The new test set out by the House of Lords, disapproving the Caldwell test, in R v G and R 2003 is concerned with the interpretation of the word “reckless” in s.1 of the Criminal Damage Act 1971. The House of Lords has stated that a person acts recklessly (i) in a circumstance when he is aware of a risk that exists or will exist and (ii) a result when he is aware of a risk that will occur, and it is in the circumstance known to him, unreasonable to take a risk. It could be argued that Jason knew that there was a risk of setting alight the newspaper but still went ahead with it. He could argue that he intended to put out the fire after the paper had burned but if it was proved that he still foresaw some risk that other damage would occur then he could be said to have been acting recklessly. The actus reus was established because the walls and the carpet were scorched.
Mala has been charged with criminal damage because she helped break into the flat and is liable for an offence under s.1 of the Criminal Damage Act 1971. The actus reus is evident because Mala damaged property belonging to another without lawful excuse. The mens rea is also satisfied because Mala had clear intention.
The prosecution could also charge Mala with an offence under s.2 of the Criminal Damage Act 1971; this is because she wished to set fire to the flat. The law states that “a person who without lawful excuse makes to another a threat, intending that the other would fear it would be carried out - (a) to destroy or damage property belonging to that person or a third person” shall be guilty of an offence. Mala wanted to set fire to the flat and intended to damage or destroy the flat belonging to the Druvniks. Mala would not have a lawful excuse for the threat made, because she did not intend to destroy or damage property with the consent of the other, s.5(2)(a), nor did she do it to protect property belonging to herself or to another, s.5(2)(b). The case facts state that Mala and Obi were arguing about this threat made by Mala, Obi wanted to leave but Mala wanted, and had the necessary mens rea, intention, to set fire to the flat. The case facts suggest that Obi did not agree with this and wanted to leave. However it is not clear whether Obi had any fear of the act being committed. The threat of criminal damage was intended for a third person, the Druvniks. It is also not clear whether the Druvniks heard this while locked in the room, if they did hear and fear this then Mala could be charged under s.2 of the Criminal Damage Act 1971.
The prosecution may charge Obi with criminal damage under s.1 of the Criminal Damage Act 1971. Obi helped break the door down when breaking into the flat, and this constitutes an offence under s.1 of the act, the necessary actus reus, was present as Obi damaged property belonging to another without lawful excuse. The mens rea was also satisfied because the group also had an intention to break into the flat.
The prosecution can charge Jason, Mala and Obi under s.1 of the Criminal Damage Act 1971 in relation to the broken door. Jason could also be charged under s.1(3) for burning the newspaper and possibly for the damaged carpet and walls if it can be proved that he was reckless in doing so. There is a possibility that Mala could be charged under s.2 for threatening to set fire to the flat, if it can be proved that either the Druvniks or Obi feared this threat.
b)
Yousef has been charged under s.1 of the Criminal Damage Act 1971 for the broken window belonging to the flat adjacent of his. Yousef and Eva were locked into a room and Yousef climbed over to the adjacent flat where he broke the window, after realizing that no one was in. The act of breaking the window would be the actus reus. The fact that he intended to do so ensures that the mens rea is also satisfied. Yousef could use the defence of lawful excuse under s.5 of the criminal damage act. Yousef would have the defence of lawful excuse under s.5(2)(a) which covers consent. This section states that a person can use the defence if they believed that the owner of the property would have consented had they known the situation. From the facts of the case Yousef broke into the flat as a last resort knowing that it was his only choice to get help. This suggests that Yousef did not intend to break in until he found out as a certainty that there was no one in. His reasons for breaking into the flat thus seem justifiable.
Another possible defence available to Yousef is covered under s.5(2)(b), which covers situations where property has been damaged to protect other property. Yousef could argue that he was trying to protect his flat from Jason, Mala and Obi who had locked them in a room, ransacked their flat and had started a fire in the flat. The Act also states that the property must be in immediate need of protection, as stated by s.5(2)(b)(i) and that the means were or would be reasonable under the circumstances, as stated by s.5(2)(b)(iii). Both these elements are satisfied and this defence would therefore be available to Yousef.
Yousef could be charged under s.1 but he has the defence of lawful excuse found under s.5(2) of the Criminal Damage Act 1971, and he could argue that he would have had the consent of his neighbour and that he was trying to protect his property.
Bibliography
Allen M, Textbook on Criminal Law, Oxford University Press
Glazebrook P.R, Blackstone’s Statutes on Criminal Law, Oxford University Press
