Endangering life by destroying or damaging property

Criminal Law Review

Volumn 1997, Issue 6, 1997, Pages 382-395

  Elliott, D W ^a  

^a NEWCASTLE UNIVERSITY   (United Kingdom)

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EID: 3042986675     PISSN: 0011135X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (100)

1. Law Com. No. 29, Report on Offences of Damage to Property (1970).
2. The offences in s.2(b) (threats to destroy or damage) and s.3(b) (possession with intent to destroy or damage) are, mutatis mutandis, of the same design as that in s.1(2); they are not dealt with here.
3. And the word "destruction", being surplusage, will not be used. And "arson", damage by fire, will not be separately considered.
4. For general discussions of offences of Damage to Property, see Smith & Hogan, Criminal Law (8th ed., 1996), Chap. 18; A. T. H. Smith, Property Offences (1994), Chap. 27.
5. For general discussions of offences of Damage to Property, see Smith & Hogan, Criminal Law (8th ed., 1996), Chap. 18; A. T. H. Smith, Property Offences (1994), Chap. 27.
6. Caldwell [1982] A.C. 341 at 354F, H.L. The subject of Caldwell was one which preoccupied, and was greatly illuminated by, Edward Griew. See, e.g. his celebrated article, "Reckless Damage and Reckless Driving: Living with Caldwell and Lawrence" [1981] Crim.L.R. 763.
7. Caldwell [1982] A.C. 341 at 354F, H.L. The subject of Caldwell was one which preoccupied, and was greatly illuminated by, Edward Griew. See, e.g. his celebrated article, "Reckless Damage and Reckless Driving: Living with Caldwell and Lawrence" [1981] Crim.L.R. 763.
8. Damage done by an intoxicated person can never be appropriately described as "accidental": Cullen [1993] Crim.L.R. 936, C.A.
9. Lawrence [1982] A.C. 510, H.L.
10. Elliot v. C [1983] 1 W.L.R. 939, D.C. as to limited intelligence and exhaustion; Stephen Malcolm R. (1984) 77 Cr.App.R. 334, C.A., as to youth; Bell [1984] 3 All E.R. 842, C.A. (a reckless driving case) as to schizophrenia.
11. Elliot v. C [1983] 1 W.L.R. 939, D.C. as to limited intelligence and exhaustion; Stephen Malcolm R. (1984) 77 Cr.App.R. 334, C.A., as to youth; Bell [1984] 3 All E.R. 842, C.A. (a reckless driving case) as to schizophrenia.
12. [1982] A.C. 356; Lord Wilberforce agreed with the dissent. See also Smith, Commentary on Caldwell [1981] Crim.L.R. 393; Glanville Williams, "Recklessness Redefined" [1981] C.L.J. 252.
13. [1982] A.C. 356; Lord Wilberforce agreed with the dissent. See also Smith, Commentary on Caldwell [1981] Crim.L.R. 393; Glanville Williams, "Recklessness Redefined" [1981] C.L.J. 252.
14. It is not here proposed to wade into the rivers of ink. The progress of the debate may be found elegantly described in Duff, Intention, Agency and Criminal Liability (1990), Chap. 7.
15. For a full "confession" of their past opinions in this regard, see Law Com. No. 273 Involuntary Manslaughter (1996), para. 4.4, fn. 4.
16. e.g. Leigh, "Liability for Inadvertence: A Lordly Legacy" (1995) 58 M.L.R. 457, 462, who maintains that he could not intend that in view of his Lordship's earlier remarks in Sheppard [1981] A.C. 394 (a child neglect case); on the other hand, e.g. Duff, op. cit. who considers the Caldwell definition unacceptably objective just because it is not confined to culpable cases which, he argues, are those where the defendant's conduct demonstrates that he is practically indifferent to the risk involved in that conduct, which practical indifference does not require that he knows about that particular risk.
17. e.g. Leigh, "Liability for Inadvertence: A Lordly Legacy" (1995) 58 M.L.R. 457, 462, who maintains that he could not intend that in view of his Lordship's earlier remarks in Sheppard [1981] A.C. 394 (a child neglect case); on the other hand, e.g. Duff, op. cit. who considers the Caldwell definition unacceptably objective just because it is not confined to culpable cases which, he argues, are those where the defendant's conduct demonstrates that he is practically indifferent to the risk involved in that conduct, which practical indifference does not require that he knows about that particular risk.
18. Soon after Seymour [1983] A.C. 493, which contained dicta suggesting that recklessness should always be Caldwell recklessness unless "Parliament has otherwise ordained".
19. Satnam and Kewel (1984) 78 Cr.App.R. 149, C.A.
20. Savage and Parmenter [1992] A.C. 679, H.L.
21. Adomako [1995] A.C. 171, H.L.
22. Road Traffic Act 1991, ss.1, 2, 2A.
23. See Data Protection Registrar v. Amnesty International, The Times, November 23, 1994, D.C.; Okosi [1996] Crim.L.R. 666, C.A. on causing bodily harm by wanton driving.
24. See Data Protection Registrar v. Amnesty International, The Times, November 23, 1994, D.C.; Okosi [1996] Crim.L.R. 666, C.A. on causing bodily harm by wanton driving.
25. Field and Lynn, "The Capacity for Recklessness" (1992) 12(1) Legal Studies 74.
26. See n.8 above.
27. Hardie [1984] 3 All E.R. 848; Dickie [1984] 3 All E.R. 173.
28. Hardie [1984] 3 All E.R. 848; Dickie [1984] 3 All E.R. 173.
29. [1992] 3 All E.R. 673, H.L.
30. See 675C, per Lord Keith; 689B, per Lord Goff, quoting with approval German law, and 690J, where however, his Lordship mentions disability arising while driving; 969F, per Lord Browne-Wilkinson, where he instances "sudden disability". Lord Roskill delivered a short speech agreeing with his colleagues. Lord Ackner, at 683J, while rejecting the incapacity gloss in the instant case, one of reckless driving, hinted that it might be different in a case of reckless damage.
31. Smith, Commentary [1992] Crim.L.R. 817; Gardner, "Recklessness Redefined" (1993) 109 L.Q.R. 21; Leigh, "Recklessness after Reid" (1993) 56 M.L.R. 208; Field and Lynn, "Capacity, Recklessness and the House of Lords" [1993] Crim.L.R. 127;
32. Smith, Commentary [1992] Crim.L.R. 817; Gardner, "Recklessness Redefined" (1993) 109 L.Q.R. 21; Leigh, "Recklessness after Reid" (1993) 56 M.L.R. 208; Field and Lynn, "Capacity, Recklessness and the House of Lords" [1993] Crim.L.R. 127;
33. Smith, Commentary [1992] Crim.L.R. 817; Gardner, "Recklessness Redefined" (1993) 109 L.Q.R. 21; Leigh, "Recklessness after Reid" (1993) 56 M.L.R. 208; Field and Lynn, "Capacity, Recklessness and the House of Lords" [1993] Crim.L.R. 127;
34. Smith, Commentary [1992] Crim.L.R. 817; Gardner, "Recklessness Redefined" (1993) 109 L.Q.R. 21; Leigh, "Recklessness after Reid" (1993) 56 M.L.R. 208; Field and Lynn, "Capacity, Recklessness and the House of Lords" [1993] Crim.L.R. 127;
35. Clarkson, "Violence and the Law Commission" [1994] Crim.L.R. 324.
36. op. cit. p.330.
37. Universal application could only come as a result of recommendations from the Law Commission, until recently the staunchest of upholders of subjectivist theory; see, e.g. Law Com. No. 177 Commentary on Draft Criminal Code Bill (1989), Vol. 2, para. 8.2. It is true that in Law Com. 237 Involuntary Manslaughter (1984) they pronounced themselves persuaded by criticisms of subjectivist theory, at least to the extent of feeling obliged in their Report to consider what should make inadvertence culpable. But this conversion did not extend to their proposing that reckless manslaughter should cover inadvertent risk-taking. They proposed a new, less serious, offence of killing by gross carelessness, if risk of death or serious injury would be obvious to a reasonable person, the actor is capable of appreciating the risk, and his conduct falls far below what can reasonably be expected of him. It remains their view that "there is a clear distinction, in terms of moral fault, between a person who knowingly takes a risk and one who fails to advert to it": para. 5.7.
38. Universal application could only come as a result of recommendations from the Law Commission, until recently the staunchest of upholders of subjectivist theory; see, e.g. Law Com. No. 177 Commentary on Draft Criminal Code Bill (1989), Vol. 2, para. 8.2. It is true that in Law Com. 237 Involuntary Manslaughter (1984) they pronounced themselves persuaded by criticisms of subjectivist theory, at least to the extent of feeling obliged in their Report to consider what should make inadvertence culpable. But this conversion did not extend to their proposing that reckless manslaughter should cover inadvertent risk-taking. They proposed a new, less serious, offence of killing by gross carelessness, if risk of death or serious injury would be obvious to a reasonable person, the actor is capable of appreciating the risk, and his conduct falls far below what can reasonably be expected of him. It remains their view that "there is a clear distinction, in terms of moral fault, between a person who knowingly takes a risk and one who fails to advert to it": para. 5.7.
39. [1995] 1 Cr.App.R. 157.
40. ibid, at 168F.
41. At 165D.
42. At 163D.
43. At 163E.
44. [1983] 2 A.C. 161, H.L.
45. [1995] 1 Cr.App.R. 166E.
46. [1983] 1 W.L.R. 939, D.C.
47. (1984) 77 Cr.App.R. 334, C.A.
48. [1978] A.C. 705, H.L.
49. (1994) 98 Cr.App.R. 263.
50. (1994) 99 Cr.App.R. 362.
51. [1995] 1 Cr.App.R. 168C.
52. ibid. at 169B.
53. Laurence [1982] A.C. 510 at 526, H.L.
54. 87 Cr.App.R. 89; [1988] 2 All E.R. 385, C.A.
55. The possible risk to intending rescuers or firemen was ignored in the Court of Appeal.
56. See 87 Cr.App.R. 94, quoting and approving argument of counsel for the Crown.
57. Reid [1992] 3 All E.R. 673 at 684G, 691E; and see Smith [1991] Crim.L.R. 271, 273, Commentary on the C.A. decision in Reid.
58. Reid [1992] 3 All E.R. 673 at 684G, 691E; and see Smith [1991] Crim.L.R. 271, 273, Commentary on the C.A. decision in Reid.
59. op. cit. n.12 above, at p.466.
60. [1986] Crim.L.R. 801, Commentary on Chief Constable of Avon v. Shimmen (1987) 84 Cr.App.R. 7.
61. In Reid, at 690H, Lord Goff protested that he found the terms "lacuna" and "loophole" misleading; but the examples he gave of possible "let-outs" (to use a neutral term) were not negligent failures to see an obvious risk. The terms are usually used to describe the absence of liability for such negligent failures, and seem appropriate for that purpose.
62. [1995] 1 Cr.App.R. 157 at 165.
63. Shimmen, above; Merrick [1996] 1 Cr.App.R. 130.
64. Shimmen, above; Merrick [1996] 1 Cr.App.R. 130.
65. In Crossman [1986] R.T.R. 49, a reckless driving case, C, before driving said of his insecure load "It's as safe as houses". Both at trial and on appeal, the debate concentrated on whether driving with an insecure load was reckless driving, and any argument founded on his state of mind was overlooked.
66. Taylor L.J. in Shimmen (1987) 84 Cr.App.R. 7 at 11 (quoted with approval in Merrick [1996] 1 Cr.App.R. 130 at 136), disagreeing with Griew, op. cit. n.5 above, at 748. In Shimmen, the reckless act had no social utility at all, being the demonstration of skill in martial arts by kicking near to a plate glass window.
67. Taylor L.J. in Shimmen (1987) 84 Cr.App.R. 7 at 11 (quoted with approval in Merrick [1996] 1 Cr.App.R. 130 at 136), disagreeing with Griew, op. cit. n.5 above, at 748. In Shimmen, the reckless act had no social utility at all, being the demonstration of skill in martial arts by kicking near to a plate glass window.
68. Taylor L.J. in Shimmen (1987) 84 Cr.App.R. 7 at 11 (quoted with approval in Merrick [1996] 1 Cr.App.R. 130 at 136), disagreeing with Griew, op. cit. n.5 above, at 748. In Shimmen, the reckless act had no social utility at all, being the demonstration of skill in martial arts by kicking near to a plate glass window.
69. Taylor L.J. in Shimmen (1987) 84 Cr.App.R. 7 at 11 (quoted with approval in Merrick [1996] 1 Cr.App.R. 130 at 136), disagreeing with Griew, op. cit. n.5 above, at 748. In Shimmen, the reckless act had no social utility at all, being the demonstration of skill in martial arts by kicking near to a plate glass window.
70. [1996] 1 Cr.App.R. 130.
71. ibid, at 137.
72. Law Com. No. 29, Offences of Damage to Property (1970), para. 21.
73. They considered and rejected the means used, high value of the property damaged and high value of the property risked.
74. The offence of criminal damage has been tinkered with by the Law Commission since 1971 (see Draft Criminal Law Act 1992, Sched. 3, para. 13) but not on the matter under discussion.
75. Law Com. No. 29, para. 27.
76. s.4.
77. [1988] A.C. 111, H.L.
78. [1995] 2 All E.R. 168 at 172, C.A.
79. ibid. at 173.
80. [1988] A.C. at 117F.
81. [1989] Crim.L.R. 57, C.A.
82. " Using the word "likely" from here on as shorthand for "carrying a risk which was either foreseen by the defendant or obvious to an ordinary reasonable person".
83. His words are to be found at [1995] 2 All E.R. 172, quoted by Lord Taylor in Webster.
84. [1989] Crim.L.R. 58.
85. If property A belongs to D or if he believes it does, D does not have the appropriate mens rea: see Smith [1974] Q.B. 354, C.A. If property B belongs to D, there is not the actus reus of the simple offence.
86. Att.-Gen.'s Reference (No. 3 of 1992) [1994] 2 All E.R. 121, per Schiemann J. at 128H. For the facts of this case, see below on Attempt.
87. ibid at 125F.
88. [1987] Crim.L.R. 393, C.A.
89. [1994] 2 All E.R. 121, C.A.
90. [1990] 2 All E.R. 783, C.A.
91. [1994] 2 All E.R. at 128.
92. [1990] 2 All E.R. 783 at 787-788.
93. (1988) 87 Cr.App.R. 88; [1988] 2 All E.R. 385.
94. 87 Cr.App.R. 94. See above, n.42 and associated text.
95. See Satnam and Kewel (1983) 78 Cr.App.R. 149, C.A. and Khan, above.
96. See Satnam and Kewel (1983) 78 Cr.App.R. 149, C.A. and Khan, above.
97. Law Com. No. 177, Draft Criminal Code Bill, clause 49(2); see Vol. 2, Commentary, para. 13.45.
98. Law Com. No. 177, Draft Criminal Code Bill, clause 49(2); see Vol. 2, Commentary, para. 13.45.
99. [1987] Crim.L.R. 393.
100. [1994] 2 All E.R. 121.