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F E Smith
F E Smith, Advocate
Category: Law
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Experience:  I have been practising for 30 years.
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I may be about to be charged with criminal damage to

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I may be about to be charged with criminal damage to property, but at the time of the 'offence' I considered the damaged property to be my own, is it likely I'll be charged?
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Was the property your own?

Customer: replied 1 year ago.
crikey, that WAS quick! It was a rented property, specifically, the garden which I had substantially upgraded from what was given to us (bare dirt and weeds, completely rotivated then returfed by us at our expense) and (long story, not proudest moment, driven by anger at landlord at tenancy end) I decided to 'return to condition it was when given to us', with ern, weedkiller. But as I say, I was completely of the opinion that it was MY property at that time. It has since been made clear this is not the case, hence the threat of prosecution. I've read about section 5, but it still worries me, as I'm clearly not a lawyer...

What did you kill specifically?

Customer: replied 1 year ago.
just grass.

They are not going to charge you with criminal damage over that.

In legal theory it could be a criminal damage. There is no defence in saying that you considered it yours. It might be a defence to say that you had a mistake but reasonable belief that an item belonged to you but that isn't what happened here.

But as a matter of practice they are not going to charge you for criminal damage for destroying some grass.

Also, it appears to me that they would have to prove that you damaged it irrepairably or that the landlord was put to cost in putting it right. This grass will grow back.

Can I clarify anything for you?


Customer: replied 1 year ago.
Thanks, ***** ***** couple of points...
Firstly, there is a cost to put it right. I do agree it will grow back, but the landlord is insisting on it being 'put right' to be rented out again. And the officer I'm dealing with, has said it is correct that he can insist on this, and the landlord is insisting that the only remedy he will consider is returfing the entire area, even though I thought we had agreed that reseeding would suffice...
Also, I thought ( and please excuse my internet borne expertise!) that section 5 allowed a defence if you genuinely believed you were the owner of the property concerned?

But the problem here is that you didn't believe it was yours.

You might well have taken the view you were entitled to do this for lots of reasons but that doesn't mean that you had any belief that this grass was your own

Customer: replied 1 year ago.
But I honestly DID believe it was mine... Having paid many hundreds of pounds for the work, and indeed having physically done parts of it myself, I absolutely did indeed believe it was mine, hence why I assumed I was (obviously the next bit is where I was a bit mad...!) 'returning it to the condition it was supplied in', I did, and paid for all the work and materials...
I realise the soil, the ground itself would be the landlords property, but the grass, I presumed it was mine, having paid for it...?
As I say, I do now realise that was my error, but at the time, I absolutely DID believe it was mine to do with as I wanted.

I suppose you could argue the law implies knowledge but it is a difficult argument to run.

There is a mens rea in any criminal offence.

I see that you have given my colleague a negative rating.

Let me see if I can assist a little further. There is case law that may assist you.

Jaggard v Dickinson (1980) QBD.

It was to do with criminal damage where the defendant broke into a house which she thought belonged to her friend but it did not. The friend would have consented to her breaking in and hence, because he made the mistake of thinking that it was her friends house and there was consent, she got found not guilty.

Your particular case provided you have an honest belief and you can prove to the satisfaction of the court that you had an honest belief, but the land was really yours, then you could escape prosecution for criminal damage.

Can I clarify anything for you?

Please don’t forget to rate the service positive. It’s an important part of the process by which experts get paid.

Best wishes.


Customer: replied 1 year ago.
Thankyou for this. The reason for the negative rating was due to the apparent non understanding of section 5 of the CD act, which, to MY (as I said before, internet bred knowledge!) gave a specific (not sure of the right phrase here so bear with me) 'allowance' for genuine belief of ownership.
As I said, at the time, I genuinely DID believe I owned the grass, so the recklessness of my actions was exactly that, I was being a knob, but it was MY property to do with as I pleased, so why not? That was my thinking.
To be UTTERLY clear, I do understand, and did at the time, that the soil itself was not mine, but the grass, that was paid for and done by me, and frankly, I still struggle to understand how it could NOT have been mine at the time, but I have to accept the legal facts I've been told!! And also, to be clear, the weedkiller used will NOT have had any lasting effect on the soil itself.So, if I might summarise, for my own clarity (I'm stressing my proverbials off over this...!) if I can demonstrate that I had genuine believe of ownership at the time the offence was committed, that would be a suitable and sufficient defence?I believe I can easily show this, indeed the officer I have been dealing with believes this too. My (sorry about the 'google law school' here...!) reading indicates the CPS would also recognise this, and would likely not even bring a prosecution, is this correct?

I must admit, I do agree with everything that my colleague has said.

There is an issue with regard to ownership of the grass. You don’t own the grass.

We are getting onto land law now.

As soon as you put the grass on the land it became part of the land and no longer belonged to you and hence, you are not entitled to kill it. In exactly the same way that if someone puts window frames into a building, even if they have a clause which says goods remain the property of the seller until paid for in full, they are not entitled to take them because they have become part of the building.

The situation with the grass is the same. The grass is part of the land.

You can still rely on the case of Jaggard because although the is quite specific on this, you had reasonable belief that you owned the grass albeit that it was a mistaken belief.

I think it’s important that you refer to the case law because the case law supports exactly your defence.

Customer: replied 1 year ago.
Thankyou, that does provide the reassurance I need. My work requires that I don't have something like this on a criminal record!
Whilst I can accept the accusation of frustration driving recklessness, wilfull damage to anothers property is not something in me...
One last question, regarding the CPS, do you consider it likely they would bring a charge?

With regard to them bringing a charge for this, stranger things have happened.

A lot will depend on the extent of it and if you weed killed the whole lawn, they are likely to do so.

However if you raise the caselaw with them, in my opinion, they would be well advised to drop it because from your facts, and with that caselaw, you would be found not guilty. It depends if the court believes the point that you reasonably believed that the grass was yours.

F E Smith, Advocate
Category: Law
Satisfied Customers: 10226
Experience: I have been practising for 30 years.
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