13 Criminal damage

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
13.1

Simple criminal damage . . . . . . . . . . . . . . . . . . . . . . . . . 169

13.2

Aggravated criminal damage. . . . . . . . . . . . . . . . . . . . . . . 172

Am I ready to move on? . . . . . . . . . . . . . . . . . . . . . . . . . 173

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Introduction
The Criminal Damage Act 1971 was designed to simplify the law and to ensure
consistency with other property offences (principally theft). It contains a basic offence
of damaging property and an aggravated offence where the damage to property is
foreseen or intended to endanger life.

Criminal law 13 Criminal damage

13.1 Simple criminal damage

Section 1(1) of the Criminal Damage Act 1971 states:
A person who without lawful excuse destroys or damages property belonging to another
intending to destroy or damage any such property or being reckless whether any such
property would be destroyed or damaged shall be guilty of an offence.

The maximum punishment for a violation of s.1(1) following a trial on indictment is 10

years imprisonment (s.4(2)). Where the offence is committed by fire it will be charged
as arson with a potential maximum sentence of life imprisonment.

13.1.1 Actus reus: simple criminal damage

As with theft there are three elements of the actus reus.

There must be property.

That property must belong to another.

D must damage that property.

13.1.2 Property
Property is defined in a similar way to property for the purpose of theft. However, it
does not include things in action or intangible property as these are immaterial and so
cannot suffer damage. Another significant difference is that there are no restrictions
regarding land or buildings. Indeed the most common subject of criminal damage, as
in arson, will be land and buildings.
Section 10 states:
(1) 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 which has 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 a
plant growing wild on any land.
For the purposes of this subsection mushroom includes any fungus and plant includes
any shrub or tree.

Criminal damage therefore includes damage to land, including cultivated plants and
domesticated animals. It includes damage to things on the land, whether or not they
form part of the land. It also includes damage to personal property such as cars, vases,
carpets, food, drink, paper, clothes and so on.

13.1.3 Destroys or damages property

Destroys adds nothing to damages and so here we will consider what counts
as damage. Any alteration to the physical nature of the property may amount to
damage, depending on the circumstances, the nature of the property and the
nature of the alteration. Whether property has been damaged is a question of fact
for the magistrates or jury. The case of Morphitis v Salmon [1990] Crim LR 48 involved
dismantling a scaffold barrier across the road. D was acquitted of criminal damage
to the bar component of the barrier. The court made the point that a scratch on the
bar of the barrier would not be damage as it could not have impaired its value or
usefulness, as scaffolding components get scratched in the normal course of events.
This case shows that whether or not damage has occurred can be determined only by
considering the object and the nature of the change wrought to it. If D had scratched
a piece of furniture instead of a scaffold bar, the jury would no doubt have considered
the damage element satisfied. Again, if he had been charged with damage to the
barrier as a whole, by dismantling it, he might have been convicted.

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Activity 13.1
a. Read Wilson, Chapter 17. How many different examples of criminal damage can
you find?
b. Why, in Henderson v Battley (1984), was depositing 30 lorry loads of rubble on a
building site criminal damage?
c. Do you agree with the observation, and the reasons for it, in Smith and Hogan
(2005) that wheel clamping should count as criminal damage contrary to the
decision in Drake v DPP (1994)?

13.1.4 Property belonging to another

By s.10 property for the purposes of the act belongs to any person:
(2) (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.

Section 10 goes on to state that

(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 treated as belonging to the corporation
notwithstanding a vacancy in the corporation.

This provision bears comparison with the position with theft. The offence is
committed only if the property damaged belongs to someone else. So the owner of
property can commit criminal damage of that property if it also belongs to someone
else in the sense provided by s.10. This would cover part owners of real or personal
property, tenants or occupiers of land, and those in possession or control of real or
personal property. So if, on the facts of Turner (1971), D had damaged his car rather than
taken it, he would have committed the actus reus of criminal damage. Likewise if a
landlord damages the house let to their tenant, or vice versa, the actus reus is satisfied.
The key thing to notice here is that it is not (simple) criminal damage to damage ones
own property, so long as it does not also belong to another in one of these senses.
In R v Denton [1982] 1 All ER 65, D set fire to Ts property at Ts request, to perpetrate
an insurance fraud. He was convicted at first instance but his conviction was later
quashed. The insurance company had no proprietary interest in the property damaged
and T was the sole owner, so could not be liable. As Lord Lane CJ said in this case: It
is not an offence for a man to set light to his own property. And if T was not liable, D
could not be either because of the presence of Ts consent (see s.5(2)).

13.1.5 Mens rea: simple criminal damage

The defendant must intend to damage property belonging to another or be reckless
in respect of causing such damage. Intention carries its general meaning. The meaning
of recklessness for the purposes of the Criminal Damage Act was for many years a
matter of controversy until the House of Lords decision in R v G [2003] UKHL 50 which
returned recklessness to its previous (subjective) meaning. These states of mind were
explained and discussed in Chapter 5 of this subject guide, and reference should be
made to them.
Note: Remember that intention includes having damage as ones objective or
foreseeing it as virtually certain. D is reckless if they recognised the risk of damage to
property and nevertheless went on to take that risk unreasonably. Recklessness does
not always require conscious awareness of the risk at the time of acting. It includes
the case of someone who closes their mind to the risk (R v Parker (1977), Booth v CPS
(2007)).

Criminal law 13 Criminal damage

It should be understood that legal principle requires mens rea to extend to every single
aspect of the actus reus. This means that the prosecution must prove not merely that
D intended damage to property (or recklessness) but more specifically that they also
intended (or were reckless) to damage property belonging to another. It is an answer
to the charge, therefore, that D believed they were damaging their own property. In
Smith [1974] QB 354, a tenant was found not guilty of damaging wiring in the apartment
he was renting. He had installed it himself and this had led him to believe it belonged
to him not the lessor.

13.1.6 Lawful excuse

Section 1 of the Criminal Damage Act 1971 refers to damaging property without lawful
excuse. Apart from the general defences, which will always be available, s.5 provides
for two offence-specific defences. These are belief in the owners consent and belief
that it is necessary to protect ones own property.
Subsection s.5(2) states:
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 or
damage of 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;
(b) if he had destroyed or damaged...the property in question...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.

Section 5 is the Criminal Damage Act equivalent of s.2 of the Theft Act 1968.
With respect to both of these lawful excuses it is enough that the belief was honestly
held. There is no requirement that the belief be reasonable.

13.1.7 Belief in the consent of the person or persons believed to be

entitled to consent
Normally speaking, the person believed to be entitled to consent will be the owner,
but not necessarily. It may include the owners agent or manager or any other person
D thinks has the power of consent.
Note: The person believed to be entitled to consent does not include God: an
ingenious argument put forward by the defendant clergyman in Blake v DPP (1993) as a
defence to a charge of damaging property by graffiti!
Section 5(2)(a) provided the defendant with his excuse in Denton (see above). It also
provided the defendant with her excuse in Jaggard v Dickinson [1981] 3 All ER 716. D,
after an evenings drinking, found that she had been locked out of her home. She
broke into a house which, in her drunken state, she thought belonged to a friend who
would consent. In fact she was mistaken; it was the house next door. The magistrates
held that she could not rely upon s.5(2)(a) since her belief in consent was brought
about by self-induced intoxication (see Chapter 10). The Divisional Court quashed
the conviction relying on s.5(3) which states: For the purposes of this section it is
immaterial whether a belief is justified or not if it is honestly held.

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Mustill J said that:

the court is required by s.5(3) to focus on the existence of the belief, not its intellectual
soundness; and a belief can be just as much honestly held if it is induced by intoxication,
as if it stems from stupidity, forgetfulness or inattention.

13.1.8 Damaging property in order to protect a persons own property or

an interest therein
The simplest case of s.5(2)(b) is where D damages property in order to protect their
own property, e.g. shoots a dog worrying their sheep or sets fire to a haystack to
prevent a fire on neighbouring land spreading to their house. The defence extends
beyond property to property interests. So knocking down a wall blocking a right of
way was held to be a lawful excuse in Chamberlain v Lindon (1998).
Section 5(2)(b) has been held to apply only where the damage done is for the direct
and immediate purpose of protecting property. So in Hunt (1978) 66 Cr App R 105,
D argued that he set fire to a bed in an old peoples home to draw attention to the
non-working fire alarm. The Court of Appeal ruled that this was not a lawful excuse.
Ds action was taken not to protect the old peoples home from damage but to act as
a warning. In short, the act must be for the direct purpose of protecting property from
harm.

13.2 Aggravated criminal damage

Section 1(2) of the Criminal Damage Act 1971 states:
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.

Simple criminal damage is a property crime. Aggravated criminal damage, however,

is a hybrid offence against property and against the person. Its core application is
cases of dangerous arson. The kind of case covered by the aggravated offence is A-Gs
Reference (No 50 of 2005) [2006] 1 Cr App R (S), in which the defendant used petrol to
set fire to his room in hostel, in the hope that he would be rehoused. The hostel was
destroyed. The aggravated offence was committed D had committed arson and he
was reckless as to whether life would be endangered by that arson.
Although dangerous arson is the usual fact scenario, the offence extends to all
cases where, by damaging property, other peoples lives are put at risk. Because it is
designed to protect people from harm, this offence can be committed irrespective of
whether the property damaged belongs to another.

13.2.1 Elements of the offence

There must be intentional or reckless damage to property.

The property does not have to belong to another person.

The person must intend to endanger life by that damage, or be reckless as to

whether life would be endangered by that damage.

The requirement that the risk to life must derive from the damage done to the
property needs to be understood.

Activity 13.2
Read Wilson, Section 17.3 Criminal damage endangering life. Which of the
following are not forms of aggravated criminal damage?

Criminal law 13 Criminal damage

a. Cutting the brake cable in a car.
b. Exploding dynamite during office hours in a bank vault in order to gain access to
a safe.
c. Demolishing a high wall on a public street, or felling a tree, without taking
precautions to safeguard passers by.
d. Ripping out copper electrified cables on a railway line, leaving live wires
exposed.
e. Throwing a stone through a car windscreen intending to hit V, the driver.
f.

Shooting a hole in the tyre of a car while it is being driven by V.

Am I ready to move on?

Are you ready to move on to the next chapter? You are if without referring to the
subject guide or Wilson you can answer the following questions.

Simple criminal damage

1.

State the differences and similarities between the meaning of property in the
context of criminal damage and theft.

2. State and explain when a person can be guilty of damaging their own property.
3. Explain and illustrate what damage means for the purpose of the Criminal Damage
Act 1971.
4. State and explain the mens rea for criminal damage.
5. State, explain and illustrate the lawful excuses under s.5 of the Criminal Damage
Act 1971.
6. Explain why a person who cuts through a neighbours fence in order to rescue
the neighbours dog from drowning in their pond has a lawful excuse to criminal
damage on the fence.
7. Explain why a similar person who throws his neighbours dog into the pond in
order to demonstrate to the neighbour how dangerous the pond is to the dog
does not have a lawful excuse to committing criminal damage on the dog.

Aggravated criminal damage

1.

State and explain the elements of aggravated criminal damage.

2. Give three examples of how the offence can be committed other than by arson.
3. State the doctrinal distinctions between simple and aggravated criminal damage.
4. Explain why it is not necessary in relation to aggravated criminal damage for the
property damaged to belong to another.
5. Explain why, in Steer (1987) (Wilson 17.3.B Mens rea), a person who shot a gun
through a closed window of a room hoping to endanger the life of the people in
the room was not guilty of aggravated criminal damage.
Make sure you test your knowledge of this chapter though the online multiple choice
questions available at www.mylawchamber.co.uk

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