Cockburn, R v [2008] EWCA Crim 316

[2008] EWCA Crim 316Case No 2007/03792-C4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT MAIDSTONE
MR RECORDER WILSON
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28/02/2008
Before
THE PRESIDENT OF THE QUEEN'S BENCH DIVISIONMR JUSTICE DAVISMR JUSTICE DAVID CLARKE
Between
ReginaRespondentCockburnAppellant
Mr M Magarian for AppellantMr J. Higgs for CrownHearing Hearing dates : 12 th February 2008
JudgmentPresident of the Queen's Bench Division :
[1]These are our reasons for dismissing the appeal by Nigel Cockburn against his conviction in the Crown Court at Maidstone, before Mr Recorder Wilson and a jury, on count three of a four count indictment. There was no appeal against his conviction on count two (assault occasioning actual bodily harm) or count three (possession of ammunition without a firearms certificate). The appellant was acquitted on count one (wounding with intent to do grievous bodily harm).[2]The statement of offence in count three alleged setting a mantrap with intent, contrary to section 31 of the Offences against the Person Act 1861. The particulars were that between 1st January 2006 and 11th July 2006, the appellant set or placed, or caused to be set or placed, a mantrap or other engine calculated to destroy human life or inflict grievous bodily harm, with intent that the same or whereby the same may destroy or inflict grievous bodily harm on a trespasser or other person coming into contact therewith.[3]This offence is rarely charged. The question in this appeal was whether, having heard evidence from a defence expert, the Recorder was right to reject the submission that, as a matter of statutory construction, an undoubtedly dangerous contraption positioned by the appellant on top of some farm equipment in a shed on his land was capable or not of falling within the ambit of section 31. The Recorder decided that it was so capable. He directed the jury accordingly. The jury concluded that the contraption was indeed an engine for the purposes of section 31 and that the necessary intent had been proved: hence this appeal.[4]Before addressing the issues which arise, we must immediately record a reservation about the extent to which expert evidence was admissible. It may have been helpful to know how this contraption worked, but we very much doubt whether expert engineering evidence was appropriate or admissible on the question whether it was or was not capable of being an engine for the purposes of section 31. That was in the first place a question of law for the Recorder, and if he concluded that it was, then the question whether it was such an engine was ultimately a question of fact for the jury.[5]Section 31 of the 1861 Act provides:
“ Whosoever shall set or place, or cause to be set or placed, any spring-gun, man-trap, or other engine calculated to destroy human life or inflict grievous bodily harm, with intent that the same or whereby the same may destroy or inflict grievous bodily harm upon a trespasser or other person coming in contact therewith, shall be guilty…Provided that nothing in this section contained shall extend to make it illegal to set or place any gin or trap such as may have been or may be usually set or placed with the intent of destroying vermin: Provided also, that nothing in this section shall be deemed to make it unlawful to set or place, or cause to be set or placed, or to be continued set or placed, from sunset to sunrise, any spring-gun, man-trap, or other engine which shall be set or placed, or caused or continued to be set or placed in a dwelling house for the protection thereof.”
[6]The contraption set by the appellant was neither a spring-gun nor a man-trap. The conviction could only have been sustained if it was an “other engine calculated to destroy human life or inflict grievous bodily harm”. It was exhibit 5 at the trial. We have examined it. Briefly, it is a spiked metal object made from two pieces of heavy steel plate into which some 20 4 inch long nails, protruding at different angles, are welded. It was connected by a metal rod or wire to the roof frame of a shed on the appellant’s land. Another wire connected it to the shed door. When the shed door was opened it was activated and the force of gravity caused it to swing downwards and catch the person entering through the door.[7]On 11 July 2006, in the course of a lawful investigation of the appellant’s property, an army officer pushed open the shed door. As he did so, with good sense, he took the precaution of holding his arm across his face. The spiked object struck his forearm rather than his face. Two nails entered into his clothing, and a third punctured his forearm. His injuries could well have been very much more serious than they were.[8]It was submitted on behalf of the appellant that this object was not and could not be treated as an engine. The power needed to work it was applied exclusively by nature, gravity. No other form of stored energy or force was involved. This therefore was not a mechanical contrivance at all, and the decision of this court in R v Munks [1964] 1QB 304 provides clear authority for the proposition that if the object was not such a contrivance it could not be an “other engine” for the purposes of section 31.[9]In Munks the appellant connected a wire from an electric light in the kitchen, through into the living room, and fastened it to the handle of the French window. He fixed another wire leading from the kitchen so that it would hang down inside the window in such a way that anyone opening the window from the outside, and coming into contact with the hanging wire, would suffer a severe electric shock. The electric wires were deliberately arranged so as to create the risk of electric shock if an electric light switch happened to be switched on at the time. It was deliberately fixed by the appellant to prevent his wife getting into the house. The point at issue was whether the two wires fastened and draped at the window, bringing electricity to it when the kitchen switch was on, amounted to an “engine” calculated to inflict grievous bodily harm. The appellant was convicted on the basis that it was, and he appealed arguing that the word “engine” had two distinct meanings, one broader than the other. The court accepted the analysis that the broader meaning included a contrivance or device, and would extend to what was described as the electrical contrivance in the case. The narrower meaning however was equally recognised, and was limited to a mechanical contrivance or machine. By contrast with the broad approach taken by the court in Allen v Thompson [1970] LR 5 QB 336, where section 3 of the Game Act 1831 was under consideration, the court adopted the narrower rather than the broader of the two possible meanings. In argument it was in effect conceded by the Crown that the word spring-gun and man-trap both referred to mechanical contrivances. Given that concession it was virtually inevitable that the court would conclude that the words “or other engine” must mean “other mechanical contrivance”. It was decided that although the arrangements of these wires amounted to an electrical contrivance, it did not constitute a mechanical contrivance, and was therefore not an “other engine” for the purposes of section 31.[10]The Offences against the Person Act 1861 brought the statutory offences against the person then in force into a single statute. The precursor to section 31 of the 1861 Act was the Spring-Gun Act 1827. It was enacted in the period after the Napoleonic Wars which were followed by poverty and hunger throughout the country and when resort to trespass to find food became commonplace. Landowners responded by setting traps and spring-guns and other devices, to catch and discourage trespassers and poachers. These were not purely defensive measures (for example, broken glass on walls or spiked fences) but aggressive, dangerous objects intended to cause really serious harm or death. The preamble to the 1827 Act reads:
“Whereas it is expedient to prohibit the setting of spring-guns and man-traps and other engines calculated to destroy human life or inflict grievous bodily harm”
. This provides an ample indication of the legislative purpose of this statute, which was re-enacted in section 31 of the 1861 Act and therefore, since 1827, spring-guns and other engines calculate to kill or inflict grievous bodily harm have been illegal in England unless kept in a dwelling house at night as a protection against burglars.[11]A spring-gun can be described as a gun, often a shotgun, rigged up so as to fire when a string or other triggering device is tripped by contact of sufficient force to “spring” the trigger. Someone stumbling over or treading on the string or triggering device causes it to be discharged and in consequence is wounded. Man-traps take many forms, although the most common is something like a large bear trap, with steel springs armed with teeth which meet on the victim’s leg and trap him. Both spring-guns and man-traps appear to involve the deployment of stored energy, and this consideration led Mr Magarian to reject the suggestion in argument that a disguised deep hole dug in the ground with a vicious spike or spikes fixed at the bottom would constitute a man-trap. While we are inclined to agree that a shallow hole, on its own, might not do so, probably because it would not be calculated to inflict grievous bodily harm, as a matter of statutory construction, notwithstanding the concession by the Crown in Munks, we entertain no doubt that a deep hole containing potentially lethal spikes would fall within the description “man-trap”. The legislation is not confined to objects which operate through “stored energy”.[12]On the face of it any engine calculated to kill or inflict grievous bodily harm falls within the ambit of section 31. The Oxford English Dictionary, among other descriptions, describes an engine as a “mechanical contrivance, machine, implement, tool”. Something of the breadth of its meaning at the time when the 1827 Act came into force is identified in the Dictionary itself where, among other references, we find a pair of scissors described as a “little engine” in the Rape of the Lock (1712-1714) and a description of “engines of restraint and pain” at the victim’s feet in Death Slavery (1866). Indeed at much the same time, in Barnard v Ford [1869] LR 4Ch. App. 247, the court rejected a proposition which would turn it “into an engine of fraud”. None of these references dilutes or could dilute the authority of Munks, although they suggest that the Crown’s argument in that case was more constrained than it perhaps should have been.[13]In these circumstances, there is no reason for giving (and every reason, given the evident purpose behind the legislation, for not giving) the words “spring-gun” or “man-trap” or “other engine” an unduly narrow meaning. In Munks, it is true that a very wide definition of the word “engine” was rejected, and in the context of the electrical device with which it was concerned the word “engine” was said to connote a mechanical contrivance. However we reject the argument implicit in Mr Magarian’s submissions that Munks was intended to or could redefine the statutory language of section 31 by replacing the words “other engine” with “other mechanical contrivance”. The court cannot re-write statutory language which has been unamended for nearly 200 years. In any event the words “mechanical contrivance”, as used in Munks, are not to be applied restrictively so as to lead to the exclusion of a contraption which falls within the ambit of the statute. On the rare occasions when this question arises for decision, the object itself as well as the manner, if any, in which it may be activated should be examined pragmatically to see whether, looked at overall, it falls within the statutory language. In Munks, the placing of cables on or by a door through which an electric current could pass was held not to be sufficient of a mechanical contrivance to be an “engine”. In the present case, using ordinary language, the contraption was certainly a contrivance. It was mechanical, since as a mechanism, it was triggered into dangerous movement by inadvertent pressure on a wire or string. In short therefore it is properly described as a mechanical contrivance or machine, and it unquestionably is an “other engine” for the purposes of section 31 of the 1861 Act. For these reasons the main ground of appeal failed.[14]A further ground of appeal, arising from the different counts before the jury and the Recorder’s directions, was advanced on the basis that the end result may have left the jury in some state of confusion, and this led to illogicality behind the verdict on counts one and three. On examination, there is none. The directions in relation to each count were clear, focussing on the specific ingredients necessary to be proved by the prosecution before guilt could be established. In very simple terms count one required proof of the specific and familiar intent whereas count three could properly involve a much less stringent intent, sufficiently established if the prosecution proved that the defendant recognised the risk of death or grievous bodily harm. In a carefully prepared and well structured summing up the Recorder explained these distinctions, and the verdicts of the jury demonstrate that they were fully appreciated. Accordingly this ground of appeal, too, failed.