Criminal damage is a crime in English law. Originally a common law offence, today it is defined for England and Wales by the Criminal Damage Act 1971, which creates several offences protecting property rights. The act provides a comprehensive structure covering merely preparatory acts to the severe offences of vandalism, arson and causing damage with intent to endanger life. As such, punishments vary from a fixed penalty to life imprisonment, and the court may order payment of compensation to a victim.
The common law offence was largely concerned with the protection of dwellings and the food supply, and few sanctions were imposed for damaging personal property. Liability was originally restricted to the payment of damages by way of compensation. As time passed, specific laws were introduced to deal with particular situations as they were judged to require intervention, most particularly alongside the rise of mechanisation and urbanisation during the Industrial Revolution.
History
Common law
The common law generally treated damage to another's chattels as a civil matter leading only to a right to damages in trespass or nuisance; in the 18th century, Blackstone stated:
Blackstone labelled these as "Private Wrongs" in his commentaries, emphasising that property rights were enforced inter partes, and that the state was not necessarily one of the involved parties. In fact, the criminal law only intervened in the case of arson, defining it as "the malicious and wilful burning of the house or outhouses of another man". This protection extended to barns and even "stacks of corn". Arson traditionally attracted the death penalty,. and had done so in Roman law..
Early legislation Whereas the common law protected habitation and sources of wealth and food in a largely agricultural society, the Industrial Revolution, especially the Luddism resulting from workers' perceived threats to their livelihood, required new legislation to match the circumstances. The reaction of Parliament to Luddism was to criminalise machine-breaking – the destruction of textile-making machinery – as early as 1721.. Initially the punishment was transportation to the Colonies but as a result of continued opposition to mechanisation the Destruction of Stocking Frames, etc. Act 1812 made the death penalty available..
Consolidation
A number of statutory provisions creating offences of damaging specific types of property were consolidated by the Malicious Injuries to Property (England) Act 1827 (7 & 8 Geo. 4. c. 30), which was one of Peel's Acts. This act and a number of subsequent statutes were consolidated by the Malicious Damage Act 1861.
Malicious Damage Act 1861
The Malicious Damage Act 1861Malicious Damage Act 1861 (24 & 25 Vict. c. 97). was a Victorian consolidation statute which set out detailed protections of property, most of which have now been superseded by the Criminal Damage Act 1971. The remaining provisions applicable in England and Wales are:
Section 35 - Placing wood, &c. on railway, with intent to obstruct or overthrow any engine, &c. Section 36 - Obstructing engines or carriages on railways Section 58 - Malice against owner of property unnecessary Section 72 - Offences committed within the jurisdiction of the Admiralty
Criminal Damage Act 1971
Definition Whereas the 1861 act protected in detail many different types of property, the Criminal Damage Act 1971 (1971 c. 48). Text was copied from this source, which is available under an Open Government Licence v3.0. © Crown copyright. (c. 48) provided a definition wide enough to apply to any tangible property. By section 1(1) of the act:
"Without lawful excuse" Apart from the general self-defence excuse applicable to any offence involving violent acts, section 5 of the act sets out specific provisions in relation to criminal damage: a defendant will have "lawful excuse" if
Section 5(3) of the act states that it is immaterial whether the defendant's belief is justified as long as it is an honest belief, and therefore creates a subjective test to be assessed by the court or jury. In Chamberlain v. Lindon (1998),Chamberlain v. Lindon EWHC 329. Lindon demolished a wall to protect a right of way, honestly believing that it was a reasonable means of avoiding litigation. It was said that:
However, in R v Hill and Hall (1989),R v. Hill and Hall 89 Cr. App. Rep. 74. the Court of Appeal introduced an objective element to part (b) of the defence. The defendants had been convicted of possession of a hacksaw blade outside a US naval base in Wales, having admitted an intention to use the blade to cut through the base's perimeter fence. They claimed a lawful excuse in that they had acted to protect their own property located near the base; their reasoning was that the base would at some point in the future attract a nuclear attack by the Soviet Union. Given that Hill was "forced to admit that she did not expect a nuclear bomb to fall today or tomorrow",. the Court concluded that this threat to property was too remote and thus the defence had not been made out, however honest the belief had been.
The case of Jaggard v Dickinson (1980)Jaggard v Dickinson 3 All E.R. 716. held that even a drunken belief will support the defence even though this allows drunkenness to negate basic intent; and Lloyd v DPP (1992)Lloyd v. DPP 1 All E.R. 982. ruled that a motorist who damages a wheel clamp to free his car, having parked on another's property knowing of the risk of being clamped, does not have a lawful excuse under the act even if he makes a mistake of law.
The courts have said that a defendant relying upon lawful excuse as a defence need not necessarily seek to put himself within section 5. In R v Denton (1981),R v. Denton EWCA 4. the defendant had been asked by his employer to set fire to the employer's factory to facilitate an insurance claim. Despite this, it was held that the owner of the factory was entitled to have it burned down (although not entitled to claim for any losses from his insurer for having done so!) – as the Lord Chief Justice put it, "[i]t is not an offence for a man to set light to his own ... property" – and therefore Denton, knowing this, had a lawful excuse independent of section 5.
"Destroys or damages"
Whether destruction or damage has occurred is an issue of fact and degree in each case and case law suggests that damage must be more than de minimis. In A (a juvenile) v R (1978),A (a juvenile) v. R Crim. L.R. 689. the defendant spat on a police officer's raincoat, which was easily wiped clean; it was held that this did not amount to damage within the Criminal Damage Act 1971. In Morphitis v Salmon (1989),Digested as Morphitis v. Salmon Crim. L.R. 48, Q.B.D. a scratch to a scaffolding pole could not be proven to have been done by the defendant, and the court doubted whether it could amount to damage anyway as it did not impair its value or usefulness. However, the conviction was quashed solely because the charge had alleged damage to a part of the scaffolding that had been removed by the defendant. The court was unanimous that had the charge been criminal damage for dismantling the barrier, they would have upheld the conviction as it impaired its usefulness as a barrier. Their reasoning being:
A different conclusion was reached in Hardman v Chief Constable of Avon and Somerset Constabulary (1986),Hardman v. Chief Constable of Avon and Somerset Constabulary Crim. L.R. 330. where graffiti, although eventually removable by action of rainfall, was actually washed away by the local authority, incurring expense, and was held to be criminal damage.
It is sufficient that any damage be merely temporary: in Cox v Riley (1986),Cox v. Riley 83 Cr. App. R. 54. the deletion of the program from a computer-controlled machine, rendering it unusable, was held to constitute damage. This decision was followed in R v. Whiteley (1991) in relation to computer hacking, although that conduct is now dealt with under the Computer Misuse Act 1990.Computer Misuse Act 1990 (1990 c. 18). In that case it was said that:
In R v Fiak (2005),R v. Fiak EWCA 2381. the defendant used a clean blanket to block the toilet of the police cell he was occupying, causing the water to overflow and flood his and other cells. The defence argued that clean water had flooded onto a waterproof floor, and that in the process the blanket was soaked by clean water. The blanket would have been reusable when dry. Cleaning up a wet cell floor did not constitute damage to the cell itself. The Court of Appeal noted that this argument assumed the absence of any possible contamination or infection from the lavatory itself, and held that while it is true that the effect of the appellant's actions in relation to the blanket and the cell were both remediable, the simple reality was that the blanket could not be used as a blanket by any other prisoner until it had been dried out and cleaned. Further, the flooded cells remained out of action until the water had been cleared. Thus, both had sustained damage, albeit temporary.
"Property" The definition of property in the Criminal Damage Act 1971 differs slightly from the Theft Act 1968Theft Act 1968 (1968 c. 60). in that it only includes "property of a tangible nature".Section 10 of the act. Land can be damaged, as in Henderson and Batley (1984),1984, unreported, C.A., cited in R v. Whiteley (1991) 93 Cr. App. Rep. 25. where the defendants had dumped rubble on a development site which cost a substantial sum to clear; it was held that this constituted damage to the land.
"Belonging to another" Section 10(2) of the Criminal Damage Act 1971 specifies that property shall be regarded as belonging to any person —
(a) having the custody or control of it; (b) 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 (c) having a charge on it.
These provisions are similar to those set out in section 5 of the Theft Act 1968 in relation to theft. It is clearly a right of property ownership to deal with property as one wishes, including its damage or destruction. However a person setting fire to his own house which is subject to a mortgage can be charged because the mortgagee will have a proprietary right or interest in the property.There will arise "a right to the purchase-money, a charge or lien on the estate for the security of that purchase-money, and a right to retain possession of the estate until the purchase-money is paid", per Lord Jessel M.R. in Lysaght v. Edwards (1876) 2 Ch. D. 499. Property that is abandoned has no owner, and cannot be stolen; it follows that such property cannot be the subject of a charge of criminal damage.
Intent and recklessness The mens rea of all offences in the Criminal Damage Act 1971 is direct or oblique intention, or subjective recklessness as defined by the House of Lords in R v G (2003).R v. G UKHL 50. Bingham L.J. stated that a person acts "recklessly" with respect to
(i) a circumstance when he is aware of a risk that it exists or will exist; or (ii) a result when he is aware of a risk that it will occur;
and it is, in the circumstances known to him, unreasonable to take the risk.R v. G, at para. 41. In Booth v. Crown Prosecution Service (2006)Booth v. Crown Prosecution Service EWHC 192. a divisional court upheld the defendant pedestrian's conviction on a charge that, by rashly dashing into the road, he recklessly damaged the vehicle that hit him because "the appellant was aware of the risk and closed his mind to it".
Aggravated criminal damage