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    Hi guys,

    I've only just started the A2, and we were given a few problem questions to do over the summer holidays. My knowledge of the offences is minimal since I haven't been taught yet, but I don't understand part of this question.

    I have to discuss Alan's (potential) criminal liability in this scenario.

    Alan had recently been dismissed from his job on a building site. Walking home after drinking a lot in a bar, he found himself passing the site where he had worked. Very unsteadily, he climbed the scaffolding to the second floor of the building, which was nearly completed. Not knowing what to do next, he picked up a can of paint and began to clamber back down. Whilst doing so, he slipped on a ladder, breaking a bolt securing the ladder to the scaffolding frame and causing the ladder to become unstable. When he reached the ground, he threw the can of paint into a rubbish skip. The lid came off, spilling paint all over the contents of the skip.
    What offence would you say has been committed here? I know it's criminal damage, but what sort? I'm trying to be vague so I don't lock you into my way of thinking, especially since apparently I'm wrong!

    My reasoning
    The ladder has been damaged, and it doesn't belong to Alan, so arguably it's criminal damage. Assuming that he has committed criminal damage, I have to decide whether it's simple or aggravated criminal damage. I can see that an unstable ladder could endanger lives, so it'd be aggravated criminal damage.

    However, since he was using the ladder in the manner in which it was intended, I don't think he was reckless so I'd say it's more of an accident. I think it'd be difficult to prove mens rea, since he didn't intend the bolt to break. There's no mention of him foreseeing a risk and continuing (subjective recklessness), so he can't have been reckless. Even if objective recklessness still applied (wasn't it changed in R v G and R?), I doubt the "ordinary, prudent individual" would've foreseen the risk either - the guy was just climbing a ladder!

    According to the mark scheme, it's aggravated criminal damage, but I don't "see" why. Surely it's too simplistic to say that he endangered lives, so he's committed an offence. Or would the fact that he wasn't being stupid just act as a good defence?


    If anyone could explain their thought processes and what I'm missing, I'd be grateful. I argued my case to the teacher, but she said the fact that he was a trespasser would have an effect. I had to go so I didn't continue, but I don't think it would, would it? In a similar case where a burglar fell through a roof, the homeowner was still liable (the fact that the burglar was trespassing was irrelevant) - can't I use this principle here? :confused:

    Thanks a lot!
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    (Original post by Muppety_kid)
    Assuming that he has committed criminal damage
    Never assume anything in law, especially when the issue IS whether he committed criminal damage.

    You need to systematically go through the requirements of the crime. I never really bothered to do much work on criminal damage, but what you need is A person who (1)without lawful excuse (2)destroys or damages any property belonging to another (3)intending to destroy or damage any such property or being reckless as to whether any such property would be damaged shall be guilty of an offence, Criminal Damage Act 1971.
    If the first 3 requirements are met or could be met, consider (4) whether it is aggravated (intending or being reckless as to the endangering of life).

    Are the four requirements met, firstly in the case of the ladder, secondly in the case of the can of paint, thirdly in the case of the skip? this is 3 easy paragraphs, though obviously you shouldn't worry too much about the can of paint. Within this, consider the relevance of the fact that he was drunk (basic answer: not relevant, he is considered as a sober person, I think).

    The fact that he was a trespasser doesn't change anything by itself, but is relevant to deciding whether he had a lawful excuse for doing what he was doing (obviously works against him).
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    (Original post by jacketpotato)
    Never assume anything in law, especially when the issue IS whether he committed criminal damage.

    You need to systematically go through the requirements of the crime. I never really bothered to do much work on criminal damage, but what you need is A person who (1)without lawful excuse (2)destroys or damages any property belonging to another (3)intending to destroy or damage any such property or being reckless as to whether any such property would be damaged shall be guilty of an offence, Criminal Damage Act 1971.
    If the first 3 requirements are met or could be met, consider (4) whether it is aggravated (intending or being reckless as to the endangering of life).

    Are the four requirements met, firstly in the case of the ladder, secondly in the case of the can of paint, thirdly in the case of the skip? this is 3 easy paragraphs, though obviously you shouldn't worry too much about the can of paint. Within this, consider the relevance of the fact that he was drunk (basic answer: not relevant, he is considered as a sober person, I think).

    The fact that he was a trespasser doesn't change anything by itself, but is relevant to deciding whether he had a lawful excuse for doing what he was doing (obviously works against him).
    I see where you're coming from - I was only assuming it was criminal damage (i.e. an offence had been committed) so I could show I knew it was aggravated and not simple. However, I still don't see how he has mens rea. There's no mention of him foreseeing the risk of the bolt breaking, so subjective recklessness doesn't apply, and I thought objective had gone completely. He doesn't have direct intention because he didn't mean to do it, and it isn't indirect either, is it? (He intended to climb down the ladder and did - or does the fact that the bolt broke on the way count as indirect intent?).
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    Criminal Damage is a statutory offence, so just use what it says in the statute, the mens rea requirement is "intending to destroy or damage any such property or being reckless as to whether any such property would be damaged".

    The test for what constitutes recklessness is from RvG. This means that the defendant was reckless if he EITHER
    a) knew of the risk
    b) he was subjectivelly aware of circumstances which would make it objectively unreasonable to take the risk. This means you can't take a stupidly obvious risk and then claim that you thought it was a reasonable risk to take.

    Indirect intent is where something is a such an obvious and natural result of what you do, that it you can't be said not to intend it. E.G. taking someone's heart out is so obviously going to kill them that you can't claim not to have intended to kill them. This is a much higher standard than part b) of RvG recklessness, so is not worth mentioning in any detail. Just talk about RvG recklessness, and whether the test is met. The answer will probably be something along the lines of "maybe yes, maybe no, I don't know all the facts. It depends on..."
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    (Original post by jacketpotato)
    Criminal Damage is a statutory offence, so just use what it says in the statute, the mens rea requirement is "intending to destroy or damage any such property or being reckless as to whether any such property would be damaged".

    The test for what constitutes recklessness is from RvG. This means that the defendant was reckless if he EITHER
    a) knew of the risk
    b) he was subjectivelly aware of circumstances which would make it objectively unreasonable to take the risk. This means you can't take a stupidly obvious risk and then claim that you thought it was a reasonable risk to take.

    Indirect intent is where something is a such an obvious and natural result of what you do, that it you can't be said not to intend it. E.G. taking someone's heart out is so obviously going to kill them that you can't claim not to have intended to kill them. This is a much higher standard than part b) of RvG recklessness, so is not worth mentioning in any detail. Just talk about RvG recklessness, and whether the test is met. The answer will probably be something along the lines of "maybe yes, maybe no, I don't know all the facts. It depends on..."
    Hmmm...

    I'm stuck on this one too, but I haven't had a Law lesson for a few days, so I haven't been able to ask anyone!

    I know the actus reus of aggravated criminal damage is there, but what about the mens rea? As Muppety_Kid says, he didn't want the bolt to break, so there isn't direct intent, so he must've been reckless.

    From my A-Z of Law (great book, by the way!), it says that subjective recklessness is:

    subjective recklessness in the criminal law means that the accused is reckless only if he had recognised that there was some risk of the particular harm occurring, but gone on to take the risk. It is subjective because it is judged from the defendant's point of view.
    The question doesn't say that Alan stopped to consider the potential harm caused by his actions, so I don't think he can have been reckless. If he genuinely didn't realise there was a risk of harm (as I have to admit, I wouldn't have in this case ), I don't think the test for recklessness has been passed.

    The A-Z then gives the facts of Cunningham, saying:

    Cunningham was charged with "maliciously administering a noxious thing so as to endanger life". It was decided that he was not guilty, as he could only be guilty if he realised there was a risk that the gas could affect someone.
    I think this supports my "he hasn't been reckless" argument. He didn't inspect the ladder, so I think it's fair to say he wasn't aware of the risk. Even if he was carrying something heavy up the ladder, if he's mentally subnormal and honestly believed ladders could hold the weight, he doesn't have the mens rea (right?). That was one of the criticisms of objective recklessness - everyone was judged by the same standard, regardless of the defendant before the court.
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    (Original post by scooby1964)
    I think this supports my "he hasn't been reckless" argument. He didn't inspect the ladder, so I think it's fair to say he wasn't aware of the riskp
    Good post by the scoobster, you are basically right on subj. recklessness. However, I don't think you can conclude that he wasn't aware of the risk just because he didn't inspect the ladder. Climbing up and down a ladder, with a pot of paint, at night time, whilst drunk, is fairly risky. We don't know whether he realised that there was a risk or not, thats the point of the question I think, you discuss this and he may/may not be guilty.
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    (Original post by jacketpotato)
    Good post by the scoobster, you are basically right on subj. recklessness. However, I don't think you can conclude that he wasn't aware of the risk just because he didn't inspect the ladder. Climbing up and down a ladder, with a pot of paint, at night time, whilst drunk, is fairly risky. We don't know whether he realised that there was a risk or not, thats the point of the question I think, you discuss this and he may/may not be guilty.
    Thanks

    So in terms of analysing this in an exam, it's not as straightforward as saying "it's not in the question so he didn't consider it"? I was giving the inspection of the ladder as an example of him considering the risk, although I may have (momentarily) assumed that because he didn't do anything like that, he can't have considered the risk.

    I accept that he may have been reckless in causing the damage, so there's definitely an offence of simple criminal damage, but how has he been reckless as to endangering life (required for aggravated criminal damage)? I kinda know what I want to say, but I'm not going to be able to explain it very well. Is it because the damage was that the ladder was unstable, and he didn't do anything about it (sort of like in Miller (1983), with the tramp who failed to extinguish a fire in a building that he'd started by accident)?

    Aargh! I know what I mean, but I can't get the words out! :banghead:
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    What about the fact that he seems to be drunk? See DPP v Majewski. You need to look at the interplay between intoxication and recklessness.
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    (Original post by mja)
    What about the fact that he seems to be drunk? See DPP v Majewski. You need to look at the interplay between intoxication and recklessness.
    OK, I've looked up Majewski and it says that the jury were instructed to consider how D would've acted if he was sober. However, I still don't see how he's been reckless in this scenario! Even ignoring his intoxication, I don't understand how he's formed the mens rea. I know he can't use the defence of intoxication because he was reckless to drink the alcohol (voluntarily), but this doesn't "compensate" for the recklessness element of the offence, does it? What I'm trying to say is you can't claim "he was stupid to get so drunk, so he was reckless when he climbed the ladder", can you?

    Please help! :cry:
 
 
 
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