FLK2 · Criminal Liability

Criminal damage

SQE1 revision notes — the key rules, leading cases and common traps for this topic, in plain English and current to 2026.

Criminal Damage (FLK2 — CRL.08)

Governed by the Criminal Damage Act 1971 (CDA 1971). Four offences to keep straight.

1. Basic criminal damage — s.1(1)

AR: destroying or damaging property belonging to another. MR: intention OR recklessness as to that destruction/damage.

Property (s.10(1)): property of a tangible nature, real or personal, including money. Land can be damaged. Trap: unlike the Theft Act 1968, the CDA 1971 has NO wild-plants/mushrooms exclusion — wild plants, flowers and fungi ARE property and can be criminally damaged. (The "picked from the wild" carve-out is a Theft Act concept; don't import it here.)
Belonging to another (s.10(2)): another has custody/control, a proprietary right or interest, or a charge. You can damage your own property if another also has an interest (e.g. a co-owner, mortgagee).
Damage: wide and fact/cost-sensitive. Includes temporary impairment of value or usefulness — Hardman (water-soluble paint), Roe v Kingerlee (mud on cell wall), A (a juvenile) v R (spit wiping off = no damage). Need not be permanent.
Recklessness is the Cunningham/G subjective test (R v G [2003]): D foresaw a risk and unreasonably took it. Objective Caldwell recklessness is dead — never apply it.

2. Aggravated criminal damage — s.1(2)

Basic AR/MR plus intention or recklessness as to endangering life by the damage. Note: property can belong to D himself (s.1(2) drops "another"). The danger must come from the damaged property, not the act itself (R v Steer — shooting through a window: the bullet, not the broken glass, endangered life → not s.1(2)). No one need actually be endangered. Triable on indictment, life max.

3. Arson — s.1(3)

Criminal damage (basic or aggravated) by fire. Charge as arson.

4. Lawful excuse — s.5 (basic damage & arson only; NOT aggravated)

Two limbs:

s.5(2)(a): D believed the owner had/would consent.
s.5(2)(b): D acted to protect property, believing it in immediate need of protection and the means reasonable.

Belief need only be honestly held — s.5(3) — even if unreasonable or drunkenly mistaken (Jaggard v Dickinson). Trap: whether the act was capable of protecting property is judged objectively (R v Hunt, R v Hill & Hallam — CND fence-cutting too remote). General s.3 self-defence/necessity may still run separately.

Key traps: no Theft Act wild-plants exclusion under the CDA; G subjective recklessness only; Steer "danger from the damage"; s.5 honest (not reasonable) belief; s.5 unavailable for s.1(2); damage can include the temporary/cleanable.

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A woman is the treasurer of a small amateur football club. Members pay £20 each month in cash, which the woman is instructed by the club's rules to bank into the club's dedicated account within seven days. One month she receives £200 in subscriptions but, being short of money, uses the cash to pay her own gas bill. She intends to replace the £200 from her wages before anyone notices, and she does in fact pay an equivalent £200 into the club account two weeks later. The woman is charged with theft of the £200. Which of the following is the strongest basis for finding the property belonged to another at the time she used it?

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