• Robert Spicer

Criminal damage: key issues

Criminal Damage Act 1971, section 1(1):

A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.

Section 3: a person who has anything in his custody or under his control intending without lawful excuse to use it or cause or permit another to use it to destroy or damage any property belonging to another shall be guilty of an offence.

Section 5: A defendant will have a lawful excuse if at the time he believed that the person believed to be entitled to consent to the destruction or damage had consented, or would have consented if they had known; or he destroyed or damaged the property in question in order to protect property and at the time he believed that the property was in immediate need of protection and that the means of protection were reasonable having regard to all the circumstances.

Section 5(3): In relation to lawful excuse, it is immaterial whether the defendant’s belief is justified, as long as it is an honest belief, and this creates a subjective test to be assessed by a court or jury.

Where the damage is less than £5000, the offence is triable only summarily in the magistrates’ court. The maximum sentence is three months imprisonment and a fine of £2500. The court may also order payment of compensation.

Key cases

R v Hill and Hall: Court of Appeal 1989

The defendants were separately tried for possession of an article with intent to damage property contrary to section 3 of the 1971 Act . In each case the article in question was a hacksaw blade and it was the prosecution case that each of the applicants intended to use one to cut part of the perimeter fence of a United States Naval Facility. The defence in each case was one of lawful excuse. It was put forward that the actions were aimed at forcing the United Kingdom to abandon nuclear weapons; thereby saving their own property and that of their neighbours from destruction. The trial judges directed the jury to convict on the basis, first, that the causative relationship between the acts and the alleged protection was so tenuous and nebulous the acts could not, objectively, have amounted to protection. On applications for leave to appeal against conviction it was argued that the test was a subjective one and that it should have been left to the jury as a question of fact as to what in each case the applicant believed. A further point was taken that the judge had been wrong to direct the jury to convict. The appeal failed. The Court of Appeal made the following points:


R v Whiteley Court of Appeal 1993

The court approved the Oxford Dictionary definition of damage as “injury impairing value or usefulness”. The term “damage” should be widely interpreted so as to include not only permanent or temporary physical harm, but also permanent or temporary impairment of value or usefulness.

A (a juvenile) v R (1978)

The defendant spat on a policeman’s rain coat. The spittle could be easily wiped off and left no permanent damage. The court found that this did not amount to unlawful damage to property. It would have been different if the material was different and left a stain or required dry cleaning. Hardman v Chief Constable of Avon and Somerset Constabulary (1986)Graffiti was criminal damage where the local authority incurred expense in washing it away. The graffiti had used water soluble paints which rainfall would have washed away. R v Fiak (2005) F 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 stated that this argument assumed the absence of any possible contamination or infection from the lavatory itself, and found that while it was true that the effect of the F’s actions in relation to the blanket and the cell were both remediable, the reality was that the blanket could not be used as a blanket by any other prisoner until it had been dried out and cleaned. Also, the flooded cells remained out of action until the water had been cleared. Both the blanket and the cells had suffered damage, although temporary.

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