Criminal damage is committed when a person intentionally or recklessly destroys or damages property belonging to another person without ‘lawful excuse’. This offence can cover obvious destruction, such as breaking a window, but it can also apply where property is defaced, impaired or requires restoration work.

The exact charge and possible penalty depend on what was damaged, the extent and value of the damage, the person's alleged state of mind and whether any aggravating features are present. For example, where fire or danger to life is involved, the allegation can become substantially more serious.

If you are being investigated or have been charged, our criminal damage defence solicitors at Tyler Hoffman can examine whether the prosecution can prove each part of the offence, challenge the evidence where appropriate and protect your position from the earliest stage. Here we look at what is classed as criminal damage, and how it is defined by the law.

How does the law define criminal damage?

Section 1(1) of the Criminal Damage Act 1971 sets out the basic offence in England and Wales. The prosecution must establish that property was destroyed or damaged, that the property belonged to someone other than the person who damaged it, that the person intended to destroy or damage it or was reckless as to whether this would happen, and that they acted without lawful excuse.
Each element is important to the case against a person. It is not enough to show that property was damaged and that the accused person was present. The evidence must establish responsibility for the damage and the required intention or recklessness.

The law defines property broadly as tangible property, including real and personal property and money. Property can also be treated as belonging to another where that person has custody or control of it, a proprietary right or interest in it, or a charge over it. For example, rented property may be in a tenant’s custody or control while the landlord retains a proprietary interest, and a hired car may be in the driver’s possession while the hire company remains its owner. Property can therefore “belong” to more than one person for the purposes of the Criminal Damage Act.

What counts as damage to property?

Criminal damage does not require property to be completely destroyed. Damage can be permanent or temporary, and the court will look at what happened to the property and what was required to restore it to determine whether an offence took place.

Depending on the circumstances, criminal damage can include breaking windows or doors, deliberately scratching someone's car, damaging furniture or machinery, applying graffiti or paint to another person's property, or breaking or removing part of an item so that it can no longer be used properly.

The fact that damage can be repaired does not prevent it from being criminal damage. Equally, not every mark, alteration or minor incident automatically constitutes an offence. The prosecution needs evidence that legally recognisable damage was caused and that the person accused had the required state of mind at the time.

That evidence might include CCTV, photographs of the property, repair estimates, witness statements, messages or admissions said to show what happened and who was responsible. It must also support the prosecution’s case that the damage was caused intentionally or recklessly. In other words, it is not enough simply to show that property was damaged after an incident involving the defendant. The prosecution must be able to prove the necessary connection between the defendant’s actions, the damage caused and what they intended or understood at the time. Where that evidence is weak, incomplete or open to another interpretation, those points can be challenged by a criminal defence solicitor.

The value of the property is also distinct from the cost of the damage caused. For a defendant, that distinction has the potential to affect how the offence is dealt with and the sentence that may follow. Where the prosecution alleges damage above a £5,000 threshold, the case can be treated more seriously and may be sent to the Crown Court. For that reason, your solicitor will examine the prosecution's figures for repair costs and valuations carefully, and challenge them where they are overstated. If a £30,000 car suffers £800 worth of damage, for example, the relevant figure will usually be the value of the damage rather than the full value of the car, and your solicitor may use this to limit the penalties you could face.

What does intention or recklessness mean in a criminal damage case?

The prosecution must prove that the damage was intentional or reckless. Purely accidental damage does not, by itself, amount to a Section 1(1) offence.

Intention means that the person meant to destroy or damage the property. Recklessness concerns whether the person was aware of a risk that the property would be destroyed or damaged and nevertheless went on to take that risk.

This can become a central issue in disputed cases. CCTV, witness accounts, messages, the surrounding circumstances and what was said in a police interview may all be relied on to argue what a person intended or understood at the time.

At Tyler Hoffman, we will test whether that evidence actually proves intention or recklessness beyond reasonable doubt. Being present when property is damaged, or acting in a way that later results in damage, does not automatically establish the mental element required for conviction.

Can damaging your own property be criminal damage?

For the basic Section 1(1) offence of criminal damage, the damaged property must belong to another person. However, the Criminal Damage Act also creates a more serious offence where danger to life is involved.

Under Section 1(2), a person may commit aggravated criminal damage by intentionally or recklessly destroying or damaging their own property if they intend by that damage to endanger another person's life or are reckless as to whether life would be endangered. This also applies when someone else’s property is damaged.

As such, stating that you own the property in question does not provide a complete defence where the allegation involves danger to life. However, the prosecution must still prove the additional danger-to-life element and there may be scope to mount a defence on this basis.

What is a ‘lawful excuse’ for criminal damage?

A lawful excuse can prevent conduct from amounting to criminal damage even where property has been intentionally or recklessly damaged. Section 5 of the Criminal Damage Act 1971 sets out specific circumstances in which it may apply.

One is an honest belief that the person entitled to consent to the damage had consented, or would have consented if they had known about the damage and its circumstances. The issue is the defendant's belief at the time, rather than whether consent was later given.
A lawful excuse may also arise where property is damaged in order to protect property or a right or interest in property. The person must believe that the property or interest is in immediate need of protection and that the means used are reasonable in the circumstances.

Whether a lawful excuse applies is fact-specific. If the prosecution's account overlooks consent, property rights or the circumstances in which the damage occurred, those issues should be identified and supported with evidence at the earliest appropriate stage.

What is aggravated criminal damage?

Aggravated criminal damage is the Section 1(2) offence involving an intention to endanger life through the destruction or damage, or recklessness as to whether life would be endangered.
The distinction between ordinary and aggravated criminal damage is significant. Where the prosecution cannot prove the danger-to-life element, the aggravated charge may be open to challenge.

Where property is destroyed or damaged by fire, Section 1(3) requires the offence to be charged as arson. Tyler Hoffman's arson defence solicitors deal with cases involving fire investigation, forensic evidence, disputed intent and allegations that life was endangered.

The consequences are also more serious. Arson and criminal damage under Section 1(2) carry a maximum sentence of life imprisonment. Our guide to the reckless arson sentencing guidelines explains how harm, danger to life and culpability affect sentencing where fire is involved.

What is the maximum sentence for criminal damage?

The maximum penalty depends on the form of criminal damage charged and, for ordinary criminal damage other than by fire, the value of the damage.

Under the current Sentencing Council criminal damage guidelines, criminal damage exceeding £5,000 is triable either way (meaning in the Crown Court or the Magistrate’s Court) and carries a maximum sentence of 10 years' custody. Where the value does not exceed £5,000, the offence is generally treated as summary-only (meaning it is tried in the Magistrate’s Court) and carries a maximum of three months' custody and/or a level 4 fine, although statutory exceptions apply.

Racially or religiously aggravated criminal damage is treated separately and carries a higher maximum sentence. Arson and aggravated criminal damage involving danger to life can carry life imprisonment.

The maximum sentence is not imposed in every case. The court considers factors including the damage caused, financial loss, planning, previous convictions and other aggravating or mitigating features. The criminal defence team at Tyler Hoffman will challenge an overstated valuation or an allegation that the offence falls into a more serious category than the evidence supports.