R v G; R v R

JurisdictionUK Non-devolved
JudgeLORD BINGHAM OF CORNHILL
Judgment Date16 October 2003
Neutral Citation[2003] UKHL 50
CourtHouse of Lords
Date16 October 2003

[2003] UKHL 50

HOUSE OF LORDS

The Appellate Committee comprised:

Lord Bingham of Cornhill

Lord Browne-Wilkinson

Lord Steyn

Lord Hutton

Lord Rodger of Earlsferry

Regina
and
G

and another

(Appellants)

(On Appeal from the Court of Appeal (Criminal Division))

LORD BINGHAM OF CORNHILL

My Lords,

1

The point of law of general public importance certified by the Court of Appeal to be involved in its decision in the present case is expressed in this way:

"Can a defendant properly be convicted under section 1 of the Criminal Damage Act 1971 on the basis that he was reckless as to whether property was destroyed or damaged when he gave no thought to the risk but, by reason of his age and/or personal characteristics the risk would not have been obvious to him, even if he had thought about it?".

The appeal turns on the meaning of "reckless" in that section. This is a question on which the House ruled in R v Caldwell [1982] AC 341, a ruling affirmed by the House in later decisions. The House is again asked to reconsider that ruling.

2

The agreed facts of the case are very simple. On the night of 21-22 August 2000 the appellants, then aged 11 and 12 respectively, went camping without their parents' permission. In the early hours of 22 August they entered the back yard of the Co-op shop in Newport Pagnell. They found bundles of newspapers which they opened up to read. The boys then lit some of the newspapers with a lighter they had with them. Each of them threw some lit newspaper under a large plastic wheelie-bin, between which and the wall of the Co-op there was another similar wheelie-bin. The boys left the yard without putting out the burning papers. The newspapers set fire to the first wheelie-bin and the fire spread from it to the wheelie-bin next to the shop wall. From the second bin the fire spread up under the overhanging eave, to the guttering and the fascia and then up into the roof space of the shop until eventually the roof of the shop and the adjoining buildings caught fire. The roof collapsed. Approximately £1m worth of damage was caused. The appellants' case at trial was that they expected the newspaper fires to extinguish themselves on the concrete floor of the yard. It is accepted that neither of them appreciated that there was any risk whatsoever of the fire spreading in the way that it eventually did.

3

An indictment was preferred against the appellants charging them with arson contrary to section 1(1) and (3) of the Criminal Damage Act 1971. The particulars of the offence charged were that they on 22 August 2000 "without lawful excuse damaged by fire commercial premises belonging to … others being reckless as to whether such property would be damaged".

4

Section 1 of the 1971 Act provides:

"1. (1) 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.

(2) A person who without lawful excuse destroys or damages any property, whether belonging to himself or another -

(a) intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and

(b) intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered;

shall be guilty of an offence.

(3) An offence committed under this section by destroying or damaging property by fire shall be charged as arson."

Section 4(1) of the Act provides that a person guilty of arson under section 1 shall on conviction on indictment be liable to imprisonment for life.

The trial

5

The appellants stood trial before His Honour Judge Maher in March 2001. At the outset of the trial, submissions were made on the meaning of "reckless" in section 1(1) since the appellants were charged with being reckless whether the premises would be destroyed or damaged and not with intending to destroy or damage them. The judge ruled (in effect) that he was bound to direct the jury in accordance with R v Caldwell [1982] AC 341.

6

This is what the judge did. He helpfully provided the jury with a typed copy of this part of his direction and said:

"If we look at this together, what the prosecution have to prove is: (1) the defendant damaged by fire the building, the commercial premises, shown in the photographs; (2) that the defendant in doing what he did, created a risk which would have been obvious to an ordinary, reasonable bystander watching that the building, the commercial premises, would be damaged by fire; and (3) that when he, meaning a defendant, did what he did, either he had not given any thought to the possibility of there being such a risk, or having recognised that there was some risk involved in doing what he did, nonetheless went on and did the act. The word 'risk' which appears in paragraph 3 means, as will be apparent, I hope, from the wording of paragraph 2, the risk that the building would be damaged by fire. So, those are the matters which the prosecution have to prove."

The judge pointed out that proof of the first of these matters was not in dispute. The judge then addressed the second matter and continued:

"That does not mean the boys are guilty of this offence, because it is questions nos 2 and 3 which are at the heart of this case. Question no 2: that the defendant, in doing what he did, created a risk which would have been obvious to an ordinary, reasonable bystander watching that the building, the commercial premises, would be damaged by fire. So, this requires you to find as a fact on the whole of the evidence in the case, what did they do? Having established that, this is the test that you will apply: first, focus upon the moment when the two boys left the compound. Then, find as a fact, upon the evidence, what it was that would have been visible to the reasonable bystander, the ordinary reasonable bystander, looking on. Then, ask yourselves question no. 2: at that moment, having determined that, would it have been obvious to that ordinary, reasonable bystander that there was a risk that the fire would spread from paper, or papers, to bin, or bins, up to the building? It is not necessary for the ordinary reasonable bystander to have foreseen in his mind the full extent of the damage which in fact occurred because, as you will well know, once fire takes hold, it is probably anybody's guess where it is going to end up.

The ordinary, reasonable bystander is an adult. He does not have expert knowledge. He has got in his mind that stock of everyday information which one acquires in the process of growing up. This is why to leave this question to a jury of twelve is probably the best tribunal that one could have for answering this question. You will notice also that we are using the language, the vocabulary of risk - not certainty. When you answer this question as to whether it would have been obvious to an ordinary reasonable bystander watching that the fire, in effect, would spread as I have just explained it, the ages of these defendants are irrelevant. Their good characters are irrelevant. No allowance is made by the law for the youth of these boys or their lack of maturity or their own inability, if such you find it to be, to assess what was going on. So, if it would have been obvious to an ordinary, reasonable bystander that there was a risk of the fire spreading (as I have just described) to the building, it is irrelevant that you say, 'Well, we think this is a bit harsh. We don't think it would have been apparent to these boys, even though it might have been apparent to an ordinary, reasonable bystander'. It is too bad. So, in that sense, when you are answering this question, you leave wholly on one side everything you know about these two young boys here because - I repeat - it is what would have been perceived by the ordinary, reasonable bystander which is the test."

The judge observed:

"Now, I say to you, quite frankly, that you may think this is a harsh test to apply to youngsters, because no allowance is made for age and immaturity. Many people would be sympathetic with you. But, it is my task to expound the law to you as it is, and it is your duty to apply the law as it is - not as you might like it to be - to the facts of the case. Sympathy can play no part in the answering of this question.

Now, I cannot tell you - or even begin to help you - and it would be quite wrong for me to try and help you, with what the ordinary, reasonable bystander would not have perceived as a risk in terms of the fire spreading from paper to bin, to building. You have heard the evidence and you will decide."

The judge then directed the jury on the third of the matters he had listed:

"Let me assume the prosecution have jumped hurdle no. 2. Hurdle no. 3 must also be jumped, and here you see it is in two parts: that when he did what he did, either he had not given any thought to the possibility of there being such a risk, or having recognised that there was some risk involved in doing what he did, nonetheless he went on and did the act.

Now, I begin with the second part of paragraph 3 which is a question that does concern the state of mind of the two boys. If you were to say, 'We are, all twelve of us, satisfied so that we are sure that these boys when they started the fire and left the compound, appreciated in their minds that there was some risk of the fire spreading from paper to bin, to soffit, to building, and nonetheless went on and did what they did', then it is difficult to see how they could be anything other than guilty of this offence. It is not primarily the way the prosecution put their case. As you know, to cut a long story short, the boys have said to you, each of...

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