Criminal Damage Act, 1991 - recklessneess

Victor

Someone posted about Section 2 recently. I hadn't been aware of section 2(6).

http://www.irishstatutebook.ie/1991/en/act/pub/0031/sec0002.html#sec2

Damaging property.
2.—(1) A person who without lawful excuse damages any property belonging to another intending to damage any such property or being reckless as to whether any such property would be damaged shall be guilty of an offence.

...

(6) For the purposes of this section a person is reckless if he has foreseen that the particular kind of damage that in fact was done might be done and yet has gone on to take the risk of it.

So, in a fit of pique, if a neighbour forcefully returns a child's ball over a tall garden fence, only to smash something, e.g. an expensive vase in an open window, can the neighbour rely on 2(6) and claim they had no foresight of doing damage?

This being different to a situation where they aimed the ball at the vase, intending to - or being indifferent as to whether they might - damage it (as opposed to knocking it over).

Disclaimer: I have no garden of my own. The neighbour's grandchildren are toddlers (and hence can barely throw a ball over their own heads, never mind a wall) and I have not seen them play ball. I have not seen any balls that needed to be returned.

johnnyskeleton

Victor wrote: »

Someone posted about Section 2 recently. I hadn't been aware of section 2(6).

http://www.irishstatutebook.ie/1991/en/act/pub/0031/sec0002.html#sec2


So, in a fit of pique, if a neighbour forcefully returns a child's ball over a tall garden fence, only to smash something, e.g. an expensive vase in an open window, can the neighbour rely on 2(6) and claim they had no foresight of doing damage?

This being different to a situation where they aimed the ball at the vase, intending to - or being indifferent as to whether they might - damage it (as opposed to knocking it over).

Disclaimer: I have no garden of my own. The neighbour's grandchildren are toddlers (and hence can barely throw a ball over their own heads, never mind a wall) and I have not seen them play ball. I have not seen any balls that needed to be returned.

In your example, the lawful excuse might apply i.e. in lawfully returning your property the window was actually damaged.

But supposing it doesnt, it would seem that s.2(6) is a somewhat inelegant way of putting the dpp v cagney definition of recklessness into the section i.e. being aware of the risk that you would unlawfully damage property and doing it anyway. So yeah, if I realise there is a risk I might damage your property by throwing the ball back over without looking or knowing where it will land that could be reckless, in thr same way that firing a gun into a crowd of people is reckless intent even if you dont actually want to shoot somebody at the other extreme.

Now can I have my ball back Mister Victor?

jimmycrackcorm

johnnyskeleton wrote: »

in thr same way that firing a gun into a crowd of people is reckless intent even if you dont actually want to shoot somebody at the other extreme.

Would you actually argue that firing a gun into a crowd is the same as throwing a ball back?

I think you should go the whole hog and use the nuclear mutually assured destruction defence.

johnnyskeleton

jimmycrackcorm wrote: »

Would you actually argue that firing a gun into a crowd is the same as throwing a ball back?

I think you should go the whole hog and use the nuclear mutually assured destruction defence.

For the purposes of Legal Discussion of the concept of reckless intent, yes.

If you want to discuss the disparity in relative terminal velocity maybe we can discuss that aspect in the Projectiles & Miscellaneous Missiles forum.

Zambia

It appears to just cover off on the prosecution proving intent.

I did mean to hit the vase but I hadno intent to damage it.

Regardless you should know you could break it hence your guilty.

Victor

Zambia wrote: »

It appears to just cover off on the prosecution proving intent.

I did mean to hit the vase but I hadno intent to damage it.

Regardless you should know you could break it hence your guilty.

But that isn't what the act says - it says "if he has foreseen that the particular kind of damage that in fact was done might be done" - my reading is that the accused has to have foreseen it, as opposed to could / should have foreseen it.

[Victor throws ball over fence] Unexpectedly, hears breaking china. "Ooops!" [Winces]

-> Not guilty

johnnyskeleton wrote: »

Now can I have my ball back Mister Victor?

Sure [Stabs ball with garden fork. Hands over ball]

Marcusm

johnnyskeleton wrote: »

In your example, the lawful excuse might apply i.e. in lawfully returning your property the window was actually damaged.

But supposing it doesnt, it would seem that s.2(6) is a somewhat inelegant way of putting the dpp v cagney definition of recklessness into the section i.e. being aware of the risk that you would unlawfully damage property and doing it anyway. So yeah, if I realise there is a risk I might damage your property by throwing the ball back over without looking or knowing where it will land that could be reckless, in thr same way that firing a gun into a crowd of people is reckless intent even if you dont actually want to shoot somebody at the other extreme.

Now can I have my ball back Mister Victor?

In your example, you are aware of the existence of the crowd whereas Victor has no knowledge of the existence or placement of the vase. One is eminently foreseeable, the other is not. Especially given that it would not be usual for a delicate vase to be placed outdoors.

johnnyskeleton

Marcusm wrote: »

In your example, you are aware of the existence of the crowd whereas Victor has no knowledge of the existence or placement of the vase. One is eminently foreseeable, the other is not. Especially given that it would not be usual for a delicate vase to be placed outdoors.

Well crowd=house with windows and person actually injured=vase. He may not have been aware of the exact smashable item, but was aware that there was a risk of a smashable item being behind the wall and, instead of looking, just threw it.

Victor

johnnyskeleton wrote: »

But supposing it doesnt, it would seem that s.2(6) is a somewhat inelegant way of putting the dpp v cagney definition of recklessness

This one?

DPP v Cagney, [2013] IESC 13 (2013)

http://ie.vlex.com/vid/dpp-v-cagney-427309370

http://www.extempore.ie/2013/03/13/new-judgment-dpp-v-cagney/

Marcusm

johnnyskeleton wrote: »

Well crowd=house with windows and person actually injured=vase. He may not have been aware of the exact smashable item, but was aware that there was a risk of a smashable item being behind the wall and, instead of looking, just threw it.

Hardly, he threw it over a wall, you fired into a crowd. You could see and therefore the harm was foreseeable.