Banksy: when does graffiti become criminal damage?

Any law student can tell you that graffiti is an offence of criminal damage. But what if that graffiti is a mural by street artist Banksy? And what are your rights if that mural is then damaged or destroyed by a third party?

This is the position that the owners of a house in Bristol found themselves in during February. A Valentine’s Day mural by Banksy appeared on the side of their house, only to be swiftly defaced by spray paint.  

As one of the world’s most notorious – albeit anonymous – street artists, Banksy’s work commands a high price. Finding a Banksy painted on your property is more likely to lead to a call to an auction house, rather than the police; however,, on the face of it, his street art does amount to criminal damage.

The offence of criminal damage, contrary to the Criminal Damage Act 1971, requires that a person destroys or damages property belonging to another, intending or being reckless as to that damage or destruction.

As a concept, ‘destruction’ is non-contentious and is not at issue here. Instead, our focus is on the notion of ‘damage’. It is a well-established principle that even a temporary reduction in a property’s value or usability can amount to damage (see R v Fiak [2005]). However, whether damage has occurred remains a question of fact and degree for the triers of fact (Roe v Kingerlee [1986]), and this question becomes particularly interesting when that damage is a Banksy mural.

Banksy appears to be in a unique position. His street art is – as the Valentine’s Day mural has been – typically welcomed as an enhancement. Whether removed and sold, or retained as part of that property, his art is something that property owners may treat as a valuable gift. As such, it is questionable whether Banksy’s additions would be considered criminal damage. Certainly up to this point, any legal proceedings involving Banksy and his work have avoided the gaze of the criminal law and have centred around contentions as to who owns the property that the artwork has been applied to and the IP rights contained in that work (Banksy launches homewares shop in dispute over trademark, the Guardian 1 October 2019).

So, the question becomes: could Banksy be liable for criminal damage?

It would not be difficult to establish that the ‘art’ has been applied to ‘property’ which ‘belongs to another’ – that is uncontentious. However, in terms of ‘damage’ that matter is more difficult. Damage need not be permanent and is not restricted to mere physical harm. Damage may be caused where there is an impairment of the property’s value or usefulness. It is also a form of damage should any expense be incurred to restore the property to its previous condition (Hardman v Chief Constable of Avon and Somerset Constabulary [1986]).

How then does that apply to Banksy’s work?

It would be a stretch to suggest that a Banksy would impair a property’s value; in fact, as noted above, it has the opposite effect, with the property’s value increasing (Free house as part of Banksy sale, BBC Online 1 February 2007). Further, unless Banksy had painted over an advertisement board, for example, there is nothing to suggest that the property’s usefulness has been impaired. There is certainly little question that his artwork affects the usefulness of a wall.

Whilst it may be expensive to remove the artwork and restore the property back to its previous condition, the thrust of the case law is that expense must be incurred (ie, the owner has spent money to rectify it). As such, a mere ability to spend money to restore the property may be insufficient. Given that there appears to be no rush on the owner’s part to restore the property to its previous form, this aspect of damage is also unlikely to apply.

Therefore, it would seem that Banksy’s work may fail to satisfy the requirement of ‘damage’. However, despite this it is worth emphasising that whether property has been damaged is a question of fact and degree; it is a question for the arbiters of fact. As Sir Igor Judge (as he was) in R v Fiak stated, the trial judge should not direct the jury to find that damage exists, rather: “we would expect an issue of this kind to be resolved by the jury”. In that sense, whether damage exists is dependent on the layperson’s views (many of whom may appreciate Banksy’s work). However, these considerations do not apply to secondary graffiti introduced to deface the artwork (ie, the vandalism of Banksy’s artwork). This graffiti will amount to criminal damage of the physical property – property which may have become more valuable because of Banksy’s mural.

Finally, whether Banksy would be liable for criminal damage is a question of fact and would be settled according to the particular views of those involved in the determination. To follow that, defacing a Banksy mural also amounts to criminal damage – both of the original property and, it must be assumed, the artwork itself.

Mark Thomas and Samantha Pegg are both Senior Lecturers at Nottingham Law School, Nottingham Trent University.