Criminal damage

Criminal damage is the generic name for offences under ss1-3 the Criminal Damage Act 1971. Each involves the destruction or damage of property. The major offences under the section are: When an offence is committed under s1 through the use of fire, it is charged as either 'Arson' or 'Aggravated arson' respectively (s1(3)). Arson has a greater maximum sentence than criminal damage.
 * Basic criminal damage under s1(1)
 * Aggravated criminal damage under s1(2)
 * Threats to commit criminal damage under s2
 * Possession with intent to commit criminal damage under s3

Basic criminal damage, arson, threats and possession are triable either way, the aggravated offences are indictable only (s42 Criminal Justice Act 1972). Basic criminal damage, threats and possession with intent to commit criminal damage have maximum sentences of 10 years imprisonment, the other offences, including arson, can attract a life sentence (s4 Criminal Damage Act 1971).

Basic criminal damage
This offence is defined under section 1(1) Criminal Damage Act 1971 as:

"A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence."

This means that to prove the offence, it must be shown that the defendant:
 * Did not have a lawful excuse, (either a common law defence or a statutory defence under s5 Criminal Damage Act 1971)
 * 'Destroyed or damaged'
 * 'Property', (that is, the relevant item(s) must fall under the definition of relevant property under s10 Criminal Damage Act 1971)
 * 'Belonging to another', (as defined under s10(2) Criminal Damage Act 1971)
 * With the appropriate mens rea, which is intention or recklessness as to whether some property belonging to another was destroyed.

'Destroy or damage'
There is little statutory guidance on the meaning of either of these terms, although both are relatively straight-forward terms. 'Destruction' is thought to mean some action which permanantly removes all value from an object, whilst 'Damage' is given a wider definition involving an action which causes physical harm to the object or which has a permanant or temporary detrimental effect on the value or usefulness of an item. (Auld J in Morphitis v Salmon (1989) 154 JP 365)

Most case law on damage relates to very borderline cases involving actions which have a minimal effect on the property in question, although the cases in this area are far from clear. In Morphitis, a scratch on a scaffold pole could not be considered damage, as it was just an 'ordinary incident of its existence'. Similarly in A (A juvenile) v R [1978] Crim LR 689 spitting on a policeman's coat was not damage, as it could simply be wiped away.

Contrary interpretations are made in Roe v Kingerlee [1986] Crim LR 735 and R v Fiak [2005] EWCA Crim 2381. Both cases involved acts taken by detainees in police custody. In Kingerlee, graffitti on a cell wall, which could easily have been washed off, constituted damage, and in Fiak the Court of Appeal upheld the conviction defendant who had stuffed a towel down a toilet and caused flooding. Even though it was accepted that the waterproof floor would protect the cell from serious damage and the mess caused by the defendant could have been easily remedied, the fact that it would take time to fix the mess which would prevent use of the cell or towel for a time was enough to constitute damage.

An older case, from before the new piece of legislation, Gayford v Chouler [1898] 1 QB 316 went so far as to consider trampling on grass as damage.

Another issue addressed in case law is whether damage can include the addition to property, whilst it seems obvious that taking something away from an object can be damage (e.g. removing a wheel from a car) it is less clear whether adding something detrimental to the property can be damage (e.g. placing a clamp on the car). The wheel clamp cases (Lloyd v DPP [1992] 1 All ER 982 & Drake v DPP [1994] RTR 411) suggest that, as placing a clamp on a car does not 'infringe the integrity' of the property, it cannot be damage. (Although according to Herring, these judgements are heavily criticised).

Alternatively cases such as Hardman v Chief Constable of Avon and Somerset Constabulary [1986] Crim. LR 330 and Henderson (1984, unreported) suggest that the absence of an 'infringement of integrity' is not of relevance to the presence of damage.

'Property'
Property is defined under s10(1) as:

"In this Act “property” means property of a tangible nature, whether real or personal, including money and—
 * (a)including wild creatures which have been tamed or are ordinarily kept in captivity, and any other wild creatures or their carcasses if, but only if, they have been reduced into possession whichhas not been lost or abandoned or are in the course of being reduced into possession; but
 * (b)not including mushrooms growing wild on any land or flowers, fruit or foliage of plant growing wild on any land.
 * (b)not including mushrooms growing wild on any land or flowers, fruit or foliage of plant growing wild on any land.

For the purposes of this subsection “mushroom” includes any fungus and “plant” includes any shrub or tree."

Property can therefore include most physical objects, including pets or farm animals and tended gardens or crops. It cannot include intangible or non-physical property, such as bank accounts or copyrights which may have qualified as property under the Theft Act 1968.

'Belonging to another'
'Belonging to another' is defined under s10(2)-(4):

"Property shall be treated for the purposes of this Act as belonging to any person—


 * (a)having the custody or control of it;


 * (b)having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest); or
 * (c)having a charge on it.

(3)Where property is subject to a trust, the persons to whom it belongs shall be so treated as including any person having a right to enforce the trust. (4)Property of a corporation sole shall be so treated as belonging to the corporation notwithstanding a vacancy in the corporation."

In most cases this will be obvious, usually the 'other' will be the sole owner of the property. Criminal damage, like theft does not exclude the possibility that a person may damage property which they have some right or interest in (In the law of theft this is illustrated by R v Turner (No 2) [1971] 1 WLR 901 where a man stole a car which was his own but was legitimately under the control of a garage).

This criterion appears to exclude items which are not yet the property of another but are set to be soon. The implication is that it would not be criminal to destroy a consignment of goods which were owned by the defendant but which had not yet been transferred (although this may lead to civil actions under the law of obligations)

In the context of a trust the beneficiary is to be considered an owner. This means that a trustee damaging property which he was supposed to retain for another could be guilty of criminal damage.

'Intentionally or recklessly',
The destruction or damage of property must carry the requisite mens rea of either intention or recklessness to destroy or damage property belonging to another. It is clear from the statute that this needn't correspond exactly with the actus reus - so for example if the defendant, intending to destroy property belonging to X in fact damages property belonging to Y this will be sufficient.

The defendant must have the mens rea towards damaging or destroying property belonging to another, so an eye to destroying his own property will not be sufficient.

Recklessness is regarded according to a subjective test, it will therefore require that the defendant himself recognised a risk of damage occurring and acted anyway despite it being unreasonable to take the risk (R v G [2003] UKHL 5).

'Without lawful excuse'
A lawful excuse can either be a general defence such as duress or automatism or a specific defence afforded under s5 of the Act:

"(1)This section applies to any offence under section 1(1) above and any offence under section 2 or 3 above other than one involving a threat by the person charged to destroy or damage property in a way which he knows is likely to endanger the life of another or involving an intent by the person charged to use or cause or permit the use of something in his custody or under his control so to destroy or damage property.

(2)A person charged with an offence to which this section applies, shall, whether or not he would be treated for the purposes of this Act as having a lawful excuse apart from this subsection, be treated for those purposes as having a lawful excuse—


 * (a)if at the time of the act or acts alleged to constitute the offence he believed that the person or persons whom he believed to be entitled to consent to the destruction of or damage to the property in question had so consented, or would have so consented to it if he or they had known of the destruction or damage and its circumstances; or


 * (b)if he destroyed or damaged or threatened to destroy or damage the property in question or, in the case of a charge of an offence under section 3 above, intended to use or cause or permit the use of something to destroy or damage it, in order to protect property belonging to himself or another or a right or interest in property which was or which he believed to be vested in himself or another, and at the time of the act or acts alleged to constitute the offence he believed—


 * (i)that the property, right or interest was in immediate need of protection; and
 * (ii)that the means of protection adopted or proposed to be adopted were or would be reasonable having regard to all the circumstances.

(3)For the purposes of this section it is immaterial whether a belief is justified or not if it is honestly held.

(4)For the purposes of subsection (2) above a right or interest in property includes any right or privilege in or over land, whether created by grant, licence or otherwise."

The first of these defences under s5(2)(a) allows an excusatory defence to a defendant who believed that someone who was so entitled had consented to the action or would have done so if they were aware of the circumstances. This may include acting in an emergancy etc.

In Blake v DPP [1993] Crim LR 586 a vicar acting, he believed, on the command of God could not rely on this defence. In Jaggard v Dickingson [1980] 3 All ER 716 a defendant's drunken belief in consent was considered sufficient. R v Jones [2006] UKHL 16 held that the jury needn't consider the legitimacy of the defendant's belief, so long as they considered it honest.

The second defence applies where a defendant acts to protect property which is, in his view, in immediate need of protection if he believes his actions to be reasonable. It is a wider defence than private defence in general but applies only to property, and not to people (R v Baker and Wilkins [1997] Crim LR 586). s5(4) extends the defence to actions to protect rights over land, such as a right of way in Chamberlain v Lindon [1998] 1 WLR 1252.

The defence appears to contain an element of objectivity, although it is judged entirely off the facts as seen by the defendant. In cases such as R v Hill and Hall (1989) Cr App R 74 prosecutions have been successful when defendants have honestly believed they were preventing damage to property but their actions were too far removed from the damage sought to be protected against.

Sentence
Basic criminal damage is a triable either way offence subject to a maximum penalty of 10 years imprisonment. Criminal damage which does less than £5000 damage is treated as a summary only offence and is subject to at most a level four fine or three months imprisonment.

The main factor determining sentence is the level of damage caused, although other relevant factors include the level of mens rea present, the motivation and the target of the damage (it is implied that damage to emergency equipment or schools and other public property will be treated more seriously).

CPS Sentencing guide

Arson
Arson under s1(1) and s1(3) Criminal Damage Act is Criminal damage by fire. It is treated as a more serious offence, it is triable either way but carries a maximum sentence of life imprisonment. Arson typically attracts an enhanced sentence due to the dangers inherent in the offence. No distinction is made between arsons causing below or above £5000 damage (as opposed to regular criminal damage).

CPS Sentencing guide

Aggravated criminal damage
This is a more serious offence than basic criminal damage, which is defined under s1(2)

"A person who without lawful excuse destroys or damages any property, whether belonging to himself or another—


 * (a)intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and
 * (b)intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered;

shall be guilty of an offence."

The consituent elements are:


 * 'Without lawful excuse' (this means a general defence, the defences under s5 are not applicable)


 * 'Destroys or damages' (the same meaning as basic criminal damage)


 * 'Property' (same meaning as basic criminal damage)


 * 'Belonging to himself or another' (note the addition of damaging one's own property)


 * Intention or recklessness as to the damage (the same mens rea element as basic criminal damage)


 * Intention or recklessness as to endangering of life (an additional element of mens rea)

There are accordingly three major differences between basic criminal defence and aggravated criminal damage:
 * 1) The statutory defences under s5 do not apply
 * 2) The property destroyed or damaged may be one's own (e.g. R v Merrick [1995] Crim LR 802)
 * 3) The additional mens rea element. Note that there is no corresponding actus reus so it need not be shown that in actual fact life was endangered (R v Dudley [1989] Crim LR 57)

Endangering life
To secure a conviction of aggravated criminal damage it must be shown that the defendant either intended or was reckless as to the endangerment of the lives of others. There is no need to show that in fact there was any kind of risk to any person, although it does need to be shown that the defendant understood a risk to the lives of others, not just a risk that other people might come to some harm.

An example of the kind of conduct which may lead to a conviction is R v Sangha [1988] 2 All ER 385 where a defendant burnt down his house without knowing if anybody else was inside. His conviction for aggravated arson stood, even though there was in fact nobody inside the house.

One point which must be made in relation to aggravated criminal damage is that the endangerment must stem directly from the damage rather than the defendant's actions. This is illustrated in R v Steer [1988] AC 111 where a defendant fired a gun through a window, whilst the defendant plainly realised that firing the gun endangered life, it was not the damage which did this but the defendant's actions, the House of Lords' reasoning in this case is illustrated by this quote from Lord Bridge at page 117:

"The contrary construction leads to anomalies which Parliament cannot have intended. If A and B both discharge firearms in a public place, being reckless as to whether life would be endangered, it would be absurd that A, who incidentally causes some trifling damage to property, should be guilty of an offence punishable with life imprisonment, but that B, who causes no damage, should be guilty of no offence."

Sentence
Aggravated criminal damage is punishable by life imprisonment. It is an indictable only offence. The financial damage caused is considered less significant than the risk of harm to other people and the motivations.

CPS sentencing guidelines

Aggravated arson
An offence under s1(2)(a) or 1(2)(b) committed using fire is treated as aggravated arson. It is an indictable only offence punishable by life imprisonment.

CPS sentencing guidelines for arson with intent

CPS sentencing guidelines for reckless arson

Threats to damage property
Under s2 Criminal Damage Act 1971 a threat to damage or destroy property is an offence defined as:

"A person who without lawful excuse makes to another a threat, intending that other would fear it would be carried out,—


 * (a)to destroy or damage any property belonging to that other or a third person; or


 * (b)to destroy or damage his own property in a way which he knows is likely to endanger the life of that other or third person;

shall be guilty of an offence."

The offence consists of intentionally making a (in the defendant's view) credible threat to commit an offence under s1. There is little case law or statutory guidance on this offence, although it clear that the defences under s5 do apply. What is a threat to destroy or damage property is to be viewed objectively (R. v Cakmak [2002] EWCA Crim 500)

The offence is an either way offence punishable by up to ten years imprisonment, relevant factors in sentencing include the persistence of threats, motivations and public fear caused.

CPS sentencing guidelines

Possession of items
It is an offence under s3 Criminal Damage Act 1971 to

"A person who has anything in his custody or under his control intending without lawful excuse to use it or cause or permit another to use it—


 * (a)to destroy or damage any property belonging to some other person; or


 * (b)to destroy or damage his own or the user’s property in a way which he knows is likely to endanger the life of some other person;

shall be guilty of an offence."

The offence consists of possessing property with intention to use it, or allow another to use it, to commit an offence under s1. The defences under s5 are available for this offence. The offence can be committed by having the items in ones possession in order to commit an offence any time in the future and indeed the intention may be conditional and depend upon some factor such as carrying the items as a 'last resort' (R v Buckingham (1976) 63 Cr. App. R. 159)

The offence is triable either way and subject to a sentence of up to ten years imprisonment.

CPS sentencing guidelines

Cases cited

 * Morphitis v Salmon (1989) 154 JP 365
 * A (A juvenile) v R [1978] Crim LR 689
 * Roe v Kingerlee [1986] Crim LR 735
 * R v Fiak [2005] EWCA Crim 2381
 * Gayford v Chouler [1898] 1 QB 316
 * Lloyd v DPP [1992] 1 All ER 982
 * Drake v DPP [1994] RTR 411
 * Hardman v Chief Constable of Avon and Somerset Constabulary [1986] Crim. LR 330
 * R v Henderson (1984, unreported)
 * R v Turner (No 2) [1971] 1 WLR 901
 * R v G [2003] UKHL 5
 * Blake v DPP [1993] Crim LR 586
 * Jaggard v Dickingson [1980] 3 All ER 716
 * R v Jones [2006] UKHL 16
 * R v Baker and Wilkins [1997] Crim LR 586
 * Chamberlain v Lindon [1998] 1 WLR 1252
 * R v Hill and Hall (1989) Cr App R 74
 * R v Merrick [1995] Crim LR 802
 * R v Dudley [1989] Crim LR 57


 * R v Sangha [1988] 2 All ER 385
 * R v Steer [1988] AC 111
 * R. v Cakmak [2002] EWCA Crim 500
 * R v Buckingham (1976) 63 Cr. App. R. 159