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