- The Law
- Charging Practice
- Threat to Destroy or Damage Property
- Damage Caused by Explosives
- Alternative Verdicts
- Damage to Property of Spouse - Consent of the DPP
- Sundry Statutory Provisions
- Heritage Crime
The Criminal Damage Act 1971 (the Act) is the primary source of offences involving damage to property and repealed the common law and statutory offences of arson.
See Archbold Chapter 23.
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.
Damage is not defined by the Act and what constitutes damage is a matter of fact and degree. 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.
The damage need not be visible or tangible if it affects the value or performance of the property.
For guidance on unauthorised acts with intent to impair, or with recklessness as to impairing, operation of a computer, refer to the Computer Misuse Act 1990, elsewhere in the Legal Guidance.
Following the House of Lords decision in R v G  1 A.C. 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:
- A circumstance when he is aware of a risk that it exists or will exist;
- A result when he/she is aware of a risk that it will occur; and
- It is, in the circumstances known to him, unreasonable to take the risk."
In relation to self-induced intoxication, DPP v Majewski  A.C. 443 still applies.
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.
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.
Section 5 of the Act sets out a defence to criminal damage charges, though not to aggravated criminal damage under Section 1(2).
Section 5(2) 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:
- 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 of or damage to 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; or
- if he destroyed or damaged or threatened to destroy or damage the property in question or, in the case of a charge of an offence under section 3 above, intended to use or cause or permit the use of something to destroy or damage it, 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:
- 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) 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.
Although it is generally assumed that this defence was intended to protect persons such as firemen in relation to the effects of water used to extinguish a house fire, or neighbours who demolish a dangerous wall before it falls down, this legislation has been interpreted widely so that the proximity between the act of damage by the perpetrator and the damage he seeks to prevent may be remote, and the causal link tenuous.
The subjective element set out in the "lawful excuse" defence has been scrutinised by the Court of Appeal on a number of occasions. In a line of cases that included R v Hunt (1978) 66 Cr. App. R. 105 and R v Hill, R v Hall (1989) 89 Cr App. R. 74 a degree of objectivity was introduced in relation to the defendant's belief in the "immediate" need of protection. However this line of authority appears to have been retreated from. Subsequent cases such as R v Wang (2005) 2 Cr. App. R. 136, HL that stated that if there is any evidence of "lawful excuse", no matter how tenuous or nebulous, the defence should be left to the jury.
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 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 Cases of Racist and Religious Crime, elsewhere in the Legal Guidance, and to Archbold 23-31a.
Files should be clearly identified as racial or religious incident cases: refer to Racially and Religiously Aggravated Crime elsewhere in the Legal Guidance.
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 which 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.
The provisions of Section 22 and Schedule 2 of the Magistrates' Courts Act 1980 (MCA) 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 to this Act . 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, she/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.
Accurate determination of the value of the damage is important to avoid the defendant being deprived of his/ her right to a Crown Court trial.
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 based upon representations made by the parties. 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 for any reason the value is unclear and the court is not certain whether it exceeds the relevant sum (£5,000), 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.
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 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 make up the relevant sum. 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 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.
Where property is destroyed or damaged by fire arson should be charged : see Section 1(3) of the Act.
Prosecutors should note that in any case of arson, a sentencing note should be provided by the Crown for the sentencing judge (see R v Cox  EWCA 1366 (Crim) below).
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.
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  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  2 All ER 168, CA. A defendant may be guilty, either if he 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 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 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.
The Sentencing Council has not yet produced sentencing guidelines for the offence of arson. In the Attorney General's Reference of R v Cox  EWCA 1366 (Crim), the court considered a number of authorities on the offence of arson being reckless as to endangerment of life including, in particular, Attorney General's Reference No 68 of 2008  EWCA Crim 3188,  2 Cr App R(S) 48 (R v Myrie). The review conducted in Myrie led that court to conclude that "the dividing line between the worst cases of reckless arson and the least serious cases of arson with intent to endanger life is a fine one". The court also considered some more recent cases:
- R v Black  2 Cr App R(S) 583; a sentence of 5 years for reckless arson after a plea at the earliest opportunity was upheld. In this case the offender in a 'moment of madness' set fire to a semi-detached house in which he lived. The offender was rescued but extensive damage was done to the property.
- R v Maitland-Thomas  EWCA Crim 1063;  1 Cr App R(S) 22; the defendant aged 55 and with no previous convictions pleaded guilty to reckless arson on the day of the trial. She deliberately set fire to a sofa in her flat whilst depressed and heavily intoxicated. The risk to the lives of other occupants of the flats was described as 'very real'. The Court of Appeal said a starting point of 5 years after a trial could not be criticised and held a sentence of four and a half years' imprisonment was not manifestly excessive.
- Attorney-General's Reference No 56 of 2015R v Hilton)  EWCA Crim 1442  1 Cr App R(S) 9; the offender, under the influence of drink and drugs, set fire to a wheelie bin outside a terraced house at night after a row with his partner, causing damage to a window and smoke damage to the house. The Court of Appeal said that the correct starting point was four and a half years and taking into account credit for plea increased the sentence from two years to three years' imprisonment.
In R v Cox, the court concluded that the sentence passed was unduly lenient, and that the starting point to adopt in this case, which the court regarded as 'exceptional', is one of 11 years. The court quashed the sentence of four and a half years passed by the judge and substituted for it one of nine and a half years' imprisonment. Prosecutors should note the conclusions of the court that the judge would have been assisted by a sentencing note setting out the range of sentences and, in any case of arson, there should be a sentencing note provided by the Crown.
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 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 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 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.
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 the Explosives guidance in the Legal Guidance.
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 1971 Act it is open to a jury to convict of criminal damage contrary to Section 1(1) of the 1971 Act (see section 6(3) of the Criminal Law Act 1967), notwithstanding that the value of the damage caused is under £5000; R v Fennell (2002) 2 Cr. App. R. 318 CA.
The Director of Public Prosecution's consent is required to institute 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.
The Criminal Damage Act 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 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.
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.
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) 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, elsewhere in the Legal Guidance.