Our Criminal Defence Team has extensive experience in representing clients who have been accused of Criminal Damage.
The following article offers a brief guide to Criminal Damage, which, we hope, will prove useful for those under police investigation or being prosecuted for the offence. Criminal Damage is a statutory offence, which is created by section 1 of the Criminal Damage Act 1971 (CDA):
“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.”
Section 1(2) CDA creates an aggravated form of Criminal Damage, for which the penalty upon conviction is more serious.
In relation to Criminal Damage to property of a value not exceeding £5,000, the maximum sentence that a Magistrates’ Court can impose is a fine of £2,500 and/or three months’ custody. The range of possible sentences that a Magistrates’ Court can impose starts at a Discharge, which may be imposed in relation to minor damage resulting from the offence. If tried in the Crown Court, the maximum sentence that the court can impose is 10 years’ custody. The range of possible sentences starts at a Discharge. If tried in a Magistrates’ Court, and the value of the damaged property exceeds £5,000, the maximum sentence that the court can impose is an unlimited fine and/or six months’ custody. The maximum sentence for Aggravated Criminal Damage is life imprisonment.
If accused of either Simple or Aggravated Criminal Damage, it is crucial that you seek legal advice at the earliest possible stage.
Simple Criminal Damage is generally triable either way meaning that, if a person is charged with the offence, their case can be heard in either the Crown Court or the Magistrates’ Court. However, if the value of the damaged property does not exceed £5,000, the offence must be tried in the Magistrates’ Court (s.22 Magistrates’ Courts Act 1980).
Aggravated Criminal Damage is triable on indictment only, which means that the case must be heard in the Crown Court (rather than the Magistrates’ Court).
Elements of the Offence: Simple Criminal Damage
A person can only be convicted of a criminal offence if all of the elements of the offence are proved beyond reasonable doubt.
The prosecution must prove the following elements in order for a person to be convicted of Criminal Damage:
- The CDA does not define the meaning of ‘damage’, but the case law tells us that determining whether something has been damaged is a question of fact and degree which is to be decided by the magistrates, or a jury. ‘Damage’ has been widely interpreted by the courts, and is not limited to permanent harm (which means that graffiti or slogans with chalk can amount to ‘damage’ for the purposes of the offence). ‘Damage’ need not be tangible or visible as long as it affects the value or performance of the item concerned, nor does it matter that the harm caused is remediable.
- The meaning of ‘property’ for the purposes of Criminal Damage is clearly set out in s.10(1) CDA. ‘Property’ means property of a tangible nature, and it follows that a copyright or data cannot represent property for the purposes of the offence.
Belonging to Another
- This element is also clearly set out in s.10(2) CDA. Property is treated as belonging to any person having custody or control of it, or a right or interest in it, or a charge on it. The effect of s.10(2) is that it is an offence to damage one’s own property if it also belongs to another person.
Intent or Recklessness
- In order for a defendant to be convicted of Criminal Damage, the prosecution must prove that the defendant intended to damage property belonging to another.
- If the prosecution cannot prove a direct intent, as above, the defendant can be convicted of the offence provided that the prosecution prove that they were reckless as to damaging the property. In order to do so, the prosecution must prove that the defendant was aware of a risk that property would be damaged and, in the circumstances which were known to them at the time, it was unreasonable for them to take that risk. Some of the personal characteristics of the defendant can be taken into account.
Section 5 CDA provides that a person charged with Simple Criminal Damage may have a defence if they have a ‘lawful excuse’ to damage the property. Such a lawful excuse may arise in two scenarios:
- If, at the time of causing the damage, the defendant believed that the person to whom the property belonged consented to said damage, or would have consented to it if they had known of the damage and its consequences; or
- This is a subjective test, which means that as long as the defendant can prove that they thought they had permission (or thought they would have had permission had the owner of the property been aware of the damage and its consequences), the defence will operate.
- If the defendant damaged property in order to protect their own or another’s property and at the time they caused the damage they believed the following:
- That the property was in immediate need of protection; and
- That the means of protecting the property that they used, or proposed to use, were or would be reasonable having regard to all the circumstances.
- In order for this limb of the defence to operate, the defendant must prove that they believed their actions to be reasonable. It is immaterial whether the actions were in fact reasonable.
The defence of lawful excuse does not apply to the aggravated offence (as explored below). This is because belief in the owner’s consent or the immediate need to protect property cannot justify the endangerment of life.
Elements of the Offence: Aggravated Criminal Damage
Aggravated Criminal Damage is identical to Simple Criminal Damage, in that in order for a defendant to be convicted of the aggravated offence, the prosecution must prove that the defendant (intentionally or recklessly) damaged property belonging to another (as above). However, the prosecution must also prove the following:
- Intention or Recklessness as to Endangering the Life of Another:
- This means that, in damaging the property, the defendant must have intended to endanger life, or been reckless as to the risk of whether or not life would be endangered. Note that the danger must have resulted from the defendant’s destruction of or damage to the property.
Aggravated Criminal Damage can be committed irrespective of whether the property ‘belongs to another’, which means that it doesn’t matter to whom the relevant property belongs. Even if the defendant damaged their own property, they may still be liable to be convicted of the Aggravated offence. This differs to Simple Criminal Damage, in that a defendant cannot be convicted of this offence if the property in question belongs to themselves alone.
How to instruct Bindmans
Our Criminal Defence Team has extensive experience in representing clients who have been accused of, and charged with, Criminal Damage. If you have any questions about this you can complete the form below or call the direct line number to speak to our specialist team +44 (0) 20 7014 2020 or in the case of emergency, call +44 (0)20 7305 5638 for our out of hours police station assistance. We will discuss your case with you during a preliminary consultation and advise you on the nature of any police investigation, or the case against you if you have been charged.