Criminal Damage

Question 1

Simple Damage—Criminal Damage Act 1971, s. 1(1)

Answer 1

• Triable either way
• 10 years’ imprisonment on indictment
• Six months’ imprisonment and/or a fine summarily

The Criminal Damage Act 1971, s. 1 states:
(1)
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.

Question 2

Simple Damage

Answer 2

Although triable either way, if the value of the property destroyed or the damage done is less than £5,000, the offence is to be tried summarily (Magistrates’ Courts Act 1980, s. 22). If the damage in such a case was caused by fire (arson), this rule will not apply.

The fact that the substantive offence is, by virtue of the value of the damage caused, triable only summarily does not make simple damage a ‘summary offence’ for all other purposes. If it did, you could only be found guilty of attempting to commit criminal damage if the value of the intended damage was more than £5,000 (because the Criminal Attempts Act 1981 does not extend to summary offences) (see chapter 1.3). Therefore, where a defendant tried to damage a bus shelter in a way that would have cost far less than £5,000 to repair, his argument that he had only attempted what was in fact a ‘summary offence’ was dismissed by the Divisional Court (R v Bristol Magistrates’ Court, ex parte E [1999] 1 WLR 390).

The Theft Act 1968 states that where the property in question belonged to D’s spouse or civil partner, a prosecution for unlawful damage may only be instituted against D by or with the consent of the DPP (s. 30(4)). This restriction does not apply to other persons charged with committing the offence jointly with D; nor does it apply when the parties are separated by judicial decree or order or under no obligation to cohabit (s. 30(4)(a)).

Where the damage caused is less than £300, the offence can be dealt with by way of fixed penalty notice.
If the offence involves only the painting or writing on, or the soiling, marking or other defacing of, any property by whatever means, the power to issue a graffiti notice may apply (under s. 43 of the Anti-social Behaviour Act 2003).

The racially or religiously aggravated form of this offence is triable either way irrespective of the cost of the damage.

Question 3

Racially or Religiously Aggravated—Crime and Disorder Act 1998, s. 30(1)

Answer 3

• Triable either way
• 14 years’ imprisonment and/or a fine on indictment
• Six months’ imprisonment and/or a fine summarily

Question 4

Destroy and Damage

Answer 4

The terms ‘destroy’ or ‘damage’ are not defined. ‘Destroying’ property suggests that it has been rendered useless but there is no need to prove that ‘damage’ to property is in any way permanent or irreparable.

Whether an article has been damaged will be a question of fact for each court to determine on the evidence before it. Defacing of a pavement by an artist using only water-soluble paint (Hardman v Chief Constable of Avon and Somerset [1986] Crim LR 330) and graffiti smeared in mud can amount to damage, even though it is easily washed off (Roe v Kingerlee [1986] Crim LR 735). In R v Fiak [2005] EWCA Crim 2381, the defendant had been arrested and placed in a police cell which he flooded by stuffing a blanket down the cell lavatory and repeatedly flushing. The defendant argued that there was no evidence that the blanket or the cell had been ‘damaged’; the water had been clean and both the blanket and the cell could be used again when dry. The Court of Appeal disagreed and held that while the effect of the defendant’s actions in relation to the blanket and the cell was remediable, the reality was that the blanket could not be used until it had been dried and the flooded cell was out of action until the water had been cleared. Therefore both had sustained damage for the purposes of the Act. This case illustrates that putting property temporarily out of use, even for a short time and in circumstances where it will revert to its former state of its own accord, may fall within the definition of ‘damage’.

Question 5

Property is defined in the 1971 Act by s. 10 which states:

Answer 5

(1)
In this Act ‘property’ means property of a tangible nature, whether real or personal, including money and—
(a)
including wild creatures which have been tamed or are ordinarily kept in captivity and any other wild creatures or their carcasses if, but only if, they have been reduced into possession . . . or are in the course of being reduced into possession; but
(b)
not including mushrooms growing wild on any land or flowers, fruit or foliage of a plant growing wild on any land.

Question 6

Property

Answer 6

This definition is similar to the definition of ‘property’ for the purposes of theft (see chapter 3.1) but there are some differences, e.g. ‘real’ property (i.e. land and things attached to it) can be damaged even though it cannot be stolen, whereas intangible property (such as copyright) can be stolen but cannot be damaged. Trampling flower beds, digging up cricket pitches, chopping down trees in a private garden and pulling up genetically modified crops could potentially amount to criminal damage.

Pets or farm animals are property for the purposes of this Act. Cases of horses being mutilated would, in addition to the offence of ‘cruelty’ itself, amount to criminal damage.

Question 7

Section 10 states:

Answer 7

(2)
Property shall be treated for the purposes of this Act as belonging to any person—
(a)
having the custody or control of it;
(b)
having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest); or
(c)
having a charge on it.

Question 8

Belonging to Another

Answer 8

This extended meaning of ‘belonging to another’ is similar to that used in the Theft Act 1968. One result is that if a person damages his/her own property, he/she may still commit the offence of simple criminal damage if that property also ‘belongs to’ someone else.

Question 9

Lawful Excuse

Answer 9

Section 5 of the Criminal Damage Act 1971 provides for two occasions where a defendant may have a ‘lawful excuse’. These can be remembered as ‘permission’ (s. 5(2)(a)) and ‘protection’ (s. 5(2)(b)). Both involve the belief of the defendant.

Question 10

A person shall be treated as having lawful excuse under s. 5(2):

Answer 10

(a)
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 . . .

Question 11

Example - Permission

Answer 11

An elderly motorist asks you to help him get his keys out of his partner’s car as he had locked them inside. You tell the motorist that the car may be damaged as a result of your efforts but the motorist tells you that is alright and to go ahead. Section 5(2)(a) would provide a statutory defence to any later charge of criminal damage by the owner. The main element here would be that you believed you had the consent of the motorist (who is someone you believed to be entitled to consent to that damage) to damage the vehicle in these circumstances.

Question 12

A person shall be treated as having lawful excuse under s. 5(2):

Answer 12

(b)
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—
(i)
that the property, right or interest was in immediate need of protection; and
(ii)
that the means of protection adopted or proposed to be adopted were or would be reasonable having regard to all the circumstances.

Question 13

Protection

Answer 13

A ‘right or interest in property’ includes any right or privilege in or over land, whether created by grant, licence or otherwise (s. 5(4)).

Key features of this defence are the immediacy of the need to protect the property and the reasonableness of the means of protection adopted. This defence has attracted the most attention of the courts in cases involving demonstrators claiming to be acting in furtherance of their political beliefs. In a case involving ‘peace campaigners’, it was held that the threat presented by a possible nuclear attack in the future did not excuse the carrying of a hacksaw for cutting through the perimeter fence of an airbase (R v Hill (1989) 89 Cr App R 74).

This defence also applies to the offence of having articles for causing damage (see para. 3.10.6).

Question 14

Belief

Answer 14

It is immaterial whether a ‘belief’ was justified as long as it was honestly held (s. 5(3)). Although this test is supposed to be an objective one, the evidence will be based largely on what was going through a defendant’s mind at the time. In Jaggard v Dickinson [1981] QB 527, the defendant had broken a window to get into a house. Being drunk at the time, she had got the wrong house but the court accepted that her belief (that it was the right house and that the owner would have consented) had been honestly held, and that it did not matter whether that belief was brought about by intoxication, stupidity, forgetfulness or inattention. That is not to say, however, that any honestly held belief will suffice.

An example of someone claiming, unsuccessfully, a defence under both s. 5(2)(a) and (b) can be seen in Blake v DPP [1993] Crim LR 586. There the defendant was a vicar who wished to protest against Great Britain’s involvement in the Gulf War. In order to mark his disapproval, the defendant wrote a quotation from the Bible in ink on a pillar in front of the Houses of Parliament. He claimed:

• he was carrying out God’s instructions and had a lawful excuse based on his belief that God was the person entitled to consent to such damage and that God had in fact consented or would have done so (s. 5(2)(a)); and
• he had damaged the property as a reasonable means of protecting other property located in the Gulf from being damaged by warfare (s. 5(2)(b)).

The Divisional Court did not accept either proposition, holding that in the first case a belief in God’s consent was not a ‘lawful excuse’ and, in the second case, that the defendant’s conduct was too remote from any immediate need to protect property in the Gulf States. The test in relation to the defendant’s belief appears then to be largely subjective (i.e. what was/was not going on in the defendant’s head at the time) but with an objective element in that the judge/magistrate(s) must decide whether, on the facts as believed by the defendant, his/her acts were capable of protecting property.

Taking a different tack, peace campaigners in R v Jones (Margaret) [2004] EWCA Crim 1981 argued that their fear of the consequences of war in Iraq, which they claimed to be illegal, prompted them to conspire to cause damage at an airbase and that such fear amounted both to duress (as to which, see para. 1.4.6) and lawful excuse under s. 5(2)(b). The Court of Appeal held that a jury would be entitled to consider some of the subjective beliefs of the defendants in determining the reasonableness of their actions.

In R v Kelleher [2003] EWCA Crim 2846, a demonstrator at the Guildhall Gallery knocked the head off a statue of Baroness Thatcher claiming that he acted in fear for his son’s future which had been placed in jeopardy by the joint actions of the US and UK governments, and for which Baroness Thatcher was partly responsible. His appeal against conviction brought under s. 5(2)(b) failed.

Section 5(5) allows for other general defences (see chapter 1.4) at criminal law to apply in addition to those listed under s. 5.

It is not an offence to damage your own property unless there are aggravating circumstances. This is the case even if the intention in doing so is to carry out some further offence such as a fraudulent insurance claim (R v Denton [1981] 1 WLR 1446).

Question 15

Aggravated Damage—Criminal Damage Act 1971, s. 1(2)

Answer 15

• Triable on indictment
• Life imprisonment

The Criminal Damage Act 1971, s. 1 states:
(2)
A person who without lawful excuse destroys or damages any property, whether belonging to himself or another—
(a)
intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and
(b)
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;
shall be guilty of an offence.

Question 16

Aggravated Damage

Answer 16

The aggravating factor in this offence is the intention of endangering life or recklessness as to whether life is endangered. The life endangered must be that of another (not the life of the defendant).

The reference to ‘without lawful excuse’ does not refer to the statutory defences under s. 5, which are not applicable here, but to general excuses such as self-defence or the prevention of crime.

You must show that the defendant either intended or was reckless as to the following consequences:

• the damage being caused; and
• the risk of endangering the life of another.
  Where a defendant fired a gun through a window pane, he was clearly reckless as to the damage his actions would cause. However, the court felt that even though two people were standing behind the window and they were obviously put in some danger, it was the missile which endangered their lives and not the result of the damage. Therefore the court held that the defendant was not guilty of this particular offence (R v Steer [1988] AC 111). In R v Webster and Warwick [1995] 2 All ER 168, damaging the windscreen of a car or ramming a car was held to be capable of endangering life as a result of the damage.

It is the damage which the defendant intended or was reckless about which is relevant, rather than the actual damage that happens to be caused (this could turn out to be minor damage). In R v Dudley [1989] Crim LR 57, trivial damage was caused but the conviction was upheld since the defendant created a risk of much more serious damage which was capable of endangering life.

Question 17

Arson—Criminal Damage Act 1971, s. 1(3)

Answer 17

• Triable either way
• Life imprisonment on indictment
• Where life is not endangered six months’ imprisonment and/or a fine summarily

The Criminal Damage Act 1971, s. 1 states:
(3)
An offence committed under this section by destroying or damaging property by fire shall be charged as arson.

Question 18

Arson

Answer 18

When ‘simple’ or ‘aggravated’ damage is caused and the destruction or damage is caused by fire, the offence will be charged as ‘arson’. The restrictions on the mode of trial for simple damage under s. 1(1) do not apply to cases of arson. Aggravated damage caused by arson is triable only on indictment and carries a maximum penalty of life imprisonment.

Criminal liability for either gross negligence or unlawful act manslaughter may arise from an offence of arson. In R v Willoughby [2004] EWCA Crim 3365, the defendant enlisted the help of another man in burning down a public house on which the defendant owed money. Having poured petrol around the inside of the building, the defendant set fire to it, killing the other person and injuring himself in the process. The defendant was convicted of both arson and manslaughter. The Court of Appeal held that by convicting the defendant of arson, the jury had showed that they were sure that he (on his own or jointly) had deliberately spread petrol by being reckless or with the intention that the premises would be destroyed. Provided that such conduct had been the cause of the death, the jury were therefore also bound to convict the defendant of manslaughter.

Question 19

Threats to Destroy or Damage Property—Criminal Damage Act 1971, s. 2

Answer 19

• Triable either way
• 10 years’ imprisonment on indictment
• Six months’ imprisonment and/or a fine summarily

The Criminal Damage Act 1971, s. 2 states:

A person who without lawful excuse makes to another a threat, intending that that other would fear it would be carried out,—
(a)
	to destroy or damage any property belonging to that other or a third person; or
(b)
	to destroy or damage his own property in a way which he knows is likely to endanger the life of that other or a third person;
	shall be guilty of an offence.

Question 20

Threats to Destroy or Damage Property

Answer 20

The key element is the defendant’s intention that the person receiving the threat fears it will be carried out. So there is no need to show that the other person actually feared or believed that the threat would be carried out or that the defendant intended to carry it out; nor does it matter whether the threat was even capable of being carried out.

Example

If a person, enraged by a neighbour’s inconsiderate parking, shouts over the garden wall, ‘When you’ve gone to bed I’m going to pour paint stripper over your car!’, the offence will be complete, provided you can show that the person making the threat intended the neighbour to fear it would be carried out.

Where a group of protestors staged a protest in the pods of the London Eye and threatened to set fire to themselves, their conduct was held to be capable of amounting to a threat to damage the property of another (as a consequence of setting themselves on fire) contrary to s. 2(a) (R v Cakmak [2002] EWCA Crim 500).

In Cakmak, the court held that the gist of the offence under s. 2(a) was the making of a threat and that any such threat had to be considered objectively.

Whether:
* there has been such a threat to another;
* the threat amounted to ‘a threat to damage or destroy property’;
* the defendant had the necessary state of mind at the time;
are all questions of fact for the jury to decide (per Cakmak).

While not usually enough to amount to the substantive offence under s. 2, a person’s conduct which represents a threat to damage property may be relevant in triggering police action. In Clements v DPP [2005] EWHC 1279 (Admin), several protestors left a public highway, crossed a ditch and approached the perimeter fence of an RAF base. The defendant ignored a police warning to return to the road and the police attempted to restrain the protestors in order to prevent criminal damage to the fence. After a scuffle, the defendant was subsequently convicted of assaulting a police constable in the execution of his duty (as to which, see para. 2.7.14.2). The key issues at trial were whether the police officer had acted in the course of his duty and the extent to which the officer had reasonable grounds to believe that the defendant would cause criminal damage. The Divisional Court held that the officer had to consider the whole event in context and at the relevant time a political protest was ensuing; the defendant had deliberately left the public highway and refused to return to it; he had no legitimate reason to approach the fence; and it was plainly reasonable for the police officer to believe that he could cause criminal damage to the fence.

The defence to criminal damage under s. 5(2) (‘permission’—see para. 3.10.2.5) does not apply where the accused knows that the threatened damage is likely to endanger life.

Question 21

Having Articles with Intent to Destroy or Damage Property—Criminal Damage Act 1971, s. 3

Answer 21

• Triable either way
• 10 years’ imprisonment on indictment
• Six months’ imprisonment and/or a fine summarily

The Criminal Damage Act 1971, s. 3 states:

A person who has anything in his custody or under his control intending without lawful excuse to use it or cause or permit another to use it—
(a)
	to destroy or damage any property belonging to some other person; or
(b)
	to destroy or damage his own or the user’s property in a way which he knows is likely to endanger the life of some other person; shall be guilty of an offence.

Question 22

Having Articles with Intent to Destroy or Damage Property

Answer 22

This offence covers anything which a defendant has ‘in his custody or under his control’, a broader term than ‘possession’. This offence applies to graffiti ‘artists’ carrying aerosols and advertisers with adhesives for sticking illicit posters.

The key element is intention. This time the required intention is that the ‘thing’ be used to cause criminal damage to another’s property or to the defendant’s own property in a way which the defendant knows is likely to endanger the life of another.

Just as it is not an offence to damage your own property in a way which endangers no one else, neither is it an offence to have something which you intend to use to cause damage under those circumstances.

Example

If the owner of a 10-metre high conifer decides to trim the top with a chainsaw and a ladder, putting himself, but no one else, at considerable risk, he commits no offence either by causing the damage or by having the chainsaw. If he intends to fell the tree in a way which he realises will endanger the life of his neighbours or passers-by, then he may commit the offence under s. 3(b).

Such articles are ‘prohibited’ articles for the purposes of the power of stop and search under s. 1 of the Police and Criminal Evidence Act 1984.

A conditional intent (an intent to use something to cause criminal damage if the need arises) will be enough (R v Buckingham (1976) 63 Cr App R 159).

There is a statutory power to apply to a magistrate for a search warrant under s. 6 of the Criminal Damage Act 1971 for anything that could be used or is intended to be used to destroy or damage property.

Question 23

The Criminal Damage Act 1971, s. 6 states:

Answer 23

(1)
If it is made to appear by information on oath before a justice of the peace that there is reasonable cause to believe that any person has in his custody or under his control or on his premises anything which there is reasonable cause to believe has been used or is intended for use without lawful excuse—
(a)
to destroy or damage property belonging to another; or
(b)
to destroy or damage any property in a way likely to endanger the life of another,
the justice may grant a warrant authorising any constable to search for and seize that thing.
(2)
A constable who is authorised under this section to search premises for anything, may enter (if need be by force) and search the premises accordingly and may seize anything which he believes to have been used or to be intended to be used as aforesaid.

Question 24

Contamination or Interference with Goods—Public Order Act 1986, s. 38(1)

Answer 24

• Triable either way
• 10 years’ imprisonment and/or a fine on indictment
• Six months’ imprisonment and/or a fine summarily
  The Public Order Act 1986, s. 38 states:
  (1)
  It is an offence for a person, with the intention—
  (a)
  of causing public alarm or anxiety, or
  (b)
  of causing injury to members of the public consuming or using the goods, or
  (c)
  of causing economic loss to any person by reason of the goods being shunned by members of the public, or
  (d)
  of causing economic loss to any person by reason of steps taken to avoid any such alarm or anxiety, injury or loss,
  to contaminate or interfere with goods, or make it appear that goods have been contaminated or interfered with, or to place goods which have been contaminated or interfered with, or which appear to have been contaminated or interfered with in a place where goods of that description are consumed, used, sold or otherwise supplied.
  (2)
  It is also an offence for a person, with any such intention as is mentioned in paragraph (a), (c) or (d) of subsection (1), to threaten that he or another will do, or to claim that he or another has done, any of the acts mentioned in that subsection.
  (3)
  It is an offence for a person to be in possession of any of the following articles with a view to the commission of an offence under subsection (1)—
  (a)
  materials to be used for contaminating or interfering with goods or making it appear that goods have been contaminated or interfered with, or
  (b)
  goods which have been contaminated or interfered with, or which appear to have been contaminated or interfered with.
  (4)
  . . .
  (5)
  In this section ‘goods’ includes substances whether natural or manufactured and whether or not incorporated in or mixed with other goods.
  (6)
  The reference in subsection (2) to a person claiming that certain acts have been committed does not include a person who in good faith reports or warns that such acts have been, or appear to have been, committed.

Question 25

Contamination or Interference with Goods

Answer 25

‘Goods’ includes ‘natural’ goods (e.g. fruit and vegetables) or ‘manufactured’ goods (e.g. shampoo or disinfectant).

Section 38 creates two offences. The first involves the contamination of, interference with or placing of goods with the intentions set out at s. 38(1)(a)–(d). An example of this offence is the case of R v Cruikshank [2001] EWCA Crim 98, where the offender pleaded guilty to contaminating food in a supermarket by inserting pins, needles and nails into various items. He persisted in this behaviour for three months and some minor injuries were incurred by customers who bought the contaminated products.

Section 38(2) involves the making of threats to do, or the claiming to have done, any of the acts in s. 38(1) with any of the intentions set out at s. 38(1)(a), (c) or (d). It is difficult to see how a threat or claim made with the intention of causing injury to the public (s. 38(1)(b)) would not also amount to an intention to cause them alarm or anxiety but the legislation clearly excludes it.

Section 38(6) allows for people to communicate warnings in good faith where such acts appear to have been committed.

Where threats to contaminate goods are made, there may also be grounds for charging blackmail. A good example of threats to commit this offence and the overlap with blackmail is the case of R v Witchelo (1992) 13 Cr App R (S) 371, where the defendant, a police officer, was sentenced to 13 years’ imprisonment after obtaining £32,000 from food producers to whom he had sent threatening letters.