Tom and Jerry, his wife, own a farm. Business has been bad lately and they are struggling financially. One day Jerry suggests that they should refurbish a barn on their land to expand the business. Tom is furious and says to Jerry; “You can forget it, we don’t have the money, it would be better to burn it down.” Tom leaves to go to the wholesalers to buy animal food. Jerry sets fire to the barn, believing that is what Tom wants her to do. On arriving home, Tom sees the fire and Jerry standing nearby, smiling. Tom runs into their house, picks up Jerry’s favourite china plates and says to her, “What have you done? I am going to smash these to pieces!” Jerry, infuriated, grabs a spade and runs towards where Tom has parked his truck, holds the spade over the truck and says; “go on then, I dare you”. Tom puts the china plates back on the table. Jerry starts crying and drops the spade.

Criminal Liability of Tom

• Tom is not criminally liable for the damage under the Criminal Damage Act 1971.
• Making the statement regarding ‘burning the place down’ was not intended to actually do so.
• The arson was caused by Jerry and not by Tom. Tom made a statement in frustration and did not really intend to burn down the barn. He did not do any act to start the fire.
• A person is guilty of arson only if they commit an offence within the Criminal Damage Act 1971, s.1(1) or 1(2). For the applicability of s.1(1), the property destroyed should belong to another. As this is not the case, this provision is not applicable to Tom. For the applicability of s.1(2), a person is guilty of an offence of criminal damage if he had the intention to destroy property or showed recklessness in whether he destroyed such property. 1 Unless the above mentioned elements are present in the case, there will be no offence.
• In this case, Tom has no intention to actually burn down his place, nor has he done an act showing recklessness on his part as to whether he damaged to destroyed his property.
• In R v G, 2 for mens rea for criminal damage, ”recklessness" for the purposes of the Criminal Damage Act is now defined as follows: "A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to: 1) a circumstance when he is aware of a risk that it exists or will exist; 2) a result when he/she is aware of a risk that it will occur; and 3) it is, in the circumstances known to him, unreasonable to take the risk.
• Tom’s statement that it would be better to burn the barn down did not have mens rea. It is not shown that Tom’s statement was made with the knowledge that Jerry would actually do arson. There is no intention and no reckless ness on the part of Tom.

Criminal Liability of Jerry

• Jerry started the fire and thereby committed arson under the Criminal Damage Act 1971. This can be charged as aggravated criminal damage under the Criminal Damage Act 1971, s.1(2) read with s.1(3).
• The Criminal Damage Act 1971 makes an offence of criminal damage where the property is destroyed or damaged by fire. This is charged as arson under section 1(3) of the Act. This includes intending to destroy/damage property or being reckless as to whether property would be destroyed/damaged and being reckless as to whether life would be endangered. 3 Thus there are two mens rea elements in the Act: the intention to destroy or damage property or the recklessness as to whether the property is damaged.
• As per R v G, 4 for mens rea for criminal damage, ”recklessness" for the purposes of the Criminal Damage Act is now defined as follows: "A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to: 1) a circumstance when he is aware of a risk that it exists or will exist; 2) a result when he/she is aware of a risk that it will occur; and 3) it is, in the circumstances known to him, unreasonable to take the risk.
• Criminal liability defers to the maxim actus non facit reum nisi mens sit rea which is translated to ‘act alone does not make a person guilty, unless his mind is also guilty.’ 5 Consequently, criminal behaviour will consist of an act or omission (actus reus) and fault element (mens rea), which may be intention, knowledge, recklessness or negligence.
• For the purpose of aggravated criminal damage, the property could even belong to the offender.
• Jerry committed an act of arson. She was aware of the risk that existed, and it was under the circumstances unreasonable to take the risk.

Criminal Liability of Emma

• Emma has cut the brake cable of Tom’s truck, which he is to drive later in the day. If Tom drives the truck and meets with an accident, Emma will be criminally liable for the loss caused by the accident, which may be grievous injury or even death.
• As in this case, the loss will be due to damage to the car, the case would also come within the purview of the Criminal Damage Act 1971, s.1(2). This was also held in the Steer case.
• Emma’s culpability will rest upon the following factors in the event of any injury to Tom.
• There are two necessary elements for culpability: actus reus (unlawful act) and mens rea (guilty mind). The cutting of the brake cable is an unlawful act. Mens rea can be determined from foreseeability or recklessness.
• Foresight is another important aspect of culpability. In R v Hyam, 7 the House of Lords held that the foresight on part of the accused that the actions were likely, or highly likely, to cause death or grievous bodily harm was sufficient mens rea for murder. In R v Nedrick, 8 the House of Lords directed that jury must ask two questions to establish whether the defendant had mens rea: first, the probability of consequence resulting from the defendant's voluntary act; second, the foreseeability of that consequence. 9 In R v Hancock and Shankland, 10 House of Lords held that foresight is to be regarded as evidence of intention. Therefore, even if Emma did not intend to harm to Tom, she will be guilty for such harm because she ought to have known the high degree of possibility of harm by her actions.
• In Nedrick the court laid down the ‘virtual certainty test’ to hold that the jury must not infer intention to kill unless death or grievous injury is a virtual certainty and this should be seen from all of the evidence in the case.
• Another aspect here is the recklessness of Emma evident from the cutting of the brake cable. In MPC v Caldwell, 11 recklessness was held to be adjudged by the defendant not giving any thought to the possibility of such a risk when he carried out the act in question, or where the defendant had recognised the risk involved and still acted the way he did.
• The test for risk is that whether such a risk will be considered to be there in the mind of the reasonable man. In R v Seymour, 12 the defendant was found guilty of
• recklessly causing manslaughter where he jammed the victim against the car. A reasonable person should realise the risk and harm in the actions.

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