Criminal damage - Simple criminal damage

Learning Outcomes

This article explains the offence of simple criminal damage under s 1(1) of the Criminal Damage Act 1971. After reading this article, you should understand the components of the actus reus, including the meaning of 'destroy or damage', 'property', and 'belonging to another'. You will also understand the mens rea requirements of intention and recklessness, and the scope of the specific statutory defence of 'lawful excuse'. This knowledge will enable you to identify and apply the correct legal principles to SQE1 assessment questions concerning simple criminal damage.

SQE1 Syllabus

For SQE1, you are required to understand the offence of simple criminal damage and its application. Focus your revision on:

• The elements of the offence of simple criminal damage under s 1(1) Criminal Damage Act 1971.
• The definitions of 'property' and 'belonging to another' under the Criminal Damage Act 1971.
• The mens rea requirements of intention and recklessness as applied to criminal damage.
• The scope and application of the defence of lawful excuse under s 5 of the Criminal Damage Act 1971.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is NOT 'property' for the purposes of the Criminal Damage Act 1971?
   1. A car parked on the street.
   2. Wild mushrooms growing in a public park.
   3. A garden shed belonging to a neighbour.
   4. A laptop computer owned by a company.
2. D kicks V's wooden garden fence, causing one of the panels to crack. D intended to kick the fence. Has D committed the actus reus of simple criminal damage?
   1. No, because the damage was minor.
   2. No, unless the fence required expensive repairs.
   3. Yes, because property belonging to another was damaged.
   4. Yes, but only if the panel was completely destroyed.
3. What is the required mens rea for simple criminal damage?
   1. Intention to destroy or damage property belonging to another.
   2. Recklessness as to destroying or damaging property belonging to another.
   3. Either intention or recklessness as to destroying or damaging property belonging to another.
   4. Negligence as to destroying or damaging property belonging to another.
4. D smashes the window of a car, honestly believing it belongs to his friend who D thinks would consent. The car actually belongs to a stranger. Can D rely on the lawful excuse defence under s 5(2)(a) CDA 1971?
   1. No, because his belief was unreasonable.
   2. No, because the owner did not actually consent.
   3. Yes, if his belief was honestly held, even if unreasonable.
   4. Yes, but only if his friend would genuinely have consented.

Introduction

This article examines the offence of simple criminal damage contrary to section 1(1) of the Criminal Damage Act 1971 (CDA 1971). Understanding this offence is essential for SQE1 as it involves core principles of actus reus, mens rea, and specific statutory defences. You will need to identify these elements in factual scenarios and apply the relevant legal rules. Simple criminal damage occurs when a person intentionally or recklessly destroys or damages property belonging to another, without a lawful excuse.

Actus Reus

The actus reus of simple criminal damage under s 1(1) CDA 1971 consists of three elements: (1) destroying or damaging (2) property (3) belonging to another. The absence of a lawful excuse is often treated as part of the actus reus, although strictly it functions as a defence.

Destroying or damaging

Neither ‘destroy’ nor ‘damage’ is defined in the CDA 1971. ‘Destroy’ implies rendering property useless or ceasing its existence. ‘Damage’ is a matter of fact and degree for the tribunal of fact (magistrates or jury). It covers not only permanent physical harm but also temporary impairment of value or usefulness, or where time, effort, or expense is required to restore the property to its previous condition.

Key Term: Criminal Damage Destroying or damaging property belonging to another without lawful excuse, contrary to s 1(1) CDA 1971.

Examples of Damage:

• Hardman v Chief Constable of Avon and Somerset [1986] Crim LR 330: Water-soluble paint applied to pavements was held to be damage because the local authority incurred expense in cleaning it off, even though it would have eventually washed away naturally.
• Roe v Kingerlee [1986] Crim LR 735: Smearing mud on the walls of a police cell was considered damage, as time and effort were required to clean it.
• A (a juvenile) v R [1978] Crim LR 689: Spitting on a police officer’s coat was held not to be damage, as it could be easily wiped off without impairing the coat’s value or usefulness and without incurring expense.

Damage can be temporary. Adding water to an engine's oil sump, causing the engine to seize but being repairable, constitutes damage.

Property

Section 10(1) CDA 1971 defines property for the purposes of the Act.

Key Term: Property Under s 10(1) CDA 1971, property means property of a tangible nature, whether real (land and buildings) or personal (moveable items), including money.

• Tangible Property: This includes physical items that can be touched. Land and buildings are 'real property'. Moveable items like cars, furniture, or animals are 'personal property'.
• Exclusions:
  • Intangible property (eg, confidential information, copyrights, data held on a computer) is not property under the CDA 1971 (R v Whiteley (1991) 93 Cr App R 25). However, damaging the physical medium (eg, erasing a program from a plastic circuit board - Cox v Riley (1986) 83 Cr App R 54) can constitute damage to tangible property.
  • Wild mushrooms, flowers, fruit, or foliage growing wild on any land are not property unless picked for reward, sale, or other commercial purpose (s 10(1)(b)).
  • Wild creatures not tamed or ordinarily kept in captivity cannot be property unless reduced into possession (eg, captured) (s 10(1)(c)). Domesticated animals or animals kept in captivity (eg, zoo animals) are property.

Belonging to another

The property damaged must belong to another person at the time of the damage or destruction. Section 10(2) CDA 1971 defines 'belonging to another'.

Key Term: Belonging to another Under s 10(2) CDA 1971, property belongs to any person having custody or control of it, 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 having a charge on it.

This definition is wide and means property can belong to more than one person simultaneously (eg, owner and someone borrowing it). Importantly, a person can be liable for damaging property they own if another person also has a relevant interest in it (eg, damaging your own house subject to a mortgage – the bank has a charge).

Without lawful excuse

This element functions as a defence. The CDA 1971 provides specific statutory defences under s 5, often referred to as 'lawful excuses'. These apply only to simple criminal damage (s 1(1)) and simple arson (s 1(3)), not the aggravated offences under s 1(2). The general defences (eg, self-defence) may also apply.

Mens Rea

The mens rea for simple criminal damage has two parts:

1. Intention or recklessness as to the destruction or damage of property.
2. Knowledge or belief that the property belongs to another (or recklessness thereto).

Intention or recklessness as to damage

• Intention: D acts with the aim or purpose of destroying or damaging property.
• Recklessness: This is assessed subjectively based on R v G and Another [2003] UKHL 50. The defendant must:
  • be aware of a risk that property will be destroyed or damaged; and
  • in the circumstances known to them, it must be unreasonable to take that risk.

Knowledge or belief property belongs to another

The defendant must know or believe the property belongs to another, or be reckless as to whether it does. An honest but mistaken belief that the property is one's own negates the mens rea, even if the belief is unreasonable (R v Smith [1974] QB 354).

Worked Example 1.1

Question: David is angry with his neighbour, Sarah, about a boundary dispute. He takes a can of spray paint and spray-paints an offensive word on Sarah’s garden wall. He knows the wall belongs to Sarah and intends to damage it. Does David have the necessary mens rea for simple criminal damage?*

Answer: Yes. David intends to damage property (the wall). He also knows the property belongs to another (Sarah). Both elements of the mens rea are satisfied.

Worked Example 1.2

Question: Clara throws a ball against her own garage door out of frustration. The ball bounces off unexpectedly and smashes the window of her neighbour’s car. Clara did not intend to damage the car and genuinely did not think there was any risk of the ball hitting it. Is Clara likely to be guilty of simple criminal damage to the car?*

Answer: Unlikely. The actus reus is satisfied (damage to property belonging to another). However, the mens rea requires intention or subjective recklessness. If Clara genuinely did not foresee any risk of damaging the neighbour's car, she was not reckless under the R v G test. The prosecution would need to prove she was subjectively aware of the risk and unreasonably took it.

Lawful Excuse (s 5 CDA 1971)

Section 5 CDA 1971 provides two specific defences, often termed 'lawful excuses', applicable only to simple criminal damage and simple arson. If either applies, the defendant is acquitted.

Key Term: Lawful Excuse A specific statutory defence to simple criminal damage under s 5 CDA 1971, based either on belief in consent (s 5(2)(a)) or belief that action was necessary to protect property (s 5(2)(b)).

Belief in Consent (s 5(2)(a))

A defendant has a lawful excuse if, at the time of the act causing the damage, they believed that the person entitled to consent to the damage:

• had consented; or
• would have consented had they known of the damage and its circumstances.

The belief must be honestly held, but it does not need to be reasonable (s 5(3)). Even a mistaken belief induced by voluntary intoxication can suffice, as long as it is genuinely held (Jaggard v Dickinson [1980] QB 527).

Worked Example 1.3

Question: John gets drunk and breaks his friend Mark's window, thinking Mark would let him sleep inside. Mark would never have consented. John genuinely believed Mark would consent due to his intoxication. Does John have a lawful excuse?*

Answer: Yes. Under Jaggard v Dickinson, an honest belief, even if mistaken and induced by voluntary intoxication, can satisfy the requirements of s 5(2)(a) CDA 1971. The test is subjective – did John honestly believe Mark would consent? If so, he has a lawful excuse.

Protection of Property (s 5(2)(b))

A defendant has a lawful excuse if they damaged property in order to protect property belonging to themselves or another (or a right or interest in property) and they believed:

• the property was in immediate need of protection; and
• the means of protection adopted were reasonable in the circumstances as the defendant believed them to be.

This defence also hinges on the defendant's honest belief (s 5(3)), but there is an objective element: the defendant's actions must be objectively capable of protecting the property (R v Hunt (1977) 66 Cr App R 105; Blake v DPP [1993] Crim LR 586).

Immediate Need

The perceived threat must be immediate (Johnson v DPP [1994] Crim LR 673 – changing locks on a squat was not justified as there was no immediate threat to property).

Reasonable Means

The defendant must believe the means used were reasonable. Again, the belief need only be honest, not necessarily objectively reasonable.

Exam Warning

The s 5(2)(b) defence applies only to the protection of property, not people. If force is used to protect a person, the relevant defence is self-defence (see relevant article on General Defences). Also, the lawful excuse defences under s 5 do not apply to charges of aggravated criminal damage or aggravated arson (s 5(1)).

Key Point Checklist

This article has covered the following key knowledge points:

• Simple criminal damage involves destroying or damaging property belonging to another without lawful excuse (s 1(1) CDA 1971).
• 'Damage' is a matter of fact and degree, including temporary impairment of value or usefulness or requiring expense/effort to rectify.
• 'Property' under s 10(1) is tangible property (real or personal), excluding intangibles and certain wild plants/creatures.
• 'Belonging to another' under s 10(2) includes custody, control, proprietary rights, or charges. One can damage property they co-own or property they own if another has a relevant interest (eg, a mortgage).
• The mens rea is intention or subjective recklessness (R v G) as to destroying or damaging property belonging to another.
• Lawful excuse under s 5 provides a defence based on an honest belief in consent (s 5(2)(a)) or an honest belief that the act was necessary to protect property in immediate danger using reasonable means (s 5(2)(b)). This defence does not apply to aggravated offences.

Key Terms and Concepts

• Criminal Damage
• Property
• Belonging to another
• Lawful Excuse