Criminal Damage — SQE1 FLK2 Criminal Liability

A man sets a metal incinerator down on his lawn to burn garden rubbish, about a foot from his neighbour's close-boarded wooden fence. The evening is dry and windy. Everyone who saw that incinerator standing there thought at once that the fence would go up. It did. Sparks carried across, and six panels burned. Is he guilty of criminal damage? No.

He had simply not thought about the fence. Not once. And that is the end of it, however obvious the risk was to everybody else. This is Criminal Damage, one of the most commonly charged offences in England and Wales, and one of the tidiest topics in the syllabus. One short Act. Three offences. Two defences. Keep our man with the incinerator in mind.

Here is the route. The three offences, and the four elements of the basic one. Then what counts as damage, which is far less than you think. Then whose property it has to be. Then the two lawful excuses, and the trap about which offence they reach. Then recklessness, and the case that changed it. Then endangering life, and arson. And finally sentence and mode of trial.

Everything lives in the Criminal Damage Act 1971. Three offences, and they stack. Simple criminal damage under s.1(1). Aggravated criminal damage under s.1(2), which adds danger to life. And arson under s.1(3), which is criminal damage done by fire.

Take the basic offence apart. Four elements. The defendant destroyed or damaged property. It belonged to another. He acted without lawful excuse. And he intended the damage, or was reckless as to whether such property would be damaged. Miss one and there is no offence.

Start with damage, because the threshold is lower than instinct suggests. It need not be permanent. It need not be visible. The test is whether the value or the usefulness of the property has been impaired, and it is a question of fact and degree.

Mud smeared on the wall of a police cell is damage, because the wall was made dirty and had to be cleaned. So is soluble paint on a pavement that rain would eventually have washed away, because somebody had to pay to remove it. Time and labour are the usual marker.

And you need break nothing at all. Squirt fast-setting adhesive into the locks of three vans and you have damaged them, though the paint and metal are unmarked. They cannot be used until a specialist and a solvent have been paid for. Erase the program from the circuit card of a computerised saw and you have damaged the saw too.

But there is a floor. A scratch on a scaffolding bar was held not to be damage, because scratching is a normal incident of scaffolding and impaired neither its value nor its usefulness. And spitting on a police officer's raincoat was not damage, because it wiped off without mark or effort.

Now whose property. Under s.10(1), property means property of a tangible nature, whether real or personal. Real property is in, so land counts. Dig trenches across two golf greens and you have damaged the club's land. Worth remembering, because land generally cannot be stolen under the Theft Act 1968.

And s.10(2) says who it belongs to. Anyone with custody or control of it, anyone with a proprietary right or interest in it, and anyone with a charge on it. Much wider than ownership.

So a tenant who smashes the mirror and gouges the worktop in her rented flat is guilty, because the landlord keeps a proprietary interest in the structure and the fittings. Paying rent buys no licence to wreck the place.

Co-ownership is no licence either. Take a husband who puts a hammer through the family campervan, bought from a joint account and registered in both names. He is guilty, because his wife's share makes it property belonging to another.

Third element. Without lawful excuse. Section 5 gives two, and they are quite separate. The first, s.5(2)(a), is belief in consent. The second, s.5(2)(b), is protecting property in immediate need. Mixing them up is the classic error.

Consent first. You have a lawful excuse if you believed the person entitled to consent had consented, or would have consented had they known of the damage and its circumstances. And by s.5(3) it is immaterial whether the belief is justified, so long as it is honestly held. Honest, not reasonable.

Which produces a striking result. A woman drinks heavily and goes to a friend's house at two in the morning. Nobody answers, so she levers the back door open with a spade, genuinely believing her friend would not mind. The friend would in fact have refused. She has a lawful excuse.

That is Jaggard v Dickinson. Voluntary intoxication is normally no answer to a crime of basic intent. Here Parliament made honesty the sole test, and a drunken belief is still a belief.

The limb reaches further than you expect. A mill owner tells his employee the business is worth more as ashes and asks him to burn it for the insurance. The employee's conviction was quashed. He believed the person entitled to consent had consented, and a dishonest motive for consenting does not destroy it.

There is also a route that stops short of any defence. A tenant rips out shelving he fitted and paid for himself. In law those fittings had become the landlord's, but he honestly believed they were his own. A defendant who believes that has no intention to damage property belonging to another. The mens rea is simply missing.

Now the second excuse. The test in s.5(2)(b) needs three things. The damage was done in order to protect property, his own or another's. He believed the property was in immediate need of protection. And he believed the means adopted were reasonable in all the circumstances.

Only the first is objective. Was the act done in order to protect property, and was it capable of doing so? That is the gateway, and it is where most defendants fail. The other two are the defendant's own beliefs, and s.5(3) makes an honest belief enough.

A handyman at a care home reports a broken fire alarm three times and nothing is done. So he sets fire to a bundle of bedding to prove the alarms do not work. No excuse. His act was done to draw attention to the defect, not to protect the building, and burning bedding could protect nothing.

A campaigner is caught with a hacksaw blade outside a naval base, meaning to cut the fence so the base would close and her home be safe. No excuse. The link was far too remote, and nothing was in immediate need of protection.

Do not flip the test round. The reasonableness of the means is not objective. It is what the defendant believed. But a court need not accept that a belief was genuinely held, and the more extravagant the damage the harder that gets.

And now a trap that catches good candidates. Under s.5(1) these excuses apply to the basic offence, and to threats and possession except where endangering life is involved. It does not apply them to aggravated criminal damage at all.

So take a contractor authorised in writing to demolish a barn by any safe means. He topples a gable wall across an open footpath, narrowly missing two walkers he had seen might be there. He cannot run consent on the aggravated charge. An owner may consent to the destruction of his own property. Nobody can licence recklessness with lives.

Fourth element. Mens rea. Intention to destroy or damage property, or recklessness as to whether such property would be damaged. And recklessness here has a history you need.

The old test came from R v Caldwell, in 1982. A drunk man argued with his landlord and set fire to the hotel, saying he had never considered that the fire might spread. The House of Lords held he could be reckless anyway, if the risk would have been obvious to a reasonable person.

Then R v G, in 2003. Two boys, aged 11 and 12, set fire to newspapers under a wheelie bin behind a shop and went home. They expected the paper to burn itself out. It spread and did enormous damage. The House of Lords overruled Caldwell.

A defendant is reckless only where he was actually aware of a risk that his conduct would damage property. In the circumstances known to him, it must have been unreasonable to take it. Lord Bingham put it plainly. It is neither moral nor just to convict a defendant on the strength of what somebody else would have apprehended.

So back to our man and his incinerator. Everyone who saw it knew the fence would go up. He never thought about the fence. Not reckless. And note that he is an adult. R v G removed the objective test for every defendant.

Aggravated criminal damage, s.1(2). Everything in the basic offence, plus one more mental element. The defendant intended by the damage to endanger the life of another, or was reckless whether life would be so endangered. Another's life, not his own. Maximum, life imprisonment.

Two things fall away. First, ownership. Under s.1(2) the offence covers property whether belonging to the defendant himself or to another. Pour petrol through the letterbox of your own house knowing the family next door are at home, and you are guilty.

Second, actual danger. Set fire to a sofa in a squat believing rough sleepers are upstairs, and you are guilty. It makes no difference that bailiffs had cleared the building that morning, or that the fire could never have spread past a concrete wall. The question is what the defendant foresaw on the facts as he believed them to be.

Nor does a small repair bill help. Throw a firebomb at a house and produce a sheet of flame at the glass door, and it is no answer that the occupants beat it out at once. Destruction or damage in s.1(2) means the damage the defendant intended or foresaw, not the damage that resulted.

But there is a real limit, and it is the heart of the topic. R v Steer. The defendant fired a rifle at the windows of a bungalow with the occupants inside. The House of Lords quashed the aggravated conviction. The danger to life must come from the damage, not from the act which caused it.

They were endangered by the bullets, not by the broken glass. So always ask one question. What endangered life, the damage or the act? A bullet or a stone in flight is the act. Falling masonry, a collapsing ceiling, showering debris: that is the damage.

Push a stone off a railway bridge so it breaks a carriage roof and showers the passengers below, and the danger came from the damaged roof. Aggravated. Fire in an occupied building is the easiest case of all, because there the damage and the danger are the same thing.

Which brings us to arson. Under s.1(3), an offence under s.1 committed by destroying or damaging property by fire shall be charged as arson. That is all it does. No extra elements.

So a man who sets light to a stack of his employer's pallets against the warehouse wall commits arson when the wall is scorched. He had seen that the flames would reach the brickwork. Add foresight of danger to life and it is aggravated arson, which is indictable only and carries life.

Two smaller offences complete the Act. Section 2, threats. A threat to another to destroy or damage property belonging to that other or a third person, intending that the other would fear it would be carried out. Text a supplier that you will burn his van, meaning only to frighten him, and the offence is complete on communication.

Section 3, possession. Having anything in your custody or control intending to use it, or let another use it, to damage another's property. Picture a man stopped at two in the morning with a crowbar, spray paint and petrol-soaked rags, who says he is off to wreck the cars in his street. Guilty there and then. Section 3 has an own-property limb too, where he knows the use is likely to endanger somebody else.

Finally, sentence and mode of trial. Section 4 sets the maxima. Arson, life. Everything else under the Act, ten years. So simple criminal damage is ten years, aggravated criminal damage is life, and threats and possession are ten years each.

Mode of trial is not what a life maximum would suggest. Schedule 1 to the Magistrates' Courts Act 1980 lists both simple criminal damage and arson as triable either way. Only the s.1(2) offences are indictable only. Arson carries life and is still either way.

And one value rule. Under s.22 of that Act, where the damage is worth £5,000 or less the case must be tried summarily. But damage by fire is carved out. Melt a wheelie bin lid at a repair cost of £60 and it is still arson, still either way.

Separately, s.30 of the Crime and Disorder Act 1998 creates racially or religiously aggravated criminal damage, raising the maximum on indictment to fourteen years. Section 28 gives two routes: demonstrating hostility at the time, or being motivated wholly or partly by it.

A word on how SQE1 tests this. You will not be asked to recall case names or subsection numbers. You get a scenario and five answers, and you pick the best. The names here are memory pegs, nothing more.

If you keep only three. R v G, which made recklessness subjective, so the question is always what this defendant actually foresaw. R v Steer, which asks whether the danger came from the damage or from the act. And Jaggard v Dickinson, where an honest belief in consent works even drunk.

Four traps. One. Do not reach for the reasonable person on recklessness. That test died in 2003, and it died for adults as well as children.

Two. Do not assume you cannot damage your own property. The s.1(2) offence covers it expressly, and any co-owner, landlord or chargee gives you a victim under s.10(2).

Three. Do not run the section 5 excuses against an aggravated charge. s.5(1) does not reach it. Consent is a complete answer on simple damage and beside the point once life is endangered.

Four. Do not confuse the two aggravated ideas. The s.1(2) offence is about danger to life. The racially or religiously aggravated offence is under the Crime and Disorder Act 1998 and is about hostility. They are independent, and a life maximum does not make an offence indictable only.

Quick check. A man is sacked, and hurls a heavy steel spanner through the window of the site office where his former manager is working at a desk. The spanner passes within centimetres of the manager's head, forcing him to dive from his chair, and dents a filing cabinet. The window shatters, but the glass falls outwards into an empty yard and none of it goes near him. The prosecution charge aggravated criminal damage.

Is he guilty of it? Three answers. One: yes, because throwing a heavy metal object into an occupied room is inherently life-threatening conduct. Two: yes, because the broken window was capable of causing fatal injuries even though it fell outwards. Three: no, because any danger came from the flying spanner, not from the damage it caused. Pause here if you want a moment.

The answer is three. Under s.1(2) the danger to life must arise from the destruction or damage, not from the act which caused it. The only thing that endangered this manager was the spanner in flight. The glass, which is the damage, fell harmlessly into an empty yard. So the aggravated charge fails and simple criminal damage remains, with a possible assault charge alongside.

Why the others fail. Option one describes dangerous conduct, and dangerous conduct is exactly what the House of Lords held is not enough. Option two is the sharper trap, because broken glass often is the danger. Ask where it actually went. Outwards, into an empty yard.

Five things to take away. One: damage means impairing the value or usefulness of property, permanently or temporarily, so mud on a cell wall counts and a scratch on a scaffolding bar may not. Two: property belongs to another if anyone else has custody, control, a proprietary interest or a charge, which catches landlords and co-owners.

Three: the two excuses are belief in consent, which need only be honest, and protecting property, where only the gateway question is objective. Neither reaches the aggravated offence. Four: recklessness is what this defendant actually foresaw, so our man with the incinerator walks. Five: for the aggravated offence, ask whether the damage endangered life or merely the act did. Next time, General Defences.

Practise this topic with exam-style questions at sqe1prep.co.uk. This episode is for education and exam revision only, not legal advice, and we are not affiliated with or endorsed by the SRA or Kaplan.