Criminal Damage Act 1971

Summary

The Criminal Damage Act 1971 codified and modernised the law of criminal damage in England and Wales, replacing a disparate collection of Victorian statutes (principally the Malicious Damage Act 1861) with a single compact Act. The Act creates three principal offences: simple criminal damage (s.1(1)), aggravated criminal damage where life is endangered (s.1(2)), and arson where damage is caused by fire (s.1(3)). It also creates offences of threatening to destroy or damage property (s.2) and possessing anything with intent to destroy or damage property (s.3). The central concept of 'damage' is interpreted broadly and includes temporary functional impairment (R v Morphitis v Salmon [1990]). The fault element for simple damage is intention or recklessness; following R v G and another [2003] UKHL 50 the recklessness test is subjective — the defendant must have foreseen the risk of damage. Aggravated damage requires the additional element that the defendant intended or was reckless as to whether the life of another would be endangered. Arson charges under s.1(3) arise where the criminal damage is committed by fire; even simple arson (without life endangerment) carries a maximum of life imprisonment. Section 5 provides two statutory lawful excuse defences: belief in the owner's consent, and a belief that the property was in immediate need of protection from other damage.

Key Points

• Simple criminal damage (s.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 is guilty of an offence; maximum 10 years imprisonment on indictment
• Aggravated criminal damage (s.1(2)) — a person who destroys or damages any property, whether belonging to himself or another, intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged, and intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered; maximum life imprisonment
• Arson (s.1(3)) — an offence committed under s.1(1) or s.1(2) by destroying or damaging property by fire; charged as arson; maximum life imprisonment even for simple arson without any life endangerment element
• Threats to destroy or damage property (s.2) — a person who without lawful excuse makes a threat to another, intending that that other would fear it would be carried out, to destroy or damage any property or to destroy or damage his own property in a way he knows is likely to endanger the life of that other; maximum 10 years
• Possessing with intent (s.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; maximum 10 years
• Recklessness — subjective standard following R v G and another [2003] UKHL 50, which overruled the objective Caldwell recklessness test; the defendant must foresee the risk of damage
• Lawful excuse (s.5) — statutory defence: (a) belief at the time that the person entitled to consent to the destruction or damage had consented or would have consented; (b) belief that the property was in immediate need of protection and that the means adopted were reasonable
• Meaning of damage — interpreted broadly; temporary impairment of value or usefulness can constitute damage (R v Morphitis v Salmon [1990]); whether something constitutes damage is a question of fact and degree

Parts & Sections

Amendments History

Frequently asked questions

What are the main offences under the Criminal Damage Act 1971?

The Criminal Damage Act 1971 creates three principal offences: simple criminal damage, aggravated criminal damage where life is endangered, and arson where damage is caused by fire. It also creates offences for threatening to destroy or damage property and possessing items with the intent to destroy or damage property.

Does the law consider temporary impairment as criminal damage?

Under the Act, 'damage' is interpreted broadly. It includes temporary functional impairment, meaning that even if property is not permanently destroyed, a temporary reduction in its value or usefulness can constitute criminal damage. Whether something qualifies as damage is ultimately a question of fact and degree.

How is recklessness defined for criminal damage offences?

Following the case of R v G and another, the recklessness test is subjective. This means the defendant must have actually foreseen the risk of damage occurring. The previous objective test, which did not require the defendant to foresee the risk, was overruled.

What are the lawful excuses for damaging property?

Section 5 provides two statutory defences. First, the defendant believed the person entitled to consent had consented or would have consented. Second, the defendant believed the property was in immediate need of protection from other damage and that the means adopted were reasonable in the circumstances.

What is the maximum penalty for arson?

Yes, even simple arson without any element of endangering life carries a maximum penalty of life imprisonment. This applies when an offence under section 1(1) or 1(2) is committed by destroying or damaging property by fire.

Are there specific offences for damaging memorials?

The Police, Crime, Sentencing and Courts Act 2022 created new aggravated offences specifically for criminal damage to memorials. This change reflected public concern following incidents where statues were damaged during protests in 2020.