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. Exclusion (s.10(1)(b)): property does not include mushrooms growing wild on any land, or the flowers, fruit or foliage of a plant growing wild on any land. "Mushroom" includes any fungus, and "plant" includes any shrub or tree. This is not an exclusion of every part of a wild plant. Do not import the separate reward, sale or other commercial-purpose qualification from Theft Act 1968 s.4(3): the CDA exclusion has no such qualification.
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: CDA s.10(1)(b) excludes wild-growing mushrooms and flowers, fruit or foliage of wild-growing plants; do not substitute the different Theft Act s.4(3) rule; 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. Under the club rules she accepted on becoming treasurer, she must bank the subscriptions into the club's dedicated account within seven days. One month she receives £200 in subscriptions and spends the cash on her own gas bill that same day. She intends to replace the money from her wages before anyone notices, and pays an equivalent £200 into the club account two weeks later. Which statement best explains how section 5(3) of the Theft Act 1968 applies to the subscriptions when she pays the gas bill?

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