Updated: 7 March 2011
- Code for Crown Prosecutors - Considerations
- The Law
- Charging Practice
- Threat to Destroy or Damage Property
- Sundry Statutory Provisions
- Procedure Pre-Trial
Code for Crown Prosecutors - Considerations
Offences of damage to property can vary in seriousness; from destruction by fire which causes damage of great value and danger to life, to minor incidents of damage where replacement costs are minimal.
There are no special public interest considerations over and above those recognised in the Code for Crown Prosecutors.
The Criminal Damage Act 1971 (the Act) repealed the common law and statutory offences of arson. Only a few of the offences contrary to the Malicious Damage Act 1861 remain. The Act is now the primary source of offences of damage to property.
Refer to Procedure - pre-trial below in this section.
Meaning of Damage
Damage is not defined by the Act. The courts have construed the term liberally. Damage is not limited to permanent damage, so smearing mud on the walls of a police cell may be criminal damage. What constitutes damage is a matter of fact and degree and it is for the court, using its common sense, to decide whether what occurred is damage (Archbold 23-6).
The damage need not be visible or tangible if it affects the value or performance of the property.
As regards the offence of criminal damage, you should note that by Section 3(6) Computer Misuse Act, a modification of the contents of a computer will not be regarded as damaging any computer or computer storage medium unless its effect on the computer or computer storage medium impairs its physical condition. Damage or changes to software etc are now to be dealt with under the Computer Misuse Act 1990: refer to The Computer Misuse Act 1990, elsewhere in the Legal Guidance.
(Archbold 23-8 to 23-12)
After the House of Lords decision in R v G  1 AC 1034, the mens rea for criminal damage is no longer as stated in Caldwell.
"Recklessness" for the purposes of the Criminal Damage Act is now defined as follows:
"A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to:
1) A circumstance when he is aware of a risk that it exists or will exist;
2) A result when he/she is aware of a risk that it will occur; and
3) It is, in the circumstances known to him, unreasonable to take the risk.
In relation to self-induced intoxication, DPP v Majewski  AC 443 still applies.
Meaning of Property
Property is defined in section 10 of the Act and is wider than the Theft Act definition in that it includes land. Thus land can be damaged; for example, by dumping chemicals on it. Property does not however include intangibles or things in action.
Meaning of Belonging to Another
Section 10(2) of the Act is particularly important when considering to whom property belongs. An owner can damage his or her own property if, at the same time, it belongs to someone else within the meaning of the section. For example, if a person sets fire to his own house which is subject to a mortgage, he can still be charged under Section 1(1) and (3) as the mortgagor will have a proprietary right or interest in the property.
Meaning of Without Lawful Excuse
Section 5 of the Act gives examples of actions that would constitute a lawful excuse and thus a defence to criminal damage charges, though not to aggravated criminal damage under Section 1(2). You must be aware of these, particularly in relation to the defences likely to be raised by motorists damaging wheel clamps.
A motorist who damages a wheel clamp to free his car, having parked on another's property knowing of the risk of being clamped, does not have a lawful excuse under the Act: see Lloyd v DPP  1 All ER 982 ; R v Mitchell 2004 RTR 14 CA.
Section 5(2) defines lawful excuse where there is belief in consent or belief in the immediate necessity to protect property. Section 5(3) emphasises that the belief is subjective and must be honestly held.
Racially (and Religiously) Aggravated Criminal Damage
Section 30 of the Crime and Disorder Act 1998 (as amended by the Anti-Terrorism, Crime and Security Act 2001) creates an offence of racially or religiously aggravated criminal damage, based on the basic offence of criminal damage under Section 1(1) Criminal Damage Act 1971. Refer to CPS Guidance on Prosecuting Racist and Religious Crime, elsewhere in the Legal Guidance, and to Archbold 23-31a.
Where criminal damage, contrary to Section 1(1) of the Act, is the only offence committed by the defendant, you will have no difficulty with the selection of charge. However, offences of criminal damage often take place at the same time as, or in the course of, the commission of other offences; for example, damage caused when entering a building for the purpose of burglary, or damage caused to clothing during the course of an assault.
You should, therefore, consider whether in such circumstances it is necessary to charge criminal damage. In the examples given above, it will seldom be necessary to charge criminal damage as the offence is part and parcel of another offence which truly represents the criminality of the defendant. You should also note that compensation can be ordered in respect of damage caused during the commission of an offence such as burglary.
However, a charge of criminal damage may be justified where:
- the damage is excessive or gratuitous; or
- there is difficulty in establishing the evidence required for the other offence; for example, proving an intent to steal in what is thought to be an attempted burglary.
If you are intending to charge an offence of destroying property, make sure that you can prove the destruction; otherwise damaging property is the more appropriate choice.
Criminal Damage: Mode of trial
You must be fully aware of the provisions of Section 22 and Schedule 2 of the Magistrates' Courts Act 1980 (MCA) which deal with the determination of mode of trial for the Scheduled offences. Where a person is charged with an offence contrary to section 1(1) Criminal Damage Act 1971 or with aiding, abetting, counselling or procuring such an offence, or with attempting to commit, or inciting , such an offence, and the value involved is less than £5,000, he must be tried summarily.
Note, however, that if the damage was caused by fire, the offence will be one of arson which is triable either way, however small the damage and even if it amounted to less that £5000.
If the amount of damage is under £5000, the allegation may nevertheless be included in an indictment for another offence in the circumstances set out in Section 40 Criminal Justice Act 1988.
The Mode of Trial Guidelines will apply where the value involved is over £5000. They state that, in general, cases should be tried summarily unless one or more of the following features are present and the court's sentencing powers are insufficient:
- deliberate fire-raising;
- committed by a group;
- damage of a high value;
- the offence has a clear racial motive.
Mode of Trial: Determination of the Amount of Damage
The determination of the amount of damage is important since it may serve to deprive the defendant of a right of trial on indictment at the Crown Court.
The procedure applies to an offence of criminal damage (where damage was not caused by fire) and to offences of aiding and abetting, counselling or procuring damage or to attempting or inciting them (the "scheduled offences": MCA Schedule 2).
The court will determine the value according to representations made. If the property is beyond repair, then the value will be the replacement cost on the open market at the time of the damage being caused. If the property is repairable, then the value will be the repair costs or the replacement costs whichever is the lesser.
The "relevant sum" for the purpose of value is specified in Section 22 MCA (as amended by Section 46 Criminal Justice and Public Order Act 1994) as £5000. If the relevant sum exceeds £5000, then the court will then proceed to mode of trial as it would with any other either way offence.
Where for any reason the value is unclear and the court is not certain whether it exceeds the relevant sum, it must explain to the defendant that he or she can agree to summary trial. If there is consent to summary trial, the court's powers are limited by the provisions of Section 33 MCA and the defendant may not be committed for sentence. If the defendant agrees, the court will proceed to hear the case. If the defendant does not agree, the court proceeds to determine mode of trial in the ordinary way.
Representations as to value do not involve an obligation to hear evidence. However, there is nothing to stop the court hearing evidence or considering documents, if it so wishes. You should therefore be prepared to "prove" the value: invoices will be very useful.
Mode of trial: Two or More Criminal Damage Charges
If the defendant is charged on the same occasion with two or more Scheduled offences and the court considers that they constitute a series of two or more offences of the same or similar character, then it is the aggregate value of the two or more offences that will go to make up the relevant sum. In other words, the defendant will have a right to elect Crown Court trial even if individually, the two or more offences amount to a figure under £5000.
The working of Section 22 MCA follows that contained in rule 9 Indictment Rules 1971. The courts usually interpret offences of the same or similar character to mean two or more criminal damage charges that are to be considered by the court. "Charged on the same occasion" means being put to the defendant in court on the same occasion. Otherwise charges initiated by summons would be excluded, as would an attempt by the prosecution to avoid election for trial by bringing the defendant to court on different dates for each offence.
The offence of criminal damage where the property is destroyed or damaged by fire is charged as arson: see Section 1(3) of the Act.
Damaging Property/Arson with Intent to Endanger Life/Recklessness
Section 1(2) of the Act makes it an offence to destroy or damage property intending thereby to endanger the life of another, or being reckless as to whether the life of another would thereby be endangered (Archbold 23-13).
If the damage is committed by fire, the offence is charged as arson with intent or being reckless as to whether the life of another would be thereby endangered.
Where the aggravated form of damaging property/arson is charged, specific counts should be preferred, as follows:
- 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.
The reasons for separating the allegations are:
- to assist the jury in understanding them; and
- to enable the judge to know on what basis the jury has convicted and on what basis sentence should be passed
See further R v Hoof (1981)72 Cr App R 126 and R v Hardie (1984) 3 All ER 848.
The cases were both offences of arson but the comments on charging practice are equally applicable to situations where the damage has not been caused by fire (Archbold 23-14).
In cases where the defendant's mens rea is clear as between intention and recklessness, you may charge one offence or the other but in most cases it will be appropriate to charge both offences in the alternative. If the defendant is convicted of the more serious offence (involving intent) the jury should be discharged from giving a verdict on the lesser charge.
You will need to consider with care how the life of another was endangered. R v Steer  AC 111 held that for an offence under Section 1(2) of the Act the prosecution had to prove that the danger to life resulted from the actual destruction of, or damage to property (Archbold 23-19).
This has now been qualified in R v Asquith, R v Warwick  2 All ER 168, CA. A defendant may be guilty, either if he intended to endanger life by damage, which was intended to be done, or was reckless that life would be endangered by the damage (Archbold 23-20).
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.
For the offence of criminal damage of "simple arson" the property of another must be damaged. In the aggravated offence in Section 1(2), it can be any property, even that belonging to the defendant him or herself.
Threat to Destroy or Damage Property
Section 2 of the Act creates two offences of threatening to destroy or damage:
- property belonging to the person threatened or a third person; or
- the defendant's own property in a way which is likely to endanger the life of the person threatened or a third person.
The defendant has to intend that the person threatened would fear that the threat would be carried out.
Such threats will usually occur in a public place and you should therefore consider whether a charge under Section 4 Public Order Act 1986 would be more suitable. Section 8 Public Order Act 1986 provides that violence, except in the context of an offence of affray, includes violent conduct towards property. Refer to Public Order Offences Incorporating the Charging Standard elsewhere in the Legal Guidance.
A charge under Section 3 of the Act will often be appropriate where the evidence falls short of an attempt to destroy or damage provided the necessary intent can be established; for example, when a defendant is stopped with petrol and matches before he or she has had a change to set fire to anything.
Section 3(a) is confined to damaging property belonging to another. Section 3(b), which is the offence in aggravated form, relates to the defendant's own property or the property of the user.
Damage Caused by Explosives
You should refer to the guidance in the section on Explosives before settling the appropriate charge. Outside the context of terrorism, offences under the Criminal Damage Act 1971 may be suitable in cases where explosives have been used, but only in the circumstances set out in that section.
Section 6(3) of the Criminal Law Act 1967 allows the court in trials on indictment to return a verdict for a lesser offence than that charged in the indictment in certain circumstances. (Archbold 4-453 to 4-457).
On an indictment for the aggravated offence under Section 1(2) of the 1971 Act it is open to a jury to convict of criminal damage contrary to Section 1(1) of the 1971 Act it is open to a jury to convict of criminal damage contrary to Section 1(1) of the 1971 Act (the simple offence) as an alternative verdict under Section 6(3) of the Criminal Law Act 1967 not withstanding that the value of the damage caused is under £5000; R v Fennell (2002) 2 Cr. App. R. 318 CA (Archbold 23-14).
Malicious Damage Act 1861
(Archbold 23-56 to 23-61)
The title to this act suggests that it is of relevance to acts of criminal damage. However, the principal offences in the act which remain are, in reality transport related offences; for example Sections 35/36 obstructing railways; Section 47 exhibiting false signals and Section 48 removing buoys.
Sundry Statutory Provisions
The Criminal Damage Act is the principal statute dealing with damage related offences and its offences should be charged wherever possible.
However, you should be aware of the following statutes which have varying degrees of relevance and to which reference may need to be made occasionally:
- Enclosure Act 1857
- Town Gardens Protection Act 1863
- Public Stores Act 1875
- Allotments Act 1922
- Protection of Wrecks Act 1973
- Protection of Military Remains Act 1986
Heritage crime is defined as any crime or behaviour that harms the value of England's heritage assets to this and future generations. These assets may include Scheduled Monuments; Conservation Areas; Grade 1 and 2 Listed Buildings; World Heritage Sites; Protected Marine Wreck Sites and Military Remains; and other sites of archaeological interest.
Heritage Crime has increased in profile over the last few years. While some of the offences may involve criminal damage, it is usually better to prosecute under legislation that has been specifically enacted to address such conduct rather than under the Criminal Damage Act 1971.
Other legislation relating to Heritage Crime includes:
- Treasure Act 1996
- Dealing in Cultural Objects (Offences) Act 2003
- Protection of Wrecks Act 1973
- Protection of Military Remains Act 1986
- Planning (Listed Buildings and Conservation Areas) Act 1990
The CPS has signed a Memorandum of Understanding (MOU) with English Heritage, ACPO and Participating Local Authorities. This MOU defines the roles and responsibilities of all parties in the prevention, investigation, enforcement and prosecution of heritage crime in keeping with their respective aims. The MOU aims to foster closer and better working relationships between the signatories.
Offences contrary to the Ancient Monuments and Archaeological Areas Act 1979 should generally be prosecuted under that Act rather than under the Criminal Damage Act 1971.
The cases will be referred to the CPS Area in which the scheduled monument is situated by English Heritage and the file should contain:
- factual report by inspectors of visits to the site;
- observations of damage and assessment of their nature and significance;
- a record of conversations with the site owner.
You must ensure that formal evidence of the scheduling of the site as a scheduled monument contains a clear and unambiguous delineation of the extent of the site to be able to prove that the alleged damage has occurred within the area of the scheduled monument.
You will then ask the police to carry out an investigation and when police enquiries are complete the case will be reviewed in accordance with the Code for Crown Prosecutors in the usual way.
For guidance on Victim Personal Statements see elsewhere in the Legal Guidance
If the decision is taken to drop or significantly alter the charge(s) you should follow the guidance regarding direct communication with victims Direct Communication with Victims A Guide CPS Online and see also Care and treatment of victims and witnesses, elsewhere in the Legal Guidance.
Procedure - Pre-Trial
Damage to Property of Spouse - Consent of DPP
As to the need to obtain the Direction of Public Prosecution's consent instituting proceedings against a person for an offence of doing unlawful damage to property belonging to that person's spouse, see the Theft Act 1968, Section 30(4) (Archbold 23-5 and 21-334) and Consents to Prosecute, elsewhere in the Legal Guidance, and National Forms Register NFR.CD.1
Files should be clearly identified as racial or religious incident cases refer to Racist and Religious Crime elsewhere in the Legal Guidance.