Criminal Damage

• Code for Crown Prosecutors - Considerations
• Destroying or damaging property
  • Meaning of Property
  • Meaning of Damage
  • Mens Rea
  • Meaning of Belonging to Another
  • Meaning of Without Lawful Excuse
  • Damage to Property of Spouse - Consent of DPP
  • Charging Practice
  • Allocation
• Arson
• Aggravated criminal damage and aggravated Arson
• Racially (and Religiously) Aggravated Criminal Damage
• Threat to Destroy or Damage Property
• Sentencing Council Guidelines
• Possessing Anything with Intent to Destroy or Damage Property
• Alternative Verdicts
• Damage Caused by Explosives
• Sundry Statutory Provisions
• Heritage Crime
  • Archaeological Sites
• Victims

The Criminal Damage Act 1971 (CDA 1971) is the primary source of offences involving damage to property. It created a statutory offence of arson and abolished the common law offence (s.11 CDA 1971).

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.

Destroying or damaging property

Section 1(1) CDA 1971 - 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.

This offence is triable either way – para. 29, Schedule 1 Magistrates’ Court Act 1980 (MCA 1980).The maximum penalty is 10 years imprisonment - Section 4 CDA 1971.

Meaning of Property

“Property” in the CDA 1971 means property of a tangible nature, whether real or personal – s.10. CDA 1971 requires proof that tangible property has been damaged, not necessarily that the damage itself should be tangible. Property 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 Damage

Damage is not defined by the CDA 1971. It should be widely interpreted to include not only permanent or temporary physical harm, but also permanent or temporary impairment of value or usefulness - Morphitis v. Salmon [1990] Crim.L.R. 48.

Any alteration to the physical nature of the property concerned may amount to damage within the meaning of the section. The courts have construed the term liberally and included damage that is not permanent such as smearing mud on the walls of a police cell. Where the interference amounts to an impairment of the value or usefulness of the property to the owner, then the necessary damage is established - R v Whiteley [1991] 93 Crim. App. R. 25.

A modification of the contents of a computer shall not be regarded as damaging any computer or computer storage medium unless its effect on that computer or computer storage medium impairs its physical condition – s.10(5) CDA 1971. Simply modifying the contents of a computer is not criminal damage within the meaning of Section 10 of the CDA 1971. Prosecutors should refer to the Computer Misuse legal guidance for further information.

Mens Rea

"Recklessness" for the purposes of the CDA 1971 is defined within the House of Lords decision in R v G [2004] 1 A.C. 1034. "A person acts recklessly within the meaning of s.1 Criminal Damage Act 1971 with respect to:

• A circumstance when they are aware of a risk that it exists or will exist;
• A result when they are aware of a risk that it will occur; and
• It is, in the circumstances known to them, unreasonable to take the risk."

In relation to self-induced intoxication, DPP v Majewski [1977] A.C. 443 still applies.

Meaning of Belonging to Another

An owner can damage their own property if, at the same time, it belongs to someone else – s.10(2) CDA 1971. For example, if a person sets fire to their own house, which is subject to a mortgage, they can still be charged under s.1(1) and (3) CDA 1971 as the mortgagor will have a proprietary right or interest in the property.

Meaning of Without Lawful Excuse

Section 5 of the CDA 1971 sets out a defence to criminal damage charges, though not to aggravated criminal damage under s.1(2) – see s.5(1) CDA 1971. A person has a lawful excuse if

• they believed at the time that those whom they believed to be entitled to consent to the destruction of or damage to the property in question had so consented, or would have so consented to it if they had known of the destruction or damage and its circumstances; or
• at the time of the act or acts alleged to constitute the offence they believed:
  • that the property, right or interest was in immediate need of protection; and
  • that the means of protection adopted or proposed to be adopted were or would be reasonable having regard to all the circumstances.

Section 5(3) CDA 1971 includes a subjective element: For the purposes of this section it is immaterial whether a belief is justified or not if it is honestly held.

This defence protects persons such as firefighters in relation to the effects of water used to extinguish a house fire or neighbours who demolish a dangerous wall before it falls down. It has been interpreted widely so that the proximity between the act of damage by the perpetrator and the damage they seek to prevent may be remote, and the causal link tenuous.

A motorist who damages a wheel clamp to free their 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 [1992] 1 All ER 982; R v Mitchell [2004] R.T.R. 14 CA.

For specific guidance on criminal damage and reasonable excuse in the context of protests please refer to the legal guidance Offences during Protests, Demonstrations or Campaigns.

Damage to Property of Spouse - Consent of DPP

The Director of Public Prosecution's consent is required to institute proceedings against a person for unlawful damage to property belonging to that person's spouse or civil partner: s.30(4) Theft Act 1968. Where the consent of the DPP to institute proceedings is required, this may be given by a Crown Prosecutor by virtue of Section 1(7) Prosecution of Offences Act 1985 (POA 1985). The decision to grant consent should be taken by applying the principles in the Code for Crown Prosecutors - see Consents to Prosecute legal guidance.

Charging Practice

Offences of criminal damage often take place at the same time as, or in the course of, other offences; for example, damage caused when entering a building during burglary, or damage caused to clothing during an assault. In these examples, it will seldom be necessary to charge criminal damage as it forms part of another offence that reflects the defendant's criminality. 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.

Section 1 of the CDA 1971 may be the appropriate offence where a minor explosion causes damage to property – see further guidance on the Explosive Substances Act 1883 within the Explosives legal guidance.

Allocation

The provisions of s. 22 and Schedule 2 MCA 1980 deal with the determination of mode of trial for those offences, referred to as "scheduled offences" that are mentioned in the first column of Schedule 2 MCA 1980.

Where a person is charged with an offence contrary to s.1(1) CDA 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, they must be tried summarily.

It is important to note that there are two exceptions set out in Schedule 2 where the offence will be triable either way even if the value of the destroyed property or damage amounts to less than £5000. These are:

• if the damage was caused by fire (the offence will be arson – see below); and
• if the damage was done to a memorial on or after 28 June 2022.

A ‘memorial’ is defined in section 22(11A) CDA 1971 as:

• a building or other structure (or part thereof), or any other thing, erected or installed on land (or in or on any building or other structure on land); or
• a garden or any other thing planted or grown on land;
• which has a commemorative purpose.

This definition includes moveable objects that are placed in, on or at a memorial that has (or can reasonably be assumed to have) a commemorative purpose (i.e. flowers).

Section 22(11C) and (11D) CDA 1971 state that something has a ‘commemorative purpose’ if at least one of its purposes (so not necessarily its sole purpose) is to commemorate one or more individuals or animals, or a particular description of individuals or animals or an event or  series of events (such as a war). It does not matter if the individuals  or animals are (or were) living or dead or identifiable at the material time.

‘Commemorate’ and ‘commemorative’ are not defined in the CDA 1971 and should be given their ordinary meaning.

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 (or one of the two exceptions above apply). 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.

If the offence is tried summarily because the value is determined as less than £5,000, the maximum penalty is three months imprisonment or a fine up to level 4 on the standard scale (£2,500) – s.33 MCA 1980.

The court will have regard to any representations made by the prosecutor and the accused to determine value. If the property is beyond repair, the value will be the replacement cost on the open market at the time the damage was caused. If the property is repairable, then the value will be the cost of repair or replacement, whichever is the lesser.

Where the court is not certain that the value exceeds the relevant sum (£5,000), it must explain to the defendant that they can agree to summary trial. If there is consent to summary trial, the court's powers are limited by the provisions of s.33 MCA 1980 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.

Whilst there is no obligation on the court to hear evidence of value, neither are they precluded from doing so. The prosecution should be prepared to "prove" the value preferably by producing invoices. If it is clear to the court that the value exceeds £5,000, the court will proceed to determine venue of trial. Where two or more criminal damage offences are charged, the value for allocation purposes will be the aggregate value of the offences. In other words, the defendant will have a right to elect Crown Court trial even if individually, the offences amount to a figure under £5000.

The working of s.22 MCA 1980 follows that contained in Part 9 of the Criminal Procedure Rules. 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.

S.22 MCA 1980 does not make criminal damage a summary only offence despite its requirement for the triable either way offence to be tried summarily based on value. Where appropriate it can be returned as an alternative to an offence in the indictment - such as racially aggravated criminal damage – R v Fennell [2000] 1 WLR 2011. Section 127(2) MCA 1980 applies so that the limitation on time for summary offences does not apply as the offence remains indictable – DPP v Bird [2015] EWHC 4077 (Admin).

The decision of the magistrates’ court on value cannot be appealed to the Crown Court on the ground that the court’s decision as to the value involved was mistaken.

Arson

Where property is destroyed or damaged by fire, arson should be charged - see Section 1(3) CDA 1971. Section 1(1) and (3) provides that arson is committed if a person without lawful excuse destroys or damages any property by fire, intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged.

For offences involving "simple arson" the property of another must be damaged.

Arson is triable either way – para.29, Schedule 1 MCA 1980. Section 22 MCA 1980 does not apply to arson. Section 4 CDA 1971 sets out a maximum penalty of life imprisonment for this offence.

Aggravated criminal damage and aggravated Arson

Aggravated criminal damage is set out at s.1(2) and aggravated arson is at s.1(2) and (3) CDA 1971. The aggravated offences require proof of an intent to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and 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.

Section 4 CDA 1971 sets out a maximum penalty of life imprisonment for aggravated criminal damage and aggravated arson. The offences are only triable on indictment.

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. Although both cases involved arson, the comments on charging practice are equally applicable where the damage is caused other than by fire.

Where the defendant's intention or recklessness is obvious, just one offence may be charged. Where, as is common, the position is less clear, both offences should be charged 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.

Prosecutors will need to consider carefully how the life of another was endangered. R v Steer [1988] 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.

This was qualified in R v Asquith, R v Warwick [1995] 2 All ER 168, CA. A defendant may be guilty, either if they intended to endanger life by damage, or was reckless that life would be endangered by the damage.

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 CDA 1971. If the intent is to break the windscreen or window, a jury is entitled to infer that there was intent to shower the driver or passengers with glass and that because 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 offences involving "simple arson" the property of another must be damaged. For the aggravated offence in Section 1(2), it can be any property, including the defendant's own.

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) CDA 1971. Refer to CPS Guidance on Prosecuting Cases of Racist and Religious Crime, the legal guidance.

Files should be clearly identified as racial or religious incident cases.

Threat to Destroy or Damage Property

Section 2 of the CDA 1971 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 a charge under Section 4 Public Order Act 1986 may 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 legal guidance.

Sentencing Council Guidelines

Sentencing Council guidelines for magistrates’ and Crown Courts apply from 1 October 2019. Prior to issue of the guidelines, the court in R v Cox [2017] EWCA 1366 (Crim) advised that the sentencing judge would be assisted by a sentencing note setting out the range of sentences with reference to decided cases. This is now subject to R v Thelwall [2016] EWCA Crim 1755 and the Lord Chief Justice’s advice to practitioners that sentencing now proceeds based on guidelines, not case law. Citation of appeal court decisions in the application and interpretation of guidelines is generally of no assistance, except in exceptional cases where the guideline may be unclear.

They require courts to take account of:

• The full impact of arson or criminal damage such as vandalism on national heritage assets including listed buildings, historic objects or unique parts of national heritage and history.
• The economic or social impact of damaging public amenities and services such as a fire at a school or community centre, or criminal damage at a train station, which can adversely affect local communities or cause economic hardship to neighbouring houses or businesses.
• The effect on communities when an area’s emergency services or resources are diverted to deal with an incident of criminal activity.

The guidelines will help to ensure that sentencing by judges and magistrates will be consistent across the whole range of offences covered by the guideline. Limited guidance exists in magistrates’ courts, but the guidelines apply to all courts.

Judges and magistrates will also consider requesting reports to ascertain both whether the offence is linked to a mental disorder or learning disability in order to assess culpability, and whether any mental health disposal should be considered.

The guidelines acknowledge that harm can involve not only physical injury but long-term psychological effects, and that damage to property can be about more than just its financial value. The guidelines cover the following offences:

• Arson – criminal damage by fire
• Criminal damage / arson with intent to endanger life or being reckless as to whether life endangered
• Criminal damage where the damage has a value exceeding £5000/Racially or religiously aggravated criminal damage
• Criminal damage where the damage has a value not exceeding £5000/Racially or religiously aggravated criminal damage
• Threats to destroy or damage property

Possessing Anything with Intent to Destroy or Damage Property

A charge under Section 3 of the CDA 1971 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 they have had a chance 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, applies to the defendant's own property or the property of the user.

Alternative Verdicts

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.

On an indictment for the aggravated offence under Section 1 (2) of the CDA 1971, it is open to a jury to convict of criminal damage contrary to Section 1(1) of CDA 1971. This is notwithstanding that the value of the damage caused is under £5000; R v Fennell (2002) 2 Cr. App. R. 318 CA.

Damage Caused by Explosives

Outside the context of terrorism, offences under the CDA 1971 may be suitable in cases where explosives have been used, but only in the circumstances set out in the Explosives legal guidance.

Sundry Statutory Provisions

The CDA 1971 is the principal statute dealing with damage and its offences should be charged wherever possible.

Other statutes with some relevance include:

• 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

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 CDA 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.

Archaeological Sites

Offences contrary to the Ancient Monuments and Archaeological Areas Act 1979 should generally be prosecuted under that Act rather than under the CDA 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.

Formal evidence of the scheduling of the site as a scheduled monument should contain clear and unambiguous delineation of the extent of the site in order to prove that the alleged damage has occurred within the area of the scheduled monument.

The police should be asked to carry out an investigation and, when complete, the case will be reviewed in accordance with the Code for Crown Prosecutors in the usual way.

Victims

For guidance on Victim Personal Statements, please refer to the legal guidance.

If the decision is taken to drop or significantly alter the charge(s) the guidance regarding direct communication with victims should be applied. Direct Communication with Victims - A Guide - CPS Online and see also Victims and Witnesses - Care and Treatment, legal guidance.