R v Hardie
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PARKER |
| Judgment Date | 31 July 1984 |
| Judgment citation (vLex) | [1984] EWCA Crim J0731-1 |
| Docket Number | No. 2164/B2/83 |
| Court | Court of Appeal (Criminal Division) |
| Date | 31 July 1984 |
[1984] EWCA Crim J0731-1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Parker
Mr. Justice Stuart-Smith
and
Mr. Justice McCowan
No. 2164/B2/83
MR. R. M. SLOWE appeared on behalf of the Appellant.
MR. R. BAYLISS appeared on behalf of the Crown.
On 21st June, 1982, in the Crown Court at Croydon, the Appellant was convicted by a unanimous verdict of the jury of an offence of arson contrary to section 1(2) and (3) of the Criminal Damage Act 1971. No verdict was taken on an alternative count of arson contrary to section 1(1) and (3) of that Act. On 8th July, 1982, the Appellant was sentenced to two years' imprisonment.
His appeal against conviction brought by leave of the single judge, who also granted an extension of time of some 44 weeks, was heard on 18th July, 1984. On that date the appeal was allowed and the conviction quashed for reasons to be given later. Such reasons follow. The Facts.
Shortly after 9.15 p.m. on 2nd January, 1982, fire broke out in a wardrobe in the bedroom of the ground floor flat at 55 Bassingham Road, London SW10. At that time there were in the flat the Appellant, Mrs Jeanette Hardie, with whom the Appellant had been living at the premises since May, 1974, and who had changed her name to Hardie by deed poll in 1976, and her daughter Tonia. The upstairs flat was occupied by a Mrs Young.
Shortly before 2nd January, the Appellant's relationship with Mrs Hardie had broken down and she had insisted that he must leave. He did not wish to do so, but on the morning of 2nd January he packed a suitcase. At about lunchtime the Appellant found two bottles of tablets in a cabinet. One contained Valium which Mrs Hardie had had in 1974 and the other some tablets to assist urination.
The Appellant's evidence in regard to this was that he had never taken Valium before, that he took one about 12 o'clock to calm him down for he was in a distressed state, that it did not have much effect, that he and Mrs Hardie had then gone shopping, that he had taken two more in front of her and she had said, "take as many as you like, they are old stock and will do you no harm", that he had taken two more shortly afterwards, that he may have taken two of the other tablets also, and that shortly thereafter on return to the house he had fallen into a deep sleep and could thereafter remember only periods.
He was in fact collected from the flat by his mother and remained with her until returning to the flat again at 9.15 p.m. It was not disputed that he must have started the fire for he was alone in the bedroom when it started. Having started it, he emerged, returned to the sitting room where were Mrs Hardie and Tonia and stayed there. Shortly afterwards Mrs Hardie heard sounds from the bedroom, went there and found smoke and flames coming from the wardrobe. There was evidence that before, at the time of and after the fire the Appellant was exhibiting signs of intoxication and that such signs might have resulted from the taking of Valium some hours earlier.
The defence was that the Appellant was so affected by the Valium that he could remember nothing about the fire and had not the necessary mens rea to constitute either of the offences charged. On the basis no doubt of Director of Public Prosecutions v. Majewski (1977) A.C. 443 and Commissioner of Police of the Metropolis v. Caldwell (1982) A.C. 341, the judge directed the jury in effect that, as the Valium was voluntarily self- administered it was irrelevant as a defence and its effects could not negative mens rea. The first point taken on appeal was that this was a misdirection.
The second point taken by Mr. Slowe was a point of extreme subtlety. It arises in this way. Section 1(2) of the Act provides: "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."
In the instant case, Count 1 of the indictment included recklessness as an alternative to intent under both (a) and (b) of the sub- section. On the basis of Caldwell (supra) evidence of self-induced intoxication could not therefore be relevant. However, Caldwell establishes that such alternative is made out under (a) of the subsection if the accused (i) does an act which creates an obvious risk that property will be destroyed or damaged and (ii) when he does the act he either has not given any thought to the possibility of there being any such risk or has recognised that there was some risk involved but has nonetheless gone on to do it. This being so it is clear that when the jury is considering whether the prosecution has established the requirements of (a) of the subsection it might come to the conclusion that it had done so solely on the ground that the accused had given no thought at all to the possibility of there being any risk that property would be destroyed or damaged. If it in fact came to such a conclusion Mr. Slowe submitted that the requirements of (b) of the subsection could not be satisfied because, if an accused had given no thought at all to the risk of damage to property he could not possibly either (a) intend by such destruction to endanger the life of another or (b) be reckless as to whether the life of another would be endangered by such destruction. Finally it was submitted that since in the instant case the jury might have concluded that (a) of the subsection was satisfied solely on the ground of no thought at all, the conviction could not stand because upon such a conclusion (b) of the subsection could not be satisfied. The Law.
We deal first with the second of Mr. Slowe's two contentions. Mr. Slowe appreciated that the argument was difficult to sustain in the light of Caldwell but distinguished that case on the ground that, there, the accused had pleaded guilty to a charge tinder section 1(1) of the Act and had himself given evidence that his actual intention was to damage the property in question. The distinction is valid hut in our view of no assistance. The argument advanced really stems from Lord Diplock's speech at page 354 and 355 of the report where he says: "Where the charge is under section 1(2) the question of the state of mind of the accused must be approached in stages, corresponding to paragraphs (a) and (b). The jury must be satisfied that what the accused did amounted to an offence under section 1(1), either because he actually intended to destroy or damage the property or because he was reckless (in the sense that I have described) as to whether it might be destroyed or damaged. Only if they are so satisfied must the jury go on to consider whether the accused also either actually intended that the destruction or damage of the property should endanger someone's life or was...
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