Section I. Malicious Damage

GENERAL PRINCIPLES. ‘UNLAWFULLY AND MALICIOUSLY’

In early English law attacks upon property which were not made for purposes of gain to the offender but which were inspired by feelings of vindictiveness, or even by a reckless impulse to do damage, were almost entirely left to be remedied by the civil action of trespass. So that, at common law, the only kind of damage to property to rank as a criminal offence was arson, which consisted of the wilful and malicious burning of a dwelling-house. This crime was extended by early statutes to the burning of other buildings and tilings, and thereafter the legislature by a series of enactments steadily widened the protection which the criminal law could give to property of a great variety of kinds. During this development the draftsmen of the statutes in question formed the practice of describing the criminal damage mostly as having been done ‘unlawfully and maliciously’, but sometimes‘ wilfully or maliciously’. It is necessary therefore, if possible, to ascertain what precise meaning is to be attached to these words.

(a) ‘Unlawfully.’ This word suggests that there may be cases in which it is not unlawful to damage another person's property, i.e. in which the damage can be justified. Of course if a man can show that he has a legal right to do the harm complained of, there is no actus retis and therefore no criminal liability. But it has been suggested that there will be no liability if he was acting in good faith under a supposed right, i.e. where the defendant honestly believed he had a legal right which in fact he did not possess.

Mistake of law is but rarely admitted as a defence in criminal proceedings although it may be expressly so provided by statute. The phrase ‘unlawfully and maliciously’ was used in most of the sections of the first statute to consolidate the law of injuries to property; which, save in one section, gave no indication that a bonajide claim of right could constitute any defence.