Criminal Damage

For the next of our articles focusing on matters commonly dealt with by the Magistrates' Court, we thought we'd take a closer look at the offence commonly referred to as criminal damage.

In this article we give a whistle stop tour of the offence. We cannot possibly cover every single angle, but hope to cover the most pertinent points. As always, we'd invited readers to consult the references mentioned below if they require any further information.

Criminal damage is an offence contrary to section 1(1) of the Criminal Damage Act 1971, which states the following:

"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."

For the purposes of this article we shall not be considering the following:

• An offence contrary to section 1(2) of the Act, which relates to criminal damage resulting in endangerment to life.
• An offence contrary to section 1(3) of the Act, which relates to criminal damage by fire - e.g. arson.
• Racially or religiously aggravated criminal damage, contrary to section 30 of the Crime and Disorder Act 1998.

Criminal damage is a scheduled offence within the meaning of section 22 of the Magistrates' Court Act 1980, which means the value of the damage caused is relevant to the mode of trial.

Criminal damage where the value is less than £5,000 will be tried summarily. In this case the maximum penalty is fine at level 4 (currently £2,500) and/or 3 months' imprisonment.

Criminal damage where the value exceeds £5,000 is triable either way. In this case the maximum penalty is 12 months' imprisonment and/or a fine at level 5 (unlimited) on summary conviction; 10 years' imprisonment on conviction on indictment.

Recently enacted legislation (section 50 of the Police, Crime, Sentencing and Courts Act 2022) means that the monetary value of damage caused to a memorial is no longer a consideration when determining the mode of trial. These cases are all dealt with as either way offences.

Referring back to section 1(1) of the Act, it can be seen that certain elements need to be present in order for an offence to be committed:

1. A person acts without lawful excuse:

Section 5 of the Act provides a defence of lawful excuse. In a summarised form, it gives the following lawful excuses for a person causing damage:

• The person causing the damage believed, at the time of causing the damage, that the person who could have consented to the damage would have done so.
• The person causing the damage did so because he believed it was necessary to protect property, right or interest that was in immediate need of protection; and the action of committing the damage was reasonable having regard to all the circumstances.

For the purposes of a defence under this section it is irrelevant whether the person's belief is justified or not, as long as it is honestly held.

2. They damage or destroy property:

The term damage is not specifically defined by the Act, but the everyday definition can usually, although not always, be applied - e.g. harm that impairs the value, usefulness, or normal function of something.

Note that any damage does not need to be physical. It can include the temporary impairment of the value or usefulness of an object (Morphitis v Salmon [1990] Crim.L.R 48).

In the case cited then High Court Judge Mr Justice Auld ruled that criminal damage had been caused when the defendant removed a scaffolding pole that was acting as a roadblock, thereby impairing the value and usefulness of it. This was the case even though no physical damage was caused to the scaffolding pole in question.

Another case (R v Fiak [2005] EWCA Crim 2381) reinforced the principle that temporary impairment could constitute damage. In that Court of Appeal case the appellant had been held in police custody for being drunk and disorderly. He pushed a blanket down the toilet pan and flooded the cell with clean water. Even though no permanent damage was caused, Lord Justice Judge ruled that the blanket and cell had been damaged because of their loss of usefulness until they had dried.

In the case of Roe v Kingerlee [1989] Crim LR 735 the defendant appealed to the Queen's Bench Division of the High Court by way of case stated. He had been convicted of criminal damage for smearing mud on the wall of a police cell. It cost the police £7 to clean the mud from the wall and the cell was out of action until that time. The conviction was upheld, with the court ruling that the smearing of mud did constitute criminal damage.

Section 10(1) of the Act defines property as being of a tangible nature, whether real or personal, including money and:

• 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
• 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 section 10, "mushrooms" includes any type of fungi and "plant" includes any shrub or tree.

3. That property belongs to another:

Section 10(2) of the Act defines that property belongs to any person:

• having the custody or control of it;
• a proprietary right or interest in it; or
• having a charge on it.

No offence is committed by a person damaging their own property unless another person holds an interest in that property - e.g. they are co-owner or joint mortgagor etc.

No offence is committed by a person damaging property that does not belong to another - e.g. property that clearly has been abandoned.

4. They acted intentionally or recklessly:

As mentioned briefly earlier, the mens rea of criminal damage is the intention to destroy or damage the property of another. No offence is committed if damage arises through a genuine accident or misunderstanding.

This was illustrated in the case of R v Smith [1974] QB 354. The appellant rented a property in which he had installed soundproofing with the landlord's permission. The landlord subsequently gave the appellant notice to quit, which resulted in him ripping out the soundproofing he had installed. The appellant was convicted of criminal damage on the basis that by ripping out the soundproofing he had damaged a fixture of the property, which by definition belonged to the landlord. The appeal was allowed on the basis that the appellant genuinely believed the soundproofing material still belonged to him and never intended to damage the landlord's property.

The House of Lords ruling in the case of R v G & R [2003] 3 WLR gave rise to a subjective test for recklessness, namely:

"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."

In that particular case the convictions of the two juvenile appellants were overturned, when Lord Bingham ruled that they didn't act recklessly - which he said was synonymous with the term "maliciously" in earlier legislation - when they caused £1 million worth of damage to a supermarket.

The youngsters, aged 11 and 12, had been camping overnight without their parents' permission. They set fire to some newspapers, which they then discarded underneath a wheelie bin thinking they would burn out. The pair then left the scene and the wheelie bin caught fire, closely followed by the supermarket it was standing beside.

Lord Bingham was satisfied the pair had no intention of causing the resulting damage. Furthermore, Lord Bingham was of the opinion that they could never have foreseen what was about to occur, so therefore didn't act recklessly.