R v John Farnon and Nia Ellis
| Jurisdiction | England & Wales |
| Judge | Lord Thomas of Cwmgiedd, CJ |
| Judgment Date | 10 March 2015 |
| Neutral Citation | [2015] EWCA Crim 351 |
| Docket Number | Case No: 2014/03661/B3 & 2014/03662/B3 |
| Court | Court of Appeal (Criminal Division) |
| Date | 10 March 2015 |
[2015] EWCA Crim 351
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT CROYDON
Royal Courts of Justice
Strand, London, WC2A 2LL
LORD CHIEF JUSTICE OF ENGLAND AND WALES
Mr Justice Mitting
and
Mr Justice Goss
Case No: 2014/03661/B3 & 2014/03662/B3
Miss Miranda Moore QC for both appellants
John McGuinness QC and Jocelyn Ledward for the respondent
Hearing date: 17 February 2015
Introduction
On Monday, 10 June 2013 the appellants JF (a boy then aged 14 1/2) and NE (a girl then just aged 16) and two other young persons, AL and MM, visited a derelict building which had been a Sea Cadet centre in Croydon. They went into the basement, set fire to a discarded duvet, which was on top of a pile of discarded tyres. Once it was smoking, they left. The smoking duvet melted on to the tyres which then caught light. Within five minutes thick, acrid smoke filled the basement rooms. It killed a homeless Polish male who was in the building at the time. JF and NE were arrested and subsequently tried at the Crown Court at Croydon before HH Judge McKinnon, the Recorder of Croydon, on a count of manslaughter through an unlawful and dangerous act and a count of arson, being reckless as to whether life was endangered.
On 27 June 2014 both were convicted of manslaughter but acquitted of arson being reckless as to whether life was endangered and convicted of the alternative and lesser offence of simple arson. On 18 August 2014 both received a sentence of three years detention for each of the offences of which they had been convicted. They appeal by leave of the Single Judge against their conviction for manslaughter and the sentences passed.
The issue on the appeal against conviction for manslaughter was whether the judge had correctly directed the jury on intent and foreseeability.
We dismissed the appeal against conviction, reserving our reasons to be given at a later date. For reasons we then gave we allowed the appeal of each appellant against sentence, quashed the sentences of 3 years detention on each count and substituted a 24 month Detention and Training Order on each count.
The evidence
There was in reality little dispute as to the evidence. The former Sea Cadet centre in Croydon was a derelict building as it had suffered acts of vandalism and had been badly fire damaged in 2010. Although there were no obvious signs of squatters, four Polish men, including the deceased, had been living in the building for seven months prior to the fire in June 2013. One of those who lived in the building explained there was not anyone usually in the building during the day. The basement rooms were dark and they used torches to find their way around.
It appeared from the evidence given by MM, one of the two who had accompanied the appellants, that she had not gone into the building with the others. After about 10 minutes the appellants and AL who had gone into the building came out; there was smoke and they all ran off.
AL's evidence was that she had gone into the building with JF, her boyfriend, and NE. JF and NE produced lighters and she asked them what they were doing as there could be a man inside for all they knew. JF and NE then started a fire. When she saw smoke she left. She had seen a table in the room with shoes on it and a baked beans can. She had taken a video of the incident but it had been deleted.
Neither JF nor NE gave evidence. Each had given an account in interview.
i) NE admitted she had been into the building on the day of the fire and on a previous occasion. She had seen a tin of baked beans on the table but did not remember AL warning them that there might be someone in the building. She did not think there was anyone in the building.
ii) JF said in interview that he used his lighter to light some paper and a log on the table. When NE had set light to the duvet, he blew on his little fire and it spread. They had left because of the smoke. He admitted he knew people slept there. On an occasion a few months before the fire when he and his friends had been there he had spoken to a homeless man who had told them that someone else there had axes and knives. When he went on the day of the fire he went to the area where people slept and because he did not see a light he believed that there was no-one there. If he had thought that there might be someone there he would have stopped and told the others to do the same.
There was also evidence from a Consultant Forensic and Clinical Psychologist that JF had a low IQ of 68–74. His reasoning skills were poor. She had found him to be exceptionally childlike, overly compliant and unusually suggestible. His functioning was in the bottom 2 per cent of the population. Her evidence was that his answers in police interviews should be judged as if he were a six year old child.
The judge's direction to the jury
The judge carefully discussed with counsel the directions he should give the jury. He provided them with not only a route to verdict but a very clear statement of the matters they would have to consider if they were to find the appellants guilty of manslaughter and arson being reckless as to whether life was endangered.
As to the unlawful act of manslaughter he first gave directions as to the unlawful act – as set out on the indictment, namely criminal damage to the building (as opposed to the discarded paper or duvet) under the Criminal Damage Act 1971. He made it clear that the prosecution had to prove that the damage to the building was done either intentionally, "intending to cause damage to the building" or recklessly. In explaining recklessly he said
"A person acts recklessly if he is aware that his act has created a risk that damage may be caused i.e. that the fire would spread to the tyres and to the building and it is in the circumstances known to him unreasonable to take such a risk"
He directed the jury that in a case of manslaughter where the unlawful act was arson to a building there was a twofold test.
"Firstly it must be proved that at the time of starting the fire the defendant foresaw or contemplated the possibility that some person or persons, known or unknown, might be in the building.
Secondly, the unlawful act has to be a dangerous one in that all sober and reasonable people would inevitably have recognised that such person or persons might sustain some physical harm however slight resulting from the fire. It is immaterial whether or not the defendant actually knew or actually realised that the act was dangerous in the sense I have defined it for you and whether or not he intended any harm to result therefrom. And the sober and reasonable man is endowed with the knowledge which the defendant possessed before and at the time of starting the fire."
In respect of arson being reckless as to whether life be endangered the directions as to intention were:
"That it was done either intentionally i.e. intending to cause damage to the building or recklessly. What is meant by recklessly? A person acts recklessly if he/she is aware that his/her act has created a risk that damage may be caused i.e. that the fire would spread to the tyres and to the building and it is in the circumstances known to him unreasonable to take such risk.
That at the time of setting the fire he/she was reckless whether the life of another or others would thereby be endangered. What has to be proved by the evidence is that the defendant was actually aware of a risk that his setting fire to the building would endanger the life of another or others and that in the circumstances that were known to him/her it was unreasonable to take that risk. If that is proved by the evidence, then he/she is guilty."
The directions highlighted that, whereas for the offence of arson with intent to endanger life subjective foreseeability of endangerment of life was required, in the case of manslaughter, although subjective foreseeability was required as to each of the appellants foreseeing or contemplating the criminal damage to the building and the possibility that persons might be in the building, the test as to whether the act was dangerous was an objective one.
It was contended on the part of the appellants that the objective test as to whether the act was a dangerous one was a test which should have been adapted to take into account the foreseeability of persons of the appellants' ages and, in the case of the appellant F, his mental capacity. It was submitted that by the acquittal on count 2 but conviction of simple arson, it was clear that the jury considered that neither JF nor NE had the subjective appreciation of the risk of harm to any person.
The case law
As is explained in the Law Commission Consultation Paper No 135, 1994, Involuntary Manslaughter, the ways of committing the offence of involuntary manslaughter have evolved over time into gross negligence manslaughter and unlawful act manslaughter. In unlawful act manslaughter two elements must be carefully differentiated — the requisite state of mind and the requirement of dangerousness in relation to the unlawful act.
(a) The requirement of dangerousness in relation to the unlawful act
It is convenient first to consider the requirement of dangerousness in relation to the unlawful act. In 1937 the House of Lords made clear in R v Andrews [1937] AC 576 that where death resulted from negligent performance of a lawful activity that was insufficient to found unlawful act manslaughter, even though the simple...
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