Honest belief in joint ownership of property not a reasonable excuse for vandalism, sheriff rules

Sheriff Philip Mann gave the verdict at Peterhead Sheriff Court in the summary trial of Lyn Elrick, who was found guilty of a charge of vandalism in terms of section 52 of the Criminal Law Consolidation (Scotland) Act 1995, by breaking the windscreen of the car by repeatedly striking it.

The court heard that the car had been bought in July 2016 with money provided jointly by the accused and her then partner, but the couple split up and her estranged partner continued driving the vehicle.

The accused said she had damaged the car because her ex-partner had left her with a “significant amount of debt and had refused to contribute towards it”.

At the time the damage was caused the car belonged to a third party, but the accused said she had not received any notification that the vehicle had been sold and as far as she was concerned it was still jointly owned by her and her former partner.

For the accused it was argued that her “genuine and honest, but mistaken belief” that the vehicle belonged jointly to her and her estranged partner provided a reasonable excuse for her actions in terms of the statute, as had she known the car had been sold she would not have damaged it.

It was submitted that for there to be a contravention of the statutory provision, it would need be the case that section 52 “expressly outlawed” damage to property of which the accused was only a joint owner, as had been deemed necessary in the equivalent legislation in England.

Were it otherwise, there would be an issue of lack of specification of the charge, amounting to a breach of the accused’s rights under article 7 of the European Convention on Human Rights, which protects a person from being held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.

This, it was said, encompassed the principle that criminal laws have to be sufficiently clear and precise so as to enable individuals to ascertain which conduct constitutes a criminal offence and to foresee what the consequences of transgressions will be.

However, the sheriff held that it was not the case that a joint owner of property could damage that property with impunity without the consent of the other joint owner.

While it was conceded for the accused that the other joint owner would have a civil remedy in damages, that did not preclude the application of the criminal law.

The English legislation set out a definitive list of situations where property is to be treated for the purposes of that Act as belonging to a person, meaning it was necessary to include property in which a person has any proprietary right or interest.

In written judgment, Sheriff Mann said: “There was no intention on the part of Parliament to innovate on the law of criminal damage so far as concerned property belonging solely to a person and there is no reason why it should be assumed that there was any intention to innovate on that law so far as concerned jointly owned property.

“I can see no basis upon which it could be said that the law of vandalism in Scotland should be any different from the law of criminal damage in England so far as it relates to jointly owned property.

“If the accused’s joint ownership of the vehicle permits of the description of the vehicle as being ‘owned by the accused’ then the same must be true as regards the other joint owner.”

He added: “I do not consider that article 7 of the European Convention on Human Rights is engaged. If, by virtue of being the joint owner of the vehicle, the accused is able to describe herself as the owner of it she must know that the other joint owner is equally able to describe himself as the owner of it.

“There is nothing unclear in section 52 of the 1995 Act when it says that any person (which must, incidentally, include a person who is a joint owner of the property concerned) who, without reasonable excuse, wilfully or recklessly destroys or damages any property belonging to another (which must include property jointly owned by the accused and another person) shall be guilty of the offence of vandalism.

“For all of the foregoing reasons, and although I accept that the accused genuinely but mistakenly believed that the vehicle in question still belonged to her and her estranged partner, I consider that the accused had no reasonable excuse when she, admittedly, wilfully damaged the vehicle. Accordingly, she is guilty of the charge of vandalism.”