The Malicious Damage Act 1861 (24 & 25 Vict c 97) is an Act of the Parliament of the United Kingdom of Great Britain and Ireland (as it then was). It consolidated provisions related to malicious damage from a number of earlier statutes into a single Act. For the most part these provisions were, according to the draftsman of the Act,[3] incorporated with little or no variation in their phraseology. It is one of a group of Acts sometimes referred to as the Criminal Law Consolidation Acts 1861. It was passed with the object of simplifying the law. It is essentially a revised version of an earlier consolidation Act, the Malicious Injuries to Property Act 1827 (7 & 8 Geo 4 c 30) (and the equivalent Irish Act), incorporating subsequent statutes.[4]
The following words were repealed for England and Wales by section 83(3) of, and Part I of Schedule 10 to, the Criminal Justice Act 1948:
In sections 1 to 10, 14 to 21, 23, 26 to 33, 42 to 48 and 50, the words "and, if a male under the age of sixteen years, with or without whipping" wherever those words occurred
In sections 22 and 54, the words from "with or without hard labour" to the end
In section 39, the words from "with or without hard labour" to "whipping"
Sections 1 to 7 were repealed for England and Wales by section 11(8) of, and Part I of the Schedule to, the Criminal Damage Act 1971. They were repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977 (S.I. 1977/426) (N.I. 4)
Section 1: Setting fire to a church or chapel
Section 2: Setting fire to a dwelling house, any person being therein
Section 3: Setting fire to a house, outhouse, manufactory, farm building, etc.
Indictments of ss. 2 & 3
The following specimen counts were formerly contained in paragraph 14 of the Second Schedule to the Indictments Act 1915 before it was repealed.
STATEMENT OF OFFENCE.
First Count.
Arson, contrary to section 2 of the Malicious Damage Act, 1861.
PARTICULARS OF OFFENCE.
A.B., on the day of , in the county of , maliciously set fire to a dwelling-house, one F.G. being therein.
STATEMENT OF OFFENCE.
Second Count.
Arson, contrary to section 3 of the Malicious Damage Act, 1861.
PARTICULARS OF OFFENCE.
A.B., on the day of , in the county of , maliciously set fire to a house with intent to injure or defraud.
The following specimen count was formerly contained in paragraph 15 of the Second Schedule to the Indictments Act 1915 before it was repealed.
STATEMENT OF OFFENCES.
A.B., arson, contrary to section 3 of the Malicious Damage Act, 1861;
C.D., accessory before the fact to same offence.
PARTICULARS OF OFFENCES.
A.B., on the day of , in the county of , set fire to a house with intent to injure or defraud.
C.D., on the same day, in the county of , did counsel, procure, and command the said A.B. to commit the said offence.
Section 4: Setting fire to any Railway Station
Section 5: Setting fire to any Public Building
Section 6: Setting fire to other Buildings
Section 7: Setting fire to Goods in any Building the setting fire to which is Felony
Section 8: Attempting to set fire to Buildings
This section was repealed for England and Wales by section 10(2) of and Part III of Schedule 3 to, the Criminal Law Act 1967. It was repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977
Injuries by explosive substances to buildings and goods therein
Sections 9 to 26 were repealed for England and Wales by section 11(8) of, and Part I of the Schedule to, the Criminal Damage Act 1971. They were repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977 (S.I. 1977/426) (N.I. 4)
Section 9: Destroying or damaging a House with Gunpowder, any Person being therein
Section 10: Attempting to destroy Buildings with Gunpowder
The proviso to this section was repealed for England and Wales by section 10(2) of and Part III of Schedule 3 to, the Criminal Law Act 1967.
Injuries to buildings by tenants
Section 13: Tenants of Houses, &c. maliciously injuring them
Injuries to manufactures, machinery, etc.
Section 14: Destroying Goods in Process of Manufacture, certain Machinery, &c.
Section 15: Destroying Machines in, other Manufactures, Threshing Machines, &c.
Injuries to corn, trees and vegetable productions
Section 16: Setting fire to Crops of Corn, &c.
Section 17: Setting fire to Stacks of Corn, &c.
Section 18: Attempting to set fire to any Crops of Corn, &c. or to any Stack or Steer
Section 19: Destroying Hopbinds
Section 20: Destroying or damaging Trees, Shrubs, &c. to the Value of more than 1l. growing in a Pleasure Ground, &c.
Section 21: Destroying or damaging Trees, Shrubs, &c. to the Value of more than 5l. growing elsewhere than in a Pleasure Ground, &c.
Section 22: Damaging Trees, wheresoever growing, to the Amount of 1s
This section has been repealed for England and Wales and Northern Ireland. As originally enacted this section read:
Whosoever shall unlawfully and maliciously cut, break, bark, root up, or otherwise destroy or damage the whole or any Part of any Tree, Sapling, or Shrub, or any Underwood, wheresoever the same may be growing, the Injury done being to the Amount of One Shilling at the least, shall, on Conviction thereof before a Justice of the Peace, at the Discretion of the Justice, either be committed to the Common Gaol or House of Correction, there to be imprisoned only, or to be imprisoned and kept to Hard Labour for any Term not exceeding Three Months, or else shall forfeit and pay, over and above the Amount of the Injury done, such Sum of Money, not exceeding Five Pounds, as to the Justice shall seem meet; and whosoever, having been convicted of any such Offence, either against this or any former Act of Parliament, shall afterwards commit any of the said Offences in this Section before mentioned, and shall be convicted thereof in like Manner, shall for such Second Offence be committed to the Common Gaol or House of Correction, there to be kept to Hard Labour for such Term, not exceeding Twelve Months, as the convicting Justice shall think fit; and whosoever, having been twice convicted of any such Offence (whether both or either of such Convictions shall have taken place before or after the passing of this Act), shall afterwards commit any of the said Offences in this Section before mentioned, shall be guilty of a Misdemeanor, and being convicted thereof shall be liable, at the Discretion of the Court, to be imprisoned for any Term not exceeding Two Years, with or without Hard Labour, and with or without Solitary Confinement, and, if a Male Age of Sixteen Years or younger, with or without hard work
Indictment
The following specimen count was formerly contained in paragraph 17 of the Second Schedule to the Indictments Act 1915 before it was repealed.
STATEMENT OF OFFENCE.
Damaging trees, contrary to section 22 of the Malicious Damage Act,
1861.
PARTICULARS OF OFFENCE.
A.B., on the day of , in the county of , maliciously damaged an oak tree there growing.
A.B. has been twice previously convicted of an offence under section 22 of the Malicious Damage Act, 1861, namely, at , on the day of , and at , on the day of .
Section 23: Destroying any Fruit or vegetable Production in a Garden
Section 24: Destroying &c. vegetable Productions not growing in Gardens, &c.
Injuries to fences
Section 25: Destroying, &c. any Fence, Wall, Stile, or Gate
Injuries to mines
Section 26: Setting fire to a Coal Mine
Section 27: Attempting to set fire to a Mine
This section was repealed for England and Wales by section 10(2) of and Part III of Schedule 3 to, the Criminal Law Act 1967. It was repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977
Sections 28 and 29 were repealed for England and Wales by sections 11(3) and (8) of, and Part I of the Schedule to, the Criminal Damage Act 1971. They were repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977 (S.I. 1977/426) (N.I. 4)
Section 28: Conveying Water into a Mine, obstructing the Shaft, &c.
Section 29: Damaging Steam Engines, Staiths, Waggon ways, &c. for working Mines
Injuries to sea and river banks, and to works on rivers, canals, etc.
Sections 30 to 34 were repealed for England and Wales by section 11(8) of, and Part I of the Schedule to, the Criminal Damage Act 1971. They were repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977 (S.I. 1977/426) (N.I. 4)
Section 30: Destroy any Sea Bank, or Wall on any Canal
Section 31: Removing the Piles of any Sea Bank, &c., or doing any Damage to obstruct the Navigation of a River or Canal
Injuries to ponds
Section 32: Breaking down the Dam of a Fishery, &c. or Milldam, or poisoning Fish
Injuries to bridges, viaducts and toll bars
Section 33: Injury to a public Bridge
Section 34: Destroying a Turnpike Gate, Toll House, &c.
Injuries to railway carriages and telegraphs
Section 35 - Placing wood, &c. on railway, with intent to obstruct or overthrow any engine, &c.
It replaces section 6 of the Prevention of Offences Act 1851 (14 & 15 Vict. c.19) in so far as that section related to malicious injuries to property.[8]
It has the following form in England and Wales:
Whosoever shall unlawfully and maliciously cut, place, cast, or throw upon or across any railway any wood, stone, or other matter or thing, or shall unlawfully and maliciously take up, remove, or displace any rail, sleeper, or other matter or thing belonging to any railway, or shall unlawfully and maliciously turn, move, or divert any points or other machinery belonging to any railway, or shall unlawfully and maliciously make or show, hide or remove, any signal or light upon or near to any railway, or shall unlawfully and maliciously do or cause to be done any other matter or thing, with intent, in any of the cases aforesaid, to obstruct, upset, overthrow, injure, or destroy any engine, tender, carriage, or truck using such railway, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for life . . . or to be imprisoned . . .[9]
The words in the first place were repealed by the Statute Law Revision Act 1892. The words "and, if a male under the age of sixteen years, with or without whipping" at the end were repealed by section 83(3) of, and Part I of Schedule 10 to, the Criminal Justice Act 1948.
It replaces section 15 of the Railway Regulation Act 1840 (3 & 4 Vict c 97) in so far as that section related to malicious injuries to property.[17]
This section is similar to section 35, but requires no proof of specific intent. The maximum penalty is two years imprisonment. The main difference between these two provisions is the mens rea, a specific intent being regarded as more culpable than recklessness or negligence.
Whosoever, by any unlawful act, or by any wilful omission or neglect, shall obstruct or cause to be obstructed any engine or carriage using any railway, or shall aid or assist therein, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years, . . .[18]
In England and Wales, a person guilty of an offence under section 36 is liable, on conviction on indictment, to imprisonment for a term not exceeding two years,[20] or on summary conviction to imprisonment for a term not exceeding six months, or to a fine not exceeding the prescribed sum, or to both.[21]
In Northern Ireland, a person guilty of an offence under section 36 is liable, on conviction on indictment, to imprisonment for a term not exceeding two years,[22] or on summary conviction to imprisonment for a term not exceeding twelve months, or to a fine not exceeding the prescribed sum, or to both.[23]
The following specimen counts were formerly contained in paragraph 16 of the Second Schedule to the Indictments Act 1915 before it was repealed.
STATEMENT OF OFFENCE.
First Count.
Offence under section 35 of the Malicious Damage Act, 1861.
PARTICULARS OF OFFENCE.
A.B., on the day of , in the county of , displaced a sleeper belonging to the Great Western Railway with intent to obstruct, upset, overthrow, injure, or destroy any engine, tender, carriage or truck using the said railway.
STATEMENT OF OFFENCE.
Second Count.
Obstructing railway, contrary to section 36 of the Malicious Damage Act, 1861.
PARTICULARS OF OFFENCE.
A.B., on the day of , in the county of , by unlawfully displacing a sleeper belonging to the Great Western Railway did obstruct or cause to be obstructed an engine or carriage using the said railway.
A book has suggested that these forms could safely be used as precedents despite their repeal.[24] (Note: It is not necessary to specify the place where the offence allegedly took place unless it is material to the charge.)[25]
Sections 37 to 42 were repealed for England and Wales by section 11(8) of, and Part I of the Schedule to, the Criminal Damage Act 1971. They were repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977 (S.I. 1977/426) (N.I. 4)
Section 37: Injuries to Electric or Magnetic Telegraphs
Section 38: Attempt to Injure such Telegraphs
Injuries to works of art
Section 39: Destroying or damaging Works of Art in Museums, Churches, &c., or in Public Places
Injuries to cattle and other animals
Section 40: Killing or maiming Cattle
Section 41: Killing or maiming other Animals
Injuries to ships
The heading "injuries to ships" was included in the Bill, but omitted from the Act as printed. It is thought that this was a mistake.[26]
Section 42: Setting fire to a Ship
Section 43: Setting fire to Ships to prejudice the Owner or Underwriters
This section was repealed for England and Wales by section 10(2) of and Part I of Schedule 3 to, the Criminal Law Act 1967. It was repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977.
Section 44: Attempting to set fire to a Vessel
This section was repealed for England and Wales by section 10(2) of and Part III of Schedule 3 to, the Criminal Law Act 1967. It was repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977.
Sections 45 and 46 were repealed for England and Wales by section 11(8) of, and Part I of the Schedule to, the Criminal Damage Act 1971. They were repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977 (S.I. 1977/426) (N.I. 4)
Section 45: Placing Gunpowder near a Vessel with Intent to damage it
Section 46: Damaging Ships otherwise than by Fire
Sections 47 and 48 were repealed by sections 8(3) and (4) of, and paragraph 35 of Schedule 4 to, and Part II of Schedule 5 to, the Merchant Shipping (Registration, etc) Act 1993
Section 47: Exhibiting false Signals, &c.
Section 48: Removing or concealing Buoys and other Sea Marks
Sections 49 to 51 were repealed for England and Wales by section 11(8) of, and Part I of the Schedule to, the Criminal Damage Act 1971. They were repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977 (S.I. 1977/426) (N.I. 4)
Section 49: Destroying Wrecks or any Articles belonging thereto
Sending letters threatening to burn or destroy
Section 50: Sending Letters threatening to burn or destroy Houses, Buildings, Ships, &c.
Injuries not before provided for
Section 51: Person committing malicious Injuries not before provided for exceeding the Amount of 5l
Sections 52 and 53 were repealed for by section 44 of, and Schedule 4 to, the Criminal Justice Administration Act 1914. They were repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977 (S.I. 1977/426) (N.I. 4)
Section 52: Persons committing Damage to any Property, in any Case not previously provided for, may be committed or fined and compelled by a Justice to pay Compensation not exceeding 5l
Section 53: Preceding Section to extend to Trees
Making gunpowder to commit offences, and searching for the same
Sections 54 and 55 were repealed for England and Wales by section 11(8) of, and Part I of the Schedule to, the Criminal Damage Act 1971. They were repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977 (S.I. 1977/426) (N.I. 4).
Section 54: Making or having Gunpowder, &c. with Intent to commit any Felony against this Act
Section 55: Justices may issue Warrants for searching Houses, &c. for such Gunpowder, &c.
Other matters
Sections 56 and 57 were repealed for England and Wales by section 10(2) of and Part III of Schedule 3 to, the Criminal Law Act 1967. They were repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977.
Section 56: Principals in the Second Degree and Accessories
Section 57: A Person loitering at Night and suspected of any Felony against this Act may be apprehended
Section 58 – Malice against owner of property unnecessary
This section provides that it is not necessary to prove malice[27] against the owner of the damaged property.
Sections 59 to 61 were repealed for England and Wales by section 11(8) of, and Part I of the Schedule to, the Criminal Damage Act 1971. They were repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977 (S.I. 1977/426) (N.I. 4).
Section 59: Provisions of this Act shall apply to Persons in possession of the Property injured
Section 60: Intent to injure or defraud particular Persons need not be stated in any Indictment
Section 61: Persons in the Act of committing any Offence may be apprehended without a Warrant
Section 62: Mode of compelling the Appearance of Persons punishable on summary Conviction
This section was repealed by section 4 of, and the Schedule to, the Summary Jurisdiction Act 1884. It was repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977.
Sections 63 to 65 were repealed for England and Wales by section 11(8) of, and Part I of the Schedule to, the Criminal Damage Act 1971. They were repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977 (S.I. 1977/426) (N.I. 4).
Section 63: Abettors in Offences punishable on summary Conviction
Section 64: Application of Forfeitures and Penalties upon summary Convictions
Section 65: If a Person summarily convicted shall not pay, &c., the Justice may commit him
Section 66: The Justice may discharge the Offender in certain Cases
This section was repealed for England and Wales by section 83(3) of, and Part I of Schedule 10 to, the Criminal Justice Act 1948. It was repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977.
Section 67: A summary Conviction shall be a Bar to any other Proceeding for the same Cause
This section were repealed for England and Wales by section 11(8) of, and Part I of the Schedule to, the Criminal Damage Act 1971. It was repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977 (S.I. 1977/426) (N.I. 4).
Section 68: Appeal
This section was repealed by section 56(4) of, and Part IV of Schedule 11 to, the Courts Act 1971. It was repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977.
Section 69: No Certiorari, &c.
This section was repealed by the Statute Law (Repeals) Act 1976. It was repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977.
Section 70: Convictions to be returned to the Quarter Sessions
This section was repealed by section 4 of, and the Schedule to, the Summary Jurisdiction Act 1884. It was repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977.
Section 71: Venue in Proceedings against Persons acting under this Act
This section was repealed by section 2 of, and the Schedule to, the Public Authorities Protection Act 1893. It was repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977.
Section 72 - Offences committed within the jurisdiction of the Admiralty
This section deals with jurisdiction and essentially duplicates the Offences at Sea Act 1799,[28] and although still in force, is obsolete. The provision dealt mainly with piracy and extended the jurisdiction of British courts to crimes committed by British subjects on the high seas.
The words " deemed to be offences of the same nature and", and the words from " and may be dealt with " to the end, were repealed for England and Wales by section 10(2) of and Part III of Schedule 3 to, the Criminal Law Act 1967.
Section 73: Fine and Sureties for keeping the Peace; in what Cases
The words " fine the offender, and," and the words from "and in case of any felony " to " authorized ", where next occurring, were repealed for England and Wales by section 10(2) of and Part III of Schedule 3 to, the Criminal Law Act 1967. This section was repealed for England and Wales by section 8(2) of, and Part II of Schedule 5 to, the Justices of the Peace Act 1968. It was repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977.
Section 74: Hard Labour
This section was repealed by the Statute Law Revision Act 1892. It was repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977.
Section 75: Solitary Confinement and Whipping
This section was repealed for England and Wales by section 83(3) of, and Part I of Schedule 10 to, the Criminal Justice Act 1948. It was repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977.
Section 76: Summary Proceedings in England may be under the 11 & 12 Vict. c. 43., and in Ireland under the 14 & 15 Vict. c. 93
This section was repealed for England and Wales by section 11(8) of, and Part I of the Schedule to, the Criminal Damage Act 1971. It was repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977 (S.I. 1977/426) (N.I. 4).
Section 77: The Costs of the Prosecution of Misdemeanors against this Act may be allowed
This section was repealed by section 10(1) of, and the Schedule to, the Costs in Criminal Cases Act 1908. It was repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977.
Section 78: Act not to extend to Scotland
This section was repealed for England and Wales by section 11(8) of, and Part I of the Schedule to, the Criminal Damage Act 1971. It was repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977 (S.I. 1977/426) (N.I. 4).
Section 79: Commencement of Act
This section was repealed by the Statute Law Revision Act 1892. It was repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977.
^Greaves. The Criminal Law Consolidation and Amendment Acts (1861) pp. 3-4
^Davis, James Edward. The Criminal Law Consolidation Statutes of the 24 & 25 of Victoria, Chapters 94 to 100. Butterworths. 1861. Pages vi and vii. Google Books.
