Draft:Morphitis v Salmon

Morphitis v Salmon
Court	High Court
Decided	7 July 1989
Citation(s)	(1989) 154 JP 365, [1990] Crim LR 48, (1990) 154 JPN 186, [1990] CLY 1085
Court membership
Judges sitting	Lord Justice Lloyd, Mr Justice Auld
Keywords
criminal damage

Morphitis v Salmon (1989) 154 JP 365 was a significant case in the criminal law of England & Wales in relation to criminal damage. It established that the legal definition of "damage" in section 1(1) of the Criminal Damage Act 1971 should be interpreted widely to include "permenent [sic] or temporary impairment of value or usefulness" as well as physical harm.

Background and facts

Photios Morphitis (appellant) and James Edward Salmon (respondent) shared use of an access road. For reasons not documented in the appeal, Mr Salmon had constructed a barrier across the road using scaffolding. Upon discovering it, Mr Morphitis dismantled the barrier, and took the scaffold bar and a clip holding it in place to his garage. The bar was later found to have been scratched at some point. Mr Morphitis admitted that he had dismantled the barrier as it obstructed his use of the road, but there was no admission to damage of any kind.

Mr Morphitis was charged with having damaged either the scaffold bar or the clip. He was convicted of criminal damage in the Waltham Forest petty session court on the basis that he had impaired the use of the barrier by dismantling it. Damage to any individual component of the barrier by Mr Morphitis was not proven, and he appealed to the Queen's Bench division of the High Court on this basis.

Judgment

The judgment was given by Auld J (as he then was), with Lloyd LJ in agreement. The question the judges directed themselves to answer was "whether the dismantling of the barrier constituted damage to the bar and to the clip in the wide sense of impairment in their value or usefulness as part of the barrier." Upon reviewing the case law, inter alia they found that rendering a machine inoperable without removing or physically harming its components had been damage, as had the erasure of a computer programme necessary to operate a machine. They concluded that "damage" had a wide meaning beyond physical harm, and could be permanent or temporary.

However the charge had not been worded as to allege damage to the barrier as a whole. The judgment is clear that the conviction would have been upheld if damage had been alleged to the barrier. Instead, the charge was to the parts removed, which had not been proven to have been physically damaged by Mr Morphitis, and had not been impaired in value or usefulness. The case of Woolcock (misspelled "Woodcock") was applied. The charge could have been amended by the respondent in the lower court, but it was not. Accordingly the appeal was allowed and the conviction was quashed.

Significance

Strictly speaking, comments regarding what would constitute damage to the barrier as a whole were obiter. Nonetheless, the case was cited approvingly by the Court of Appeal in the case of R v Whiteley, quoting the comments made about the wide meaning of criminal damage and permanent or temporary impairment to value and usefulness.