Revise Criminal damage as defined in Criminal Damage Act 1971 for Cambridge 9084 (2.2.7)

The basic offence of criminal damage is established by s.1(1) of the Criminal Damage Act 1971. It states that a person is guilty if they, without lawful excuse, destroy or damage any property belonging to another, intending to do so or being reckless as to whether it would be destroyed or damaged. This single sentence contains all the required elements for the offence. The actus reus (guilty act) consists of three parts: (1) destroying or damaging (2) property (3) belonging to another. The mens rea (guilty mind) is the intention or recklessness regarding the destruction or damage of that property. The phrase 'without lawful excuse' is also part of the actus reus, but it functions as a defence, with specific statutory provisions outlined in s.5 of the Act.

The terms 'destroy' and 'damage' are not defined in the Act, so their meaning has been developed through case law. Destruction implies the property has been rendered useless, whereas damage is a broader concept. Damage is a matter of fact and degree for the court to decide. It need not be permanent. In Roe v Kingerlee, smearing mud on a police cell wall was held to be damage as it cost £7 to clean. Similarly, in Hardman v Chief Constable of Avon and Somerset Constabulary, drawing on a pavement with water-soluble paint was deemed damage as the local authority had to use water jets to remove it. Even spitting on a policeman's coat was held to be damage in A (a juvenile) v R, as it required cleaning. The key factor is often whether time, effort, or expense is required to restore the property. However, trivial harm may not suffice, as seen in Morphitis v Salmon, where a scratch on a scaffolding bar that did not impair its value or usefulness was not considered damage.

The Act specifies what constitutes 'property' and to whom it must 'belong'. Under s.10(1), property is defined as tangible property, whether real (land and buildings) or personal (possessions). This definition notably excludes intangible property, such as data or information held on a computer; such acts are covered by the Computer Misuse Act 1990. Wild mushrooms, flowers, fruit, or foliage are also excluded unless picked for reward or sale. The concept of 'belonging to another' is defined broadly in s.10(2). It covers not just the owner, but anyone having custody or control of the property, a proprietary right or interest in it, or a charge on it. This means a person can be found guilty of damaging property that they legally own if, for example, it is co-owned with a partner or subject to a hire-purchase agreement where another party has a legal interest. However, if a defendant honestly believes the property is theirs, they lack the mens rea for the offence (R v Smith (1974)).

The mens rea for criminal damage is either intention or recklessness. Intention is given its standard legal meaning, covering both direct intent (the defendant's aim or purpose) and oblique intent (where the damage was a virtually certain consequence of their actions). The crucial element for A-Level study is recklessness. The House of Lords case of R v G and another (2003) confirmed that the test for recklessness in criminal damage is subjective. This means the prosecution must prove that the defendant personally foresaw a risk that property would be destroyed or damaged and went on to take that risk unreasonably. This overruled the previous objective test from MPC v Caldwell, which asked whether a 'reasonable person' would have foreseen the risk, regardless of whether the defendant actually did. The R v G test is seen as fairer as it judges the defendant on their own state of mind.

The absence of a lawful excuse is an element of the actus reus, but it operates as a defence for the defendant to raise. Section 5 of the CDA 1971 provides two specific lawful excuses. Under s.5(2)(a), a defendant has a defence if they believed they had, or would have had, the owner's consent. This belief must be honestly held, but it need not be reasonable (Jaggard v Dickinson, where an intoxicated belief was still held to be an honest one). Under s.5(2)(b), a defence exists if the defendant acted to protect property they believed was in immediate need of protection, and the means used were reasonable. The test for the defendant's belief in the need for protection is subjective (what did they honestly believe?), but the assessment of whether the protective measures were reasonable is objective. The threat must be immediate, not a future or remote possibility (R v Hill and Hall).

The CDA 1971 creates more serious offences for when the damage endangers life or is caused by fire.

Aggravated Criminal Damage (s.1(2)) This offence is committed when a person commits criminal damage (as above) and intends by the damage to endanger the life of another or is reckless as to whether the life of another would be thereby endangered.

• Actus Reus: Destroying or damaging property. Notably, under s.1(2), this can be the defendant's own property.
• Mens Rea: (1) Intention or recklessness as to the damage, AND (2) Intention or recklessness as to endangering life by the damage. The danger to life must arise from the damaged property itself, not from the act that caused the damage. For example, in R v Steer, the defendant shot at a house, breaking a window. The danger came from the bullets, not the broken window, so he was not guilty of aggravated damage.

Arson (s.1(3)) Arson is not a separate offence in itself, but a specific way of committing criminal damage under s.1(1) or s.1(2). Section 1(3) states that an offence committed under this section by destroying or damaging property by fire shall be charged as arson.

• Basic Arson: s.1(1) + s.1(3) - Damaging property by fire. Maximum sentence 10 years.
• Aggravated Arson: s.1(2) + s.1(3) - Damaging property by fire with intent/recklessness as to endangering life. Maximum sentence is life imprisonment.