R v Goodfellow
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 14 March 1986 |
| Neutral Citation | [1986] EWCA Crim J0314-3 |
| Judgment citation (vLex) | [1986] EWCA Crim J0314-1 |
| Docket Number | No. 5370/B/85 |
| Court | Court of Appeal (Criminal Division) |
| Date | 14 March 1986 |
[1986] EWCA Crim J0314-1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Lord Chief Justice of England (Lord Lane)
Mr. Justice Boreham
and
Mr. Justice Taylor
No. 5370/B/85
MR. G. B. STEWART appeared on behalf of the Appellant.
MR. M. BETHEL, Q.C. and MR. M.C. CARR appeared on behalf of the Crown.
On 12th July 1985 in the Crown Court at Newcastle this appellant was convicted on five counts of an indictment. The first three counts charged manslaughter, in respect of each of which he was sentenced to six years' imprisonment. Count 4 charged arson, on which he was sentenced to four years' imprisonment. Count 5 charged him with arson, being reckless as to whether the lives of those in the house would be in danger, and on that he was sentenced to six years' imprisonment. All sentences were ordered to run concurrently.
He now appeals by leave of the single Judge against the convictions for manslaughter and the conviction on count 5.
On 14th August 1984 in the early hours of the morning, the appellant set light to the council house he occupied at 24 Cossack Terrace, Pallion. He poured petrol over the sideboard, chair and walls of the downstairs living room, and then set the house on fire by igniting the petrol. In the ensuing blaze three people died: his wife Sarah aged 22, another young woman named Jillian Stuart with whom the appellant was having a liaison, who was in the house that night, and the appellant's 2-year old son Darren.
The background to these events was as follows. The appellant had been having difficulties with two men in the locality. One of them had been fined for damaging the front door of No. 24. Hence the appellant wanted to move. He had no chance of exchanging his council house for another because he was some £300 in arrears with his rent. He therefore conceived the idea of setting No. 24 on fire and making it look as though the fire had been caused by a petrol bomb thrown through the window by one of the men. This story was what he initially told the police when they started to make enquiries.
In fact he had obtained the petrol from the motorbike of a friend of his called Dalzell. Part of it, according to him, he used as an experiment in the garden, when the flames simply ignited in one place. The remainder he used as already described.
According to Dalzell, he, Dalzell, told the appellant it was a stupid idea, and Jillian, who was present at the time, disapproved of the plan saying that she was not going to risk her life and the lives of the bairns for him (the appellant). The appellant however told the jury that the fire was Jillian's own idea and that she talked him into carrying it into effect. Jillian had (wisely) arranged for her three children to sleep elsewhere.
The appellant's three children remained in the house because, as he said, it would have been suspicious if they had not been there. The idea was that once the fire started the adults would take the children from the house and all would therefore escape. However the fire spread very rapidly. The appellant fetched a ladder from a neighbour's house, put it against a bedroom window and took to safety two of his children handed out to him by his wife. The fire by then was too intense for anyone else to be saved. Jillian was asphyxiated inside the house. Sarah and Darren died in hospital from their burns.
The grounds of appeal are that the Judge failed adequately to direct the jury on the law of manslaughter in relation to the facts of the case, and in particular directed them on the basis of a passage in Archbold, 41st Edition, which was the subject of adverse criticism by their Lordships in the Privy Council in Kong Cheuk Kwan v. The Queen (1985) Crim. L. R. 787, Privy Council Appeal No. 65 of 1984. A report of that decision had appeared in the Times newspaper shortly before the learned Judge came to sum up the case to the jury. His attention was very properly drawn to the report by counsel.
This is the way in which the Judge directed the jury on this aspect of the case: "First, the prosecution must prove that Goodfellow committed an act which caused the three deaths. No doubt about that, ladies and gentlemen, he set fire to the house as a result of which all three died. Secondly, the prosecution must prove that the act was unlawful. Again, no doubt about it, it is plainly unlawful to burn down your council house in the hope that the council will rehouse you. Thirdly, the prosecution must prove that the act - and this is the crux of the case ladies and gentlemen - was a dangerous act, and in law an act is dangerous if it is such that all reasonable people would recognise that it would subject another human being to the risk of some harm; not necessarily serious harm, but some harm. This is nothing to do with the defendant's state of mind. The test is would the reasonable person recognise the danger of some, not necessarily serious, harm. Now I must expand a little of this third point which is the general law in relation to manslaughter, and I must apply it to the facts of this case. What the Crown must prove to your satisfaction are two further things beyond the three things which I have just mentioned. First, that at the moment Goodfellow set fire to Number 24, the prevailing circumstances were such that the ordinary, prudent, sober individual - and please consider yourselves as having been in Goodfellow's position at that time for this purpose -the ordinary, prudent, sober individual would have recognised that the act of setting fire to the house could cause some injury, not necessarily serious injury, to the other five persons in the house, and that the risk of causing injury was not so slight that the ordinary, prudent individual would have felt justified in treating the risk as negligible. And please note, ladies and gentlemen, that the defendant told you in evidence that he thought he had eliminated all risks when he started the fire. But the test on this point is not what he thought, but what the reasonable man would have recognised.
"Now the second further thing the Crown must prove is this, that at the moment Goodfellow set fire to the house he either gave no thought to the risk of injury to the inmates in circumstances when he obviously ought to have done so, or he recognised that there was a risk of injury but nonetheless went on to take that risk. Now this latter point is the more relevant, you may think, because it is obvious, isn't it, that Goodfellow did appreciate that there was some risk. This emerges from what he told the police, doesn't it, and by his dispatch of Jillian's children to the grandmother some time before and by the test fire in the garden ….".
There is no doubt that this direction was based in part upon the offending passage in Archbold, which now appears at paragraph 20-49(7) of the 42nd Edition, although the learned Judge omitted parts of it and particularly the final passage of that sub-paragraph, which is apparently based on R. v. Bateman (1925) 19 Cr. App. R. 18.
The passage was criticised by their Lordships as confusing (1) causing death by an illegal act of violence, (2) what was said in Caldwell, (3) what was said in Lawrence and (4) what was said in Bateman. Lord Roskill pointed out in Kong Cheuk Kwan (which was a case where death resulted from a head-on collision in bright sunshine between two hydrofoils plying between Hong Kong and Macao), that the question for the jury was whether or not the defendants had been guilty of recklessness (or gross negligence), and no question arose of death resulting from an unlawful act of violence.
We are told that there was some discussion between counsel and the Judge during the course of the trial as to whether the jury should be directed on the " Lawrence" or the "unlawful act" basis, and that the Judge appeared to favour the former. Whether that is so or not, we have to decide whether the direction he in fact gave was correct.
It seems to us that this was a case which was capable of falling within either or both types of manslaughter. On the Lawrence aspect, the jury might well have been satisfied that the appellant was acting in such a manner as to create an obvious and serious risk of causing physical injury to some person, and secondly that he, having recognised that there was some risk involved, had nevertheless gone on to take it.
This was equally, in our view, a case for the "unlawful and dangerous act" direction. Where the defendant does an unlawful act of such a kind as all sober and reasonable people would inevitably recognise must subject another person to, at least, the risk of some harm resulting therefrom, albeit not serious harm and causes death thereby, he is guilty of manslaughter: Church (1966) 1 Q.B. 59.
Lord Salmon in Director of Public Prosecutions v. Newbury (1976) 2 All E.R. 365 approved a dictum of Mr. Justice Humphreys in R. v. Larkin (1943) 1 All E.R. 217, at page 219. "Where the act which a person is engaged in performing is unlawful, then if at the same time it is a dangerous act, that is, an act which is likely to injure another person, and quite inadvertently he causes the death of that other person by that act, then he is guilty of manslaughter." Their Lordships in that case ( Newbury) expressly disapproved of a passage in the judgment of Lord Denning, Master of the Rolls, in the civil case of Gray v. Barr (1971) 2 All E.R. 949 at page 956, in which he asserted that the unlawful act must be done by the defendant with the intention of frightening or harming someone or with the realisation that it is likely to frighten or harm someone. That...
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