R v Smith (David Raymond)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE JAMES |
| Judgment Date | 09 November 1973 |
| Judgment citation (vLex) | [1973] EWCA Crim J1109-5 |
| Docket Number | No. 3099/A/73 |
| Court | Court of Appeal (Criminal Division) |
| Date | 09 November 1973 |
[1973] EWCA Crim J1109-5
Lord Justice Roskill
Lord Justice James
and
Mr. Justice Talbot
No. 3099/A/73
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. J. RYLANCE appeared on behalf of the Appellant.
MR. L. GERBER appeared on behalf of the Crown.
On 28th June this year at Woodford Crown Court, David Raymond Smith was convicted of an offence of causing criminal damage contrary to section 1(1) of the Criminal Damage Act. He appeals against that conviction upon a question of law.
At the conclusion of the trial the Deputy Circuit Judge purported to grant a certificate under section 1(2) of the Criminal Appeal Act 1968. The certificate reads: "I certify "that the case is a fit case for appeal on the ground that:-I directed the Jury that honest belief by the Defendant that the property damaged was his own and that he was therefore entitled to do the damage he did could not, as a matter of law be 'lawful excuse' notwithstanding the provisions of Section 5 of the Criminal Damage Act 1971. It seems to me that the law is not clear."
That certificate, on the face of it, sets out a question of law as the ground on which it is granted. Section 1 of the Criminal Appeal Act 1968 provides for an appeal against conviction on indictment, and subsection (2) of that section reads: "(2) The appeal may be - (a) on any ground which involves a question of law alone; and (b) with the leave of the Court of Appeal, on any ground which involves a question of fact alone, or a question of mixed law and fact, or on any other ground which appears to the Court of Appeal to be a sufficient ground of appeal; but if the judge of the court of trial grants a certificate that the case is fit for appeal on a ground which involves a question of fact, or a question of mixed law and fact, an appeal lies under this section without the leave of the Court of Appeal."
The jurisdiction of the judge of the court of trial in relation to the grant of a certificate under that section extends only to grounds which are questions of fact or mixed law and fact. A convicted person has a right of appeal upon questions of law alone. The purported certificate in the present case is a nullity being granted in excess of jurisdiction.
The present appeal is yet another instance of a number of cases, which have recently come before this Court, in which the Judge of the trial court has purported to grant a certificate on grounds involving questions of law alone. We wish to draw attention, as we did in the immediately preceding case of R. v. Auker-Howlett, to the need to ensure, when considering the grant of a certificate under section 1(2) of the Criminal Appeal Act 1968, that the ground upon which the certificate is sought is a question of fact or a question of mixed law and fact.
The question of law in this appeal arises in this way. In 1970 the Appellant became the tenant of a ground floor flat at 209, Freemasons' Road, E.16. The letting included a conservatory. In the conservatory the Appellant and his brother, who lived with him, installed some electric wiring for use with stereo equipment. Also, with the landlord's permission, they put up roofing material and asbestos wall panels and laid floor boards. There is no dispute that the roofing, wall panels and floor boards became part of the house and, in law, the property of the landlord. Than in 1972 the Appellant gave notice to quit and asked the landlord to allow the Appellant's brother to remain as tenant of the flat. On 18th September 1972 the landlord informed the Appellant that his brother could not remain. On the next day the Appellant damaged the roofing, wall panels and floorboards he had installed in order – according to the Appellant and his brother – to gain access to and remove the wiring. The extent of the damage was £130. When interviewed by the police, the Appellant said "Look, how can I be done for smashing my own property. I put the flooring and that in, so if I want to pull it down its a matter for me."
The offence for which he was indicted is in these terms: "Damaging property contrary to Section 1(1) of the Criminal Damage Act 1971. Particulars of Offence: David Raymond Smith and Steven John Smith on the 19th day of September 1972 in Greater London, without lawful excuse, damaged a conservatory at 209, Freemason's Road, E16, the property of Peter Frank Frand, intending to damage such property or being reckless as to whether such property would be damaged." The Steven John Smith jointly charged is the Appellant's brother. He was acquitted.
The Appellant's defence was that he honestly believed that the damage he did was to his own property, that he believed that he was entitled to damage his own property and therefore he had a lawful excuse for his actions causing the damage.
In the course of his summing-up the Deputy Judge directed the jury in these terms: "Now, in order to make the offence complete, the person who is charged with it must destroy or damage that property belonging to another, 'without lawful excuse', and that is something that one has got to look at a little more, Members of the Jury, because you have heard here that, so far as each Defendant was concerned, it never occurred to them, and, you may think, quite naturally never occurred to either of them, that "these various additions to the house were anything but their own property …… But Members of the Jury, the Act is quite specific, and so far as the Defendant David Smith is concerned lawful excuse is the only defence which has been raised. It is said that he had a lawful excuse by reason of his belief, his honest and genuinely held belief that he was destroying property which he had a right to destroy if he wanted to. But, Members of the Jury, I must direct you as a matter of law, and you must, therefore, accept it from me, that belief by the Defendant David Smith that he had the right to do what he did is not lawful excuse within the meaning Of the Act. Members of the Jury, it is an excuse, it may even be a reasonable excuse, but it is not, Members...
To continue reading
Request your trial
-
DPP v Morgan, ; DPP v McDonald, ; DPP v McLarty, ; DPP v Parker,
...the relevant statute. Also, though I get some support from what I have been saying from the reasoning of the decision in Smith (D.R.) [1974] 1 All E.R. 632, I nevertheless regard that case as a decision on the Criminal Damage Act, 1971, rather than a decision covering the whole law of crim......
- R v Bhovinder Sangha and Others
-
R v Phekoo
...on indictment a fine without express limit or two years' imprisonment or both; in neither case can the sanction be said to be light. 22 In R. v. Smith (1974) Q.B. 354, an appeal to this court, it was held that no offence is committed under section 1(1) of the Criminal Damage Act, 1971 when ......
-
R v Bailey an Ors
...that equates to a lack of mens rea (see Blackstone's Criminal Practice 2022 at A3.9 with particular reference to Smith (David Raymond) [1974] QB 354). Trespass is similarly a civil law concept and there seems to be nothing to differentiate it in this respect. I did not find any assistance ......
-
Mistaking theft: Dishonesty ‘turns over a new leaf’
...concerned, because the Act has made ‘no reasonable belief in consent’ a specific mens rea element for these offences.10. R v Smith [1974] QB 354, 360.11. See F Stark, ‘Judicial Development of the Criminal Law by the Supreme Court’ (2020) 0 OJLS 1; Zach Leggett, “The NewTest for Dishonesty i......
-
Testing Fidelity to Legal Values: Official Involvement and Criminal Justice
...and examples, see the classic article by P.R. Glazebrook, ‘The Necessity Plea inEnglish Criminal Law’ [1972] CLJ 87.2Smith (D.R.) [1974] QB 354; see further notes 13–14 below.3 [1986] 1 AC criminal law incidentally to a non-criminal appeal, held that a doctor would nothave intended a conseq......
-
Abandoning dishonesty—A brief German comment on the state of the law after Ivey
...Ivey v Genting Casinos UK Ltd (t/a Crockfords Club) 25 October 2017; [2017] UKSC67, [2018] Crim L R 395–399 at 399.22. R v Smith (David) [1974] QB 354; James LJ explained, at 360: ‘Applying the ordinary principles of mens rea, the intention andrecklessness and the absence of lawful excuse r......