Hayes, R. v [2008] EWCA Crim 1998

[2008] EWCA Crim 1998Case No 200802222 A3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 15th August 2008
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE TOULSON
MR JUSTICE ANDREW SMITH
MR JUSTICE BEAN
Between
R E G I N ACrownv
Between
DARREN STEPHEN HAYES
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr J Samuels appeared for AppellantMr J Dickinson appeared for Crown
J U D G M E N T

LORD JUSTICE TOULSON:

[1]On 8th January 2008, at Bolton Crown Court, the appellant pleaded guilty to an offence of arson being reckless as to whether life was endangered. On 31st March 2008, he was sentenced to eight years' imprisonment. He appeals against that sentence by leave of the single judge. The offence to which he pleaded guilty was the second count on the indictment. The first count charged was arson with intent to endanger life. On his pleading guilty to count 2, the prosecution did not seek to proceed on count 1. The plea of guilty was entered on the first day of the trial. On the face of the record, it was therefore a late change of plea but that is an over-simplification, for reasons to which we will refer.[2]First, however, the facts. The appellant was employed as a care assistant at a nursing home in Bolton. There were 57 residents in all. The home included a nursing unit which housed 14 residents with an average age of 80. A number of them had suffered strokes. A second unit contained 43 residents, all with mental health care issues. To say that they were vulnerable and incapable of supporting themselves is to state the obvious.[3]The appellant had been employed at the home since 2003. On the evening of 8th October 2006 there was an incident between him and another member of staff which resulted in the appellant being suspended. The appellant took this very badly. Shortly before 9 o'clock in the evening, his ex-wife received a phone call from him. He was in an agitated state. He told her that he had been in trouble at work and that he had been suspended. He also told her that he had some petrol and was torching some cars. What he did was a good deal worse than that. He went to the laundry room in the basement of the nursing home and started a fire with petrol. The results were dire. He himself was engulfed with flames and was taken to hospital for burns affecting over half his body and he has been left with significant burn disabilities. That is entirely his own fault and nobody would suggest that he is deserving of any particular sympathy on that account.[4]The fire crews attended very quickly but by the time they arrived they were met with a quite well-advanced fire with heavy smoke. The situation was rapidly deteriorating with around 30 immobile residents and six to ten staff on duty. As a result of a great deal of skill and courage, the residents were all evacuated and none lost their lives. Three were taken to hospital suffering from the effects of smoke inhalation. Many were extremely frightened, confused and distressed. On the following day, there was no gas or electricity, and therefore no heating, and the lifts did not work. All this caused problems for residents, who were forced to sit around in the cold.[5]The damage to the premises was considerable. It cost nearly a hundred thousand pounds to remedy and it took two to three months for the home to return to normal. This was plainly an offence of reckless arson at the very top of the bracket.[6]The appellant was born on 13th May 1977. He had some previous convictions. A psychiatric report concluded that he had no mental illness. The cause of his criminality was simply anger at the way in which he had been treated and a determination to have his revenge on the home. Alcohol played a part because he was heavily under the influence of alcohol. That disinhibited him but it provides no form of excuse.[7]In sentencing the appellant, the judge properly stressed the gravity of the offence and, in particular the very high risk that many fatalities could have been caused. The judge gave the appellant 25 per cent credit for his plea on the morning of the trial.[8]In giving leave to appeal, the Single

Judge observed:

"This was a very serious case of its kind. While you may argue all your grounds, the only one sufficiently strong to provide the grant of permission was that based on the reduction of the one third discount for plea to 25%."
[9]Mr Samuels, who represented the appellant in the court below and who has appeared before us, has submitted that the judge must have taken too high a starting point for the offence, even though it was extremely grave, because he emphasised that the offence was one of reckless arson and not arson with intent to endanger life but, mindful, no doubt, of the Single Judge's comments, he placed the question of discount for plea at the forefront of his argument.[10]The court has a letter from the prosecution in which the following is stated:
"It is accepted that, on the morning of the PCMH, an indication was made to the prosecution that the appellant would plead to arson being reckless if the prosecution agreed not to pursue the other count on the indictment ie arson with intent to endanger life. The Crown have no record of any such intimation being given prior to the date of the PCMH. At that stage that proposal was not acceptable to the prosecution. A significant consideration in making that decision was that if the proposal was accepted it might materially affect the sentence that the defendant would receive. In the event the defendant entered not guilty pleas to both counts on the indictment thereby putting the prosecution to proof not only in relation to the defendant's state of mind at the time of the incident but also in relation to whether he was responsible for starting the fire at all. It would, of course, have been open to the appellant to plead to arson being reckless at that stage notwithstanding the Crowns's intention to pursue the other count."
[11]The prosecution have been represented on this hearing by Mr Dickinson, who did not appear below but has helped us acting on instructions. Mr Samuels has given us a full account of matters. They can be summarised in this way. As soon as he was brought into the case, which was some time before the PCMH, he took the view that this case should be dealt with by his client pleading guilty to count 2. He gave that advice to his client, who accepted it. At the PCMH he informed the judge. He told the judge that if the prosecution were intent on proceeding on count 1, on his advice the client would plead not guilty to count 2 solely with a view to the jury returning a verdict of guilty on count 2, so that they had that active role to perform rather than merely being told that he had pleaded guilty to count 2. This was effectively a tactical decision taken on counsel's advice for that reason. He made an express explanation to the judge that there was no issue as to the primary facts. The only issue was as to intent and the only witnesses who were therefore required to attend the trial were those who could potentially assist on the issue of intent. He told us that prior to the PCMH he had tried to make contact with prosecuting counsel in order that the matter could be dealt with at an early date on that basis but no counsel had been instructed. The prosecution's representative at the PCMH attended on a large number of cases and was not in a position to discuss whether this was an acceptable plea or not. It was therefore not until the morning of the trial itself, in the face of an indication by the judge, that the prosecution then agreed to accept a plea on count 2.[12]Mr Dickinson told us that he was not able to contradict those facts and we accept them from Mr Samuels. Mr Dickinson did tell us that, when the result of the PCMH was reported back to the case lawyer in charge of the prosecution, he took what Mr Dickinson described as a cautious approach. Since a formal plea of not guilty had been entered, the prosecution set about obtaining further evidence to prove the fact that the appellant started the fire.[13]We did find this surprising. We know the pressures that prosecuting authorities are under but the purpose of a case management hearing is, among other things, to try to bring the case to an early resolution, if that is possible, and that is only going to work if both sides co-operate towards that end. From what we have heard, the defence did all that they could to try to bring about an early determination of these proceedings but the representative of the prosecution on the hearing of the PCMH appears not to have been as well instructed. Plainly on the facts, as we understand them to be, it would not have made any difference to the way in which matters proceeded if the appellant had pleaded guilty at the PCMH, save that the prosecution would not have incurred further time and expense pursuing unnecessary evidence. We are surprised that they did so, in the light of what had been said at the PCMH. If there was any real doubt about the matter, a case lawyer to whom the events at the PCMH had been fully reported might have been expected, if he wanted to be a hundred per cent sure of the position, to write a letter to the defence asking for confirmation that the appellant did indeed admit to starting the fire, and doing so recklessly and asking for confirmation that the sole issue at the hearing would be on the issue of intent (assuming that the prosecution intended to proceed on count 1). It would have taken a very brief time to write such a letter and the cost of posting it would be minimal. We are surprised that this was not done and that the prosecution instead allocated resources to obtaining further evidence in the matter. We reiterate, if the case management system is to work well, both parties should come to the hearing prepared to put their cards face up and in a position to make any necessary decisions then or shortly afterwards.[14]We would not want this judgment to be taken as an indication that to say at a PCMH that a client would be prepared to plead guilty to count X, if the prosecution accepts a plea of not guilty to count Y, is automatically being treated as tantamount to a pleaof guilty to count X. That would be putting it far too broadly. Ordinarily speaking, a defendant has to make up his mind how he is going to plead and he is only entitled to a full discount for a guilty plea if it is entered at the earliest opportunity. But the facts of this case are rather special and, on the facts as we have been told them, we think that this appellant should in justice have had a full discount for his plea. We recognise that this was an extremely grave case but in all the circumstances we will quash the sentence of eight years' imprisonment and substitute a sentence of seven years' imprisonment. To that extent the appeal is allowed.