England and Wales; +
- +
-(b)  in the application of this Act to Scotland, to Scotland; and +
- +
-(c)  in the application of this Act to Northern Ireland, to Northern Ireland. +
- +
- +
-[The heading to this section is printed as amended by the PJA 2006, s.52, and Sched. 14, para. 18.] +
- +
- +
-commentary023-91 +
- +
- +
- +
- +
-5. Significant links with domestic jurisdiction +
- +
-(1)  The following provisions of this section apply for the interpretation of section 4 above. +
- +
-(2)  In relation to an offence under section 1, either of the following is a significant link with domestic jurisdiction -  +
- +
-(a)  that the accused was in the home country concerned at the time when he did the act which caused the computer to perform the function; or +
- +
-(b)  that any computer containing any program or data to which the accused secured or intended to secure unauthorised access by doing that act was in the home country concerned at that time. +
- +
-(3)  In relation to an offence under section 3, either of the following is a significant link with domestic jurisdiction -  +
- +
-(a)  that the accused was in the home country concerned at the time when he did the unauthorised act (or caused it to be done); or +
- +
-(b)  that the unauthorised act was done in relation to a computer in the home country concerned. +
- +
- +
-[Subs. (3) is printed as amended by the PJA 2006, s.52, and Sched. 14, para. 19(1) and (3).] +
- +
-  +
- +
-Where, by reason of section 38(3) of the 2006 Act (as to which, see ante, §23-89), an offence is not committed under the new section 3 of the 1990 Act, the amendments to section 5(3) do not apply: ibid., s.38(4). +
- +
- +
-commentary023-92 +
- +
- +
- +
- +
-6. Territorial scope of inchoate offences related to offences under sections 1 to 3 +
- +
-(1)  On a charge of conspiracy to commit an offence under section 1, 2 or 3 above the following questions are immaterial to the accused'​s guilt -  +
- +
-(a)  the question where any person became a party to the conspiracy; and +
- +
-(b)  the question whether any act, omission or other event occurred in the home country concerned. +
- +
-(2)  On a charge of attempting to commit an offence under section 3 above the following questions are immaterial to the accused'​s guilt -  +
- +
-(a)  the question where the attempt was made; and +
- +
-(b)  the question whether it had an effect in the home country concerned. +
- +
-(3)  [Repealed by  SCA2007, ss.63(2)and ​ 92, Sched. 6, para. 59(1) and (2),​and ​ Sched. 14.] +
- +
-(4)  This section does not extend to Scotland. +
- +
- +
-[This section is printed as amended by the PJA 2006, s.52, and Sched. 14, para. 20.] +
- +
- +
-commentary023-93 +
- +
- +
- +
- +
-7. Territorial scope of inchoate offences related to offences under external law corresponding to offences under this Act [sections 1 to 3] +
- +
-(1), (2)  [Repealed by  Criminal Justice (Terrorism and Conspiracy) Act1998, s.9(2)and ​ Sched. 2, Pt II.] +
- +
-(3)  [See  post, §33-120. ] +
- +
-(4)  [Repealed by  SCA2007, ss.63(2)and ​ 92, Sched. 6, para. 59(1) and (3),​and ​ Sched. 14.] +
- +
- +
- +
-commentary023-94 +
- +
- +
- +
- +
-8. Relevance of external law +
- +
-(1)  A person is guilty of an offence triable by virtue of section 4(4) above only if what he intended to do or facilitate would involve the commission of an offence under the law in force where the whole or any part of it was intended to take place. +
- +
-(3)  A person is guilty of an offence triable by virtue of section 1(1A) of the Criminal Attempts Act 1981  ...  only if what he had in view would involve the commission of an offence under the law in force where the whole or any part of it was intended to take place. +
- +
-(4)  Conduct punishable under the law in force in any place is an offence under that law for the purposes of this section, however it is described in that law. +
- +
-(5)  Subject to subsection (7) below, a condition specified in subsection (1) or (3) above shall be taken to be satisfied unless not later than rules of court may provide the defence serve on the prosecution a notice -  +
- +
-(a)  stating that, on the facts as alleged with respect to the relevant conduct, the condition is not in their opinion satisfied;​ +
- +
-(b)  showing their grounds for that opinion; and +
- +
-(c)  requiring the prosecution to show that it is satisfied. +
- +
-(6)  In subsection (5) above "the relevant conduct"​ means -  +
- +
-(a)  where the condition in subsection (1) above is in question, what the accused intended to do or facilitate; ​ ...  +
- +
-(c)  where the condition in subsection (3) above is in question, what the accused had in view. +
- +
-(7)  The court, if it thinks fit, may permit the defence to require the prosecution to show that the condition is satisfied without the prior service of a notice under subsection (5) above. +
- +
-(8)  [Scotland. ] +
- +
-(9)  In the Crown Court the question whether the condition is satisfied shall be decided by the judge alone. +
- +
-(10)  [Scotland. ] +
- +
- +
-[This section is printed as amended by the Criminal Justice (Terrorism and Conspiracy) Act 1998, s.9(1), (2), and Scheds 1, Pt II, and 2, Pt II; and the SCA 2007, ss.63(2) and 92, Sched. 6, para. 59(1) and (4), and Sched. 14.] +
- +
- +
-commentary023-95 +
- +
- +
- +
- +
-9. British citizenship immaterial +
- +
-(1)  In any proceedings brought in England and Wales in respect of any offence to which this section applies it is immaterial to guilt whether or not the accused was a British citizen at the time of any act, omission or other event proof of which is required for conviction of the offence. +
- +
-(2)  This section applies to the following offences -  +
- +
-(a)  any offence under section 1, 2 or 3 above; +
- +
-(b)  [repealed by  Criminal Justice (Terrorism and Conspiracy) Act1998, s.9(1), (2),​and ​ Sched. 1, Pt II,​and ​ Sched. 2, Pt II]; +
- +
-(c)  any attempt to commit an offence under section 3 above; and  ...  . +
- +
- +
-[This section is printed as amended by the PJA 2006, s.52, and Sched. 14, para. 22; and the SCA 2007, ss.63(2) and 92, Sched. 6, para. 59(1) and (5), and Sched. 14.] +
- +
- +
-C: Miscellaneous and General +
-commentary023-96 +
- +
- +
-C. Miscellaneous and General +
- +
- +
- +
-  Computer Misuse Act 1990, ss.10, 17 +
- +
-10. Saving for certain law enforcement powers +
- +
-Section 1(1) above has effect without prejudice to the operation -  +
- +
-(a)  in England and Wales of any enactment relating to powers of inspection, search and seizure; and +
- +
-(b)  [Scotland ] +
- +
-and nothing designed to indicate a withholding of consent to access to any program or data from persons as enforcement officers shall have effect to make access unauthorised for the purposes of the said section 1(1). +
- +
-In this section "​enforcement officer"​ means a constable or other person charged with the duty of investigating offences; and withholding consent from a person "​as"​ an enforcement officer of any description includes the operation, by the person entitled to control access, of rules whereby enforcement officers of that description are, as such, disqualified from membership of a class of persons who are authorised to have access. +
- +
- +
-[This section is printed as amended by the CJPOA 1994, s.162(1).] +
-23-100 +
- +
-commentary023-100 +
- +
- +
- +
- +
-  Computer Misuse Act 1990, s.17 +
- +
-17. Interpretation +
- +
-(1)  The following provisions of this section apply for the interpretation of this Act. +
- +
-(2)  A person secures access to any program or data held in a computer if by causing a computer to perform any function he -  +
- +
-(a)  alters or erases the program or data; +
- +
-(b)  copies or moves it to any storage medium other than that in which it is held or to a different location in the storage medium in which it is held; +
- +
-(c)  uses it; or +
- +
-(d)  has it output from the computer in which it is held (whether by having it displayed or in any other manner); +
- +
-and references to access to a program or data (and to an intent to secure such access) shall be read accordingly. +
- +
-(3)  For the purposes of subsection (2)(c) above a person uses a program if the function he causes the computer to perform -  +
- +
-(a)  causes the program to be executed; or +
- +
-(b)  is itself a function of the program. +
- +
-(4)  For the purposes of subsection (2)(d) above -  +
- +
-(a)  a program is output if the instructions of which it consists are output; and +
- +
-(b)  the form in which any such instructions or any other data is output (and in particular whether or not it represents a form in which, in the case of instructions,​ they are capable of being executed or, in the case of data, it is capable of being processed by a computer) is immaterial. +
- +
-(5)  Access of any kind by any person to any program or data held in a computer is unauthorised if -  +
- +
-(a)  he is not himself entitled to control access of the kind in question to the program or data; and +
- +
-(b)  he does not have consent to access by him of the kind in question to the program or data from any person who is so entitled; +
- +
-but this subsection is subject to section 10. +
- +
-(6)  References to any program or data held in a computer include references to any program or data held in any removable storage medium which is for the time being in the computer; and a computer is to be regarded as containing any program or data held in any such medium. +
- +
-(8)  An act done in relation to a computer is unauthorised if the person doing the act (or causing it to be done) -  +
- +
-(a)  is not himself a person who has responsibility for the computer and is entitled to determine whether the act may be done; and +
- +
-(b)  does not have consent to the act from any such person. +
- +
-In this subsection "​act"​ includes a series of acts. +
- +
-(9)  References to the home country concerned shall be read in accordance with section 4(6) above. +
- +
-(10)  References to a program include references to part of a program. +
- +
- +
-[This section is printed as amended by the CJPOA 1994, s.162(2); and the PJA 2006, s.52, Sched. 14, para. 29, and Sched. 15, Pt 4 (but see post, for transitional provisions).] +
- +
-  +
- +
-Where, by reason of section 38(3) of the 2006 Act (as to which, see ante, §23-89), an offence is not committed under the new section 3 of the 1990 Act, the repeal of section 17(7), and the substitution of a new section 17(8), do not apply: PJA 2006, s.38(4). +
- +
- +
-commentary023-101 +
- +
- +
- +
- +
-Section 17(5) was examined in R. v. Bow Street Metropolitan Stipendiary Magistrate Ex p. United States (No.2)[2000] 2 A.C. 216, HL (an extradition case): access by any person to any program or data held in a computer is unauthorised if that person is neither entitled to control, in the sense of authorising or forbidding, access to the program or data involved, nor has the consent of a person entitled to exercise such control. Authority to view data may not extend to authority to alter or copy that data. Authorised access to certain data cannot be construed as including authority to access other data of the same kind (dicta ​ in DPP v. Bignall[1998] 1 Cr.App.R. 1, DC, ante, §23-87, disapproved). +
- +
-The original subsection (8)(b) (modification is unauthorised if person making the modification "does not have consent to the modification"​ from any person entitled to determine whether modification should be made) was considered in DPP v. Lennon,170 J.P. 532, DC (see also ante, §23-89), where it was held that, although a computer owner is ordinarily to be taken to consent to the sending of e-mails to his computer, such consent is not unlimited and plainly does not cover e-mails which are not sent for the purpose of communication with the owner, but are sent for the purpose of interrupting the proper operation and use of his system; where many e-mails are sent, for example by way of a continuous "​mail-bombing"​ program, the defendant'​s conduct is not to be judged on an e-mail by e-mail basis, but as a whole; (obiter ) the mere sending of an e-mail purporting ​ to come from someone other than its actual sender is not, however, necessarily to be treated as unauthorised if, for example, the e-mail is sent as a joke and without malicious intent.+
  
  
criminal_damage.1492796396.txt.gz · Last modified: 2017/04/21 17:39 by frescom