Criminal damage - Simple criminal damage

Learning Outcomes

This article explains the offence of simple criminal damage under s 1(1) of the Criminal Damage Act 1971 and its importance for SQE1 problem questions. It identifies and applies the core components of the actus reus (destroy or damage; property; belonging to another), highlighting issues such as minor or temporary impairment, damage by omission, and the limits of what counts as 'property' for the purposes of the Act. It analyses the mens rea of intention and subjective recklessness, together with the requirement of knowledge or belief that the property belongs to another, and how honest but mistaken beliefs, including mistakes of civil law, can negate liability. It also explains the statutory lawful excuse defence in s 5, focusing on belief in consent, protection of property, and the significance of the defendant’s honest belief. Finally, it addresses common exam traps, including transferred malice between personal and property offences, confusion between tangible and intangible property, classification and venue for low‑value criminal damage, and the distinction between simple and aggravated criminal damage and arson.

SQE1 Syllabus

For SQE1, you are required to understand the offence of simple criminal damage and its application, with a focus on the following syllabus points:

• The elements of the offence of simple criminal damage under s 1(1) Criminal Damage Act 1971.
• The definitions of 'property' and 'belonging to another' under the Criminal Damage Act 1971.
• The mens rea requirements of intention and recklessness as applied to criminal damage, including the subjective test in R v G and Another [2003] UKHL 50.
• The scope and application of the defence of lawful excuse under s 5 of the Criminal Damage Act 1971.
• How honest mistakes of ownership can negate mens rea (R v Smith [1974] QB 354).
• Damage by omission where a duty to act arises (R v Miller [1983] 2 AC 161).
• Venue and classification: low-value criminal damage (≤ £5,000) is treated as a summary offence; arson is treated as an either way offence regardless of value.

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. Which of the following is NOT 'property' for the purposes of the Criminal Damage Act 1971?
   1. A car parked on the street.
   2. Wild mushrooms growing in a public park.
   3. A garden shed belonging to a neighbour.
   4. A laptop computer owned by a company.
2. D kicks V's wooden garden fence, causing one of the panels to crack. D intended to kick the fence. Has D committed the actus reus of simple criminal damage?
   1. No, because the damage was minor.
   2. No, unless the fence required expensive repairs.
   3. Yes, because property belonging to another was damaged.
   4. Yes, but only if the panel was completely destroyed.
3. What is the required mens rea for simple criminal damage?
   1. Intention to destroy or damage property belonging to another.
   2. Recklessness as to destroying or damaging property belonging to another.
   3. Either intention or recklessness as to destroying or damaging property belonging to another.
   4. Negligence as to destroying or damaging property belonging to another.
4. D smashes the window of a car, honestly believing it belongs to his friend who D thinks would consent. The car actually belongs to a stranger. Can D rely on the lawful excuse defence under s 5(2)(a) CDA 1971?
   1. No, because his belief was unreasonable.
   2. No, because the owner did not actually consent.
   3. Yes, if his belief was honestly held, even if unreasonable.
   4. Yes, but only if his friend would genuinely have consented.

Introduction

This article examines the offence of simple criminal damage contrary to section 1(1) of the Criminal Damage Act 1971 (CDA 1971). Understanding this offence is essential for SQE1 as it involves core principles of actus reus, mens rea, and specific statutory defences. Simple criminal damage occurs when a person intentionally or recklessly destroys or damages property belonging to another, without a lawful excuse. In practice, simple criminal damage is an either way offence but is treated as a summary offence where the value of the damaged or destroyed property does not exceed £5,000; by contrast, arson (criminal damage by fire) is treated as an either way offence regardless of value. The lawful excuse defence in s 5 applies to simple criminal damage and simple arson, but not to aggravated criminal damage or aggravated arson.

Key Term: Criminal Damage
Destroying or damaging property belonging to another without lawful excuse, contrary to s 1(1) CDA 1971.

Actus Reus

The actus reus of simple criminal damage under s 1(1) CDA 1971 consists of three elements: (1) destroying or damaging (2) property (3) belonging to another. The absence of a lawful excuse is often treated as part of the actus reus, although strictly it functions as a defence.

Destroying or damaging

Neither ‘destroy’ nor ‘damage’ is defined in the CDA 1971. ‘Destroy’ implies rendering property useless or total loss of utility; ‘damage’ is a matter of fact and degree for the tribunal of fact. Damage encompasses permanent physical harm and temporary impairment of value or usefulness, including situations requiring time, effort or expense to restore property to its previous condition. Damage may be caused by positive acts or, where a duty to act exists, by omission.

Courts have treated a wide range of physical alterations and impairments as damage. Surface scratches or marks may be damage if they impair value or function; equally, minor marks may be too trivial depending on the nature of the item (e.g., superficial scratches on a heavily used scaffold pole may be expected incidents of use).

Examples of Damage:

• Hardman v Chief Constable of Avon and Somerset [1986] Crim LR 330: Water-based paint applied to pavements as part of a protest was damage because the local authority incurred time and expense cleaning it, even though it would have eventually washed away.
• Roe v Kingerlee [1986] Crim LR 735: Smearing mud on the walls of a police cell was damage, as time and effort were required to clean it.
• A (a juvenile) v R [1978] Crim LR 689: Spitting on a police officer’s coat was held not to be damage, as it could be easily wiped off without impairing the coat’s value or usefulness and without incurring expense.
• R v Fiak [2005] EWCA Crim 2381: Flooding a prison cell by blocking a toilet with a blanket was damage because the cell and items within it were rendered temporarily unusable and required cleaning/drying.

Damage can be temporary. Rendering property inoperative or imperfect for a period (e.g., adding water to engine oil causing seizure, or deflating tyres) constitutes damage if utility is impaired.

Damage may be committed by omission where a duty to act arises. If a person creates a dangerous situation and then fails to take reasonable steps to prevent or mitigate damage, liability may follow.

Worked Example 1.1

Question: David is angry with his neighbour, Sarah, about a boundary dispute. He takes a can of spray paint and spray-paints an offensive word on Sarah’s garden wall. He knows the wall belongs to Sarah and intends to damage it. Does David have the necessary mens rea for simple criminal damage?*

Answer:
Yes. David intends to damage property (the wall) and knows the property belongs to another (Sarah). Both elements of the mens rea are satisfied.

Property

Section 10(1) CDA 1971 defines property for the purposes of the Act.

Key Term: Property
Under s 10(1) CDA 1971, property means property of a tangible nature, whether real (land and buildings) or personal (moveable items), including money.

• Tangible property: Physical items that can be touched. Land and buildings (realty), and moveables (personalty) such as cars, phones, furniture, domesticated animals, and zoo animals.
• Intangible property is not covered: confidential information, software code as information, copyright, bank balances as choses in action are not “property” under CDA 1971 (R v Whiteley (1991) 93 Cr App R 25).
• Damage to a physical medium can still be criminal damage: altering or erasing programs recorded on a physical medium (e.g., a circuit board or storage device) can amount to damaging tangible property (see Cox v Riley (1986) 83 Cr App R 54).
• Wild plants and fungi growing wild are excluded unless picked for reward, sale, or other commercial purpose (s 10(1)(b)).
• Wild creatures not tamed or ordinarily kept in captivity are not property unless reduced into possession (e.g., captured) (s 10(1)(c)). Domesticated animals and those ordinarily kept in captivity are property.

A person may damage their own chattel and still commit criminal damage if another has a relevant interest in it (e.g., a charge).

Worked Example 1.2

Question: Clara throws a ball against her own garage door out of frustration. The ball bounces off unexpectedly and smashes the window of her neighbour’s car. Clara did not intend to damage the car and genuinely did not think there was any risk of the ball hitting it. Is Clara likely to be guilty of simple criminal damage to the car?*

Answer:
Unlikely. The actus reus is satisfied (damage to property belonging to another). However, the mens rea requires intention or subjective recklessness. If Clara genuinely did not foresee any risk of damaging the neighbour’s car, she was not reckless under the R v G test. The prosecution would need to prove she was subjectively aware of the risk and unreasonably took it.

Belonging to another

The property damaged must belong to another person at the time of the damage or destruction. Section 10(2) CDA 1971 defines 'belonging to another'.

Key Term: Belonging to another
Under s 10(2) CDA 1971, property belongs to any person having custody or control of it, 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 having a charge on it.

This definition is wide. Property can belong simultaneously to multiple persons (e.g., a legal owner and a bailee). A person can be liable for damaging property they own if another person also has a relevant interest (e.g., a mortgagor damaging their mortgaged property, or a co-owner damaging jointly owned property).

Trust and corporate property are covered: trust property belongs to beneficiaries as well as trustees; property owned by a company belongs to that legal person even against its directors and shareholders.

Without lawful excuse

This element functions as a defence. The CDA 1971 provides specific statutory defences under s 5, often referred to as 'lawful excuses'. These apply only to simple criminal damage (s 1(1)) and simple arson (s 1(3)), not the aggravated offences under s 1(2). General defences (e.g., self-defence/defence of property under s 3 Criminal Law Act 1967 and s 76 Criminal Justice and Immigration Act 2008) may also apply where appropriate.

Lawful excuse is considered below under the heading “Lawful Excuse (s 5 CDA 1971)”.

Mens Rea

The mens rea for simple criminal damage has two parts:

1. Intention or recklessness as to the destruction or damage of property.
2. Knowledge or belief that the property belongs to another (or recklessness thereto).

Intention or recklessness as to damage

• Intention: Acting with the aim or purpose of destroying or damaging property.
• Recklessness: Assessed subjectively in line with R v G and Another [2003] UKHL 50. The defendant must:
  • be aware of a risk that property will be destroyed or damaged; and
  • in the circumstances known to them, it must be unreasonable to take that risk.

The social utility of the conduct and the magnitude of the risk are relevant to whether taking the risk was unreasonable. Recklessness focuses on the defendant’s actual awareness at the time, not whether a reasonable person would have foreseen the risk.

The belief that one’s conduct does not amount to damage is irrelevant to recklessness if the act itself is intended and does in fact amount to damage. For example, writing with indelible marker on public signs, knowing one is writing on them, may be reckless as to damaging those signs even if one does not appreciate the legal classification of that act as “damage”.

Knowledge or belief property belongs to another

The defendant must intend to destroy or damage “property belonging to another”, which imports a requirement that they know or believe the property belongs to another, or are reckless as to whether it does. An honest but mistaken belief that the property is one’s own negates the mens rea, even if the belief is unreasonable (R v Smith [1974] QB 354). This operates even where the mistake is about civil law classification (e.g., fixtures belonging to a landlord).

The requirement is subjective. It is sufficient that the defendant honestly believes the property does not belong to another or that the other would consent to the damage (the latter addressed under s 5(2)(a)).

Worked Example 1.3

Question: John gets drunk and breaks his friend Mark's window, thinking Mark would let him sleep inside. Mark would never have consented. John genuinely believed Mark would consent due to his intoxication. Does John have a lawful excuse?*

Answer:
Yes. Under Jaggard v Dickinson [1981] QB 527, an honest belief, even if mistaken and induced by voluntary intoxication, can satisfy s 5(2)(a) CDA 1971. The test is subjective: did John honestly believe Mark would consent? If so, he has a lawful excuse.

Worked Example 1.4

Question: Priya rents a flat and, before moving out, removes speaker cables she had installed under the floorboards. As a matter of civil property law, the cables are fixtures that belong to the landlord. Priya genuinely believes they are hers. Has Priya committed simple criminal damage?*

Answer:
No. Applying R v Smith [1974] QB 354, Priya’s honest belief that the cables were hers means she lacked the mens rea that the property damaged belonged to another. Her belief need not be reasonable; it must be genuinely held.

Worked Example 1.5

Question: Leon falls asleep with a candle lit in a spare room at his friend’s house. The candle ignites a curtain and smouldering debris begins to damage the carpet. Leon wakes, sees the smouldering patch, and walks away without taking steps to prevent further harm. Is Leon potentially liable for simple criminal damage?*

Answer:
Yes. While initial ignition was accidental, Leon’s failure to act after becoming aware of the dangerous situation can ground liability for damage by omission where a duty to act arises (R v Miller [1983] 2 AC 161). The actus reus (damage) and the mens rea (awareness of risk and unreasonableness of failing to act) may both be satisfied.

Lawful Excuse (s 5 CDA 1971)

Section 5 CDA 1971 provides two specific defences, often termed 'lawful excuses', applicable only to simple criminal damage and simple arson. If either applies, the defendant is acquitted.

Key Term: Lawful Excuse
A specific statutory defence to simple criminal damage under s 5 CDA 1971, based either on belief in consent (s 5(2)(a)) or belief that action was necessary to protect property (s 5(2)(b)).

The focus of s 5 is the defendant’s honest belief. By s 5(3), “it is immaterial whether a belief is justified or not, if it is honestly held”. However, for s 5(2)(b), the courts have added an objective component requiring that the act relied upon be capable of protecting the property, as explained below.

Belief in Consent (s 5(2)(a))

A defendant has a lawful excuse if, at the time of the act causing the damage, they believed that the person entitled to consent to the damage:

• had consented; or
• would have consented had they known of the damage and its circumstances.

The belief must be honestly held, but it does not need to be reasonable (s 5(3)). An honest belief induced by voluntary intoxication can suffice (Jaggard v Dickinson [1981] QB 527). The person believed to be entitled to consent may be mistaken; the critical question is the defendant’s honest belief.

The belief must relate to consent by “the person or persons whom the defendant believes to be entitled to consent”. That may include an owner, lawful possessor, or other person with an appropriate right or interest.

Worked Example 1.6

Question: Rita spray-paints “NO PARKING” on a private driveway, honestly believing the occupier had asked her to do so earlier that day. In fact, the conversation was with a neighbour and the occupier did not consent. Can Rita rely on s 5(2)(a)?*

Answer:
Yes, if the court accepts that Rita honestly believed the person entitled to consent had consented. By s 5(3), the belief need not be reasonable. The issue is whether Rita genuinely held the belief at the time.

Protection of Property (s 5(2)(b))

A defendant has a lawful excuse if they damaged property in order to protect property belonging to themselves or another (or a right or interest in property) and they believed:

• the property was in immediate need of protection; and
• the means of protection adopted were reasonable in the circumstances as the defendant believed them to be.

This defence hinges on the defendant’s honest beliefs (s 5(3)). There is, however, an objective element: the act relied on must be objectively capable of protecting the property (R v Hunt (1977) 66 Cr App R 105; Hill and Hall (1989) 89 Cr App R 74; Blake v DPP [1993] Crim LR 586). A destructive act that cannot protect the property in question (e.g., starting a fire to demonstrate a faulty alarm system) will not qualify.

Immediate Need

The perceived threat must be immediate (Johnson v DPP [1994] Crim LR 673). Anticipated future risks (e.g., general fear of theft with no immediacy) are insufficient.

Reasonable Means

The defendant must believe the means used were reasonable; the belief need only be honest, not necessarily reasonable. Nonetheless, the act must be capable of protecting the property in question. The aim cannot be to protest or draw attention to a cause; the act must be directed at protecting specific property from immediate harm.

Worked Example 1.7

Question: Tom chisels off the lock on a disused property he is squatting in and replaces it with his own to “protect his belongings” inside. There is no immediate threat to his items. Can Tom rely on s 5(2)(b)?*

Answer:
No. There was no immediate need of protection (Johnson v DPP). The perceived risk was general and prospective. Moreover, changing the lock was not shown to be a necessary means to protect property from immediate harm.

Worked Example 1.8

Question: Maya smashes the window of her car to rescue her dog after seeing it collapse on a hot day. She believed the dog was in immediate danger and that breaking the window was the only way to protect it. Can s 5(2)(b) apply?*

Answer:
No, s 5(2)(b) applies only to protecting property, not persons or animals as “persons”. If the dog is treated as “property” (domesticated animals count as property), the defence may apply, provided Maya honestly believed there was immediate need and breaking the window was a reasonable means to protect the dog as property. If the scenario is framed as protection of life or limb, the appropriate analysis is under general defences (e.g., necessity or prevention of harm). Care is needed to distinguish s 5(2)(b), which is limited to property.

Exam Warning

• The s 5(2)(b) defence applies only to the protection of property, not people. If force is used to protect a person, the relevant defence is self-defence or necessity.
• The lawful excuse defences under s 5 do not apply to charges of aggravated criminal damage or aggravated arson (s 5(1)).
• A belief in consent (s 5(2)(a)) must be genuine; intoxication does not bar the defence where the belief is honestly held.

Additional Practical Points

• Damage by omission: A duty to act can arise where the defendant creates a danger and becomes aware of it (R v Miller). Failing to act can render the defendant reckless if aware of the risk and it was unreasonable not to take steps to prevent damage.
• Intangible property: Information and digital data are not “property” under CDA 1971, but damage to the physical medium storing data can be criminal damage.
• Co-owned and charged property: Damaging jointly owned property or property subject to a charge (e.g., a mortgage) can constitute damage to property belonging to another.
• Venue and classification: Criminal damage is generally an either way offence. Where the value of damage is £5,000 or less, it is treated as a summary-only offence and must be tried summarily, subject to procedural rules. Arson is treated as an either way offence regardless of value.
• Transferred malice: Intention to commit one crime cannot generally be transferred to a different type of harm (e.g., from intended assault on a person to damage to property). The prosecution must prove intention or recklessness as to destroying or damaging property; a desire to injure a person does not satisfy the mens rea for criminal damage.

Key Point Checklist

This article has covered the following key knowledge points:

• Simple criminal damage involves destroying or damaging property belonging to another without lawful excuse (s 1(1) CDA 1971).
• ‘Damage’ is a matter of fact and degree, including temporary impairment of value or usefulness or requiring expense/effort to rectify. Damage can be caused by omission where a duty to act exists.
• ‘Property’ under s 10(1) is tangible property (real or personal), excluding intangibles. Damage to the physical medium (e.g., circuit boards, storage devices) can be criminal damage even though data itself is intangible.
• ‘Belonging to another’ under s 10(2) includes custody/control, proprietary rights/interests, charges, trust and corporate property. A person may be liable for damaging their own property where another has a relevant interest.
• The mens rea is intention or subjective recklessness (R v G) as to destroying or damaging property, plus knowledge or belief that the property belongs to another. Honest mistakes of ownership can negate the mens rea (R v Smith).
• Lawful excuse under s 5 provides a defence based on an honest belief in consent (s 5(2)(a)) or an honest belief that the act was necessary to protect property in immediate danger using reasonable means (s 5(2)(b)). The act relied on for s 5(2)(b) must be objectively capable of protecting property. Lawful excuse does not apply to aggravated offences.
• Classification/venue: low-value criminal damage (≤ £5,000) is tried summarily; arson is treated as an either way offence regardless of value.
• Transferred malice does not bridge the gap between offences against the person and property offences; intention or recklessness must address property damage.

Key Terms and Concepts

• Criminal Damage
• Property
• Belonging to another
• Lawful Excuse