In English law, causing criminal damage was originally a common law offence. 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.
The Malicious Damage Act 1861 was the first real attempt to codify and extend protections in more general terms, and for the first time gave protection under the criminal law to personal property.
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 and causing damage with intent to endanger life. As such, punishments vary from a fixed penalty to life imprisonment, and the court may order payment of compensation to a victim.
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The common law generally treated damage to another's chattels as a civil matter leading only to a right to damages in trespass or nuisance; in the 18th century, Blackstone stated: "The rights of personal property in possession are liable to two species of injuries: the amotion [carrying away][1] or deprivation of that possession; and the abuse or damage of the chattels, while the possession continues in the legal owner."[2] Blackstone clearly labelled these as "Private Wrongs" in his commentaries, emphasising that property rights were enforced inter partes, and that the State was not necessarily one of the involved parties.[2] In fact, the criminal law only intervened in the case of arson, 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,[3] and had done so in Roman law.[4]
Early legislation
Whereas the common law protected habitation and sources of wealth and food in a largely agricultural society, the Industrial Revolution, especially the Luddism 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.[5] Initially the punishment was transportation to the Colonies but as a result of continued opposition to mechanisation the Frame-Breaking Act of 1812 made the death penalty available.[6]
Malicious Damage Act 1861
The Malicious Damage Act 1861[7] was a Victorian codification statute which set out detailed protections of property, most of which have now been superseded by the Criminal Damage Act 1971. The Act applied in the Republic of Ireland until 1991[8] and still applies in some Commonwealth countries which were parts of the British Empire in 1861, such as Sierra Leone.[9] The remaining provisions applicable in England and Wales are:
- Section 35: Makes illegal the obstruction of a railway, removal or damage of the rails themselves, damage to turning points, or tampering with the signal system in any way. It requires evidence of intent to "obstruct, upset, overthrow, injure or destroy any engine, tender, carriage or truck" on a railway. The maximum penalty is life imprisonment.
- Section 36: As section 35, but requires no proof of specific intent. The maximum penalty is two years imprisonment. The main difference between these two provisions is the mens rea, a specific intent being regarded as more culpable than recklessness or negligence.
- Section 58: Provides that it is not necessary to prove malice[10] against the owner of the damaged property.
- Section 72: Deals with jurisdiction and essentially duplicates the Offences at Sea Act 1799,[11] and although still in force, is obsolete. The provision dealt mainly with piracy and extended the jurisdiction of British courts to crimes committed by British subjects on the high seas.
Criminal Damage Act 1971
Definition
Whereas the 1861 Act protected in detail many different types of property, the Criminal Damage Act 1971[12] provided a definition wide enough to apply to any tangible property. By section 1(1) of the Act:
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 damaged shall be guilty of an offence.
"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
(a) 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 (b) he destroyed or damaged ... the property in question ... and in order to protect the 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),[13] 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:
In the criminal context the question is not whether the means of protection adopted by the respondent were objectively reasonable, having regard to all the circumstances, but whether the respondent believed them to be so, and by virtue of section 5(3) it is immaterial whether his belief was justified, provided it was honestly held.[14]
However, in R v. Hill and Hall (1989),[15] the Court of Appeal 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. Given that Hill was "forced to admit that she did not expect a nuclear bomb to fall today or tomorrow",[16] 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)[17] held that even a drunken belief will support the defence even though this allows drunkenness to negate basic intent; and Lloyd v. DPP (1992)[18] 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.
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),[19] 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. In A (a juvenile) v. R (1978),[20] 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),[21] a scratch to a scaffolding pole did not affect its value or usefulness and thus damage had not been proved. The court said:
The authorities show that the term "damage" for the purpose of this provision, should be widely interpreted so as to conclude not only permanent or temporary physical harm, but also permanent or temporary impairment of value or usefulness.[22]
A different conclusion was reached in Hardman v. Chief Constable of Avon and Somerset Constabulary (1986),[23] 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),[24] 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)[25] in relation to computer hacking, although that conduct is now dealt with under the Computer Misuse Act 1990.[26] In that case it was said that:
Any alteration to the physical nature of the property concerned may amount to damage within the meaning of the section. Whether it does so or not will depend on the effect that the alteration has had upon the legitimate operator (who for convenience may be referred to as the owner) ... where ... the interference ... amounts to an impairment of the value or usefulness of the [property] to the owner, then the necessary damage is established.[27]