Criminal damage

Criminal damage occurs when someone unlawfully, and intentionally or recklessly, damages or destroys property belonging to another person.

Examples of criminal damage include arson, forced entry into a property, and graffiti on a public building. It can be permanent destruction or damage, or temporary – so even if the damage can be quickly rectified or repaired, an offender can still be convicted of criminal damage.

The offences of criminal damage are set out in the Criminal Damage Act 1971. In addition, specific offences are contained within the Malicious Damage Act 1861 in relation mainly to damage to railways. To prove the offence of causing criminal damage under the 1971 Act, the following elements need to be established:

• Damage (temporary or permanent) was caused.
• That damage occurred to property.
• The damaged property belonged to another.
• The damage was caused without lawful excuse.
• An intention to cause the damage, or recklessness as to whether damage would be caused.

There is no specific definition of ‘damage’ contained within the 1971 Act so it is up to the court on a case-by-case basis to decide whether there has been damage in the circumstances of each case. The courts have interpreted the meaning of ‘damage’ widely, for instance:

• There is no requirement for the damage to be permanent. Criminal damage has, therefore, included smearing mud or paint on property or throwing eggs at a vehicle.
• The damage does not have to be visible. If, for example, the damage affects the proper functioning of the property it may still amount to damage, even if it not visible.

Property is widely defined by Section 10 of the 1971 Act and includes land. This means that if waste is dumped onto another person’s land, this will fall within the definition of criminal damage. Property would include any tangible property.

Property will be deemed to belong to any person who has custody or control of it, or who has a legal right or interest in it, or a charge on it. This means that an owner can even cause ‘criminal’ damage to their own property if, at the same time, it belongs to someone else falling within the definition contained in Section 10. An example would be property which is subject to a mortgage.

Section 5 of the 1971 Act provides a defence of ‘lawful excuse’ to a charge of criminal damage, in the following situations:

• At the relevant time, the person believed that consent was given, or
• If the damage was caused during the protection of the person’s own property, if that property was in immediate need of protection, and that the means taken to protect that property were in fact reasonable.

The damage will be deemed to have been caused without lawful excuse if it does not fall within Section 5.

In order to prove criminal damage, one of two key aspects needs to be present: that the defendant acted intentionally or in a reckless manner. A person acts recklessly with respect to:

• A circumstance when they are aware of a risk that exists or will exist.
• A result when they are aware of a risk that it will occur.
• In the circumstances known to them, it was unreasonable to take that risk.

It an offence under section 1(2) of the 1971 Act to destroy or damage property intending to endanger the life of another, or being reckless as to whether the life of another would be endangered.

If the damage is caused by fire, the offender will be charged with arson with intent, or being reckless as to whether the life of another would be thereby endangered. However, where the aggravated form of damaging property/arson is charged, specific charges may follow:

• intending to destroy/damage property or being reckless as to whether property would be destroyed/damaged and intending to endanger the life of another, or
• intending to destroy/damage property or being reckless as to whether property would be destroyed/damaged and being reckless as to whether life would be endangered.

It situations where it is not clear whether there was intention or recklessness, the offender may be charged with both counts. The Crown Prosecution Service offers a useful practical example:

‘Thus, those who drop objects on a moving train or railway line, or throw missiles at or ram police cars may be properly convicted of an offence under Section 1(2) of the Act. If the intent is to break the windscreen or window, a jury is entitled to infer that there was an intent to shower the driver or passengers with glass and that as a result of being so showered, control could be lost, thereby endangering life. The danger would be caused, and intended to be caused, by the broken glass.’

Section 2 of the 1971 Act creates two offences of threatening to destroy or damage:

1. Property belonging to the person threatened or a third person, or
2. The defendant’s own property in a way which is likely to endanger the life of the person threatened or a third person.

In both cases ‘intention’ is required that the person threatened would fear that the threat would be carried out.

For cases where the damage is less than £5000 worth, the maximum sentence will be six months’ imprisonment and or a level 4 fine. For offences of criminal damage where the damage caused is over £5000, the maximum sentence will be 10 years’ imprisonment. Where the offence is racially or religiously aggravated, a higher sentence may be imposed.