R v Stephenson

JurisdictionEngland & Wales
Judgment Date25 May 1979
Judgment citation (vLex)[1979] EWCA Crim J0525-1
Docket NumberNo. 2546/R/78
CourtCourt of Appeal (Criminal Division)
Date25 May 1979

[1979] EWCA Crim J0525-1



Royal Courts of Justice


Lord Justice Geoffrey Lane

Mr. Justice Ackner


Mr. Justice Watkins

No. 2546/R/78

Brian Keith Stephenson

MR. P. WORSLEY appeared on behalf of the Appellant.

MR. A. CLARKSON appeared on behalf of the Crown.


On 10th May 1978 at York Crown Court, this Appellant was found guilty by the jury of arson, contrary to section 1(1) and (3) of the Criminal Damage Act, 1971, and pleaded guilty to another count of burglary. He was made the subject of a probation order for three years with a condition of medical treatment. He now appeals against his conviction on the charge of arson by leave of the single judge.


The facts giving rise to the charge of arson were as follows. On 28th November, 1977 the Appellant went to a large straw stack in a field near Ampleforth, made a hollow in the side of the stack, crept into the hollow and tried to go to sleep. He felt cold, so he lit a fire of twigs and straw inside the hollow. The stack caught fire and damage of some £3,500 in all resulted. The Appellant was stopped by the police soon afterwards. He first of all maintained that the fire had been caused by his smoking a cigarette. However, the next day he admitted what he had done. He said: "I kept putting bits of straw on the fire. Then the lot went up. As I ran away I looked back and saw the fire was getting bigger. I ran off down the road, that's when I was picked up. I'm sorry about it, it was an accident."


On those facts without more no jury would have had any difficulty in coming to the certain conclusion that the Appellant had damaged the straw stack and had done so being reckless as to whether the stack would be damaged or not, whatever the true definition may be of the word "reckless".


However, the Appellant did not give evidence, and the only witness called on behalf of the defence was Dr. Hawkings, a very experienced consultant psychiatrist. His evidence was to the effect that the Appellant had a long history of schizophrenia. This, he said, would have the effect of making the Appellant quite capable of lighting a fire to keep himself warm in dangerous proximity to a straw stack without having taken the danger into account. In other words he was saying that the Appellant may not have had the same ability to foresee or appreciate risk as the mentally normal person.


The guilt or innocence of the Appellant turned on the question whether the jury were satisfied so as to feel sure that he had been reckless when he lit the fire. The learned judge gave the following direction to the jury: "The prosecution say to you, though, that he set fire to it in a situation and a frame of mind which amounted to recklessness as to whether the straw stack would be damaged. And when you come to deal with what is the difficulty of the frame of mind described as recklessness, one is up against this difficulty, that it is a frame of mind, which, in the first place, may relate to a large number of different kinds of activities, depending on what it is that is the charge made against an accused person. That is to say it may be to do not merely with setting fire to something, it may be to do with damaging something, injuring somebody; it may be to do with driving a motor car that recklessness is the frame of mind that has to be considered and, as well as having to relate to a large number of activities, it also has to deal, it may be, with a number of different frames of mind, and so the wording, the phrase that has been used so far, is that a man is reckless "if he realises that there is a risk, but nevertheless presses on regardless. It may be right to get the thing into more detailed words used by the Court of Appeal, by whom you and I are bound in a case last year. That case in fact was about a man……doing damage I think to a telephone, and the frame of mind was losing his temper, but the same considerations apply and the same question of recklessness or not arises. And in that case what the Court of Appeal said was this: 'A man is reckless in the sense required' (that is to say in the sense which leads to conviction) 'when he carried out a deliberate act knowing or closing his mind to the obvious fact that there is some risk of damage resulting from that act, but nevertheless continuing in the performance of that act'. So far as the last phrase, that is what I call 'pressing on regardless'. Well now a man is reckless when he carried out a deliberate act knowing or closing his mind to the obvious fact that there is some risk of damage. First you perhaps want to ask yourselves whether in lighting the fire the accused carried out a deliberate act, and the answer to that one thinks must be yes, because he has said that he lit the fire. Secondly, you may want to ask yourselves whether you regard it or not as an obvious fact that there was some risk of damage, and when the act is the act of lighting a fire inside a straw stack, you may have little difficulty in dealing with the question whether it is an obvious fact that there is some risk of damage. Did he then do that knowing or closing his mind to the obvious fact, in the case from which these words are taken, as I say the reason advanced or the reason found for the man closing his mind to the obvious fact was that he was so angry that he pressed on regardless, and there may be……all kinds of reasons which make a man close his mind to the obvious fact - among them may be schizophrenia, that he is a schizophrenic."


This direction is criticised on the grounds, first, that it is not in accordance with the decision of this Court in Briggs (1976) 63 C.A.R. 215 and secondly, because the judge "failed to make clear to the jury that the test of whether a man was reckless or not was a subjective test."


With regard to the first ground of complaint, the judge in fact directed the jury in accordance with the terms of the judgment of this Court in Parker (1976) 63 C.A.R. 211 in which Briggs was considered. In Briggs it was held that: "A man is reckless in the sense required when he carries out a deliberate act knowing that there is some risk of damage resulting from that act but nevertheless continues in the performance of that act."


In Parker this court expanded that definition in the words: "A man is reckless in the sense required when he carries out a deliberate act "knowing or closing his mind to the obvious fact that there is some risk of damage resulting from that act but nevertheless continuing in the performance of that act." If that expansion was merely an extension or explanation of Briggs, then the judge's direction here was not, as alleged, contrary to Briggs. It has however been suggested that the additional words used by this court in Parker alter or obfuscate the clear words in Briggs. It is to be observed that in neither case was there any consideration of the earlier authorities. Both judgments were extempore. In any event we now have to decide what is the true meaning of the word "reckless" in section 1 of the Criminal Damage Act, 1971.


The problem is not difficult to state. Does the word "reckless" require that the defendant must be proved actually to have foreseen the risk of some damage resulting from his actions and nevertheless to have run the risk (the subjective test), or is it sufficient to prove that the risk of damage resulting would have been obvious to any reasonable person in the defendant's position (the objective test)?


The word "reckless" is appearing increasingly in modern statutes. The subjective test has the imprimatur of the Law Commission Working Paper No.31: "A person is reckless if (a) knowing that there is a risk that an event may result from his conduct or...

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    • Journal of Criminal Law, The No. 72-4, August 2008
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    ...more precise def‌inition in Outlines of CriminalLaw (1902) 147–8.8 [1957] 2 All ER 412.9 [1977] 2 All ER 37.10 [1977] 1 All ER 475.11 [1979] QB 695 at 704.12 Ibid. per Lord Lane.13 A. W. Norrie, Law and the Beautiful Soul (Glasshouse Press: London, 2005) 84.14 Now adopted in the leading cas......
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