Criminal Damage Act 1971

Act Summary

The Criminal Damage Act 1971 is the leading piece of legislation, concerning offences involving damage to property in England and Wales.

1. Why was it introduced? (Political/Sociological Context)

In April 1969, the Law Commission released a working paper and subsequently in 1970 – a report, which aimed to review the criminal law on the offences of damage to property. Prior to the enactment of the Criminal Damage Act 1971, the criminal law on damage to property was covered by the Malicious Damage Act 1861, which survived for over 100 years. In the 1960s and 1970s, the Law Commission was running a programme which envisaged the codification of criminal law.

In the run-up to the adoption of the Criminal Damage Act 1971, malicious damage offences were very prevalent among juveniles and in the cases of arson, well over half of the convicted persons were under 21. Furthermore, there were very few cases which called for heavy sentences such as life imprisonment. Yet, there were no less than 23 provisions of the Malicious Damage Act 1861, under which the maximum sentence of imprisonment was 14 years or more.

2. What was the aim of the Act? (Legal Context)

In the report, the Law Commission concluded that the offences and penalties under the Malicious Damage Act 1861 were extremely complicated. Further to that, the Law Commission found that the Malicious Damage Act 1861 was unsatisfactory in many aspects, e.g. there were too many offences, the variety of penalties was excessively wide, there were overlapping offences between the Act and other pieces of legislation and the mental element required in the offences was described in technical language, which made it difficult to understand. As the majority of the cases under the Malicious Damage Act 1861 were dealt with by the magistrates’ courts, it was deemed necessary to create a simple and straightforward law, founded on more rational provisions. For instance, under the Malicious Damage Act 1861, there were multiple classifications of the offences of damage to property, e.g. according to the type of property damaged, the method used, the status of the offender, the circumstances of aggravation, the offender’s object and the extent of damage done. This detailed classification was abandoned in the Criminal Damage Act 1971 in favour of a broad statement of the conduct to be punished, so that there is a general offence covering damage to property, with an aggravated offence where the defendant intends to endanger life or is reckless in that regard.

3. What main changes did it make to the law?

The Act consolidated the definition of property that is capable of forming the subject matter of criminal damage. While in the Malicious Damage Act 1861 there was a division between criminal damage inflicted on a number of objects such as buildings, goods, machinery, corn, trees, vegetable products, fences, mines, sea and river banks, etc., under the Criminal Damage Act 1971 this was formulated as simply “tangible property” under s. 10(1). This includes land and money, but excludes wild mushrooms and wild flowers, fruit and foliage. Wild creatures are included only if tamed, ordinarily kept in captivity, or reduced into possession which has not been lost or abandoned. Under s. 10(2), property belongs to anyone with custody or control, a proprietary right or interest, or a charge over it; ownership is not the only relevant interest.

S. 1(1) creates the general offence of destroying or damaging property belonging to another, without lawful excuse, intending to destroy or damage such property or being reckless as to whether such property would be destroyed or damaged. S. 1(2) of the 1971 Act creates the new offence of aggravated criminal damage. This can involve the defendant’s own property as well as another’s. It requires intention or recklessness as to the destruction or damage and, additionally, intention by that destruction or damage to endanger another’s life, or recklessness as to whether another’s life would thereby be endangered. The danger contemplated must arise from the damage, not merely from the act which causes it; actual danger to life need not result.

S. 1(3) of the 1971 Act draws a distinction between damage by fire and damage by other means. The former is treated with more severity and is charged as arson and punishable by up to life imprisonment on indictment. The Law Commission’s reasoning in 1970 was that causing damage by fire had always been regarded with abhorrence. It also considered that some offenders needed psychiatric treatment but did not qualify for committal to hospital under the Mental Health Act 1959. By giving the flexibility of life imprisonment, it sought to allow detention for treatment for as long as necessary. This was the historical rationale for the maximum penalty, rather than a requirement to impose a life sentence.

Ss. 2 and 3 of the 1971 Act clarify the position on two subsidiary offences – threats to commit criminal damage and possession of anything with the intent to destroy or damage property. Prior to the Criminal Damage Act 1971, threats were only limited to written threats, but now cover all means of threatening. Also, threats to destroy were limited to specific types of tangible property, but now cover all types of property within s. 10. The threat must be made without lawful excuse, with the intention that its recipient fears it will be carried out. It must concern another’s property, or the defendant’s own property in a way which the defendant knows is likely to endanger another person’s life. As far as possession of items with the intent to destroy is concerned, the changes were in the same line of thought. The Malicious Damage Act 1861 used to provide a list with prohibited items, whereas the Criminal Damage Act 1971 makes it illegal to have anything in one’s custody or control with the intention, without lawful excuse, of using it, or causing or permitting another to use it, to destroy or damage another’s property. It also covers intended damage to the defendant’s or prospective user’s own property in a way which the defendant knows is likely to endanger another person’s life.

S. 5(2) of the 1971 Act sets out specific lawful excuses for the offence under s. 1(1) and the offences under ss. 2 and 3 which do not involve the specified threats or uses likely to endanger life. It does not apply to aggravated criminal damage under s. 1(2). The defendant has a lawful excuse if, at the time, he honestly believed that a person whom he believed entitled to consent had consented, or would have consented had that person known of the destruction or damage and its circumstances. There is also a lawful excuse where the defendant acted to protect his own or another’s property, or a right or interest in property which he believed was vested in himself or another, honestly believing it was in immediate need of protection and that the means adopted were reasonable in the circumstances. Under s. 5(3), these beliefs need not be justified, provided they are honestly held. S. 5(5) preserves other defences recognised by law.

S. 4 significantly simplifies the punishments for acts of criminal damage. Under the 1861 Act there were a number of sections attracting a sentence of life imprisonment, 8 sections carrying a maximum sentence of 14 years’ imprisonment and generally, the maximum sentences of imprisonment used to vary widely in an irrational manner. Under the 1971 Act this was simplified and on indictment the maximum sentence for arson or aggravated criminal damage under s. 1(2) is life imprisonment, whereas for the other offences under the Act it is no more than 10 years.

2026 update

Recklessness: R v G [2003] UKHL 50

The meaning of “recklessness” under the Act was fundamentally changed by the House of Lords in R v G [2003]. This case overruled the earlier decision in R v Caldwell [1982], which had applied an objective test for recklessness. The law now applies a subjective test: the defendant must personally have foreseen the relevant risk and it must have been unreasonable to take that risk in the circumstances known to him. A defendant who genuinely did not realise there was a risk of damage cannot be convicted of reckless damage merely because a reasonable person would have realised. This is particularly important in cases involving young defendants or those with limited mental capacity. Self-induced intoxication does not excuse a failure to appreciate a risk which the defendant would have appreciated when sober.

Sentencing

Sentencing law has been consolidated by the Sentencing Act 2020, which is now the primary source for sentencing procedures and powers. The maximum penalties under the Criminal Damage Act 1971 remain unchanged: life imprisonment for arson or aggravated criminal damage under s. 1(2), and up to 10 years for other offences on indictment. The Sentencing Council has published guidelines for criminal damage offences which courts must follow unless it would be contrary to the interests of justice to do so.

Basic criminal damage involving no more than £5,000 is generally tried summarily under s. 22 of the Magistrates’ Courts Act 1980, with a maximum of three months’ imprisonment, a level 4 fine (£2,500), or both. This special procedure does not apply to arson or aggravated criminal damage. For offences committed on or after 28 June 2022, it also excludes damage to memorials, following s. 50 of the Police, Crime, Sentencing and Courts Act 2022. Such memorial damage can be tried on indictment regardless of its monetary value. Racially or religiously aggravated criminal damage is a separate offence under s. 30 of the Crime and Disorder Act 1998, carrying a maximum of 14 years’ imprisonment on indictment.

Threshold for “Damage”

The courts take a broad approach, and damage can include temporary impairment of value or usefulness even where there is no permanent physical harm. In Hardman v Chief Constable of Avon and Somerset [1986], removable paint on a pavement amounted to damage; the time and expense of restoring property can indicate damage. In A (a juvenile) v R [1978], by contrast, spittle which could easily be wiped off a police officer’s raincoat did not amount to damage. Under s. 10(5), a modification of the contents of a computer is not damage for this Act unless it impairs the computer’s or storage medium’s physical condition; computer misuse may instead fall under the Computer Misuse Act 1990.

Protest and lawful excuse

In Attorney General’s Reference (No. 1 of 2023) [2024] EWCA Crim 243, the Court of Appeal held that the circumstances relevant to the consent defence in s. 5(2)(a) do not include the merits, urgency or importance of the protester’s cause, or the perceived need to publicise it. They must relate directly to the damage, although the fact that the damage was caused as part of a protest against a particular cause can be relevant. The defendant must honestly believe the person would have consented, not merely that they might or should have consented.

Attorney General’s Reference (No. 1 of 2022) [2022] EWCA Crim 1259 also establishes that violent or non-peaceful damage falls outside the protection of Articles 9, 10 and 11 of the European Convention on Human Rights. Prosecution and conviction for significant damage, even if inflicted peacefully, cannot be disproportionate on that basis. Minor or trivial damage may require a proportionality assessment; protest does not itself provide a general defence.

Last updated: 11 November 2026