Malicious Damage Act 1861

The Malicious Damage Act 1861[1]

Long title An Act to consolidate and amend the Statute Law of England and Ireland relating to Malicious Injuries to Property.
Citation 24 & 25 Vict c 97
Territorial extent England and Wales,
Northern Ireland,
Republic of Ireland
Dates
Royal assent 6 August 1861
Commencement 1 November 1861[2]
Status: Amended
Text of statute as originally enacted
Revised text of statute as amended

The Malicious Damage Act 1861 (24 & 25 Vict c 97) is an Act of the Parliament of the United Kingdom of Great Britain and Ireland (as it then was). It consolidated provisions related to malicious damage from a number of earlier statutes into a single Act. For the most part these provisions were, according to the draftsman of the Act,[3] incorporated with little or no variation in their phraseology. It is one of a group of Acts sometimes referred to as the criminal law consolidation Acts 1861. It was passed with the object of simplifying the law. It is essentially a revised version of an earlier consolidation Act, the Malicious Injuries to Property Act 1827 (7 & 8 Geo 4 c 30) (and the equivalent Irish Act), incorporating subsequent statutes.[4]

The Act applied in the Republic of Ireland until 1991[5] and still applies in some Commonwealth countries which were parts of the British Empire in 1861, such as Sierra Leone.[6]

Injuries by fire to buildings, and goods therein

The following words were repealed for England and Wales by section 83(3) of, and Part I of Schedule 10 to, the Criminal Justice Act 1948:

Sections 1 to 7 were repealed for England and Wales by section 11(8) of, and Part I of the Schedule to, the Criminal Damage Act 1971. They were repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977 (S.I. 1977/426) (N.I. 4)

Indictments of ss. 2 & 3

The following specimen counts were formerly contained in paragraph 14 of the Second Schedule to the Indictments Act 1915 before it was repealed.

STATEMENT OF OFFENCE.

First Count.

Arson, contrary to section 2 of the Malicious Damage Act, 1861.

PARTICULARS OF OFFENCE.

A.B., on the   day of  , in the county of  , maliciously set fire to a dwelling-house, one F.G. being therein.

STATEMENT OF OFFENCE.

Second Count.

Arson, contrary to section 3 of the Malicious Damage Act, 1861.

PARTICULARS OF OFFENCE.

A.B., on the   day of  , in the county of  , maliciously set fire to a house with intent to injure or defraud.

The following specimen count was formerly contained in paragraph 15 of the Second Schedule to the Indictments Act 1915 before it was repealed.

STATEMENT OF OFFENCES.

A.B., arson, contrary to section 3 of the Malicious Damage Act, 1861;

C.D., accessory before the fact to same offence.

PARTICULARS OF OFFENCES.

A.B., on the   day of  , in the county of  , set fire to a house with intent to injure or defraud.

C.D., on the same day, in the county of  , did counsel, procure, and command the said A.B. to commit the said offence.

Section 8: Attempting to set fire to Buildings

This section was repealed for England and Wales by section 10(2) of and Part III of Schedule 3 to, the Criminal Law Act 1967. It was repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977

Injuries by explosive substances to buildings and goods therein

Sections 9 to 26 were repealed for England and Wales by section 11(8) of, and Part I of the Schedule to, the Criminal Damage Act 1971. They were repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977 (S.I. 1977/426) (N.I. 4)

Injuries to buildings by rioters, etc.

Section 12: Rioters injuring Building, Machinery, &c.

The proviso to this section was repealed for England and Wales by section 10(2) of and Part III of Schedule 3 to, the Criminal Law Act 1967.

Injuries to buildings by tenants

Injuries to manufactures, machinery, etc.

Injuries to corn, trees and vegetable productions

Section 22: Damaging Trees, wheresoever growing, to the Amount of 1s

This section has been repealed for England and Wales and Northern Ireland. As originally enacted this section read:

“ Whosoever shall unlawfully and maliciously cut, break, bark, root up, or otherwise destroy or damage the whole or any Part of any Tree, Sapling, or Shrub, or any Underwood, wheresoever the same may be growing, the Injury done being to the Amount of One Shilling at the least, shall, on Conviction thereof before a Justice of the Peace, at the Discretion of the Justice, either be committed to the Common Gaol or House of Correction, there to be imprisoned only, or to be imprisoned and kept to Hard Labour for any Term not exceeding Three Months, or else shall forfeit and pay, over and above the Amount of the Injury done, such Sum of Money, not exceeding Five Pounds, as to the Justice shall seem meet; and whosoever, having been convicted of any such Offence, either against this or any former Act of Parliament, shall afterwards commit any of the said Offences in this Section before mentioned, and shall be convicted thereof in like Manner, shall for such Second Offence be committed to the Common Gaol or House of Correction, there to be kept to Hard Labour for such Term, not exceeding Twelve Months, as the convicting Justice shall think fit; and whosoever, having been twice convicted of any such Offence (whether both or either of such Convictions shall have taken place before or after the passing of this Act), shall afterwards commit any of the said Offences in this Section before mentioned, shall be guilty of a Misdemeanor, and being convicted thereof shall be liable, at the Discretion of the Court, to be imprisoned for any Term not exceeding Two Years, with or without Hard Labour, and with or without Solitary Confinement, and, if a Male Age of Sixteen Years or younger, with or without hard work ”

Indictment

The following specimen count was formerly contained in paragraph 17 of the Second Schedule to the Indictments Act 1915 before it was repealed.

STATEMENT OF OFFENCE.

Damaging trees, contrary to section 22 of the Malicious Damage Act, 1861.

PARTICULARS OF OFFENCE.

A.B., on the   day of  , in the county of  , maliciously damaged an oak tree there growing.

A.B. has been twice previously convicted of an offence under section 22 of the Malicious Damage Act, 1861, namely, at  , on the   day of  , and at  , on the   day of  .

Injuries to fences

Injuries to mines

Section 27: Attempting to set fire to a Mine

This section was repealed for England and Wales by section 10(2) of and Part III of Schedule 3 to, the Criminal Law Act 1967. It was repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977

Sections 28 and 29 were repealed for England and Wales by sections 11(3) and (8) of, and Part I of the Schedule to, the Criminal Damage Act 1971. They were repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977 (S.I. 1977/426) (N.I. 4)

Injuries to sea and river banks, and to works on rivers, canals, etc.

Sections 30 to 34 were repealed for England and Wales by section 11(8) of, and Part I of the Schedule to, the Criminal Damage Act 1971. They were repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977 (S.I. 1977/426) (N.I. 4)

Injuries to ponds

Injuries to bridges, viaducts and toll bars

Injuries to railway carriages and telegraphs

Section 35 - Placing wood, &c. on railway, with intent to obstruct or overthrow any engine, &c.

This section creates an offence in England and Wales and Northern Ireland. It has been repealed for the Republic of Ireland.[7]

It replaces section 6 of the Prevention of Offences Act 1851 (14 & 15 Vict. c.19) in so far as that section related to malicious injuries to property.[8]

It has the following form in England and Wales:

“ Whosoever shall unlawfully and maliciously cut, place, cast, or throw upon or across any railway any wood, stone, or other matter or thing, or shall unlawfully and maliciously take up, remove, or displace any rail, sleeper, or other matter or thing belonging to any railway, or shall unlawfully and maliciously turn, move, or divert any points or other machinery belonging to any railway, or shall unlawfully and maliciously make or show, hide or remove, any signal or light upon or near to any railway, or shall unlawfully and maliciously do or cause to be done any other matter or thing, with intent, in any of the cases aforesaid, to obstruct, upset, overthrow, injure, or destroy any engine, tender, carriage, or truck using such railway, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for life . . . or to be imprisoned . . .[9] ”

The words in the first place were repealed by the Statute Law Revision Act 1892. The words "and, if a male under the age of sixteen years, with or without whipping" at the end were repealed by section 83(3) of, and Part I of Schedule 10 to, the Criminal Justice Act 1948.

This section was repealed in part for Northern Ireland by the Statute Law Revision Act (Northern Ireland) 1954.

"Maliciously"

See section 58.

"Felony"

See the Criminal Law Act 1967, the Criminal Law Act (Northern Ireland) 1967 and the Criminal Law Act, 1997.

"Penal servitude"

See the Criminal Justice Act 1948, section 1(1) and the Criminal Justice Act (Northern Ireland) 1953, section 1(1)

Mode of trial

In England and Wales, the offence under section 35 is an indictable-only offence.

Sentence

In England and Wales, an offence under section 35 is punishable with imprisonment for life or for any shorter term.[10]

See the Crown Prosecution Service Sentencing Manual.

In Northern Ireland, an offence under section 35 is punishable with imprisonment for life or for any shorter term.[11]

Early release of prisoners

An offence under this section is an excluded offence for the purposes of section 32 of the Criminal Justice Act 1982.[12]

Jurisdiction in Northern Ireland over offences committed in the Republic of Ireland

An offence under this section is an extraterritorial offence for the purposes of the Criminal Jurisdiction Act 1975.[13]

Former jurisdiction in the Republic of Ireland over offences committed in the Northern Ireland

Offences under this section were specified for the purposes of section 2(1) of the Criminal Law (Jurisdiction) Act, 1976[14]

Visiting Forces

In England and Wales and Northern Ireland, an offence under this section is an offence against property for the purposes of section 3 of the Visiting Forces Act 1952.[15]

Terrorism

An offence under this section is a scheduled offence for the purposes of Part VII of the Terrorism Act 2000.[16]

Section 36 - Obstructing engines or carriages on railways

This section creates an offence in England and Wales, Northern Ireland and the Republic of Ireland.

It replaces section 15 of the Railway Regulation Act 1840 (3 & 4 Vict c 97) in so far as that section related to malicious injuries to property.[17]

This section is similar to section 35, but requires no proof of specific intent. The maximum penalty is two years imprisonment. The main difference between these two provisions is the mens rea, a specific intent being regarded as more culpable than recklessness or negligence.

“ Whosoever, by any unlawful act, or by any wilful omission or neglect, shall obstruct or cause to be obstructed any engine or carriage using any railway, or shall aid or assist therein, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years, . . .[18] ”

"Maliciously"

See section 58.

"Misdemeanour"

See the Criminal Law Act 1967, the Criminal Law Act (Northern Ireland) 1967 and the Criminal Law Act, 1997

Mode of trial

In England and Wales, this offence is triable either way.[19]

Sentence

In England and Wales, a person guilty of an offence under section 36 is liable, on conviction on indictment, to imprisonment for a term not exceeding two years,[20] or on summary conviction to imprisonment for a term not exceeding six months, or to a fine not exceeding the prescribed sum, or to both.[21]

See the Crown Prosecution Service Sentencing Manual.

In Northern Ireland, a person guilty of an offence under section 36 is liable, on conviction on indictment, to imprisonment for a term not exceeding two years,[22] or on summary conviction to imprisonment for a term not exceeding twelve months, or to a fine not exceeding the prescribed sum, or to both.[23]

Visiting Forces

In England and Wales and Northern Ireland, an offence under this section is an offence against property for the purposes of section 3 of the Visiting Forces Act 1952.[24]

Indictments of ss. 35 & 36

The following specimen counts were formerly contained in paragraph 16 of the Second Schedule to the Indictments Act 1915 before it was repealed.

STATEMENT OF OFFENCE.

First Count.

Offence under section 35 of the Malicious Damage Act, 1861.

PARTICULARS OF OFFENCE.

A.B., on the   day of  , in the county of  , displaced a sleeper belonging to the Great Western Railway with intent to obstruct, upset, overthrow, injure, or destroy any engine, tender, carriage or truck using the said railway.

STATEMENT OF OFFENCE.

Second Count.

Obstructing railway, contrary to section 36 of the Malicious Damage Act, 1861.

PARTICULARS OF OFFENCE.

A.B., on the   day of  , in the county of  , by unlawfully displacing a sleeper belonging to the Great Western Railway did obstruct or cause to be obstructed an engine or carriage using the said railway.

A book has suggested that these forms could safely be used as precedents despite their repeal.[25] (Note: It is not necessary to specify the place where the offence allegdedly took place unless it is material to the charge.)[26]

Sections 37 to 42 were repealed for England and Wales by section 11(8) of, and Part I of the Schedule to, the Criminal Damage Act 1971. They were repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977 (S.I. 1977/426) (N.I. 4)

Injuries to works of art

Section 39: Destroying or damaging Works of Art in Museums, Churches, &c., or in Public Places

Injuries to cattle and other animals

Injuries to ships

The heading "injuries to ships" was included in the Bill, but omitted from the Act as printed. It is thought that this was a mistake.[27]

Section 43: Setting fire to Ships to prejudice the Owner or Underwriters

This section was repealed for England and Wales by section 10(2) of and Part I of Schedule 3 to, the Criminal Law Act 1967. It was repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977.

Section 44: Attempting to set fire to a Vessel

This section was repealed for England and Wales by section 10(2) of and Part III of Schedule 3 to, the Criminal Law Act 1967. It was repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977.

Sections 45 and 46 were repealed for England and Wales by section 11(8) of, and Part I of the Schedule to, the Criminal Damage Act 1971. They were repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977 (S.I. 1977/426) (N.I. 4)

Sections 47 and 48 were repealed by sections 8(3) and (4) of, and paragraph 35 of Schedule 4 to, and Part II of Schedule 5 to, the Merchant Shipping (Registration, etc) Act 1993

Sections 49 to 51 were repealed for England and Wales by section 11(8) of, and Part I of the Schedule to, the Criminal Damage Act 1971. They were repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977 (S.I. 1977/426) (N.I. 4)

Sending letters threatening to burn or destroy

Injuries not before provided for

Sections 52 and 53 were repealed for by section 44 of, and Schedule 4 to, the Criminal Justice Administration Act 1914. They were repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977 (S.I. 1977/426) (N.I. 4)

Making gunpowder to commit offences, and searching for the same

Sections 54 and 55 were repealed for England and Wales by section 11(8) of, and Part I of the Schedule to, the Criminal Damage Act 1971. They were repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977 (S.I. 1977/426) (N.I. 4).

Other matters

Sections 56 and 57 were repealed for England and Wales by section 10(2) of and Part III of Schedule 3 to, the Criminal Law Act 1967. They were repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977.

Section 58 – Malice against owner of property unnecessary

This section provides that it is not necessary to prove malice[28] against the owner of the damaged property.

Sections 59 to 61 were repealed for England and Wales by section 11(8) of, and Part I of the Schedule to, the Criminal Damage Act 1971. They were repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977 (S.I. 1977/426) (N.I. 4).

Section 62: Mode of compelling the Appearance of Persons punishable on summary Conviction

This section was repealed by section 4 of, and the Schedule to, the Summary Jurisdiction Act 1884. It was repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977.

Sections 63 to 65 were repealed for England and Wales by section 11(8) of, and Part I of the Schedule to, the Criminal Damage Act 1971. They were repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977 (S.I. 1977/426) (N.I. 4).

Section 66: The Justice may discharge the Offender in certain Cases

This section was repealed for England and Wales by section 83(3) of, and Part I of Schedule 10 to, the Criminal Justice Act 1948. It was repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977.

Section 67: A summary Conviction shall be a Bar to any other Proceeding for the same Cause

This section were repealed for England and Wales by section 11(8) of, and Part I of the Schedule to, the Criminal Damage Act 1971. It was repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977 (S.I. 1977/426) (N.I. 4).

Section 68: Appeal

This section was repealed by section 56(4) of, and Part IV of Schedule 11 to, the Courts Act 1971. It was repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977.

Section 69: No Certiorari, &c.

This section was repealed by the Statute Law (Repeals) Act 1976. It was repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977.

Section 70: Convictions to be returned to the Quarter Sessions

This section was repealed by section 4 of, and the Schedule to, the Summary Jurisdiction Act 1884. It was repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977.

Section 71: Venue in Proceedings against Persons acting under this Act

This section was repealed by section 2 of, and the Schedule to, the Public Authorities Protection Act 1893. It was repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977.

Section 72 - Offences committed within the jurisdiction of the Admiralty

This section deals with jurisdiction and essentially duplicates the Offences at Sea Act 1799,[29] and although still in force, is obsolete. The provision dealt mainly with piracy and extended the jurisdiction of British courts to crimes committed by British subjects on the high seas.

The words " deemed to be offences of the same nature and", and the words from " and may be dealt with " to the end, were repealed for England and Wales by section 10(2) of and Part III of Schedule 3 to, the Criminal Law Act 1967.

Section 73: Fine and Sureties for keeping the Peace; in what Cases

The words " fine the offender, and," and the words from "and in case of any felony " to " authorized ", where next occurring, were repealed for England and Wales by section 10(2) of and Part III of Schedule 3 to, the Criminal Law Act 1967. This section was repealed for England and Wales by section 8(2) of, and Part II of Schedule 5 to, the Justices of the Peace Act 1968. It was repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977.

Section 74: Hard Labour

This section was repealed by the Statute Law Revision Act 1892. It was repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977.

Section 75: Solitary Confinement and Whipping

This section was repealed for England and Wales by section 83(3) of, and Part I of Schedule 10 to, the Criminal Justice Act 1948. It was repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977.

Section 76: Summary Proceedings in England may be under the 11 & 12 Vict. c. 43., and in Ireland under the 14 & 15 Vict. c. 93

This section was repealed for England and Wales by section 11(8) of, and Part I of the Schedule to, the Criminal Damage Act 1971. It was repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977 (S.I. 1977/426) (N.I. 4).

Section 77: The Costs of the Prosecution of Misdemeanors against this Act may be allowed

This section was repealed by section 10(1) of, and the Schedule to, the Costs in Criminal Cases Act 1908. It was repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977.

Section 78: Act not to extend to Scotland

This section was repealed for England and Wales by section 11(8) of, and Part I of the Schedule to, the Criminal Damage Act 1971. It was repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977 (S.I. 1977/426) (N.I. 4).

Section 79: Commencement of Act

This section was repealed by the Statute Law Revision Act 1892. It was repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977.

See also

Footnotes

  1. ↑ This short title was conferred by the Short Titles Act 1896, section 1 and the first schedule.
  2. ↑ The Malicious Damage Act 1861, section 79
  3. ↑ Greaves. The Criminal Law Consolidation and Amendment Acts (1861) pp. 3-4
  4. ↑ Davis, James Edward. The Criminal Law Consolidation Statutes of the 24 & 25 of Victoria, Chapters 94 to 100. Butterworths. 1861. Pages vi and vii. Google Books.
  5. ↑ Seanad Éireann (Senate of Ireland) (1991-12-12). "Díospóireachtaí Parlaiminte [Parliamentary Debates]: Criminal Damage Bill, 1990: Second Stage". 130., cols. 1618–1677; Criminal Damage Act, 1991 (No. 31/1991) (Ireland).
  6. ↑ Prosecutor v. Kallon (Decision on Challenge to Jurisdiction: Lomé Accord Amnesty), Case No. SCSL-2004-15-AR72(E) (March 13, 2004), Special Court for Sierra Leone. Retrieved on June 2, 2008.
  7. ↑ The Railway Safety Act 2005, section 5(1) and Schedule 1. See now section 119 of that Act
  8. ↑ Davis p. 145
  9. ↑ http://www.legislation.gov.uk/ukpga/Vict/24-25/97/section/35
  10. ↑ The Malicious Damage Act 1861, section 35; the Criminal Justice Act 1948 (11 & 12 Geo.6 c.58), section 1(1)
  11. ↑ The Malicious Damage Act 1861, section 35; the Criminal Justice Act (Northern Ireland) 1953, section 1(1)
  12. ↑ The Criminal Justice Act 1982, section 32(2)(b) and Schedule 1, Part II, paragraph 1
  13. ↑ The Criminal Jurisdiction Act 1975, sections 1(1), (2) and (3)(a) and Schedule 1, paragraphs 6, and 12(1) and (3)
  14. ↑ Schedule, paragraph 6(h)
  15. ↑ The Visiting Forces Act 1952, section 3(6) and Schedule, paragraph 3(b)
  16. ↑ The Terrorism Act 2000, section 65 and [Schedule 9], Part I, paragraph 6 and Part III
  17. ↑ Davis, p. 145
  18. ↑ http://www.legislation.gov.uk/ukpga/Vict/24-25/97/section/36
  19. ↑ The Magistrates' Courts Act 1980 (c.43), section 17(1) and Schedule 1, paragraph 4
  20. ↑ The Malicious Damage Act 1861, section 36; the Criminal Justice Act 1948 (11 & 12 Geo.6 c.58), section 1(2)
  21. ↑ The Magistrates' Courts Act 1980 (c.43), section 32(1)
  22. ↑ The Malicious Damage Act 1861, section 36; the Criminal Justice Act (Northern Ireland) 1953, section 1(2)
  23. ↑ The Magistrates' Courts (Northern Ireland) Order 1981 (No.1675 (N.I.26)), article 46(4)
  24. ↑ The Visiting Forces Act 1952, section 3(6) and Schedule, paragraph 3(b)
  25. ↑ Archbold Criminal Pleading, Evidence and Practice, 1999 Edition, paragraph 23-58
  26. ↑ R v. Wallwork, 42 Cr.App.R. 153, CCA
  27. ↑ Davis, at p.150
  28. ↑ In the sense of an animus.
  29. ↑ Offences at Sea Act 1799 (39 Geo. III c. 37).

References

External links

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