A guide to criminal damage offences in England and Wales

If you have been accused of criminal damage, playing your cards correctly in the criminal case against you could make all the difference between securing a minor punishment, or facing jail time. This article explores the legal elements of the offence of criminal damage, and the defences that you could rely upon if you are accused of this offence. It then outlines the difference between indictable only, either way, and summary only offences, and explains which category criminal damage falls into (this varies based on the value of the damage that has been committed). Finally, we look at the sentence that you could face if you are convicted of criminal damage.

What are the elements of the offence of criminal damage?

The offence of criminal damage is set out at Section 1(1) Criminal Damage Act 1971. To be convicted of this offence, the prosecution must prove the following elements against the Defendant:

1. The Defendant has destroyed or damaged property. According to CPS guidance, property means items of a tangible nature, including land. Damage is not defined in the Act, however the courts have given it a wide interpretation. This interpretation has included ‘not only permanent or temporary physical harm, but also permanent or temporary impairment of value or usefulness.’ For example, smearing mud on the walls of a property not owned by the person has been deemed to constitute damage. However, deleting files from a computer would not count as criminal damage because this is not tangible damage (this would be prosecuted as a computer misuse crime instead – only damage to the physical condition of a computer would count as criminal damage).
2. The property belongs to another person. This includes jointly owned property, where the Defendant is one of the owners. For example, if the Defendant destroys a car that is jointly owned by them and their spouse. However, if the CPS wish to bring charges of criminal damage for property belonging to a spouse, the consent of the Director of Public Prosecutions is required.
3. The Defendant intended or was reckless as to the destruction/damage of the property. This is known as the mens rea or guilty mind requirement. ‘Recklessness’ is defined as circumstances where the defendant knows that a risk exists, or will exist, or there is a risk that a certain result will occur, where it is in the circumstances, an unreasonable risk to take.
4. The Defendant did not have a lawful excuse for his or her actions. Section 5 of the Criminal Damage Act establishes that there is a lawful excuse if the Defendant believed at the time that a person entitled to consent to the destruction or damage of the property had done so or would have done so in the circumstances.

There is another defence if the destruction or damage took place in order to protect a property, right or interest that was in immediate need of protection. In those circumstances, the Defendant would need to show that the destruction/damage or property was a proportionate response in the circumstances.

Both of these defences apply regardless of whether the Defendant’s belief is justified so long as it is honestly held. General defences such as self-defence could also apply, depending on the facts of the case.

Section 1(2) of the Criminal Damage Act sets out the offence of aggravated criminal damage. The elements of this, more serious offence, are as follows:

1. The Defendant has destroyed or damaged property
2. The property belongs to the Defendant or to another person
3. The Defendant intended or was reckless as to the destruction/damage of the property
4. The Defendant also intended by the destruction/damage to endanger the life of another, or was reckless as to whether another person’s life would be endangered.
5. The Defendant did not have a lawful excuse for his or her actions

Where an offence is committed under Section 1(2) using fire, it will be charged as arson.   

What are the three types of offences?

There are three types of criminal offence in England and Wales: indictable only, either way, and summary only offences. These categories refer to the court in which the offence will be tried.

Indictable only offences must be heard in the Crown Court because the seriousness of the offence means that the defendant could face a custodial sentence of more than twelve months. Therefore, indictable only offences will be heard before a jury. The judge will direct the jury on the law, and then the jury will deliberate on the facts in order to reach a verdict. Aggravated criminal damage and arson are examples of indictable only offences.

Either way offences can be heard in the Magistrates’ Court or in the Crown Court. The magistrate must consider if they have adequate sentencing powers, and if the case addresses matters of complexity that mean that it should be heard in the Crown Court. If the magistrate concludes that the case is suitable to be heard in the Magistrates’ Court, the Defendant will then be asked to choose whether the trial takes place in the Crown Court or the Magistrates’ Court. There are advantages and disadvantages to each. The conviction rate is lower in the Crown Court, as a jury is more likely to give a Defendant the benefit of the doubt compared with a magistrate. However, because the Crown Court has more extensive sentencing powers, if convicted in the Crown Court you may face a heftier sentence. Criminal damage valued at over £5000 is an example of an either way offence.

Summary only offences must be heard in the Magistrates’ Court. The exception to this is where they are linked to other indictable only or either way offences that are to be heard in the Crown Court. In those circumstances, the summary only offence may be heard together with the other offences in the Crown Court. Non-aggravated criminal damage valued at under £5000 is an example of a summary only offence.

What type of offence is criminal damage?

Criminal damage is an either way offence pursuant to para 29 schedule 1 Magistrates’ Court Act 1980.

According to Section 22 and Schedule 2 of the Magistrates Court Act, for a simple charge of criminal damage (without the aggravated element) where the damage caused is valued at less than £5000 it must be heard summarily. However, if the damage was caused by fire, the offence will still be ‘either way’ even if less than £5000 of damage has occurred.

Where the Defendant has also been charged with an indictable offence, the criminal damage charge may also be heard in the Crown Court, if the offences are connected.

If the criminal damage caused is over £5000, the offence is an either way offence. The magistrate must try the case summarily unless the magistrate feels that the Magistrates’ Court’s sentencing powers are inadequate, or features are present which make the offence unsuitable to be heard in the Magistrates’ Court. These include:

• The Defendant has deliberately started a fire
• The Defendant was acting as part of a group
• The damage was of a high value
• The offence has a clear racial motive

What is the punishment for criminal damage in England and Wales?

Where the case is heard in the Crown Court, the maximum penalty for criminal damage without an aggravated element is 10 years’ imprisonment. This is set out at Section 4 of the Criminal Damage Act 1971. However, where the case is heard summarily because the value of the criminal damage is less than £5000, Section 33 of the Magistrates Court Act establishes that the maximum sentence is a fine of up to level 4 on the standard scale, which is currently assessed at £2500, or 3 months’ imprisonment.

Where the court is not able to determine whether the value of the destroyed/damaged property was over £5000, it must offer the Defendant the opportunity for the case to be tried summarily. If the Defendant accepts and is convicted, the court will be limited by the provisions of Section 33 of the Magistrates’ Court Act i.e. the Defendant will be sentenced in the Magistrates’ Court for no more than 3 months’ imprisonment or a maximum fine of £2500.

For aggravated criminal damage or arson, Section 4 of the Criminal Damage Act sets a maximum penalty of a life sentence. These are indictable only offences i.e. they must be heard in the Crown Court.

For further information on how courts determine the appropriate sentence in cases of criminal damage, see the Sentencing Council’s guideline that came into force on 1 October 2019.

Where to get further help

Whether you have been charged with criminal damage for spraying graffiti, or for a more serious case of arson, it is worthwhile obtaining legal advice. A criminal defence solicitor can talk you through the procedure of the criminal justice system and, if you intend to plead not guilty, they can help you prepare your defence. Even if you anticipate putting forward a guilty plea, good quality legal representation will help you achieve a fair and proportionate sentence. Contact Stuart Miller Solicitors for a no-obligation consultation today.