25.2 Criminal Damage

Criminal damage is a specified FLK2 offence in three forms: simple criminal damage, aggravated criminal damage, and arson. All three live in Criminal Damage Act 1971 s.1. A newly qualified solicitor who treats "damage" as a single crime will miss both the life-endangerment uplift and the mandatory fire label. Charge from the facts: what was damaged, whose property it was, whether fire was used, whether life was endangered by that damage, and whether a s.5 excuse is even available.

Simple criminal damage

Section 1(1) provides that 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, is guilty of an offence. Break it into actus reus, mens rea, and the absence of lawful excuse.

Destroy or damage

Destruction is straightforward. Damage is any physical interference that impairs the value or usefulness of the property, including temporary impairment if time, effort or money is needed to put it right. Painting slogans on a pavement was damage in Hardman v Chief Constable of Avon and Somerset because the local authority incurred cost in removing it, even though rain might later have washed the paint away. Flooding a police cell and soaking a blanket was damage in R v Fiak. A scratch that does not impair usefulness may not be damage (Morphitis v Salmon, on a scaffolding bar). Spitting on a police officer's raincoat, wiped away with a cloth, was not damage in A (a juvenile) v R. Mud smeared on a police cell wall that needed to be cleaned off was capable of being damage in Roe v Kingerlee. The exam question is not "was it messy?" but "was value or usefulness impaired, or did restoration cost something?"

Property belonging to another

Section 10(1) confines "property" to property of a tangible nature, whether real or personal, including money. Unlike theft, land can be damaged: slashing a fence, digging up a garden, or flooding a floor are all within the Act. Wild creatures that have been tamed or are ordinarily kept in captivity are property; other wild creatures or their carcasses are property only if reduced into possession and not lost or abandoned. Confidential information and electricity sit outside this offence in the same way they sit outside theft, though other statutes may apply.

Section 10(2) treats property as belonging to any person having custody or control of it, or having in it any proprietary right or interest. Damaging a hired car, or a wall in which a neighbour has an interest, is damaging property belonging to another even if D also has some interest. Simple s.1(1) cannot be committed on property that belongs only to D. That is why an owner who burns their own warehouse is not guilty of simple criminal damage, but may still be guilty of aggravated criminal damage or of arson in its aggravated form if the life-endangerment limb is met.

Mens rea: intention or R v G recklessness

The prosecution must prove intention to destroy or damage property belonging to another, or recklessness as to that result. After R v G [2003] UKHL 50, recklessness is subjective. D is reckless if he is aware of a risk that property would be destroyed or damaged, and it was, in the circumstances known to him, unreasonable to take that risk. Caldwell objective recklessness is not the law. Children and persons with limited capacity are judged on the risk they actually foresaw, not the risk a reasonable adult would have foreseen. A defendant who gave no thought to the risk is not reckless under R v G, though that may still leave an evidential argument about what they must have been aware of.

Transferred malice operates in the ordinary way: intending to break V's window and missing, breaking W's window instead, still supplies intention as to property belonging to another. Recklessness as to damage to one item of property can also found liability for damage to another if D was aware of that risk.

Lawful excuse: section 5

Section 5 supplies two statutory excuses for offences to which it applies. It applies to simple criminal damage and to simple arson. It does not apply to aggravated criminal damage or aggravated arson under s.1(2). That single proposition decides many SQE items.

Under s.5(2)(a), D has a lawful excuse if he believed that the person entitled to consent to the destruction or damage had consented, or would have consented if they had known of the destruction or damage and its circumstances. Under s.5(2)(b), D has a lawful excuse if he destroyed or damaged the property in order to protect property belonging to himself or another, and at the time he believed that the property was in immediate need of protection and that the means adopted were or would be reasonable having regard to all the circumstances. Section 5(3) states that it is immaterial whether a belief is justified, as long as it is honestly held.

Jaggard v Dickinson is the belief case everyone is expected to know: a drunken defendant who honestly believed she was breaking into a friend's house, with consent, could still rely on s.5(2)(a). The fact that drink caused the mistake did not strip out a defence that Parliament had framed in the language of belief. R v Denton is the consent case on the other side of the ledger: setting fire to a mill at the employer's request can be a believed consent. R v Hunt shows the limit of s.5(2)(b): setting fire to a bed to demonstrate that a fire alarm did not work was not acting in order to protect property. R v Hill and Hall shows the immediacy limit: cutting a fence at a nuclear base as a remote political protest was not protection of property in immediate need. Blake v DPP confirms that a claimed divine command is not a s.5 excuse.

There may also be a general-law excuse, such as self-defence or prevention of crime, which is not confined to s.5. Do not use s.5 language on a s.1(2) count.

Aggravated criminal damage

Section 1(2) provides that a person who without lawful excuse destroys or damages any property, whether belonging to himself or another, intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged, and 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, is guilty of an offence. Two features change the charging decision.

First, the property may be D's own. The owner who fires their own flat intending that the smoke will endanger a neighbour is within s.1(2). Second, there is a dual mens rea: intention or recklessness as to the damage, and intention or recklessness as to endangering life by that damage. Actual endangerment of life is not required. The word "thereby" in s.1(2)(b) is doing real work. The danger to life must come from the destruction or damage, not merely from the method D used. In R v Steer, shooting through a window endangered life by the bullets, not by the damaged window, so aggravated criminal damage was not made out. Contrast cases where the damaged property itself creates the danger: a brick through a car windscreen that causes flying glass to endanger the driver, or a fire whose smoke and flames endanger occupants (R v Warwick; R v Webster; R v Dudley). If the only danger is the shot, the bottle, or the blow, look to offences against the person, not to s.1(2).

Because s.5 does not apply, a believed consent to damage D's own insured building is no answer to a s.1(2) charge if D was reckless as to whether life would be endangered by the damage.

Arson

Section 1(3) states that an offence committed under s.1 by destroying or damaging property by fire shall be charged as arson. The fire is not a separate mental element bolted on top; it is a charging rule. If the damage is by fire, the count is arson contrary to s.1(1) and (3), or arson contrary to s.1(2) and (3) where the life limb is present. Simple arson still requires property belonging to another and is still open to s.5. Aggravated arson can be committed on D's own property and is not open to s.5. Recklessness as to whether property would be damaged by fire is enough for simple arson; the prosecution does not have to prove an intent to burn a particular building if D was aware of that risk and it was unreasonable to take it.

A lighted match dropped into a letterbox, a wheelie bin pushed against a door and ignited, and a cigarette left smouldering on a sofa are all charging problems about whose property was at risk and whether D foresaw damage by fire. If D foresaw only scorching of their own newspaper and a neighbour's curtain in fact burns, you still have to find awareness of a risk to property belonging to another, or rely on the aggravated form if D's own property was damaged and life was endangered by that fire.

SQE application

Take the facts in this order. Identify the tangible property and whether it belonged to another. Ask whether it was destroyed or damaged in the Hardman/Fiak sense. Ask whether the damage was by fire. Ask whether D intended that damage or was aware of a risk of it (R v G). If the Crown wants the aggravated offence, ask whether D intended, or was reckless as to, life being endangered by the damage itself. Only then consider s.5, and only on a simple count. A client who burned their own lock to regain entry, honestly believing the landlord would have consented, is in s.5(2)(a) territory on simple damage and nowhere on a s.1(2) count. A client who smashed a window during a burglary may face both burglary (ulterior damage under s.9(1)(a), or separate criminal damage) and simple criminal damage; do not merge the offences until every element of each is satisfied.