Ballon too Far

South Yorkshire police have adopted an unusual tactic to help warn people about the risks of burglary – by breaking in to homes themselves. It has been reported, , that they attempt to enter unlocked premises and once inside, leave a balloon with a message on it from the police advising as to the dangers of leaving premises unsecured. The idea to encourage people to keep their doors locked. So far, so good you may think, but in doing so might they be committing offences themselves?

A person will be guilty of burglary as defined in the Theft Act 1968, when

(1)(a)     he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2) below;

(2)          The offences referred to in subsection (1)(a) above are offences of stealing anything in the building or part of building in question, of inflicting on any person therein any grievous bodily harm therein, and of doing unlawful damage to the building or anything therein.

It seems unlikely that they would be committing an offence of burglary then, as the police wont be intending to steal, to cause harm to another and even if they do damage property during the course of their visit, it seems certain that that could not have been their intent.

So if not burglary, what about trespass? As every first year law student knows, or should know, trespass alone does not constitute a criminal offence but rather, is a civil tort. More interesting is the issue of aggravated trespass.

Section 68 of the Criminal Justice and Public Order Act 1994 provides that a person commits the offence of aggravated trespass if he trespasses on land and, in relation to any lawful activity which persons are engaging in or are about to engage in on that land, does there anything which is intended by him to have the effect

(a)    Of intimidating those persons or any of them so as to deter them or any of them engaging in that activity,

(b)   Of obstructing that activity, or

(c)    Of disrupting that activity.

Let us take for example the case of a person motivated by the Great British Bake Off, wishes to try their hand at baking, has burnt the cakes and leaves the door open to ventilate the house. A policeman entering in such circumstances would be trespassing with the intention of deterring the householder from ventilating their house and at least theoretically be guilty of an offence punishable with a fine not exceeding level 4 on the standard scale or imprisonment for a term not exceeding 3 months.

One can envisage fanciful charges should the householder suffer from globophobia and the attendant alarm or distress he may suffer upon receiving an unsolicited communication writtem upon a balloon.

Perhaps a more realistic charge would be one of criminal damage contrary to s.1(1) Criminal Damage Act 1971. A person commits criminal damage if without lawful excuse damages any property belonging to another or being reckless as to whether such property is damaged. It is easy to envisage circumstances when a policeman might without thinking, knock a vase over during such a visit. Such damage could constitute criminal damage, punishable by up to 10 years imprisonment.

When one considers the recent case law as to what constitutes damage, the possibility of a criminal offence occurring seems much more likely, even probable. Damage has been widely defined including the dumping of rubbish Morphitis v Salmon [1990] Crim LR 48, applying water soluble paint to a pavement Hardman v Chief Constable of Somerset [1986] Crim LR 330 or smearing mud on the wall of a police cell Roe v Kingerlee [1986] Crim LR 735. In such circumstances should the police when delivering their message, leave a muddy footprint on the lino or heaven forfend, the carpet, then surely the offence of criminal damage would be committed. If this recent policy was authorised at a high level, might it not be too long before we see the Chief Constable of South Yorkshire Police indicted for conspiracy to commit criminal damage. Somehow, I doubt it, but then again, I somehow doubt that this most recent policing initiative will be terribly long lived.