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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 s.1(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:
 
 
 
 
 
 
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