Criminal Damage

What is meant by Criminal Damage?  

Criminal damage is any damage which has been caused by an individual to some form or property. When a case is concerned with damage to property which is criminal the case is brought by the state against that individual in a criminal court.

Probably the best example of criminal damage is arson.

Legislation

When dealing with offences concerning damage to property the Criminal Damage Act 1971 is the primary piece of legislation.  There are a few offences still contained within the Malicious Damage Act 1861 but the main body of legislation is contained within the Criminal Damage Act 1971.

Criminal Damage is defined by the Criminal Damage Act 1971 as occurring when 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 will be destroyed or damage shall be guilty of the offence.

Therefore the following elements need to be established:

  • Damage
  • To Property
  • Belonging to another
  • That was damaged without lawful excuse
  • Intention to cause the damage / recklessness as to whether the damage would be caused

Damage

Definition of Damage

There is no specific definition of damage contained within the Criminal Damage Act 1971 and so it is up to the court on a case by case basis to establish whether there has in fact been damage taking into account matters of fact and degree. When discussing damage there are a couple of factors which should be taken into consideration however.

  • There is no requirement for the damage to be permanent. This could include smearing mud or paint etc on property
  • The damage does not have to be visible. In this case if the damage affects the proper functioning of the property then that will be taken to be damage regardless of the fact it cannot be seen.  

Recklessness

In order to prove criminal damage one of the key aspects to be present is that the defendant acted in a reckless manner. Section 1 of the Criminal Damage Act 1971 defines recklessness as the following:

A person acts recklessly with respect to:

  • A circumstance when he is aware of a risk that exists or will exist;
  • A result when he / she is aware or a risk that it will occur.

And it is, in the circumstances known to him, unreasonable to take that risk.

There is no need to separate intention and recklessness. For the offence to exists it is only sufficient to prove recklessness.

Property

Property is defined by Section 10 of the Criminal Damage Act 1971 to have a wider definition that property under the Theft Act 1968 so that it includes land. This means that if waste is dumped onto another individuals land then this will fall within the definition of criminal damage.

Belonging to Another

Property will be deemed to belong to any person

  • Who has custody or control of it
  • Having a propriety right or interest
  • Having a charge on it.

This means that an owner can damage his or her own property if at the same time it belongs to someone else falling within the definition contained in Section 10. An example of this is the property being owned by the individual but also to the mortgage company if the property is the subject of a mortgage.

Without Lawful Excuse

Section 5 of the Criminal Damage Act 1971 provides a list of circumstances whereby it would be held to be a lawful excuse and therefore a defence against a charge of criminal damage. They are as follows:

  • Whereby at that time the person believed that consent was given
  • If the damage was caused during the protection of that persons 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 said to have been without lawful excuse if it does not fall within Section 5 of the Criminal Damage Act 1971.

Intent to Endanger Life

Section 2 of the Criminal Damage Act 1971 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.

As is the case here where it is not with the simple case of Criminal Damage the judge will separate it into two counts in order to assist the jury and to enable the judge to know on what basis the jury has convicted. The two counts are as follows:

  • Intending to destroy / damage property or being reckless as to whether property will be destroyed / damaged and intending to endanger the life of another
  • Intending to destroy / damage property or being reckless as to whether property will be destroyed / damaged and being reckless as to whether life would be endangered
  • Intention and recklessness are seen as one in the same when it comes to the damage committed to the property but are separated when it comes to whether there was intention to endanger the life of another. This is specifically seen in cases concerning arson. That is criminal damage by fire.

Threat to Destroy or Damage Property

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

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

In both cases the defendant has to intend that that the person threatened would fear that the threat would be carried out.

Sentencing

For cases where the damage is less than £5000 the maximum sentence usually handed down will not be greater than six months imprisonment. For offences of criminal damage where the damage caused is over £5000 the maximum sentence will be 10 years imprisonment.