Malicious Damage Act 1861
Encyclopedia
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, 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.
The Act applied in the Republic of Ireland
until 1991 and still applies in some Commonwealth
countries which were parts of the British Empire
in 1861, such as Sierra Leone
.
:
Sections 1 to 7 were repealed for England and Wales by section 11(8) of, and Part I of the Schedule to, the Criminal Damage Act 1971. They were repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977 (S.I. 1977/426) (N.I. 4)
before it was repealed.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 E.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before it was repealed.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This section was repealed for England and Wales by section 10(2) of and Part III of Schedule 3 to, the Criminal Law Act 1967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 It was repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977
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
.
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 ...
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)
and Northern Ireland
. It has been repealed for the Republic of Ireland
.
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.
It has the following form in England and Wales:
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.
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.
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.
Jurisdiction in Northern Ireland over offences committed in the Republic of Ireland
An offence under this section is an extra-terriotorial offence for the purposes of the Criminal Jurisdiction Act 1975.
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
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
.
Terrorism
An offence under this section is a scheduled offence for the purposes of Part VII of the Terrorism Act 2000
.
, 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.
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
.
"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
.
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, 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.
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, 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.
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
.
before it was repealed.
A book has suggested that these forms could safely be used as precedents despite their repeal. (Note: It is not necessary to specify the place where the offence allegdedly took place unless it is material to the charge.)
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)
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)
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)
. 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 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
, 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.
Act of Parliament
An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...
of the Parliament
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
of the United Kingdom of Great Britain and Ireland
United Kingdom of Great Britain and Ireland
The United Kingdom of Great Britain and Ireland was the formal name of the United Kingdom during the period when what is now the Republic of Ireland formed a part of it....
(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, 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
Criminal law consolidation Acts 1861
The criminal law consolidation Acts 1861 were Acts of the Parliament of the United Kingdom. They consolidated provisions from a large number of earlier statutes which were then repealed. Their purpose was to simplify the criminal law...
. 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.
The Act applied in the Republic of Ireland
Republic of Ireland
Ireland , described as the Republic of Ireland , is a sovereign state in Europe occupying approximately five-sixths of the island of the same name. Its capital is Dublin. Ireland, which had a population of 4.58 million in 2011, is a constitutional republic governed as a parliamentary democracy,...
until 1991 and still applies in some Commonwealth
Commonwealth of Nations
The Commonwealth of Nations, normally referred to as the Commonwealth and formerly known as the British Commonwealth, is an intergovernmental organisation of fifty-four independent member states...
countries which were parts of the British Empire
British Empire
The British Empire comprised the dominions, colonies, protectorates, mandates and other territories ruled or administered by the United Kingdom. It originated with the overseas colonies and trading posts established by England in the late 16th and early 17th centuries. At its height, it was the...
in 1861, such as Sierra Leone
Sierra Leone
Sierra Leone , officially the Republic of Sierra Leone, is a country in West Africa. It is bordered by Guinea to the north and east, Liberia to the southeast, and the Atlantic Ocean to the west and southwest. Sierra Leone covers a total area of and has an estimated population between 5.4 and 6.4...
.
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 1948Criminal Justice Act 1948
The Criminal Justice Act 1948 is an Act of the Parliament of the United Kingdom. It has been described as "one of the most important measures relating to the reform of the criminal law and its administration." It abolished penal servitude, hard labour and prison divisions for England and Wales...
:
- In sections 1 to 10, 14 to 21, 23, 26 to 33, 42 to 48 and 50, the words "and, if a male under the age of sixteen years, with or without whipping" wherever those words occurred
- In sections 22 and 54, the words from "with or without hard labour" to the end
- In section 39, the words from "with or without hard labour" to "whipping"
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)
- Section 1: Setting fire to a Church or Chapel
- Section 2: Setting fire to a Dwelling House, any Person being therein
- Section 3: Setting fire to a House, Outhouse, Manufactory, Farm Building, &c.
Indictments of ss. 2 & 3
The following specimen counts were formerly contained in paragraph 14 of the Second Schedule to the Indictments Act 1915Indictments Act 1915
The Indictments Act 1915 was an Act of the Parliament of the United Kingdom that made significant changes to the law relating to indictments. The law relating to indictments evolved during the seventeenth and eighteenth centuries and became lengthy, confusing and highly technical to the point...
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 E.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
Indictments Act 1915
The Indictments Act 1915 was an Act of the Parliament of the United Kingdom that made significant changes to the law relating to indictments. The law relating to indictments evolved during the seventeenth and eighteenth centuries and became lengthy, confusing and highly technical to the point...
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 4: Setting fire to any Railway Station
- Section 5: Setting fire to any Public Building
- Section 6: Setting fire to other Buildings
- Section 7: Setting fire to Goods in any Building the setting fire to which is Felony
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
Criminal Law Act 1967
The Criminal Law Act 1967 is an Act of the Parliament of the United Kingdom. However, with some minor exceptions, it generally applies to only England and Wales. It made some major changes to English criminal law...
. 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)- Section 9: Destroying or damaging a House with Gunpowder, any Person being therein
- Section 10: Attempting to destroy Buildings with Gunpowder
Injuries to buildings by rioters, etc.
- Section 11: Rioters demolishing Church, Building, &c.
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
Criminal Law Act 1967
The Criminal Law Act 1967 is an Act of the Parliament of the United Kingdom. However, with some minor exceptions, it generally applies to only England and Wales. It made some major changes to English criminal law...
.
Injuries to manufactures, machinery, etc.
- Section 14: Destroying Goods in Process of Manufacture, certain Machinery, &c.
- Section 15: Destroying Machines in, other Manufactures, Threshing Machines, &c.
Injuries to corn, trees and vegetable productions
- Section 16: Setting fire to Crops of Corn, &c.
- Section 17: Setting fire to Stacks of Corn, &c.
- Section 18: Attempting to set fire to any Crops of Corn, &c. or to any Stack or Steer
- Section 19: Destroying Hopbinds
- Section 20: Destroying or damaging Trees, Shrubs, &c. to the Value of more than 1l. growing in a Pleasure Ground, &c.
- Section 21: Destroying or damaging Trees, Shrubs, &c. to the Value of more than 5l. growing elsewhere than in a Pleasure Ground, &c.
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:Indictment
The following specimen count was formerly contained in paragraph 17 of the Second Schedule to the Indictments Act 1915
Indictments Act 1915
The Indictments Act 1915 was an Act of the Parliament of the United Kingdom that made significant changes to the law relating to indictments. The law relating to indictments evolved during the seventeenth and eighteenth centuries and became lengthy, confusing and highly technical to the point...
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 ...
- Section 23: Destroying any Fruit or vegetable Production in a Garden
- Section 24: Destroying &c. vegetable Productions not growing in Gardens, &c.
Injuries to mines
- Section 26: Setting fire to a Coal Mine
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
Criminal Law Act 1967
The Criminal Law Act 1967 is an Act of the Parliament of the United Kingdom. However, with some minor exceptions, it generally applies to only England and Wales. It made some major changes to English criminal law...
. 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)
- Section 28: Conveying Water into a Mine, obstructing the Shaft, &c.
- Section 29: Damaging Steam Engines, Staiths, Waggon ways, &c. for working Mines
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)- Section 30: Destroy any Sea Bank, or Wall on any Canal
- Section 31: Removing the Piles of any Sea Bank, &c., or doing any Damage to obstruct the Navigation of a River or Canal
Injuries to ponds
- Section 32: Breaking down the Dam of a Fishery, &c. or Milldam, or poisoning Fish
Injuries to bridges, viaducts and toll bars
- Section 33: Injury to a public Bridge
- Section 34: Destroying a Turnpike Gate, Toll House, &c.
Section 35 - Placing wood, &c. on railway, with intent to obstruct or overthrow any engine, &c.
This section creates an offence in England and WalesEngland and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
and Northern Ireland
Northern Ireland
Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
. It has been repealed for the Republic of Ireland
Republic of Ireland
Ireland , described as the Republic of Ireland , is a sovereign state in Europe occupying approximately five-sixths of the island of the same name. Its capital is Dublin. Ireland, which had a population of 4.58 million in 2011, is a constitutional republic governed as a parliamentary democracy,...
.
It replaces section 6 of the Prevention of Offences Act 1851
Prevention of Offences Act 1851
The Prevention of Offences Act 1851 is an Act of the Parliament of the United Kingdom.It is still in force in the Republic of Ireland.It was retained for the Republic of Ireland by...
(14 & 15 Vict. c.19) in so far as that section related to malicious injuries to property.
It has the following form in England and Wales:
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
Criminal Justice Act 1948
The Criminal Justice Act 1948 is an Act of the Parliament of the United Kingdom. It has been described as "one of the most important measures relating to the reform of the criminal law and its administration." It abolished penal servitude, hard labour and prison divisions for England and Wales...
.
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
Criminal Law Act 1967
The Criminal Law Act 1967 is an Act of the Parliament of the United Kingdom. However, with some minor exceptions, it generally applies to only England and Wales. It made some major changes to English criminal law...
, the Criminal Law Act (Northern Ireland) 1967 and the Criminal Law Act, 1997.
"Penal servitude"
See the Criminal Justice Act 1948
Criminal Justice Act 1948
The Criminal Justice Act 1948 is an Act of the Parliament of the United Kingdom. It has been described as "one of the most important measures relating to the reform of the criminal law and its administration." It abolished penal servitude, hard labour and prison divisions for England and Wales...
, 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.
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.
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.
Jurisdiction in Northern Ireland over offences committed in the Republic of Ireland
An offence under this section is an extra-terriotorial offence for the purposes of the Criminal Jurisdiction Act 1975.
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
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
Visiting Forces Act 1952
The Visiting Forces Act 1952 is an Act of the Parliament of the United Kingdom. provides immunity against prosecution for certain offences in the courts of United Kingdom by members of visiting forces and, by virtue of the 1964 Act, international headquarters...
.
Terrorism
An offence under this section is a scheduled offence for the purposes of Part VII of the Terrorism Act 2000
Terrorism Act 2000
The Terrorism Act 2000 is the first of a number of general Terrorism Acts passed by the Parliament of the United Kingdom. It superseded and repealed the Prevention of Terrorism Act 1989 and the Northern Ireland Act 1996...
.
Section 36 - Obstructing engines or carriages on railways
This section creates an offence in England and WalesEngland and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
, Northern Ireland
Northern Ireland
Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
and the Republic of Ireland
Republic of Ireland
Ireland , described as the Republic of Ireland , is a sovereign state in Europe occupying approximately five-sixths of the island of the same name. Its capital is Dublin. Ireland, which had a population of 4.58 million in 2011, is a constitutional republic governed as a parliamentary democracy,...
.
It replaces section 15 of the Railway Regulation Act 1840
Railway Regulation Act 1840
The Railway Regulation Act of 1840 brought regulation to the rapidly emerging railway industry in the UK. It was enacted on 10th August 1840 and originally titled An Act for regulating Railways....
(3 & 4 Vict. c.97) in so far as that section related to malicious injuries to property.
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
Mens rea
Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
, a specific intent being regarded as more culpable than recklessness or negligence
Negligence
Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...
.
"Maliciously"
See section 58.
"Misdemeanour"
See the Criminal Law Act 1967
Criminal Law Act 1967
The Criminal Law Act 1967 is an Act of the Parliament of the United Kingdom. However, with some minor exceptions, it generally applies to only England and Wales. It made some major changes to English criminal law...
, 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
Hybrid offence
A hybrid offence, dual offence, Crown option offence, dual procedure offence, or wobbler are the special class offences in the common law jurisdictions where the case may be prosecuted either summarily or as indictment...
.
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, or on summary conviction to imprisonment for a term not exceeding six months, or to a fine not exceeding the prescribed sum
Prescribed sum
The prescribed sum is the maximum fine that may be imposed on summary conviction of certain offences in the United Kingdom. In England and Wales and Northern Ireland, it is now equivalent to level 5 on the standard scale, which it predates...
, or to both.
See the Crown Prosecution Service Sentencing Manual.
In Northern Ireland
Northern Ireland
Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
, a person guilty of an offence under section 36 is liable, on conviction on indictment, to imprisonment for a term not exceeding two years, 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.
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
Visiting Forces Act 1952
The Visiting Forces Act 1952 is an Act of the Parliament of the United Kingdom. provides immunity against prosecution for certain offences in the courts of United Kingdom by members of visiting forces and, by virtue of the 1964 Act, international headquarters...
.
Indictments of ss. 35 & 36
The following specimen counts were formerly contained in paragraph 16 of the Second Schedule to the Indictments Act 1915Indictments Act 1915
The Indictments Act 1915 was an Act of the Parliament of the United Kingdom that made significant changes to the law relating to indictments. The law relating to indictments evolved during the seventeenth and eighteenth centuries and became lengthy, confusing and highly technical to the point...
before it was repealed.
A book has suggested that these forms could safely be used as precedents despite their repeal. (Note: It is not necessary to specify the place where the offence allegdedly took place unless it is material to the charge.)
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)
- Section 37: Injuries to Electric or Magnetic Telegraphs
- Section 38: Attempt to Injure such Telegraphs
Injuries to works of art
Section 39: Destroying or damaging Works of Art in Museums, Churches, &c., or in Public PlacesInjuries to cattle and other animals
- Section 40: Killing or maiming Cattle
- Section 41: Killing or maiming 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.- Section 42: Setting fire to a Ship
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
Criminal Law Act 1967
The Criminal Law Act 1967 is an Act of the Parliament of the United Kingdom. However, with some minor exceptions, it generally applies to only England and Wales. It made some major changes to English criminal law...
. 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
Criminal Law Act 1967
The Criminal Law Act 1967 is an Act of the Parliament of the United Kingdom. However, with some minor exceptions, it generally applies to only England and Wales. It made some major changes to English criminal law...
. 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)
- Section 45: Placing Gunpowder near a Vessel with Intent to damage it
- Section 46: Damaging Ships otherwise than by Fire
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
- Section 47: Exhibiting false Signals, &c.
- Section 48: Removing or concealing Buoys and other Sea Marks
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)
- Section 49: Destroying Wrecks or any Articles belonging thereto
Sending letters threatening to burn or destroy
- Section 50: Sending Letters threatening to burn or destroy Houses, Buildings, Ships, &c.
Injuries not before provided for
- Section 51: Person committing malicious Injuries not before provided for exceeding the Amount of 5l
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)
- Section 52: Persons committing Damage to any Property, in any Case not previously provided for, may be committed or fined and compelled by a Justice to pay Compensation not exceeding 5l
- Section 53: Preceding Section to extend to Trees
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).- Section 54: Making or having Gunpowder, &c. with Intent to commit any Felony against this Act
- Section 55: Justices may issue Warrants for searching Houses, &c. for such Gunpowder, &c.
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 1967Criminal Law Act 1967
The Criminal Law Act 1967 is an Act of the Parliament of the United Kingdom. However, with some minor exceptions, it generally applies to only England and Wales. It made some major changes to English criminal law...
. They were repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977.
- Section 56: Principals in the Second Degree and Accessories
- Section 57: A Person loitering at Night and suspected of any Felony against this Act may be apprehended
Section 58 - Malice against owner of property unnecessary
This section provides that it is not necessary to prove malice 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 59: Provisions of this Act shall apply to Persons in possession of the Property injured
- Section 60: Intent to injure or defraud particular Persons need not be stated in any Indictment
- Section 61: Persons in the Act of committing any Offence may be apprehended without a Warrant
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 63: Abettors in Offences punishable on summary Conviction
- Section 64: Application of Forfeitures and Penalties upon summary Convictions
- Section 65: If a Person summarily convicted shall not pay, &c., the Justice may commit him
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
Criminal Justice Act 1948
The Criminal Justice Act 1948 is an Act of the Parliament of the United Kingdom. It has been described as "one of the most important measures relating to the reform of the criminal law and its administration." It abolished penal servitude, hard labour and prison divisions for England and Wales...
. 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
Courts Act 1971
The Courts Act 1971 is an Act of the Parliament of the United Kingdom the purpose of which was to reform and modernise the courts system of England and Wales....
. 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
Offences at Sea Act 1799
The Offences at Sea Act 1799 is an Act of the Parliament of Great Britain. The long title of the Act is "An Act for remedying certain Defects in the Law respecting Offences committed upon the High Seas." It is still in force. It extended the jurisdiction of British courts to crimes committed by...
, and although still in force, is obsolete. The provision dealt mainly with piracy
Piracy
Piracy is an act of robbery or criminal violence at sea. The term can include acts committed on land, in the air, or in other major bodies of water or on a shore. It does not normally include crimes committed against persons traveling on the same vessel as the perpetrator...
and extended the jurisdiction of British courts to crimes committed by British subjects on the high seas
International waters
The terms international waters or trans-boundary waters apply where any of the following types of bodies of water transcend international boundaries: oceans, large marine ecosystems, enclosed or semi-enclosed regional seas and estuaries, rivers, lakes, groundwater systems , and wetlands.Oceans,...
.
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
Criminal Law Act 1967
The Criminal Law Act 1967 is an Act of the Parliament of the United Kingdom. However, with some minor exceptions, it generally applies to only England and Wales. It made some major changes to English criminal law...
.
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
Criminal Law Act 1967
The Criminal Law Act 1967 is an Act of the Parliament of the United Kingdom. However, with some minor exceptions, it generally applies to only England and Wales. It made some major changes to English criminal law...
. 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
Criminal Justice Act 1948
The Criminal Justice Act 1948 is an Act of the Parliament of the United Kingdom. It has been described as "one of the most important measures relating to the reform of the criminal law and its administration." It abolished penal servitude, hard labour and prison divisions for England and Wales...
. 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.
External links
- Official text of the Malicious Damage Act 1861 as originally enacted, from the Office of Public Sector InformationOffice of Public Sector InformationThe Office of Public Sector Information is the body responsible for the operation of Her Majesty's Stationery Office and of other public information services of the United Kingdom...