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,Greaves. The Criminal Law Consolidation and Amendment Acts (1861) pp. 3-4 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.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.
The act applied in the Republic of Ireland until 1991, cols. 1618–1677; Criminal Damage Act, 1991 (No. 31/1991) (Ireland). and still applies in some Commonwealth countries which were parts of the British Empire in 1861, such as Sierra Leone.Prosecutor v. Kallon (Decision on Challenge to Jurisdiction: Lomé Accord Amnesty), Case No. SCSL-2004-15-AR72(E) (13 March 2004), Special Court for Sierra Leone. Retrieved on 2 June 2008.
Injuries by fire to buildings, and goods therein The following words were repealed for England and Wales by section 83(3) of, and Part I of Schedule 10 to, the Criminal Justice Act 1948: In sections 1 to 10, 14 to 21, 23, 26 to 33, 42 to 48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Sections 1 to 7 were repealed for England and Wales by section 11(8) of, and Part I of the Schedule to, the Criminal Damage Act 1971. They were repealed for Northern Ireland by the Criminal Damage (Northern Ireland) Order 1977 (S.I. 1977/426) (N.I. 4)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.
The following specimen count was formerly contained in paragraph 15 of the Second Schedule to the Indictments Act 1915 before it was repealed.
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
Injuries to buildings by rioters, etc. Section 11: Rioters demolishing Church, Building, &c.
Section 12: Rioters injuring Building, Machinery, &c.
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:
Indictment
The following specimen count was formerly contained in paragraph 17 of the Second Schedule to the Indictments Act 1915 before it was repealed.
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. This section creates an offence in England and Wales and Northern Ireland. It has been repealed for the Republic of Ireland.The Railway Safety Act 2005, section 5(1) and Schedule 1. See now section 119 of that Act
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.Davis p. 145
It has the following form in England and Wales:
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.
This section was repealed in part for Northern Ireland by the Statute Law Revision Act (Northern Ireland) 1954.
"Maliciously"
See section 58.
"Felony"
See the Criminal Law Act 1967, the Criminal Law Act (Northern Ireland) 1967 and the Criminal Law Act, 1997.
"Penal servitude"
See the Criminal Justice Act 1948, section 1(1) and the Criminal Justice Act (Northern Ireland) 1953, section 1(1)
Mode of trial
In England and Wales, the offence under section 35 is an indictable-only offence.
Sentence
In England and Wales, an offence under section 35 is punishable with imprisonment for life or for any shorter term.The Malicious Damage Act 1861, section 35; the Criminal Justice Act 1948 (11 & 12 Geo. 6. c. 58), section 1(1)
See the Crown Prosecution Service Sentencing Manual.
In Northern Ireland, an offence under section 35 is punishable with imprisonment for life or for any shorter term.The Malicious Damage Act 1861, section 35; the Criminal Justice Act (Northern Ireland) 1953, section 1(1)
Early release of prisoners
An offence under this section is an excluded offence for the purposes of section 32 of the Criminal Justice Act 1982.The Criminal Justice Act 1982, section 32(2)(b) and Schedule 1, Part II, paragraph 1
Jurisdiction in Northern Ireland over offences committed in the Republic of Ireland
An offence under this section is an extraterritorial offence for the purposes of the Criminal Jurisdiction Act 1975.The Criminal Jurisdiction Act 1975, sections 1(1), (2) and (3)(a) and Schedule 1, paragraphs 6, and 12(1) and (3)
Former jurisdiction in the Republic of Ireland over offences committed in the Northern Ireland
Offences under this section were specified for the purposes of section 2(1) of the Criminal Law (Jurisdiction) Act, 1976Schedule , paragraph 6(h)
Visiting Forces
In England and Wales and Northern Ireland, an offence under this section is an offence against property for the purposes of section 3 of the Visiting Forces Act 1952.The Visiting Forces Act 1952, section 3(6) and Schedule, paragraph 3(b)
Terrorism
An offence under this section is a scheduled offence for the purposes of Part VII of the Terrorism Act 2000.The Terrorism Act 2000, section 65 and [Schedule 9], Part I, paragraph 6 and Part III
Section 36 - Obstructing engines or carriages on railways This section creates an offence in England and Wales, Northern Ireland and the Republic of Ireland.
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.Davis, p. 145
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.
"Maliciously"
See section 58.
"Misdemeanour"
See the Criminal Law Act 1967, the Criminal Law Act (Northern Ireland) 1967 and the Criminal Law Act, 1997
Mode of trial
In England and Wales, this offence is triable either way.The Magistrates' Courts Act 1980 (c.43), section 17(1) and Schedule 1, paragraph 4
Sentence
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,The Malicious Damage Act 1861, section 36; the Criminal Justice Act 1948 (11 & 12 Geo. 6. c. 58), section 1(2) 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.The Magistrates' Courts Act 1980 (c.43), section 32(1)
See the Crown Prosecution Service Sentencing Manual.
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,The Malicious Damage Act 1861, section 36; the Criminal Justice Act (Northern Ireland) 1953, section 1(2) 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.The Magistrates' Courts (Northern Ireland) Order 1981 (No.1675 (N.I.26)), article 46(4)
Visiting Forces