Criminal damage - Arson

Learning Outcomes

After studying this article, you will be able to identify and explain the legal requirements for arson under the Criminal Damage Act 1971, including the actus reus and mens rea, the distinction between simple and aggravated arson, and the available defences. You will also be able to apply these principles to SQE1-style scenarios and recognise common pitfalls in exam questions on this topic.

SQE1 Syllabus

For SQE1, you are required to understand the offence of arson as a form of criminal damage. Focus your revision on:

• the statutory definition of arson under the Criminal Damage Act 1971
• the actus reus and mens rea for arson, including the use of fire
• the distinction between simple arson and aggravated arson (endangering life)
• the requirements for intention and recklessness (subjective test)
• the operation and limits of lawful excuse as a defence to arson
• the application of key case law to arson scenarios

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What are the essential elements of the actus reus and mens rea for arson under the Criminal Damage Act 1971?
2. How does aggravated arson differ from simple arson?
3. What is the test for recklessness in arson cases following R v G [2003]?
4. Can a defendant rely on lawful excuse as a defence to aggravated arson?

Introduction

Arson is a serious criminal offence involving the destruction or damage of property by fire. It is a specific form of criminal damage under the Criminal Damage Act 1971. For SQE1, you must be able to identify the elements of arson, distinguish it from other forms of criminal damage, and apply the relevant legal principles to practical scenarios.

Key Term: arson The offence of unlawfully destroying or damaging property by fire, with the necessary intention or recklessness.

Statutory Definition of Arson

Arson is defined by section 1(3) of the Criminal Damage Act 1971:

"An offence committed under this section by destroying or damaging property by fire shall be charged as arson."

This means that arson is not a separate offence but is criminal damage where the method is fire.

Key Term: criminal damage The offence of unlawfully destroying or damaging property belonging to another, with intention or recklessness as to such damage.

Elements of Arson

Actus Reus

To prove arson, the prosecution must show:

1. Destruction or damage – There must be physical harm to property.
2. By fire – The damage must be caused by fire (not smoke alone).
3. Property – The item damaged must be property as defined by law.
4. Belonging to another – For simple arson, the property must belong to another.

Key Term: actus reus The physical elements of an offence, such as the conduct, result, or circumstances required.

Mens Rea

The defendant must either:

• Intend to destroy or damage property by fire; or
• Be reckless as to whether property would be destroyed or damaged by fire.

Key Term: mens rea The mental element of an offence, such as intention or recklessness.

Key Term: recklessness Awareness of a risk that a result will occur or a circumstance exists, and unreasonably taking that risk.

The test for recklessness is subjective: the defendant must actually foresee the risk and go on to take it (R v G [2003]).

Worked Example 1.1

Scenario: Liam sets fire to a pile of rubbish in his garden. He realises the wind might carry sparks to his neighbour’s shed but lights the fire anyway. The shed catches fire and is damaged.

Answer: Liam is likely guilty of arson. He damaged property by fire, and he was subjectively aware of the risk to the neighbour’s shed but took that risk.

Aggravated Arson

Aggravated arson is defined by section 1(2) and 1(3) of the Criminal Damage Act 1971. It is arson committed with the additional mens rea of intending to endanger life or being reckless as to whether life is endangered by the damage.

Key Term: aggravated arson Arson where the defendant intends or is reckless as to whether life is endangered by the damage caused by fire.

The prosecution must prove:

• The actus reus and mens rea for arson; and
• That the defendant intended or was reckless as to endangering life by the damage.

Note: It is not necessary for life to be actually endangered—risk is sufficient (R v Sangha [1988]).

Worked Example 1.2

Scenario: Priya sets fire to a block of flats intending to scare the occupants. She knows people are inside but hopes they will escape. The fire is quickly extinguished and no one is harmed.

Answer: Priya is likely guilty of aggravated arson. She intended to endanger life by setting fire to an occupied building, even though no one was actually hurt.

Lawful Excuse and Defences

Section 5 of the Criminal Damage Act 1971 provides two main lawful excuses:

1. Belief in Consent: The defendant honestly believed the owner consented or would have consented to the damage.
2. Protection of Property: The defendant honestly believed the property was in immediate need of protection and that the means adopted were reasonable.

Key Term: lawful excuse A statutory defence to criminal damage where the defendant honestly believes in consent or acts to protect property.

Key Term: belief in consent The defendant’s honest belief that the owner consented or would have consented to the damage, even if mistaken.

Key Term: protection of property Acting to protect property believed to be in immediate need of protection, with honestly held belief as to necessity and reasonableness.

Important: Lawful excuse is not a defence to aggravated arson where life is endangered.

Worked Example 1.3

Scenario: Sam breaks a window and starts a fire in a neighbour’s house, believing (wrongly) that the neighbour would want him to do so to claim insurance.

Answer: Sam cannot rely on lawful excuse. His belief is not honest or reasonable, and insurance fraud is not a valid reason. He is likely guilty of arson.

Exam Warning

In arson questions, always check whether the defendant foresaw the risk of fire and whether the risk was to property or life. For aggravated arson, it is not necessary for anyone to be actually harmed—awareness of the risk is enough.

Revision Tip

Remember: The test for recklessness in arson is subjective. The defendant must actually foresee the risk, not merely that a reasonable person would have done so.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• Arson is criminal damage by fire under the Criminal Damage Act 1971.
• The actus reus is damaging property by fire; the mens rea is intention or subjective recklessness.
• Aggravated arson requires intention or recklessness as to endangering life by the damage.
• The test for recklessness is subjective: the defendant must actually foresee the risk.
• Lawful excuse is a defence to simple arson but not to aggravated arson.
• Actual harm is not required for aggravated arson; awareness of risk is sufficient.

Key Terms and Concepts

• arson
• criminal damage
• actus reus
• mens rea
• recklessness
• aggravated arson
• lawful excuse
• belief in consent
• protection of property