R v Briggs (Note)
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE KENNETH JONES,LORD JUSTICE JAMES |
| Judgment Date | 30 March 1976 |
| Neutral Citation | [1976] EWCA Crim J0330-6 |
| Judgment citation (vLex) | [1976] EWCA Crim J0330-2 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 4583/B/72,No. 4583/B/75 |
| Date | 30 March 1976 |
[1976] EWCA Crim J0330-2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice James
Mr. Justice Kenneth Jones
and
Mr. Justice Pain
No. 4583/B/75
MR. R. CROXON appeared for the Applicant.
MR. A.J. GOMPERTZ appeared for the Crown.
On the 15th September of 1975, before the Crown Court at Chelmsford, this Applicant, Basil Ian Briggs, was convicted of the offence of criminal damage. He was fined £30 and ordered to pay £75 towards the costs of the prosecution. In addition the Court made a compensation order of £5.40. He now applies for leave to appeal against that conviction.
Mr. Croxon, if we give leave to appeal is there any objection to our treating this as the hearing of the appeal?
No, my Lord.
What he had damaged was the handle of the driver's door of a mini motor car. That damage occurred in this way. Miss Roberts, together with two young lady friends, one of whom was called Miss Burnett, had the tenancy of a house at Dunmow. The Appellant was the owner of that house. There had been some trouble between the tenants and the Appellant over the use of the garage alongside the house. What exactly that trouble was, or what the rights or wrongs of it were, have no relevance to this case. Miss Roberts was the owner of this mini motor car and on the evening of the 8th April, 1975, she parked it outside the garage. She locked both the doors of the mini; the garage doors, which were of the "up and over" type, were left open. Inside the garage was another motor car belonging to Miss Burnett. That was the position as it was left on the evening of the 8th April.
The following morning at about twenty past eight, Miss Roberts looked out of an upstairs window and saw the Appellant removing various articles, including a lawn mower, and some potted plants out of the garage. Those were articles belonging to the young women. Miss Burnett went down to see what was happening. She did not speak to the Appellant at all but she saw that he was moving these objects and putting them on the lawn. She was anxious about the motor cars so she looked at them and found both were locked. Indeed, in respect of Miss Roberts' car she took hold of the driver's door handle and tested it normally to ensure that it was locked. She then went back to the house and with Miss Roberts continued to watch the Appellant from the upstairs window.
What happened then was that the Appellant tried to shut the garage door but Miss Roberts' car was parked so close to the end of the garage that the door could not be brought fully down. He then sat on or pressed his body against the back of Miss Burnett's car and, with his legs, pushed Miss Roberts' car back from the garage door. He then shut and locked the garage door.
It was not clear from the evidence of these two young women whether that pushing away of the car occurred before or after he damaged the car door handle. That may be a matter of no great importance. At any event, at one stage close to this time, he was seen by these two young women to go to the offside of Miss Roberts' car, (that is the car outside the garage) and to move his arm up and down twice in the area of the door handle. They both said that it was a normal movement but Miss Roberts pointed out that she was totally unable to see the force with which it was carried out. In the event she telephoned for the police and subsequently it was discovered that the driver's door handle of her mini was missing. It had been broken off and was not found immediately because there was snow on the ground. It was found sometime later under the car. There was evidence from one of the police officers that it would have taken some considerable force to break that handle off.
At the conclusion of the case for the prosecution a submission of no case was made by Mr. Croxon and the learned Circuit Judge ruled, and in the view of this Court rightly ruled, that there was a case to answer and the Appellant was called to give his evidence.
His evidence while agreeing in large part with the evidence given by these two young women, departed from that evidence in one material matter, namely whether he had gone anywhere near the driver's door handle. He said he did not go near that handle and did not touch it. In the event, it appears from the verdict of the jury that on that matter they accepted the evidence of the two young women and rejected that of the Appellant.
The submission is now made to this Court that, even if that were so, as it undoubtedly was, nevertheless the learned Judge misdirected the jury when he came to deal with one important ingredient of this offence. That important ingredient is the element of recklessness. Section 1(1) of the Criminal Damage Act, 1971, reads thus: "A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence."
The learned Judge gave to the Jury a definition of recklessness at three points in his summing up; first of all at the beginning of his summing-up when he was dealing with matters of law; secondly, towards the end of his summing-up when he was invited to deal, or deal again, with the same matter by Mr. Gompertz on behalf of the prosecution; and thirdly in answer to a question posed by the jury. The Jury, after having retired sent a note to the learned Judge which was in these terms: "We are agreed he broke the handle. We are not agreed by eight to four against that it was reckless. Are we arguing on the right lines?" or, according to the way the learned Judge reports the note at a later stage: "……Are we arguing on the right point?" From that it must appear that the question of recklessness was one which featured very largely in the jury's deliberations and the ultimate decision must have turned upon the direction on that matter which they had received from the learned Judge. It is therefore important to look at the directions which he gave and to ask whether they were directions which were correct in law or whether they were misdirections.
Firstly, towards the beginning of the summing-up when he was defining the offence and when, having referred to such matters as lawful excuse and the question of intent, he reached the alternative state of mind which is required under the section he said this: "You know what 'reckless' is, to be reckless in doing something is to be careless of whether it happens, so grabbing the handle of the car in such a manner would be reckless as to whether you damaged it or not." Then, having been invited to deal with the matter again by Mr. Gompertz the learned Judge said this: "If one does something recklessly, careless of whether it will damage or not, then that is reckless I suggest." For all but two sentences, those were the last words the jury heard from the learned Judge before they retired to consider their verdict.
In answer to the question which they asked the learned Judge said this: "Members of the jury, I did cover these matters of intent and recklessness in my summing up to you. It comes down to this, does it not; when you say you agree he broke the handle, do you agree he intended to break the handle? That is a question you must ask yourselves, and on the question of reckless there is no legal definition, but I offer for your consideration — and you must accept it or reject it — a definition;" As has been pointed out, and with this the Court would agree, at that stage it was certainly for the Judge not simply to offer a definition for the jury's consideration but to give them a definition and to direct them as to what was required in law before recklessness could be established. The definition he gave (and I continue to quote) is this: "a deliberate act as opposed to an accidental one by a person not caring whether it results in damage or not."
Mr. Croxon has submitted on behalf of the Appellant that these were all misdirections; and were wrong in law. He submits that firstly in judging of recklessness the subjective test must be applied, that the jury must be told to look not at the mind of some notional individual but at the mind of the Defendant himself. He goes on to submit that the correct direction on recklessness would have been to the effect that the Defendant must be shown to have damaged property belonging to another, and to have brought about that damage by a deliberate act knowing at the time he carried out that act that there was some risk that damage would ensue from it and that, nevertheless, he went on and performed that act which resulted in the damage alleged.
Mr. Gompertz on behalf of the prosecution has submitted that such a direction would have involved too restrictive a definition of the state of mind which is required here. He has argued that this offence...
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