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Belief in joint ownership no defence to vandalism charge, sheriff rules
An accused's belief that they are the joint owner of property they have wilfully or recklessly damaged is no defence to a statutory charge of vandalism, a sheriff has ruled.
Sheriff Phiip Mann gave his decision at Peterhead Sheriff Court in finding Lyn Elrick guilty of a charge under s 52 of the Criminal Law Consolidation (Scotland) Act 1995, by breaking the windscreen of a car by repeatedly striking it. The car had been bought in July 2016 by the accused and her then partner. The couple had then split up and the partner had continued driving it. At the time the damage was caused, the car had been sold to another person but the accused said she had not been aware of this and genuinely believed she and her ex-partner were still joint owners. She had damaged the vehicle because her ex-partner had left her with a significant amount of debt and had refused to contribute towards it.
For the accused it was argued that her genuinely held belief provided a reasonable excuse for her actions in terms of the statute, as she would have damaged her own property. For there to be a contravention of s 52, the section would need expressly to outlaw damage to property of which the accused was only a joint owner. This had been done with the equivalent provision in England. Otherwise there would be an issue of lack of specification of the charge, amounting to a breach of article 7 of the Human Rights Convention.
Rejecting these arguments, Sheriff Mann said 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 owner would have a civil remedy, that did not preclude the application of the criminal law.
The English legislation set out a definitive list of situations where property was to be treated for the purposes of that Act as belonging to a person, therefore it was necessary to include property in which a person had any proprietary right or interest.
"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", he continued. "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." Article 7 was not engaged, as there was nothing unclear in providing that "any person" who destroys or damages "any property" belonging to another – which must include jointly owned property – was guilty of vandalism.
Click here to view the sheriff's judgment.