In English law, causing criminal damage was originally a common law

Common law

Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

 offence

Crime

Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...

. The offence was largely concerned with the protection of dwellings and the food supply, and few sanctions were imposed for damaging personal property. Liability was originally restricted to the payment of damages by way of compensation.

As time passed, specific laws were introduced to deal with particular situations as they were judged to require intervention, most particularly alongside the rise of mechanisation and urbanisation during the Industrial Revolution

Industrial Revolution

The Industrial Revolution was a period from the 18th to the 19th century where major changes in agriculture, manufacturing, mining, transportation, and technology had a profound effect on the social, economic and cultural conditions of the times...

.

The modern law of criminal damage is mostly contained in the Criminal Damage Act 1971, which redefines or creates several offences protecting property rights. The Act provides a comprehensive structure covering merely preparatory acts to the most serious offences of arson

Arson

Arson is the crime of intentionally or maliciously setting fire to structures or wildland areas. It may be distinguished from other causes such as spontaneous combustion and natural wildfires...

 and causing damage with intent to endanger life. As such, punishments vary from a fixed penalty

Fixed Penalty Notice

Fixed penalty notices were introduced in Britain in the 1950s to deal with minor parking offences. Originally used by police and traffic wardens, their use has extended to other public officials and authorities, as has the range of offences for which they can be used.In recent years, this has...

 to life imprisonment

Life imprisonment

Life imprisonment is a sentence of imprisonment for a serious crime under which the convicted person is to remain in jail for the rest of his or her life...

, and the court may order payment of compensation to a victim.

Common law

The common law generally treated damage to another's chattels as a civil matter leading only to a right to damages in trespass

Trespass

Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels and trespass to land.Trespass to the person, historically involved six separate trespasses: threats, assault, battery, wounding, mayhem, and maiming...

 or nuisance

Nuisance

Nuisance is a common law tort. It means that which causes offence, annoyance, trouble or injury. A nuisance can be either public or private. A public nuisance was defined by English scholar Sir J. F...

; in the 18th century, Blackstone

William Blackstone

Sir William Blackstone KC SL was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the Commentaries on the Laws of England. Born into a middle class family in London, Blackstone was educated at Charterhouse School before matriculating at Pembroke...

 stated: "The rights of personal property in possession are liable to two species of injuries: the amotion [carrying away] or deprivation of that possession; and the abuse or damage of the chattels, while the possession continues in the legal owner." Blackstone clearly labelled these as "Private Wrongs" in his commentaries, emphasising that property rights were enforced inter partes

Inter partes

The term inter partes is the Latin for "between the parties." It can be distinguished from in rem, referring to a legal action whose jurisdiction is based the control of property, or ex parte referring to a legal action that is by a single party....

, and that the State was not necessarily one of the involved parties. In fact, the criminal law only intervened in the case of arson

Arson

Arson is the crime of intentionally or maliciously setting fire to structures or wildland areas. It may be distinguished from other causes such as spontaneous combustion and natural wildfires...

, defining it as "the malicious and wilful burning of the house or outhouses of another man". This protection extended to barns and even "stacks of corn". Arson traditionally attracted the death penalty, and had done so in Roman law

Roman law

Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...

.

Early legislation

Whereas the common law protected habitation and sources of wealth and food in a largely agricultural society, the Industrial Revolution

Industrial Revolution

The Industrial Revolution was a period from the 18th to the 19th century where major changes in agriculture, manufacturing, mining, transportation, and technology had a profound effect on the social, economic and cultural conditions of the times...

, especially the Luddism

Luddite

The Luddites were a social movement of 19th-century English textile artisans who protested – often by destroying mechanised looms – against the changes produced by the Industrial Revolution, which they felt were leaving them without work and changing their way of life...

 resulting from workers' perceived threats to their livelihood, required new legislation to match the circumstances. The reaction of Parliament to Luddism was to criminalise machine-breaking – the destruction of textile-making machinery – as early as 1721. Initially the punishment was transportation to the Colonies

Penal transportation

Transportation or penal transportation is the deporting of convicted criminals to a penal colony. Examples include transportation by France to Devil's Island and by the UK to its colonies in the Americas, from the 1610s through the American Revolution in the 1770s, and then to Australia between...

 but as a result of continued opposition to mechanisation the Frame-Breaking Act of 1812 made the death penalty available.

Consolidation

A number of statutory provisions creating offences of damaging specific types of property were consolidated by 7 & 8 Geo.4 c.30 (1827) (Malicious injuries to property) which was one of Peel's Acts

Peel's Acts

Peel's Acts were Acts of the Parliament of the United Kingdom. They consolidated provisions from a large number of earlier statutes which were then repealed. Their purpose was to simplify the criminal law...

. This Act and a number of subsequent statutes were consolidated by the Malicious Damage Act 1861

Malicious Damage Act 1861

The Malicious Damage Act 1861 is an Act of the Parliament of the United Kingdom of Great Britain and Ireland . It consolidated provisions related to malicious damage from a number of earlier statutes into a single Act...

.

Malicious Damage Act 1861

The Malicious Damage Act 1861 was a Victorian

Victorian era

The Victorian era of British history was the period of Queen Victoria's reign from 20 June 1837 until her death on 22 January 1901. It was a long period of peace, prosperity, refined sensibilities and national self-confidence...

 consolidation statute which set out detailed protections of property, most of which have now been superseded by the Criminal Damage Act 1971. The remaining provisions applicable in England and Wales are:

• Section 35 - Placing wood, &c. on railway, with intent to obstruct or overthrow any engine, &c.
• Section 36 - Obstructing engines or carriages on railways
• Section 58 - Malice against owner of property unnecessary
• Section 72 - Offences committed within the jurisdiction of the Admiralty

Definition

Whereas the 1861 Act protected in detail many different types of property, the Criminal Damage Act 1971 provided a definition wide enough to apply to any tangible property. By section 1(1) of the Act:

"Without lawful excuse"

Apart from the general self-defence excuse applicable to any offence involving violent acts, section 5 of the Act sets out specific provisions in relation to criminal damage: a defendant will have "lawful excuse" if
at the time ... he believed that the person ... believed to be entitled to consent to the destruction or damage ... had so consented, or would have consented had they known ..., or he destroyed or damaged ... the property in question ... in order to protect property ... and at the time ... he believed—

(i) that the property ... was in immediate need of protection; and

(ii) that the means of protection ... were ... reasonable having regard to all the circumstances.

Section 5(3) of the Act states that it is immaterial whether the defendant's belief is justified as long as it is an honest belief, and therefore creates a subjective test to be assessed by the court or jury. In Chamberlain v. Lindon (1998), Lindon demolished a wall to protect a right of way, honestly believing that it was a reasonable means of avoiding litigation. It was said that:
However, in R v. Hill and Hall (1989), the Court of Appeal

Court of Appeal of England and Wales

The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...

 introduced an objective element to part (b) of the defence. The defendants had been convicted of possession of a hacksaw blade outside a US naval base in Wales, having admitted an intention to use the blade to cut through the base's perimeter fence. They claimed a lawful excuse in that they had acted to protect their own property located near the base; their reasoning was that the base would at some point in the future attract a nuclear attack by the Soviet Union

Soviet Union

The Soviet Union , officially the Union of Soviet Socialist Republics , was a constitutionally socialist state that existed in Eurasia between 1922 and 1991....

. Given that Hill was "forced to admit that she did not expect a nuclear bomb to fall today or tomorrow", the Court concluded that this threat to property was too remote and thus the defence had not been made out, however honest the belief had been.

The case of Jaggard v. Dickinson (1980) held that even a drunken belief will support the defence even though this allows drunkenness

Intoxication defense

General intent crimes do not require an intent to break the law, just an unlawful act and an intent to act in such a fashion. Specific intent crimes, however, require a certain mental state to break the law. One such offense, for example, is residential burglary...

 to negate basic intent; and Lloyd v. DPP (1992) ruled that a motorist who damages a wheel clamp to free his car, having parked on another's property knowing of the risk of being clamped, does not have a lawful excuse under the Act even if he makes a mistake of law

Mistake of law

Mistake of law is a legal principle referring to one or more errors that were made by a person in understanding how the applicable law applied to their past activity that is under analysis by a court. In jurisdictions that use the term, it is typically differentiated from mistake of fact...

.

The courts have said that a defendant relying upon lawful excuse as a defence need not necessarily seek to put himself within section 5. In R v. Denton (1981), the defendant had been asked by his employer to set fire to the employer's factory to facilitate an insurance claim. Despite this, it was held that the owner of the factory was entitled to have it burned down – as the Lord Chief Justice put it, "[i]t is not an offence for a man to set light to his own ... property" – and therefore Denton, knowing this, had a lawful excuse independent of section 5.

"Destroys or damages"

Whether destruction or damage has occurred is an issue of fact and degree in each case and case law suggests that damage must be more than de minimis

De minimis

De minimis is a Latin expression meaning about minimal things, normally in the locutions de minimis non curat praetor or de minimis non curat lex .In risk assessment it refers to a level of risk that is too small to be concerned with...

. In A (a juvenile) v. R (1978), the defendant spat on a police officer's raincoat, which was easily wiped clean; it was held that this did not amount to damage within the 1971 Act. Similarly, in Morphitis v. Salmon (1990), a scratch to a scaffolding pole did not affect its value or usefulness and thus damage had not been proved. The court said:
A different conclusion was reached in Hardman v. Chief Constable of Avon and Somerset Constabulary (1986), where graffiti, although eventually removable by action of rainfall, was actually washed away by the local authority, incurring expense, was held to be criminal damage.

It is sufficient that any damage be merely temporary: in Cox v. Riley (1986), the deletion of the program from a computer-controlled machine, rendering it unusable, was held to constitute damage. This decision was followed in R v. Whiteley (1991) in relation to computer hacking

Hacker (computer security)

In computer security and everyday language, a hacker is someone who breaks into computers and computer networks. Hackers may be motivated by a multitude of reasons, including profit, protest, or because of the challenge...

, although that conduct is now dealt with under the Computer Misuse Act 1990

Computer Misuse Act 1990

The Computer Misuse Act 1990 is an Act of the Parliament of the United Kingdom, introduced partly in response to the decision in R v Gold & Schifreen 1 AC 1063 . Critics of the bill complained that it was introduced hastily and was poorly thought out...

. In that case it was said that:
In R v. Fiak (2005), the defendant 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 on to 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 noted that this argument assumed the absence of any possible contamination or infection from the lavatory itself, and held that while it is true that the effect of the appellant's actions in relation to the blanket and the cell were both remediable, the simple reality was that the blanket could not be used as a blanket by any other prisoner until it had been dried out and cleaned. Further, the flooded cells remained out of action until the water had been cleared. Thus, both had sustained damage, albeit temporary.

"Property"

The definition of property in the 1971 Act differs slightly from the Theft Act 1968

Theft Act 1968

The Theft Act 1968 is an Act of the Parliament of the United Kingdom. It creates a number of offences against property in England and Wales.On 15 January 2007 the Fraud Act 2006 came into force, redefining most of the offences of deception.-History:...

 in that it only includes "property of a tangible nature". Land can be damaged, as in Henderson and Batley (1984), where the defendants had dumped rubble on a development site which cost a substantial sum to clear; it was held that this constituted damage to the land.

"Belonging to another"

Section 10(2) of the Act specifies that property shall be regarded as belonging to any person —
having the 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.

These provisions are similar to those set out in section 5 of the Theft Act 1968 in relation to theft

Theft

In common usage, theft is the illegal taking of another person's property without that person's permission or consent. The word is also used as an informal shorthand term for some crimes against property, such as burglary, embezzlement, larceny, looting, robbery, shoplifting and fraud...

. It is clearly a right of property ownership to deal with property as one wishes, including its damage or destruction. However a person setting fire to his own house which is subject to a mortgage

Mortgage loan

A mortgage loan is a loan secured by real property through the use of a mortgage note which evidences the existence of the loan and the encumbrance of that realty through the granting of a mortgage which secures the loan...

 can be charged because the mortgagee will have a proprietary right or interest in the property. Property that is abandoned has no owner, and cannot be stolen; it follows that such property cannot be the subject of a charge of criminal damage.

Intent and recklessness

The mens rea

Mens rea

Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...

of all offences in the Act is direct or oblique intention, or subjective recklessness as defined by the House of Lords

House of Lords

The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....

 in R v. G (2003). Bingham

Thomas Bingham, Baron Bingham of Cornhill

Thomas Henry Bingham, Baron Bingham of Cornhill, KG PC QC FBA , was a British judge and jurist. He served in the highest judicial offices of the United Kingdom as Master of the Rolls, Lord Chief Justice and as Senior Law Lord before his retirement, when he focused his work as a teacher and lecturer...

 L.J.

Lord Justice of Appeal

A Lord Justice of Appeal is an ordinary judge of the Court of Appeal of England and Wales, the court that hears appeals from the High Court of Justice, and represents the second highest level of judge in the courts of England and Wales-Appointment:...

 stated that a person acts "recklessly" with respect to
a circumstance when he is aware of a risk that it exists or will exist; or a result when he is aware of a risk that it will occur;

and it is, in the circumstances known to him, unreasonable to take the risk. In Booth v. Crown Prosecution Service (2006) the Divisional Court

Divisional Court

A Divisional Court, in relation to the High Court of Justice of England and Wales, means a court sitting with at least two judges. Matters heard by a Divisional Court include some criminal cases in the High Court as well as certain judicial review cases...

 upheld the defendant pedestrian's conviction on a charge that, by rashly dashing into the road, he recklessly damaged the vehicle that hit him because "the appellant was aware of the risk and closed his mind to it".

Aggravated criminal damage

Section 1(2) of the Act creates an offence which includes all the elements of the section 1(1) offence with an additional element of intending or being reckless as to the endangering of life. The offence lies in possible effects of the defendant's actions and it is not therefore necessary to prove an actual danger to life. However there must be a connection between the damage and the mental state of the defendant. In R v. Steer (1986), the defendant fired a gun intending to injure another person, but missed and hit a window instead; it was held that although the intention to endanger life and the fact of damage coexisted, the damage itself did not endanger life. This approach was extended in R v. Webster (1995), in which the relationship between the damage caused and the damage intended was explored. That case involved the throwing of heavy items into the paths of moving vehicles, and it was held that a defendant may be guilty if he intends to endanger life by the actual damage intended, or is reckless that life will be endangered by that damage. Therefore, although a defendant does not necessarily intend to endanger life when he intends to break a car window, ignoring the likely risk that this will cause the driver to swerve into the path of another vehicle, perhaps fatally, constitutes recklessness and is a sufficient causative nexus.

Attempts

Proof of specific intent to endanger life is unnecessary on a charge of attempting this offence. In Attorney General's Reference No. 3 of 1992 (1994), on a charge of attempted aggravated arson, it was held to be sufficient for the prosecution to establish a specific intent to cause damage by fire and that the defendant was reckless as to whether life would thereby be endangered.

Arson

Section 1(3) of the 1971 Act specifies that offences under section 1, where the destruction or damage is caused by fire, shall be charged as arson

Arson

Arson is the crime of intentionally or maliciously setting fire to structures or wildland areas. It may be distinguished from other causes such as spontaneous combustion and natural wildfires...

. It would seem that courts adopt a purposive view in relation to the lawful excuse defence in relation to arson, as in R v. Hunt (1977). The defendant, wishing to highlight the lack of fire defences in an old people's home, set fire to it to demonstrate the risks. He claimed an honest belief in that by doing this, he had a lawful excuse within section 5(2). It was held, however, that he had not actually been acting so as to protect property. Although the court assumed that his belief was honest, it ruled that his intention was to draw attention to faulty fire defences rather than to defend the property itself.

Threats

Section 2 provides that a person threatening another, with the intent that the other
would fear the threat would be carried out
to destroy or damage any property belonging to that other or a third person; or to destroy or damage his own property in a way which he knows is likely to endanger the life of that other or a third person;

shall be guilty of an offence.

Possession of items

Section 3 provides that 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 some other person; or to destroy or damage his own or the user’s property in a way which he knows is likely to endanger the life of some other person;

shall be guilty of an offence.

Extent, penalties and procedure

The 1971 Act applies in England and Wales, and also to Northern Ireland

Northern Ireland

Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...

 by the Criminal Damage (Northern Ireland) Order 1977.

Certain types of minor damage, such as graffiti, may be dealt with by the issue of Fixed Penalty Notice

Fixed Penalty Notice

Fixed penalty notices were introduced in Britain in the 1950s to deal with minor parking offences. Originally used by police and traffic wardens, their use has extended to other public officials and authorities, as has the range of offences for which they can be used.In recent years, this has...

s as an alternative to prosecution.

Non-aggravated offences involving damage valued at less than £

Pound sterling

The pound sterling , commonly called the pound, is the official currency of the United Kingdom, its Crown Dependencies and the British Overseas Territories of South Georgia and the South Sandwich Islands, British Antarctic Territory and Tristan da Cunha. It is subdivided into 100 pence...

5,000 are triable only summarily by magistrates and the maximum sentence is three months' imprisonment and a fine of £2,500. If the value of the property damaged exceeds £5,000, the defendant is entitled to claim trial on indictment

Indictment

An indictment , in the common-law legal system, is a formal accusation that a person has committed a crime. In jurisdictions that maintain the concept of felonies, the serious criminal offence is a felony; jurisdictions that lack the concept of felonies often use that of an indictable offence—an...

 by a jury, but if tried summarily, may be sentenced to up to six months in jail and a £5,000 fine. Where the value of the property is unclear, the court may hear representations as to value, but may also offer the defendant the option of summary trial, with limited penalties.

Section 4 of the 1971 Act sets out that offences under sections 1(2) and 1(3) are punishable by a maximum term of life imprisonment and all others by a maximum of ten years' imprisonment.
Section 30 of the Crime and Disorder Act 1998

Crime and Disorder Act 1998

The Crime and Disorder Act 1998 is an Act of the Parliament of the United Kingdom. The Act was published on 2 December 1997 and received Royal Assent in July 1998...

 sets out a higher maximum of 14 years' imprisonment for racially or religiously aggravated offences other than those already carrying a maximum of life imprisonment.

Courts are empowered by sections 130 to 133 of the Powers of Criminal Courts (Sentencing) Act 2000 to order payment of compensation by a convicted defendant. The limit is £5,000 per offence in a Magistrates' Court

Magistrates' Court

A magistrates' court or court of petty sessions, formerly known as a police court, is the lowest level of court in England and Wales and many other common law jurisdictions...

; the powers of a Crown Court

Crown Court

The Crown Court of England and Wales is, together with the High Court of Justice and the Court of Appeal, one of the constituent parts of the Senior Courts of England and Wales...

 are unlimited.

The Act repeal

Repeal

A repeal is the amendment, removal or reversal of a law. This is generally done when a law is no longer effective, or it is shown that a law is having far more negative consequences than were originally envisioned....

ed the Dockyards, etc. Protection Act 1772, which created the capital offences

Capital punishment

Capital punishment, the death penalty, or execution is the sentence of death upon a person by the state as a punishment for an offence. Crimes that can result in a death penalty are known as capital crimes or capital offences. The term capital originates from the Latin capitalis, literally...

 commonly known collectively as "arson in royal dockyards

Arson in royal dockyards

Arson in royal dockyards was among the last offences that were punishable by execution in the United Kingdom. It remained a capital offence even after the death penalty was abolished for murder in 1965, although John the Painter seems to be the only one ever actually executed for it, in 1777...

"; these had been overlooked when the death penalty for murder was abolished in 1965.