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10.6 Criminal damage There are two offences of destroying or damaging property under the Criminal Damage Act 1971. Simple criminal damage falls under s.1(1) of the Act, an aggravated form of the offence is provided for under s.1(2). If either of these two offences of criminal damage is committed by fire (i.e., arson), it is charged under the relevant section for the offence (i.e., s.1(1) or (2), depending upon whether simple or aggravated criminal damage has been committed) and s.1(3) of the Criminal Damage Act 1971.

10.6.1 Simple criminal damage The simple form of the offence of criminal damage under s.1(1) of the Criminal Damage Act 1971 is triable either way. It carries a maximum sentence of ten years’ imprisonment if tried in the Crown Court, according to s.4(2) of the Criminal Damage Act 1971. Table 10.3 Elements of criminal damage under s.1(1), CDA 1971 Actus reus • Destroys or damages • property • belonging to another • without lawful excuse

Mens rea • Intention or recklessness as to destroying or damaging such property

Statute

Section 1(1), Criminal Damage Act 1971 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. The actus reus elements of the offence are that property belonging to another is destroyed or damaged without lawful excuse. The mens rea is intention to destroy or damage property or being reckless as to whether or not property is destroyed or damaged (table 10.3).

10.6.1.1 Destroy or damage

The defendant must destroy or damage property. The damage need not be permanent. It has been held that trampling down grass amounts to damage. The respondent in Gayford v Chouler [1898] 1 QB 316 trespassed onto a field of knee-deep grass and walked across it, causing damage to the value of 6d. The Divisional Court held that actual damage had been done to the grass. However, the damage to property must be more than merely trivial or nominal. In A (a juvenile) v R [1978] Crim LR 689, the appellant’s conviction for criminal damage was quashed in the Crown Court. The appellant spat on a police officer’s raincoat. There was a faint mark in the general area where the spittle was alleged to have landed. This was held (p. 289) not to be sufficient damage as the spittle could probably have been wiped away with a damp cloth, leaving no mark. The coat had not been rendered imperfect or inoperable. This case involved a garment designed to be waterproof. Perhaps the decision would have been different if the material of the garment was such that it might have been stained or marked. The Divisional Court has held that what constitutes damage is a matter of fact and degree. In Roe v Kingerlee [1986] Crim LR 735, the defendant smeared mud graffiti onto the walls of a police cell. The cost of cleaning the walls was £7. The Divisional Court held that this could amount to criminal damage and that the magistrates were wrong at first instance to state that it could not amount to damage as a matter of law. Whether or not this would amount to criminal damage is a question of fact to be determined by the tribunal of fact (the magistrates or jury, depending upon the court of trial). The tribunal of fact will consider the degree of the graffiti. Similarly, in Hardman v Chief Constable of Avon & Somerset [1986] Crim LR 330, the defendants were held to be guilty of criminal damage where they had painted human silhouettes on the pavement in watersoluble paint. This was held to amount to damage even though it could be washed away, because it had caused expense and inconvenience to the local authority. The Court approved of the approach of Walters J in Samuels v Stubbs (1972) 4 SASR 200, a case in which a police officer’s cap which had been stamped on was held to have been damaged, even though it could be pushed back into shape:

It seems to me that it is difficult to lay down any very general and, at the same time, precise and absolute rule as to what constitutes ‘damage’. One must be guided in a great degree by the circumstances of each case, the nature of the article, and the mode in which it is affected or treated. Moreover, the meaning of the word ‘damage’ must … be controlled by its context. The word may be used in the sense of ‘mischief done to property’.

The facts of the cases of Lloyd v DPP [1992] RTR 215 and Mitchell [2003] EWCA Crim 2188 are similar. Both defendants damaged clamps which had been placed on their cars, which were illegally parked. The defendants were both convicted of criminal damage. Erasing or altering computer programs or data on computer discs has in the past also been held to constitute damage for the purposes of the Criminal Damage Act 1971. The defendant in Cox v Riley (1986) 83 Cr App R 54 was an employee who deliberately erased a computer program from a printed circuit card at his workplace. The programs on the card operated a computerised saw when the card was inserted into the saw. The saw was rendered inoperable due to the defendant having erased the programs and he was convicted of criminal damage of the circuit card under s.1(1) of the Criminal Damage Act 1971. The Divisional Court held

that this could amount to damage. The card was tangible property within the meaning of s.10(1) of the Criminal Damage Act 1971, and the damage to it put the saw out of operation such that time, labour, and money had to be spent on restoring the relevant programs. In the case of Whiteley (1991) 93 Cr App R 25, the defendant was a computer hacker who gained unauthorised access to a computer network. He altered data on discs within the system and caused computers in the network to fail. He was convicted of criminal damage under s.1(1) of the Criminal Damage Act 1971, on the basis that he had altered the state of the magnetic particles on the discs containing information, so as to delete and add files. Although the discs themselves had not been physically damaged, once the magnetic particles containing information were written onto the disc, they formed part of the disc. The discs and the particles being one entity were therefore capable of being damaged. The defendant’s conviction was upheld in the Court of Appeal. Lord Lane CJ stated that ‘[w]hat the Act requires to be proved is that tangible property has been damaged, not necessarily that the damage itself should be tangible’. The Court held that there would be damage where the particles had (p. 290) been altered ‘in such a way as to cause an impairment of the value or usefulness of the disc to the owner’. Lord Lane CJ continued: ‘The fact that the alteration could only be perceived by operating the computer did not make the alterations any the less real, or the damage, if the alteration amounted to damage, any the less within the ambit of the Act.’ Cases such as these would today be prosecuted under s.3(1) of the Computer Misuse Act 1990 (as amended by s.36 of the Police and Justice Act 2006). This section provides for the offence of unauthorised acts with intent to impair, or with recklessness as to impairing, the operation of the computer and would cover erasing or altering computer programs or infecting programs with a virus. The principle that property is damaged if its value or usefulness is impaired also applies to other types of property. The case of Morphitis v Salmon [1990] Crim LR 48 involved damage to a scaffold bar. The appellant removed the scaffold bar and clip from an upright. He was charged with damaging the scaffold bar by scratching it. However, the Divisional Court quashed his conviction for two reasons. First, it had not been proved that the appellant had scratched the bar. Secondly, even if he had, there was no impairment of the value or usefulness of the bar as scratching was a usual incident of scaffolding components. It was suggested by the Court that a charge of criminal damage to the whole barrier would have succeeded. In his commentary of the case in the Criminal Law Review, Professor Smith argued that a structure of a machine could be damaged by the removal, however carefully, of one of its parts. This approach is in line with that in the case of Fisher (1865) LR 1 CCR 7. Professor Smith states that, ‘[i]f a malicious person were to remove the doors from my house, I should certainly consider that the house had been damaged even if the removal had been effected with the greatest possible care and the doors, hinges and screws were left in perfect condition. The parts had not been damaged, but the house as a whole had.’ The case of Fiak [2005] EWCA Crim 2381 provides an example of the application of the principle that an impairment of value or usefulness of property constitutes damage. The defendant in this case had been arrested, taken to the police station, and placed in a cell. He had been provided with a blanket which he placed down the lavatory in his cell, before

flushing the lavatory repeatedly, flooding his own cell, two adjoining cells, and a passageway. The blanket was wet, but the water was clean, so the blanket was not soiled. However, the blanket was rendered unusable as it had to be cleaned and dried, and the cells had to be cleaned by a contract cleaner before they could be used. The defendant’s appeal against his conviction for criminal damage was dismissed. Sir Igor Judge (later the Lord Chief Justice) took the view that there was a case to answer against the defendant: [W]hile 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 is that the blanket could not be used as a blanket by any other prisoner until it had been dried out (and, we believe, also cleaned) and the flooded cells remained out of action until the water was cleared. In our judgment it is clear that both sustained damage for the purposes of the 1971 Act.

Thinking Point Do any of the following amount to damage for the purposes of the Criminal Damage Act 1971?

1. 1) Andy paints a small graffiti tag on the side of Brian’s house in washable paint. (p. 291) 2. 2) Carlos spills water over Denise’s cashmere scarf. 3. 3) Eric uses ingredients in his mother’s kitchen to bake a cake. 4. 4) Francis removes the plug from her boyfriend’s games console. 5. 5) Gareth deletes Helen’s criminal law lecture notes from her USB stick.

Cross Reference Refer to 9.2.1 for further discussion of the definitions of dishonesty in theft.

10.6.1.2 Property Section 10(1) of the Criminal Damage Act 1971 defines property which may be damaged.

Statute

Section 10(1), Criminal Damage Act 1971 In this Act ‘property’ means property of a tangible nature, whether real or personal, including money …

This definition shares similarities to the definition of property under the Theft Act 1968, but there are significant differences between the two definitions. For instance, the definition of property under the Criminal Damage Act 1971 only applies to tangible property and so is narrower than that under the Theft Act 1968. While the Theft Act 1968 applies to intangible property, the Criminal Damage Act 1971 does not. So a thing in action such as a credit in a bank account can be stolen but cannot be damaged. However, in relation to land, the scope of property which can be damaged is wider than that which can be stolen. Land is property for the purposes of criminal damage, but the exceptions which apply under s.4(2) of the Theft Act 1968 to the theft of land do not apply to the Criminal Damage Act 1971. So, where land can always be damaged, it may not always be stolen. Lastly, the Criminal Damage Act 1971 expressly excludes as property mushrooms growing wild on any land or flowers, fruit, or foliage of a plant growing wild on any land. Such property may not be damaged, but may be stolen (see s.4(3) of the Theft Act 1968) (see table 10.4). (p. 292)

Cross Reference Refer to 9.1.2 and 9.1.2.6 for a more detailed discussion of the meaning of property under the Theft Act 1968.

10.6.1.3 Belonging to another A person cannot be guilty of criminal damage of their own property. You are perfectly entitled to destroy your mobile phone or to knock down your garden shed without liability for simple criminal damage. However, if the property also belongs to another, you will be guilty of criminal damage. The prosecution must prove that the defendant destroyed or damaged property belonging to another as defined under s.10(2) of the Criminal Damage Act 1971. Under s.10(2), property belongs to another if somebody else has custody or control of the property you own, or they have a proprietary right or interest in it, or a charge on it. Thus, if the property falls under any of these categories, you will be guilty of criminal damage if you destroy that property. Table 10.4 Table comparing meaning of property in criminal damage and theft Property under the Criminal Damage Act 1971

Property under the Theft Act 1968

Applies to tangible property

Applies to tangible property

Excludes intangible property and things in action

Applies to intangible property and things in action

Applies to land

Applies to land but note the exceptions under s.4(2), Theft Act 1968

Excludes mushrooms growing wild on any land or flowers, fruit, or foliage of a plant growing wild on any land

Includes mushrooms growing wild on any land or flowers, fruit, or foliage of a plant growing wild on any land (see s.4(3), Theft Act 1968)

The meaning of belonging to another under s.10(2) of the Criminal Damage Act 1971 is also similar to that under the Theft Act 1968, albeit slightly different terminology is used. While the Theft Act 1968 provides that property belongs to a person having ‘possession’ of it, the Criminal Damage Act 1971 uses the word ‘custody’ instead. Both Acts provide that property belongs to a person having control of property or a proprietary right or interest in it. Under s.10(3) of the Criminal Damage Act 1971, property under a trust belongs to any person having a right to enforce the trust. Under s.10(4) of the Act, property of a corporation solely belongs to the corporation even though there may be a vacancy in the corporation....