Criminal Damage Offences
Destroying & Damaging the Property of Others
Establishing the Offence
The actus reus of criminal damage is to destroy or damage property belonging to another without lawful excuse: Criminal Damage Act 1971, s 1(1).
The mens rea of criminal damage is twofold. Firstly, the defendant must intend to destroy or damage property or be subjectively reckless as to whether the property would be damaged or destroyed: Criminal Damage Act 1971, s 1(1). Secondly, the defendant must know that the property belongs to another or be recklessness as to whether it belongs to another: R v Smith  QB 354.
‘Destroy’ or ‘Damage’
Damage covers ‘injury, mischief or harm’ to the property: Samuel v Stubbs  4 SASR 200. There is no need for the property to be rendered useless – the damage might only be slight: Gayford v Chouler  1 QB 316. Whether property is damaged is a matter of degree and depends on factors such as:
The nature of the property: Samuel v Stubbs  4 SASR 200.
The method by which the property is affected: Samuel v Stubbs  4 SASR 200.
The extent of physical intrusion into the property and the victim’s ability to use it: compare Lloyd v DPP  1 All ER 982 with R v Fiak  EWCA Crim 2381 and R v A (A Juvenile)  Crim LR 689.
‘Destroy’ means damage which is so extreme it completely demolishes, lays to waste or kills (in the case of animals) the property: Barnet London BC v Eastern Electricity Board  2 All ER 319.
The defendant’s motive or understanding of his act is not relevant to whether there has been destruction or damage: Seray-Wurie v DPP  EWHC 208 (Admin). This is particularly rleevant in graffiti cases, where the defendant might believe he is improving the property!
What is ‘Property’?
Property includes all items of a tangible nature (so not intellectual property or land rights). This includes tamed or captive animals, animal bodies and wild animals reduced to a person’s possession: Criminal Damage Act 1979, s 10(1). It does not include mushrooms, fruit or flowers growing wild on the land (s 10(1)), or people: R v Baker  Crim LR 497.
When Does Property ‘Belong to Another?’
Section 10 of the Criminal Damage Act 1971 provides that property belongs to another for the purposes of this offence if:
- Another person has custody or control of the property;
- Another person has a proprietary right or interest in the property (other than an interest arising out of an agreement to transfer or grant an interest); or
- Another person has a charge on the property.
Property held under a trust is treated as also belonging to any person with the right to enforce the trust.
For these purposes it does not matter that the defendant owns the property. It is enough that someone else meets one of the above criteria. Showing mens rea or lack of a lawful excuse may be difficult in such cases, however. If the defendant is the sole owner and no one else has any property rights, the property does not belong to another.
The following are two common examples of cases in which the defendant will have a lawful excuse:
The defendant honestly believed that another person (who the defendant believes is entitled to give consent) consented to the damage or destruction, or would do if they had known of the damage/destruction and its circumstances: Criminal Damage Act 1971, s 5(2)(a).
The defendant did the act in order to protect his own property or property right/interest, or that of another, or property he believed belonged to himself or another. The defendant must honestly believe the property needed immediate protection and believe that his methods were reasonable in all the circumstances: Criminal Damage Act 1971, s 5(2)(b). Whether an act is done ‘in order to’ protect property is objectively ascertained: R v Hunt (1978) 66 Cr App R 105.
The following are common cases where the courts have held there is no lawful excuse:
Damaging property as an act of political protest is not a lawful excuse: R v Pritchard  EWCA Crim 1981.
Damaging property to prevent the government from acting in breach of international law is not a lawful excuse: R v Pritchard  EWCA Crim 1981.
If the defendant commits criminal damage using fire, it is charged as arson instead: Criminal Damage Act 1971, s 1(3). The elements of the offence are the same, with an additional requirement that fire is used to damage or destroy the property and that the defendant intends to use fire to damage or destroy.
Destroying & Damaging the Property with Intent to Endanger
Establishing the Offence
The actus reus of criminal damage with intent to endanger is destroying or damaging property (as defined above) without lawful excuse, regardless of whether it belongs to himself or another person: Criminal Damage 1979, s 1(2).
The mens rea of criminal damage with intent to endanger is two-fold. Firstly, the defendant must intend to destroy or damage property, or be subjectively reckless as to whether property would be destroyed or damaged. Secondly, the defendant must intend to endanger another’s life by destroying or damaging the property, or must be subjectively reckless as to whether another’s life would be endangered: Criminal Damage 1979, s 1(2).
It does not matter that no life was actually endangered: R v Parker  Crim LR 856; R v Sangha  2 All ER 385.
The defendant must intend to endanger life by damaging property – it is insufficient that he intends to harm someone and incidentally damages property in the process: R v Steer  AC 111; R v Warwick  1 Cr App 492.
Unlike the basic criminal damage offence, the defendant does not have a lawful excuse merely because he believes he has consent or was acting to protect property: Criminal Damage Act 1971, s 5(1).
Threats to Destroy or Damage Property
Establishing the Offence
The actus reus of threatening to destroy of damage property is making a threat (to damage property) to another person, without lawful excuse: Criminal Damage Act 1971, s 2. Whether there is lawful excuse depends on which offence is threatened.
The mens rea of the offence is established if, by making the threat, the defendant intended that the other person would fear that it would be carried out to either a) destroy or damage property belonging to them or a third-party or b) destroy or damage the defendant’s own property in a way which he knows is likely to endanger the life of the other person or a third-party: Criminal Damage Act 1971, s 2.
Whether there is a threat is determined objectively. The threat can be implied. It is not relevant how the victim actually interpreted the threat so long as the defendant intended the relevant effect: R v Cakmak  2 Cr App R 10. It is enough that the defendant intended the victim to fear that the threat might be carried out even if they could not be certain: R v Ankerson  EWCA Crim 432.