R v Coles
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HOBHOUSE |
| Judgment Date | 13 July 1994 |
| Judgment citation (vLex) | [1994] EWCA Crim J0713-1 |
| Docket Number | No. 93/2257/X3 |
| Court | Court of Appeal (Criminal Division) |
| Date | 13 July 1994 |
[1994] EWCA Crim J0713-1
IN THE COURT OF APPEAL CRIMINAL DIVISION
Before Lord Justice Hobhouse Mr Justice Tudor Evans and Mr Justice Rix
No. 93/2257/X3
MR C MAYNARD represented the Appellant
represented the Respondent
Wednesday 13th July 1994
Lee Henry Coles was tried in March 1993 before Judge Brown and a jury in the Crown Court at Lewes on two counts alleging arson contrary to section 1 of the Criminal Damage Act 1971. One count (count 2) was a count of arson being reckless as to whether life was endangered, with the particulars:
"Lee Henry Coles on the 13th day of August 1992 without lawful excuse damaged by fire a hay barn and hay bales belonging to Barry David Campion intending to destroy or damage such property or being reckless as to whether such property would be destroyed or damaged and being reckless as to whether the lives of Asa Bianju Antonio and Jennifer Anne Tyson would thereby be endangered."
The other count (count 3) was a count of simple arson relating to the same event alleging an intention "to destroy or damage such property or being reckless as to whether such property would be damaged".
After the prosecution evidence had been given and the defendant Lee Coles had himself given evidence, Mr Maynard, counsel for Lee Coles, applied to adduce the expert evidence of a psychologist, Mr Kirby Turner. Coupled with that application, he submitted that it was relevant what was, at the material time, the capacity of Lee Coles to foresee the risks which would arise from his setting fire to hay in a barn and that the Judge should depart from the classical direction on recklessness formulated by Lord Diplock in R v Caldwell [1982] AC 341 at 354. After hearing full argument Judge Brown gave his ruling:
"He asks me to incorporate in my direction to the jury a subjective test as far as limb one of the Caldwell direction is concerned, in other words, to substitute: 'the defendant aged 11 with low intellectual functioning' for the usual direction, namely 'the reasonable prudent man', or as Sangha would put it, 'the ordinary prudent bystander'…..
In my view the Caldwell direction is clear and as far as criminal damage is concerned remains the true test of recklessness until such time as authoritatively reconsidered and/or changed either by their Lordships in the Court of Appeal or the House of Lords, or for that matter by Parliament…..
I shall be directing the jury in this case in accordance with the Caldwell direction which is set out [in Archbold] and I shall be directing them that 'obvious' in the first limb of that direction means 'obvious to the reasonable prudent man'. That deals with the direction as far as recklessness is concerned and as indeed is accepted by Mr Maynard, in effect takes care of his application for inclusion of the evidence of the consultant psychologist."
He refused to admit the evidence of the psychologist on two grounds: first that it was not relevant to any issue which the jury had to consider; secondly that since the psychological evidence was not evidence of any mental abnormality, merely that the defendant was of low average mental capacity, expert evidence was not admissible.
Following these rulings the defendant changed his plea on count 2 to one of guilty and the jury, on that plea, returned a verdict of guilty. They were not required to give a verdict on the alternative count of simple arson.
On behalf of Lee Coles it is submitted that the rulings of the Judge involved wrong decisions on questions of law and that accordingly his appeal against conviction should be allowed. It must be stressed that it is upon this ground alone that the defendant can appeal. Following his plea, and in the circumstances of this case, if that ground of appeal is not made out the appeal must fail. It was accepted by counsel on behalf of the Appellant that if the appeal succeeded and the conviction on count 2 was set aside, he could not resist a conviction on the alternative count of simple arson. Lee Coles has no basis to dispute that he intended to damage property. The point he was disputing was that he was being reckless whether the lives of his two friends would be endangered by his setting fire to the hay upon which they were sleeping.
The Crown evidence was that Lee Coles, who was aged 15, went to Hassocks with four others, Asa who was 15, Jenny and Leah who were each 14, and Mark Poole who was 18. They went to a hay barn which was known to some of them. They arrived there sometime between 11pm and midnight. During the course of the night they visited a nearby petrol station which was open all night. On one of these visits a box of matches was bought. Later on, around dawn, when the five of them were all on top of the hay in the barn, Lee started playing with the matches, setting fire to pieces of hay. He even went so far as to pull a bale to pieces so as better to get the hay to light. At this time only Leah and Mark were awake. Asa and Jenny were asleep less than ten feet away from where Lee was setting fire to the hay. It was the evidence of Leah that at no time did Lee make any attempt to put out the fire he had started or to wake up Asa or Jenny. Leah herself woke up Jenny and Jenny with difficulty succeeded in waking up Asa. Asa and Mark, and possibly Jenny, attempted to put out the flames by stamping on the burning hay but without success. Indeed at one stage Lee put more hay upon the fire in order to encourage it to burn. All five of them eventually made their escape successfully from the top of the hay leaving it to burn. The evidence of Leah, of which we have a transcript, was that she herself was at risk from being trapped by the fire when she was waking up Jenny.
In interview Lee admitted starting the fire and that Asa and Jenny were sleeping a short distance away but he suggested that he and the others succeeded in putting it out and then it was relit by Asa when Asa put fresh hay upon the embers. He accepted that it was dangerous —"highly dangerous" —to start a fire when others were sleeping close by on top of the hay.
In cross-examination at the trial and in his evidence, Lee again sought to implicate Asa in the ultimate fire and to exonerate himself on the ground that he believed that any fire that he started would be put out before it got serious and, indeed, he said that that is what he himself did. He was asked by his own counsel:
"Q. Did you think about what would happen to the hay in the barn if you did not put the fire out?
A. Yes
Q. And what was that?
A. It would have burnt.
Q. You said you intended to put the fire out. Did you think that you could?
A. Yes.
Q.What did you think you could do which would be effective to put the fire out?
A. Just stamp on it."
Earlier he had said in answer to the question what he thought would happen if he lit hay with a match: "I knew it would burn". Asked what he was going to do about the burning, he answered: "Stamp it out". Asked: "Did you think what would happen if you did not stamp it out?" He answered: "Yes". Q. "What?" A: "It would burn." He gave varying answers both in his examination-in-chief, cross-examination and re-examination about risk. At the conclusion of his cross-examination he was asked:
"Q. You took the risk, though, did you not?
A. Yes.
Q. And you took the risk that Jenny and Asa might not have woken up in time and got up? You took that risk, did you not?
A. Yes."
Whilst Lee Coles was giving evidence, his experience and his assessment of the risks involved in his conduct that night were expressly dealt with and explored in each part of his evidence. Which parts of his evidence the jury would have preferred and what conclusions of fact they would have come to, taking into account both his evidence and the evidence adduced on behalf of the Crown, would have been a matter for the jury if the defendant had not chosen to change his plea to one of guilty. They would have been at liberty to conclude that he did actually appreciate the risk to Asa and Jenny and that he chose to disregard that risk.
The evidence of Mr Kirby Turner which was tendered on behalf of Lee Coles was based upon a report and interview with Lee and (it appears) a subsequent reading of the committal papers and certain psychometric assessments which had been made of Lee on two occasions in connection with his educational requirements. The report purports to express opinions about precisely those matters which were explored in evidence at the trial with Lee Coles himself. It inevitably was based upon assumptions about the veracity of what Lee had told Mr Kirby Turner. It is accepted that part of Mr Kirby Turner's opinion would not be admissible. However, it is suggested that the opinion he expresses based upon the psychometric assessment of Lee's "verbal comprehension factor" and "perceptual organisational factor", that "Lee operates in the low average range of intellectual functioning" were admissible. At another point in his report he describes Lee as being in "the low average range of ability" or in "the range of thinking characteristic of pre-adolescent children". Elsewhere his IQ results were given in terms which whilst below the average were well within the range of normality. He reports that Lee saw himself as the "ideas man" in the group and that Lee needed to impress both others and himself; Lee "was locked into the excitement-seeking in rather a thoughtless way". It was suggested by Counsel for Lee that this evidence provided a possible basis for a conclusion that he lacked a capacity for foresight.
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