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Published: Fri, 02 Feb 2018
A problem question criminal liabilities across a range of different offences
Andrew and Toby, keen environmentalists and known troublemakers, are staging a protest outside Slim’s Cafe about the cafe’s refusal to buy fair trade coffee beans. Toby has brought along some cartons filled with Petrol intending to damage the cafe if necessary. Annoyed at the general indifference to their protest, Andrew decides that he needs to attract some attention to the protest. He uses a marker pen and writes the message, ‘Boycott Traders Failing to Support Fair Trade’ on the front window of Slim’s Cafe. Toby makes a phone call to the manager, Jacob, of the Slim’s Cafe and says, ‘Close the cafe or I will burn it when you least expect!’ Jacob replies, ‘Yeah right, I’m not frightened of you or anyone. You’re a right idiot!’
Andrew sees Olly and Nichola walking toward the Slim Cafe. He rushes at Nichola swinging a small mallet handle over his head in a menacing manner and shouts ‘Come on! let’s hear your support’. Nichola believes she is about to be struck with the mallet handle. She wants to jump out of the way but sees she is standing next to a dog. Nichola tries to avoid it but lands on the dog, breaking its leg.
At this point, Olly steps between Nichola and Andrew. He grabs Andrew firmly by the arm, and pulls him away from Nichola. In doing so, Andrew takes a punch at Olly but misses and puts his fist through a nearby glass pane on a bus shelter causing it to shatter. Andrew flees into a nearby supermarket. Annoyed, Toby sets light to his petrol-filled cartons and throws then into the cafe. The cafe is quickly engulfed in flames and is badly damaged but no one is hurt.
Pete, a concerned citizen, observes Andrew’s acts and decides to try and apprehend him as he runs through the supermarket. After a short chase, Pete catches up with Andrew and jumps on him, cutting his neck with his watch. The cut is bleeding and requires several stitches.
Please advise the parties on their criminal liability, if any. Use decided cases and relevant statutory provisions in support of your answer.
The most efficient manner in which to deal with the numerous issues raised by this scenario is, rather than consider each of the characters in turn, move through the issues chronologically.
The first matter to be considered is Toby’s behaviour when he brought the cartons of petrol to the protest. Toby’s intention in this context was to cause damage to the café if necessary. Section 1 of the Criminal Damage Act 1971 provides that it is an offence to, without lawful excuse, damage property belonging to another, intending or being reckless to whether the property will be damaged. The elements of this offence will be considered in more detail below because at this stage no damage has occurred to property. The relevance here however is that under section 1 of the Criminal Attempts Act 1981 a person is guilty of committing an offence if, with the intent to carry out the offence, they do something that is more than merely preparatory to its commission.
The actus reus of an attempt requires something more than merely preparatory to have been done. This is clearly a question of fact, but it seems that the question the jury must answer is whether the defendant has taken real steps towards committing the crime. In other words, being equipped to carry out a crime may not be considered as only preparatory thus not making the defendant liable. It can be seen that the position is a difficult one, in that when filling the cartons with petrol Toby was certainly preparing to commit the crime, but it may be that once he took the cartons to the coffee shop, his acts became more than merely preparatory, but it could also be found that this was itself only preparatory. The mens rea element of the offence is less problematic in that nothing less than specific intent to commit the offence will suffice. That is, the defendant must desire the offence to be the consequence of their actions.
The reality of the situation here is that whilst Toby may be liable for attempted criminal damage, his subsequent actions make such a consideration irrelevant. Before considering Toby’s further liability the next chronological act must be considered. This is Andrew’s writing on the coffee shop window. In this respect, more detailed consideration of the requirements of criminal damage is necessary. Real property is property for the purposes of this offence and where another person has a proprietary right in the property or has control over it, the property is considered as belonging to another. There is no doubt on these facts that the coffee shop meets these requirements and therefore the next, and most problematic issue, here is whether writing on the window constitutes damage.
The Criminal Damage Act 1971 does not define damage and therefore the matter has been left to the courts largely as a question of fact. Despite this, it is clear that damage need not be permanent in order to satisfy the Act and indeed, in Hardman v Chief Constable of Avon and Somerset, it was held that drawing on pavements with water soluble crayons was still capable of constituting criminal damage. An analogy with that judgment and the current facts can easily be drawn and therefore, even though it may be possible for the writing on the window to be easily removed, it seems probable that Andrew will satisfy the actus reus element of the offence. The mens rea element is easily satisfied here because there can be no doubt that Andrew intended his actions and therefore he will be liable for criminal damage.
The next consideration here is Toby’s telephone call. Where a defendant causes another person to apprehend the imminent application of unlawful force, they will be liable for common assault. The fact that a threat, like the one here, is conditional will not prevent a defendant being liable for assault, but in this context it is the result of the threat that is relevant. In other words, the fact that Jacob is not put in fear of violence means that an assault cannot be committed. It is impossible to commit an assault where the intended victim does not apprehend violence. It is not impossible however to attempt to commit and assault in these circumstances because for this offence it does not matter whether the ultimate offence can actually be committed. The result of this is that Toby will be liable for attempting to assault Jacob.
The issue of common assault is returned to when Andrew approaches Nichola brandishing the mallet handle. In this context, there is no doubt that Nichola apprehends violence. The imminent nature of the violence is not really at issue in this context, but it is prudent to explain that imminent for these purposes means at some time, not in the distant future. Here, it is clear that Nichola believe that Andrew is going to hit her with the mallet handle and therefore the actus reus element of an assault is satisfied.
The mens rea requirement for assault is intent or recklessness. It was mentioned above that in order to intend to do something, a defendant must desire the consequence, but this is not the end of the matter. In certain circumstances, it may be possible for a defendant to be held to have intended a consequence, even if they did not directly desire it. This position, often described as indirect intent, arises where the ultimate consequence is the virtually certain outcome of the defendant’s actions. Here therefore, if it is possible to say that it was virtually certain that Nichola would have believed that Andrew was going to hit her when he approached her brandishing the mallet handle, it may be possible to hold that he intended to assault her, even though, from the facts based on Andrew’s comments when approaching Nichola, it does not appear that he desired this outcome.
If Andrew cannot be found to have intended the assault, the matter moves to whether he was reckless to it. In order to be reckless, defendant must be aware of the risk of the consequence of their actions and go on to unreasonably take that risk. Although the position is subjective, it is also a matter for a jury to decide and therefore, it seems clear that the jury will necessarily view the matter on the basis of whether it believes the defendant as to whether they were aware of the risk. On the facts here therefore, it seems that Andrew would need to provide an extremely compelling argument in respect of suggesting that he did not believe that his actions would cause Nichola to fear violence. Indeed, it seems reasonable to suggest, that such a position would be extremely difficult to sustain, given the aggressive nature of Andrew’s actions. On this basis, it appears probable that Andrew will be deemed to have been reckless to the assault on Nichola, and thus satisfying the mens rea of the offence and establishing Andrew’s liability for it.
When an individual applies unlawful force to another, they will be liable for common law battery. On the face of it there seems little doubt that Olly would satisfy this requirement when he grabbed Andrew’s arm. Whilst there is little doubt that this would constitute force, the issue as to whether it could be deemed unlawful is less certain. This is because Olly may be able to hold that he was justified in using force. There are two interlinked possibilities in this respect. In the first instance, an individual is permitted to use force as is reasonable in the circumstances as the defendant honestly believes them to be to defend himself or another person. In the alternative, a person is permitted to use reasonable force in the prevention of crime. Although there is a distinction between common law self-defence and the statutory prevention of crime defences, on the basis of the facts here, the distinction is irrelevant. In this circumstance, it seems clear that Olly’s actions in grabbing Andrew’s arm were clearly to prevent him from hitting Nichola and that he was therefore acting in self-defence, even though he was defending Nichola. Additionally, in stopping Andrew from hitting Nichola, Olly was also preventing a crime. Olly could not rely on this defence in respect of preventing the assault on Nichola, because that had already occurred, but the act of hitting would inevitably have resulted in, at the very least, a battery and, as such, a subsequent offence. In this context therefore it seems that although Olly intentionally applied force to Andrew, he will be able to raise a tenable defence and will not be liable.
Following Olly’s actions, there can be little doubt that, based on the discussion above, Andrew could be held liable for attempting to commit a battery on Olly and probably could be held liable for attempting a more serious assault under the provisions of the Offences Against the Person Act 1861. Under section 47 of the 1861 Act, for example, a person will be liable for assault occasioning actual bodily harm if they assault a person and cause them injuries that are calculated to interfere with the comfort of the victim. It is suggested that being punched would almost certainly have that effect, thus rendering Andrew liable for that offence.
It is also clear in this context, that when Andrew shattered the glass on the bus shelter, he was damaging property that belonged to another and thus satisfied the actus reus of criminal damage. The issue in this context, once again, falls to the mens rea of this offence. It was mentioned above that this element requires the defendant to either intend the damage or be reckless to it. These elements were also discussed above and, whilst it is submitted that the damage to the bus shelter may not be sufficiently certain to constitute indirect intent, it is likely that Andrew would have been aware of the risk of damage to property when he threw the punch and would therefore have been reckless to the offence. This is not the end of the matter however. This is because a defendant will not be liable for criminal damage if they have lawful excuse for causing the damage. In this context therefore, Andrew may try to assert that he was acting in self-defence, in the manner described above in order to avoid liability. It seems however on these facts, that whilst this may be a possibility, such a defence would be difficult to sustain and Andrew will liable for criminal damage.
Property, for the purposes of criminal damage, includes ‘wild creatures which… are ordinarily kept in captivity.’ In this context, it is not clear whether the dog belonged to somebody or was a stray, but if it is the former, Nichola will be held to have caused criminal damage to it because there is no doubt that she has caused damage to the dog and will almost certainly be held reckless to the damage because she acknowledges that she attempted to avoid landing on it. Nichola, in the manner described above, may attempt to assert that her actions were reasonable in the prevention of crime and thus is entitled to a defence. It seems in these circumstances that such an assertion would not be without merit.
The next issue to arise relates to Toby’s attack on the café. There is no doubt that he satisfies the requirements of criminal damage in this context, but here it appears that he threw the lit cartons into the coffee shop in disregard of the potential risk to the life of anybody within the building. It is not clear whether he intended to risk the lives of the occupants, but will certainly be considered to have been reckless to this endangerment and will therefore be liable for the more serious offence of aggravated criminal damage.
The final issue in this scenario relates to Pete’s apprehending of Andrew. Under section 20 of the Offences Against the Person Act 1861, a person commits an offence if they maliciously inflict grievous bodily harm or wound their victim. Inflicting for these purposes simply means causing and wounding requires a victim’s skin to be cut. The mens rea element of the offence, maliciousness, requires a defendant to have acted with intent or recklessness. There appears no intent in this context, but in order for recklessness to be satisfied, it is only necessary for the defendant to be reckless as to some degree of harm to the victim. Therefore, if it can be shown that Pete was aware of a risk of some harm occurring when he jumped on Andrew, it will not matter that he did not perceive the risk of wounding. Pete will however, undoubtedly assert that the force used was reasonable in respect of his right to lawfully arrest Andrew because he had reason to believe that Andrew had committed a crime and may therefore be able to raise a defence to this offence on the basis that the provisions of the prevention of crime defence extend to lawful arrest by civilians.
 See R v Jones  1 WLR 1057 D
 R v Gullefer  1 WLR 1063
 R v Geddes  Crim LR 894
 See R v Tosti  Crim LR 746
 Op cit at n 3
 R Pearman (1984) 80 Cr App R 259
 R v Moloney  AC 905
 Criminal Damage Act 1971, s 10(1)
 Criminal Damage Act 1971, s 10(2)
 Roe v Kingerlee  Crim LR 735
 R v Fiak  EWCA Crim 2381
  Crim LR 330
 R v Ireland  AC 147
 Read v Coker (1853) 13 CB 850
 R v Shivpuri  AC 1
 R v Constanza  2 Cr App R 492
 R v Venna  3 All ER 788
 R v Hancock  AC 455
 R v Cunningham  2 QB 396
 R v G  1 AC 1034
 Op cit at n 13
 See R v Renouf  1 WLR 522
 Beckford v The Queen  AC 130
 Criminal Law Act 1967, s 3(1)
 R v Attwater  RTR 173
 R v Miller  2 QB 282
 Criminal Damage Act 1971, s 1
 Criminal Damage Act 1971, s 10(1)(a)
 Criminal Damage Act 1971, s 5(2) & 5(5)
 Criminal Damage Act 1971, s 1(2)
 OP cit at n 13
 R v Smith (1837) 8 C & P 173
 Op cit at n 19
 R v Mowatt  1 QB 421
 Police and Criminal Evidence Act 1984, s 24A
 Criminal Law Act 1967, s 3
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