Criminal damage sounds straightforward but it can be tricky, especially if property is jointly owned or used by another person.
Get the advice you need before making admissions that could lead to a charge or conviction.
Criminal damage is a very common issue. In any disagreement property can be damaged, they key issues are often who’s property it is? who damaged it? was it intentional or reckless? And was there permission to damage it?
This becomes further complicated in domestic settings as property can be jointly owed, or property was purchased by one party but used predominantly by another.
A mere allegation of criminal damage can be enough to result in an arrest or a voluntary interview. This can lead to restrictive bail conditions, a charge and a court case.
Police investigations and Court hearings can have a dramatic impact on day to day living. Any caution or conviction can affect employment as it would remain on the police national computer and may be disclosed on a DBS check.
Loopholes to consider
Below I have outlined this area of law and defences.
Loopholes are legitimate lines of defence that take into account all the small areas of law.
Loophole defences that may be appropriate to criminal damage may include:
Is there proof that the property was damaged?
Is there proof the performance of the property was impaired?
Can it be proven that you are responsible for the damage?
Who's property is it? Is it yours?
Was it just an accident?
Can it be proved that the property was damaged intentionally or recklessly?
Did the damage happen as you were protecting or defending yourself or someone else?
How can the prosecution prove any intent or recklessness by you?
Do you have witnesses to help prove your account?
Criminal damage explained
The offence requires proof that tangible property has been damaged. That is straightforward, it is usually clear if an item has been damaged or not.
The meaning of damage normally means what we all understand, to include permanent or temporary damage to an item. However, it can also include permanent or temporary impairment of value or usefulness, for example, affecting the performance if an item. An example would be where a door lock isn’t working properly after a door was slammed, it may be possible to fix it, but the performance was affected, therefore it was damaged in the eyes of the law.
Additionally, a change to the physical nature of the property concerned may amount to damage. An example of this would be where something is written or smeared on a wall, it could be seen to impair the value or usefulness of the property to the owner.
Intentional or reckless?
An item can be damaged intentionally or recklessly. Intentionally speaks for itself but recklessness is loosely defined as a situation where a person is aware there is a risk that damage could occur, and it is unreasonable to take that risk.
An example of this is where a person during an argument throws their partner’s mobile phone at them across the bedroom, if it hits the wall and the screen breaks, the person could easily be prosecuted for recklessly causing the damage. Although it wasn’t the person’s intention to break the phone screen it was reckless as there was a risk it could occur, it could be seen as an unreasonable risk to take as it was reasonably foreseeable that it could happen when a phone is thrown across a room.
Conversely, if the phone was thrown onto a bed or sofa and somehow got damaged then it could be argued that it was not reasonably foreseeable that damage would occur in that circumstance. It may not be seen as an unreasonable risk and it could be said that it would not be expected that a phone would break when thrown onto a soft surface.
The meaning of “belonging to another” seems simple, in general you shouldn’t damage another person’s property, but what is the situation if the property is jointly owned? or where it was purchased by one person but given to or used by another? This is very common occurrence in domestic situations, where items are jointly purchased or used, or where one person buys an item for their partner to use.
The law says that property belongs to any person that has a right of ownership or has custody or control of it. So, damaging a jointly owned fridge or TV can amount to an offence of criminal damage, as can damaging an item that you gave to someone else, such as a mobile phone, even if you paid for it. If it is their custody and control, then damaging it can be an offence. A classic domestic violence example of this is buying a phone for a partner, finding messages of infidelity on it, getting into an argument and then breaking the phone. Claiming that you are entitled to do so because you bought it would not be an automatic defence.
The meaning of “without lawful excuse” sets out a defence as a person has a lawful excuse if he believed at the time of the damage that the owner consents to the damage, or would have consented if they had known of the damage and the circumstances.
It also covers a situation where a person damaged the property believing that the property was in immediate need of protection; and that the means of protection was reasonable. This is effectively the lesser of two evils defence, an example would be damaging a back gate to put a fire out in someone’s garden.
Helpfully it is immaterial whether a belief is justified or not if it is honestly held, this would cover someone misunderstanding a situation when causing the damage.
There is an offence of threatening to destroy or damage. This includes property belonging to the person threatened, or a third person. It can include the suspects own property in a way which is likely to endanger the life of the person threatened. To be guilty the suspect has to intend that the person threatened would fear that the threat would be carried out.
Although criminal damage offences can be heard in the Crown Court, the vast majority of cases are heard in the Magistrates Court where the maximum penalty is 6 months in prison.