Criminal damage is often defined as the unlawful, intentional or reckless damage or destruction to property belonging to another person; this may include and is not limited to arson, graffiti and dumping waste.
Whether the damage inflicted on the property is permanent or temporary, an offender can still be convicted and tried in court as any physical alteration to the property concerned is considered criminal damage.
Criminal Damage Act 1971
What constitutes for criminal damage can be found in the Criminal Damage Act 1971, although certain offences are specified within the Malicious Damage Act 1861.
Under the 1971 Act, the following characteristics should be established when proving the act of causing criminal damage:
- Permanent or temporary damage was inflicted
- That damage or destruction occurred on property that belonged to another
- The devastation to the property was without lawful excuse
- The offender had the intention to cause damage, or destruction to the property, or be reckless as to whether any property would be damaged or destroyed.
It is for the court to decide whether there has been an instance of criminal damage during a case as there is no specific definition of ‘damage’ written within the 1971 Act.
‘Damage’ should be widely interpreted and applied to any tangible property. However, courts often interpret the meaning of criminal damage by the following:
- Temporary or permanent damage to a property, which can include minor offences such as kicking a ball at a wall, missing and breaking a window, or setting someone else’s property on fire.
- Damage does not have to be visible so long as the property’s value or usefulness has been affected.
What is recklessness?
When convicting a person of criminal damage, the plaintiff must be able to prove that the defendant acted with unlawful intent or with recklessness.
Reckless behaviour is often defined as:
- The person knowingly commits the offence despite being aware of the risks that exist or will exist
- The defendant knows that exposure to danger will occur
- Or they are aware that it was unreasonable to take that risk given the situation known to them.
Belonging to another
Under Section 10 of the 1971 Act specifies property belonging to another as having a charge on that property, legal ownership or proprietary interest, or custody of it.
It is within the legal right of the owner to handle the property as one wishes. Still, they may be liable for criminal damage if, for example, the house is subject to a mortgage, as the property then belongs to another.
Having “lawful excuse”
Section 5 of the 1971 Act contains a defence of ‘lawful excuse’ to criminal damage charges under the following circumstances:
- The person believed that they had the consent of the other to damage the property in question, or
- The defendant caused the damage or destruction in self-defence and with reasonable force, or
- If the damage was caused while protecting the property in question, the means taken to protect that property were not unreasonable, and the person honestly believed it needed protecting.
Intent to endanger life
According to the 1971 Act, a defendant can be deemed guilty of criminal damage if that person intended to endanger life by damaging or destroying property, or for being reckless as to whether the life of another would be endangered.
An offence perpetrated by fire should be indicted as arson with intent, or for being reckless as to whether the life in question would be at serious risk from the damage caused. However, under s1 (2) of the 1971 Act, when damage is caused by aggravated arson, the specific charges are preferred:
- Intending to destroy or damage property, or being reckless and intending to endanger the life of another when damaging/destroying property, or
- Being reckless over whether life would be endangered while damaging or destroying property, or having the intent to destroy/damage property.
The court should consider adjustments for aggravating or mitigating factors. In any instance where it is unclear whether there was intention or recklessness, the offender may be charged with both counts depending on culpability and harm.
Threatening to destroy or damage property
Under Section 2 of the 1971 Act, a person who threatens to damage or destroy property without lawful excuse can be found guilty of two offences if:
- Intent to destroy or damage property belonging to another or a third person, or
- To destroy the defendant’s property, knowing it will likely endanger the life of the person threatened or a third person.
Sentencing criminal damage
Under the Sentencing Council’s guidelines, in criminal damage cases where the value of damage does not exceed £5000, the maximum sentence that can be given is six months’ imprisonment, a level 4 fine, or both depending on culpability and harm.
For offences where the damage caused exceeds £5000, and cases are taken to the Crown Court, the maximum sentence given will be ten years’ imprisonment