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2/21/25, 8:44 PM about:blank Crimes Against THE Property CRIMES AGAINST THE PROPERTY Malicious Mischief (1 Hume’s primary definition suggests MM isa crime which may involve physical damage to property in tandem with some evidence of civil disorder = Hume's so-called ‘riotous and. willl” MM + Glass of Sauchie v Monro of Auchinbowie (1713) Hume, I, 122 —interference with « property ‘ight violating ‘the due regard to the order and tranquillity of society” + Sobers the AR uthorised ce with ifanather through some form af attendant disorder — + MR: wilfulness + N.B. In Glass the defence of error was not successful + Hume's secondary definition is the traditional’ MM: intentional or wilful damage to, or destruction of, corporeal property belonging to another without their consent’ where civil disorder is absent + This requires ‘great? damage — see the litany of diffe course textbook + However, in Ward v Robertson 1938 JC 32 the court doubted the requirement for “great” damage and also held that recklessness/malice are alternative and further forms of MR for traditional MM; Ward was approved in Clark v Syme 1957 JC 1 + Lord Advocate’s Ref (No 1 of 2000) 2001 SCCR 296 confirmed that an act carried out under a mistaken conception of legal rights (error) is nota defence to a charge of MM but necessity could be a defence - see [109] + ‘The modem law appears to be as stated in HMA v Wilson 1984 SLT 117 — disgruntled employee at power station; but note comment per ‘no commission by omission’ + MM was proved in Wilson illustrating that ‘damage’ per Hume's second definition had a wider connotation and that mere interference with the property of another, resulting in patrimonial loss only, could fulfil the AR of the crime + Resulted in ‘Wilson type MM” + See also Bett v Brown 1997 SLT 1310 ~in this case there was no patrimonial loss so the charge of MM was irrelevant types of acts of ‘great damage” detailed in Vandalism + Vandalism is a distinct offence from that of MM — see Black v Allan 1985 SCR 11, [12}-[13] + Originally introduced by the Criminal Justice (S) Act 1980 + Rationale = to provide a nominate offence which the public could understand and to provide @ reference point for cours in sentencing when looking at previous convictions (if any) + Criminal Law (Consolidation) (S) Act 1995 352: the offence is ‘wilfully or recklessly destroying or damaging any property belonging to another without reasonable excuse’ - very similar to the actus reus of “traditional” MM + NB. s52(2) specifically excludes wilful fire-raising + Black y Allan 1985 SCR 11 — conviction quashed; the JP did not interpret ‘recklessness? correctly + Recklessness: ‘conscious and deliberate courting of material risks not to notice obvious risks through gross inattention’ see Allan v Patterson 1980 SLT-77 Defence of ‘Reasonable excuse”? + MacDougall v Yuk-Sun Ho 1985 SCCR 199 reasonable excuse was accepted + Would Ho have been convicted of MM? (c.f. Clark v Syme) + John v Donnelly 1999 SCCR 802 (reasonable excuse was not accepted per cutting a fence at a Royal Navy base to protest at alleged illegal weapons ~ distinguished from Ho, as no immediate crime was being committed/nor culprits escaping Vandalism vs Malicious Mischief + Following HMA v Wilson 1984 SLT 117, MM does not always require proof of physical damage (evidence of patrimonial loss will suffice) while the crime of vandalism does + Thus in cases where physical damage has been caused it is more difficult to distinguish the separate crimes + Penalty difference: statutory maximum of 6 months imprisonment for vandalism + cf asentence for MM only what would not be considered excessive on appeal 12 
