Criminal damage - Arson

Learning Outcomes

This article examines arson under the Criminal Damage Act 1971, including:

• the statutory definition of arson as criminal damage by fire, and how to distinguish fire damage from smoke-only damage for accurate charging
• the actus reus elements of arson, including destruction or damage, the requirement that simple arson involve property “belonging to another,” and when omissions can satisfy the conduct element
• the mens rea for arson, focusing on intention and the subjective recklessness test from R v G [2003], and how knowledge or belief about ownership affects liability
• the distinction between simple and aggravated arson, with emphasis on how endangerment to life must arise from the damage itself, illustrated by cases such as R v Steer and R v Wenton
• the scope and limits of lawful excuse under s 5 CDA 1971, especially belief in consent and protection of property, and why these excuses are unavailable for aggravated arson
• key charging, triability and sentencing considerations, including the effect of the s 1(3) “arson” label and differing maximum penalties
• practical techniques for applying these principles to SQE1-style multiple-choice and scenario questions, spotting common traps, and structuring concise, exam-focused analysis.

SQE1 Syllabus

For SQE1, you are required to understand the offence of arson as a form of criminal damage, with a focus on the following syllabus points:

• the statutory definition of arson under the Criminal Damage Act 1971
• the actus reus and mens rea for arson, including the use of fire
• the distinction between simple arson and aggravated arson (endangering life)
• the requirements for intention and recklessness (subjective test)
• the operation and limits of lawful excuse as a defence to arson
• the application of key case law to arson scenarios
• how endangerment to life must arise from the damage, not merely the act causing the damage
• charging and drafting considerations under s 1(3) (arson label; “damage by fire” wording), triability and sentencing maxima

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What are the essential elements of the actus reus and mens rea for arson under the Criminal Damage Act 1971?
2. How does aggravated arson differ from simple arson?
3. What is the test for recklessness in arson cases following R v G [2003]?
4. Can a defendant rely on lawful excuse as a defence to aggravated arson?

Introduction

Arson is a serious criminal offence involving the destruction or damage of property by fire. It is a specific form of criminal damage under the Criminal Damage Act 1971. For SQE1, you must be able to identify the elements of arson, distinguish it from other forms of criminal damage, and apply the relevant legal principles to practical scenarios. The “fire” element matters: only damage caused by fire is charged as arson; damage caused only by smoke is charged as criminal damage, not arson. Simple arson requires the property to belong to “another” and allows statutory lawful excuse; aggravated arson removes those features and adds an ulterior mens rea relating to endangering life. The recklessness test is subjective: the defendant must foresee the risk and, in the circumstances known to them, take an unreasonable risk.

Key Term: arson
The offence of unlawfully destroying or damaging property by fire, with the necessary intention or recklessness.

Statutory Definition of Arson

Arson is defined by section 1(3) of the Criminal Damage Act 1971:

"An offence committed under this section by destroying or damaging property by fire shall be charged as arson."

This means that arson is not a separate offence but is criminal damage where the method is fire. The indictment or charge should reflect that the damage was “by fire.” Courts have accepted charges describing “damage by fire” even without using the word “arson,” though labelling the offence as “arson” is desirable as the penalties for damage by fire differ from damage by other means. In practice:

• simple arson (s 1(1) + s 1(3)) is triable either way; the maximum sentence on indictment is 10 years’ imprisonment
• aggravated arson (s 1(2) + s 1(3)) is triable only on indictment; the maximum sentence is life imprisonment

Key Term: criminal damage
The offence of unlawfully destroying or damaging property belonging to another, with intention or recklessness as to such damage.

Elements of Arson

Actus Reus

To prove arson, the prosecution must show:

1. Destruction or damage – There must be physical harm to property.
2. By fire – The damage must be caused by fire (not smoke alone).
3. Property – The item damaged must be property as defined by law.
4. Belonging to another – For simple arson, the property must belong to another.

Key Term: actus reus
The physical elements of an offence, such as the conduct, result, or circumstances required.

The “destruction or damage” concept has breadth. Property is “destroyed” when rendered useless; “damage” exists where its value or usefulness is impaired, or where time, effort, or expense is needed to restore it. Very slight damage by fire can suffice (for example, charring), but mere smoke blackening without fire damage is not arson. If the damage is caused only by smoke and not by fire, the offence is criminal damage rather than arson.

“Property” covers tangible property (realty and personalty). Intangible property such as data is not included under the CDA 1971 definition. “Belonging to another” is satisfied where someone other than the defendant has custody or control, proprietary rights or interests, or a charge over the property. Co-owned property can “belong to another,” so damaging a jointly owned item can meet this element. For simple arson, the property must belong to another; for aggravated arson, this requirement falls away.

Arson may be committed by an omission where the defendant creates a dangerous situation and fails to take steps to prevent or mitigate fire damage. If a person accidentally starts a fire and then, aware of the risk, unreasonably fails to act and the fire causes damage, the actus reus of arson may be satisfied through the failure to act.

Mens Rea

The defendant must either:

• Intend to destroy or damage property by fire; or
• Be reckless as to whether property would be destroyed or damaged by fire.

Key Term: mens rea
The mental element of an offence, such as intention or recklessness.

Key Term: recklessness
Awareness of a risk that a result will occur or a circumstance exists, and unreasonably taking that risk.

The test for recklessness is subjective: the defendant must actually foresee the risk and go on to take it (R v G [2003]). It must also be unreasonable in the circumstances known to the defendant to take that risk.

For simple arson, there is an additional knowledge/belief element: the defendant must know, or believe, that the property belongs to another (or may do). A genuine mistake of civil law regarding ownership (for example, believing fixtures installed by the defendant still belong to them when they belong to a landlord) can negate this element.

Where the defendant intended to cause damage by a different method, but a fire unexpectedly breaks out and causes the damage, liability for arson requires proof that the defendant intended or was reckless as to damage by fire. If not, simple criminal damage may be the appropriate charge.

Worked Example 1.1

Scenario: Liam sets fire to a pile of rubbish in his garden. He realises the wind might carry sparks to his neighbour’s shed but lights the fire anyway. The shed catches fire and is damaged.

Answer:
Liam is likely guilty of arson. He damaged property by fire, and he was subjectively aware of the risk to the neighbour’s shed but took that risk. The damage was caused by fire, not merely smoke, and his risk-taking was unreasonable in the circumstances.

Aggravated Arson

Aggravated arson is defined by section 1(2) and 1(3) of the Criminal Damage Act 1971. It is arson committed with the additional mens rea of intending to endanger life or being reckless as to whether life is endangered by the damage.

Key Term: aggravated arson
Arson where the defendant intends or is reckless as to whether life is endangered by the damage caused by fire.

Key Term: endangering life
The defendant intends, or is reckless as to, life being endangered by the damage; life need not be actually endangered, but the risk must arise from the damage itself.

The prosecution must prove:

• The actus reus and mens rea for arson; and
• That the defendant intended or was reckless as to endangering life by the damage.

“Endangering life” focuses on the defendant’s state of mind; it is unnecessary for any person’s life to be actually endangered (R v Sangha). Crucially, the endangerment must arise from the damage caused, not from the act that caused the damage. This distinction matters:

• where shots are fired through a window, danger from the bullets does not suffice; the danger must arise from the broken glass or structural damage
• where a brick is thrown through a window and then a petrol bomb is thrown, the act endangering life (the fire) must correspond with the damaging act being relied on for the aggravated offence

Courts emphasise fair labelling: a defendant is liable where they intend, or are reckless as to, endangering life by the damage they intend or foresee, rather than by happenstance. In arson cases, the risk to life typically arises from the conflagration (falling ceilings, structural collapse), and not simply from the initial match or accelerant as an act separate from the damage.

Other important distinctions:

• the damaged property need not belong to another; it may be the defendant’s own
• the statutory lawful excuses under s 5 do not apply to aggravated arson (general defences may still apply)

Attempted aggravated arson is recognised: it suffices that the defendant intends criminal damage and is reckless as to endangering life by the damage for attempt liability.

Worked Example 1.2

Scenario: Priya sets fire to a block of flats intending to scare the occupants. She knows people are inside but hopes they will escape. The fire is quickly extinguished and no one is harmed.

Answer:
Priya is likely guilty of aggravated arson. She intended to endanger life by setting fire to an occupied building; it is irrelevant that no one was actually harmed. The endangerment arises from the fire damage itself.

Worked Example 1.3

Scenario: Max throws a brick through a shop window, breaking it. He then tosses a lit petrol-soaked cloth into the shop, which is immediately extinguished and causes no fire damage. The prosecution charges aggravated arson relying on the initial window damage.

Answer:
Max is unlikely guilty of aggravated arson on these facts. The endangerment to life must arise from the damage relied upon. Breaking the window did not itself endanger life. The later act (throwing the lit cloth) might constitute attempted aggravated arson, but the aggravated offence cannot be built on damage (the broken window) that did not endanger life.

Lawful Excuse and Defences

Section 5 of the Criminal Damage Act 1971 provides two main lawful excuses:

1. Belief in Consent: The defendant honestly believed the owner consented or would have consented to the damage.
2. Protection of Property: The defendant honestly believed the property was in immediate need of protection and that the means adopted were reasonable.

Key Term: lawful excuse
A statutory defence to criminal damage where the defendant honestly believes in consent or acts to protect property.

Key Term: belief in consent
The defendant’s honest belief that the owner consented or would have consented to the damage, even if mistaken.

Key Term: protection of property
Acting to protect property believed to be in immediate need of protection, with honestly held belief as to necessity and reasonableness.

Belief in consent is assessed subjectively; it need not be reasonable if genuinely held. An intoxicated mistaken belief can still suffice for this statutory defence. “Owner consent” must relate to a person entitled in law to consent; appeals to divine consent are not valid.

Protection of property has a mixed structure. The defendant’s purpose must truly be to protect property—this is initially assessed on an objective basis from the evidence. If that threshold is met, two subjective components must be satisfied:

• an honest belief that the property was in immediate need of protection
• an honest belief that the means adopted were reasonable in the circumstances

Courts are strict about immediacy: speculative or remote risks do not suffice. Protecting persons (as opposed to property) is outside this statutory defence. Insurance or financial motives are also not valid bases for lawful excuse.

Important: Lawful excuse is not a defence to aggravated arson where life is endangered. However, general defences (for example, duress, insanity, automatism) may apply where appropriate.

Worked Example 1.4

Scenario: Sam breaks a window and starts a fire in a neighbour’s house, believing (wrongly) that the neighbour would want him to do so to claim insurance.

Answer:
Sam cannot rely on lawful excuse. His belief is neither about valid consent nor about protecting property in immediate need. Insurance fraud is not a valid reason. He is likely guilty of arson (and, depending on the facts, potentially aggravated arson if he intended or was reckless as to endangering life).

Worked Example 1.5

Scenario: Noor chisels off a lock and replaces it on a disused house where she is squatting. She says she honestly believed she was protecting her possessions from theft.

Answer:
Noor is unlikely to succeed with lawful excuse. Even if her purpose related to property, there was no immediate need of protection, and the future risk she perceived is insufficient. The means adopted (damaging and replacing the lock) would not be justified under this defence.

Exam Warning

In arson questions, always check whether the defendant foresaw the risk of fire and whether the risk was to property or life. For aggravated arson, it is not necessary for anyone to be actually harmed—awareness of the risk is enough. Do not overlook:

• whether damage was caused by fire (not just smoke)
• whether, in aggravated arson, the endangerment arises from the damage itself, not the act causing the damage
• whether the property must belong to another (simple arson) and the defendant’s knowledge or belief on that point
• the unavailability of s 5 lawful excuse for aggravated arson

Revision Tip

Remember: The test for recklessness in arson is subjective. The defendant must actually foresee the risk, not merely that a reasonable person would have done so. For aggravated arson, life need not be actually endangered; the focus is on the defendant’s state of mind and whether the danger to life would arise by the damage caused.

Summary

For charging and sentencing: simple arson is triable either way (maximum 10 years on indictment); aggravated arson is triable only on indictment (maximum life imprisonment).

Key Point Checklist

This article has covered the following key knowledge points:

• Arson is criminal damage by fire under the Criminal Damage Act 1971.
• The actus reus is damaging property by fire; smoke-only damage is not arson.
• The mens rea is intention or subjective recklessness (R v G) as to damage by fire.
• For simple arson, the defendant must know or believe the property belongs to another.
• Aggravated arson requires intention or recklessness as to endangering life by the damage.
• The endangerment must arise from the damage itself, not merely from the act causing the damage.
• It is not necessary for life to be actually endangered for aggravated arson (risk suffices).
• Lawful excuse (s 5) is available to simple arson but not to aggravated arson; protection of property requires immediacy and reasonable means; belief in consent is subjective.
• Charging considerations: s 1(3) requires criminal damage by fire to be charged as arson; wording “damage by fire” is acceptable; penalties are more severe for arson, especially aggravated arson.

Key Terms and Concepts

• arson
• criminal damage
• actus reus
• mens rea
• recklessness
• aggravated arson
• endangering life
• lawful excuse
• belief in consent
• protection of property