Criminal damage

Criminal Damage

There exist three offences of criminal damage contained in the Criminal Damage Act 1971. These are simple criminal damage under s.1(1), aggravated criminal damage under s.1(2) and criminal damage by arson under s.1(3). In addition s.2 covers threats to destroy or damage property belonging to another and s.3 covers possession of items with intent to use them or permit others to use them to destroy or damage property belonging to another. The maximum penalty for aggravated criminal damage and arson is life imprisonment. The maximum for all other offences tried on indictment is 10 years. There is a special statutory defence available under s.5 of lawful excuse.

Simple criminal damage s1(1)

S.1(1) Criminal Damage Act 1971 provides that a person is guilty of criminal damage if they intentionally or recklessly destroy or damage property belonging to another without lawful excuse.

Actus reus of simple criminal damage

The actus reus of simple criminal damage consists of:

Destroy or damage

Property

Belonging to another

Destroy or damage

There is no statutory definition of 'destroy or damage', however some principles have emerged from case law:

There is no requirement that the property is rendered useless, a diminution in value is sufficient for liability for criminal damage:

Roper v Knott [1898] 1 QB 868 Case summary

If no damage in fact occurs then no liability for criminal damage can arise:

A (a Juvenile) v R [1978] Crim LR 689 Case summary

However, damage includes temporary impairment or temporary loss of use:

R v Fiak [2005] EWCA Crim 2381 Case summary

Morphitis v Salmon [1990] Crim LR 48 Case summary

R v Whiteley [1991] 93 CAR 25 Case summary

The courts have come close to finding that actual damage is unnecessary:

Samuels v Stubbs [1972] 4 SASR 200 Case summary

Importantly, where expense has been incurred in restoring the property to its former state, this will constitute criminal damage:

Roe v Kingerlee [1986] Crim LR 735 Case summary

This seems to apply even where the expense was unnecessarily incurred:

Hardman v Chief Constable of Avon [1986] Crim LR 330 Case summary

Destroying or damage can be committed by an omission:

R v Miller [1983] 2 AC 161 Case summary

Property

The definition of property for the purposes of criminal damage is found in s.10(1) Criminal Damage Act 1971. Property embraces only tangible property. It includes real property (land and buildings) and personal property. Money is also included. By virtue of s.10(1) (a) animals are only included if they are tamed or ordinarily kept in captivity and under s.10(1)(b) wild mushrooms, fruit, flowers, foliage and plants are excluded.

Belonging to another

S.10(2) Criminal Damage Act 1971 provides that property will be regarded as belonging to any person having:

a). custody or control of it,

b). a proprietary right or interest in it

c). a charge on it

Mens rea of simple criminal damage

The mens rea of simple criminal damage consists of intention or recklessness as to the destroying or damaging of property belonging to another.

Intention

If the defendant believes the property they are damaging belongs to them, they are not liable even where the mistake relates to a mistake of law:

R v Smith [1974] QB 354 Case summary

Recklessness

Originally a subjective test was applied to both offences of simple criminal damage and criminal damage by arson:

R v Stephenson [1979] QB 695 Case summary

This was later replaced by an objective test:

MPC v Caldwell [1982] AC 341 Case summary

This proved unsatisfactory. The injustice arising can be seen in:

Elliot v C [1983] 1 WLR 939 Case summary

Caldwell recklessness was eventually overruled with a return to a subjective test for recklessness for criminal damage:

R v G & R [2003] 3 WLR Case summary

The appropriate test of recklessness for criminal damage is:

"A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to -

(i) a circumstance when he is aware of a risk that it exists or will exist;

(ii) a result when he is aware of a risk that it will occur;

and it is, in the circumstances known to him, unreasonable to take the risk."

For application of this test see:

Booth v Crown Prosecution Service [2006] EWHC 192 Case summary

Aggravated Criminal Damage S1(2)

Aggravated criminal damage is where property has been destroyed or damaged with the aggravating factor being that life is endangered by the destruction or damage to the property. For example the cutting of electricity cables leaving live wires exposed or the damaging safety equipment. S.1(2) Criminal Damage Act 1971 provides that a person is guilty of an offence if without lawful excuse, they destroy or damage property, belonging to them self or another, with intent or being reckless as to destroying or damaging property and with intent or being reckless as to endangering life.

Actus reus of aggravated criminal damage

Destroy or damage
Property
Belonging to himself or another
Endangering life

Destroy or damage has the same meaning as simple criminal damage, as does property. Note that for the aggravated offence a person can be liable where they destroy or damage their own property.

Endangering life

The danger to life must come from the damage to the property:

R v Steer [1987] 3 WLR 205 Case summary

R v Wenton [2010] EWCA Crim 2361 Case summary

There is no requirement that life is in fact endangered:

R v Sangha [1988] 2 All ER 385 Case summary

Mens rea of aggravated criminal damage

The defendant must;

intend or be reckless as to the destroying or damaging of property and
intend or be reckless as to the endangerment of life.

R v Cunningham [1957] 2 QB 396 Case summary

Criminal Damage by Arson s.1(3)

Where the destruction or damage to property under either s.1(1) or S.1(2) Criminal Damage Act 1971 arises through fire, the defendant will also be liable under s.1(3) of criminal damage by arson.

Lawful excuse under S.5 Criminal Damage Act 1971

S.5(2) sets out two instances of what can amount to lawful excuse in relation to criminal damage. S.5(2)(a) covers belief in consent and s.5(2)(b) covers belief that property was in immediate need of protection. By virtue of s.5(3) these two provisions are entirely subjective in their approach, based entirely on the defendant's belief. It need not be a justifiable belief provided it is an honest belief. Even a drunken mistaken belief is sufficient:

Jaggard v Dickinson [1981] 1 QB 527 Case summary

There is no requirement that the person entitled to consent be honest:

R v Denton [1981] 1 WLR 1446 Case summary

The law relating to Criminal Damage