Wenton, R. v [2010] EWCA Crim 2361

[2010] EWCA Crim 2361Case No 2010/0488/C2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Monday, 4 October 2010
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE LEVESON
MR JUSTICE IRWIN
MR JUSTICE HOLROYDE
Between
R E G I N ACrownv
Between
LUKE WENTON
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr E Haygarth appeared for AppellantMr K Grant appeared for Crown
J U D G M E N T

LORD JUSTICE LEVESON:

[1]On 11th December 2009 in the Crown Court at Liverpool before His Honour Judge James, this appellant was convicted by a majority verdict of five counts of damaging property being reckless as to whether life was endangered, contrary to section 1(2) of the Criminal Damage Act 1971. He was acquitted of intending to endanger life. On 29th September 2009 he had pleaded guilty to one count of possessing a controlled drug of class B with intent to supply.[2]On 4th February 2010 he was sentenced to six years' imprisonment, less time spent on remand, in relation to the Criminal Damage Act offences and six months' imprisonment concurrent for the drug offence. On the basis that he was 20 years of age at the time of his conviction, the sentence should have been expressed as a term of detention in a young offender institution. He now appeals against conviction by leave of the single judge.[3]The facts can be shortly stated. On 21st June 2009 a window was smashed at a property at 22 Daley Road, Liverpool, by means of a brick. Thereafter a canister of petrol was thrown through the broken window with a piece of paper that had been lit, albeit the taper quickly extinguished. The petrol spilled onto the floor but did not ignite. There was no fire. The occupants of the house at the time were a couple and their three children.[4]The green petrol canister contained a petrol-like fluid and, as we have said, one of the edges of the piece of paper had been ignited. The appellant's fingerprints were found on the canister and the piece of paper. The prosecution case was that the appellant had smashed the window in order to throw the petrol canister and then lit a piece of paper thereby intending to endanger life or alternatively being reckless as to whether life was endangered. The fact that the paper had been set alight demonstrated an intention to ignite the petrol.[5]The defence case was one of alibi. The appellant denied his presence at the scene and stated that he had been at his brother's girlfriend's home to see his niece. His brother had been present with him and gave evidence to that effect. He explained that his fingerprints were present on the petrol canister as he had previously assisted a friend, Owen Dempsey, to fuel his motorcycle with a petrol canister using a paper funnel. He had not disclosed that alibi in interview and he had also, similarly in interview, lied about his contact with Owen Dempsey.[6]The issue for the jury, left by the learned judge, was whether or not the appellant was the person who had smashed the window and thrown the petrol canister and paper through the window. If they were sure it was, they had to consider whether or not he intended to endanger life or alternatively whether he was reckless as to whether life would be endangered.[7]The point taken on this appeal is very simple. There were two distinct and separate acts involved. These consisted of the breaking of the double glazed window with a brick which was a complete offence of criminal damage and carried with it no threat to the life of anyone inside the property. This was followed by the projection of the petrol canister into the house which the jury did conclude was reckless as to whether life had been endangered.[8]We must start with the indictment. The five counts followed the same form but specified a different occupant, and taking the alternative count of which the appellant was convicted was in these terms:
" STATEMENT OF OFFENCE 9. DAMAGING PROPERTY BEING RECKLESS AS TO WHETHER LIFE IS ENDANGERED, contrary to section 1(2) of the Criminal Damage Act 1971. PARTICULARS OF OFFENCE 10. LUKE WENTON on the 21st day of June 2009 without lawful excuse damaged a window at 22 Daley Road Litherland Liverpool belonging to Geraldine Sheila Young intending to destroy or damage such property or being reckless as to whether such property would be destroyed or damaged and being reckless as to whether the life of [one of the occupants] would thereby be endangered."

STATEMENT OF OFFENCE

[9]The first point to be made is that the endangerment was always put as a consequence of fire and little attention appears to have been paid to section 1(3) of the Criminal Damage Act 1971 to the effect that "an offence committed under this section by destroying or damaging property by fire shall be charged as arson" (our emphasis). Putting that point to one side, we turn to the ingredients of the offence that was in fact charged. The actus reus was the damage to the window at 22 Daley Road and the mens rea an intention or recklessness in relation to damage of such property, that is to say the window, together with recklessness as to whether the life of an occupant would thereby be endangered.

PARTICULARS OF OFFENCE

[10]In Steer [1988] AC 111 a shot was fired at a house with an automatic rifle causing minimal damage to the wall that it hit. In the House of Lords it was decided that the threat to life must result from the damage to the property not the act of the defendant. In that case the threat was caused by the trajectory of the bullet through the air and not the damage to the wall. Lord Bridge, with whom the other members of the appellate committee agreed, put the matter in this way:
"Under both limbs of section 1 of the Act of 1971 it is the essence of the offence which the section creates that the defendant has destroyed or damaged property. For the purpose of analysis it may be convenient to omit reference to destruction and to concentrate on the references to damage, which was all that was here involved. To be guilty under subsection (1) the defendant must have intended or been reckless as to the damage to property which he caused. To be guilty under subsection (2) he must additionally have intended to endanger life or been reckless as to whether life would be endangered 'by the damage' to property which he caused. This is the context in which the words must be construed and it seems to me impossible to read the words 'by the damage' as meaning 'by the damage or by the act which caused the damage'. Moreover, if the language of the statute has the meaning for which the Crown contends, the words 'by the destruction or damage' and 'thereby' in subsection (2)(b) are mere surplusage. If the Crown's submission is right, the only additional element necessary to convert a subsection (1) offence into a subsection (2) offence is an intent to endanger life or recklessness as to whether life would be endangered simpliciter."
By no stretch of argument could it be said that the damage to the window threatened the occupants. Indeed, this case is one removed from that in Steer because in that case it was in fact the same act that caused the damage that also created the risk, namely the discharge of the rifle into the house. Here, the act which caused the damage was the projection of the brick through the window. The act which caused the threat and endangerment was the projection of a petrol bomb into the house which was subsequent to and followed the breaking of the window.[11]The Crown relied on a course of conduct. The window is broken which made it possible for the petrol canister and lit paper immediately thereafter to be introduced. The two acts, it is submitted, cannot be divorced from each other but were inextricably intertwined as part of the execution by the appellant of a single course of conduct to insert the petrol into the premises. Mr Grant argues that the principle in Steer was qualified in two other cases, although the fundamental principle had been correctly left untouched.[12]In Dudley [1989] Crim.L.R 57 the court made it clear that the destruction or damage referred back to the destruction or damage intended or as to which there was recklessness, rather than destruction or damage actually caused. In Asquith and others [1995] 1 Cr.App.R (S) 492 the court recognised as well established that an offence under section 1(2) of the 1971 Act required proof that the intention or recklessness related to life endangered by the damage or destruction of the property. In both cases, however, focus was placed upon the consequence of the damage caused which in Asquith was the damage caused to the roof of a railway carriage onto which stones had been projected which not surprisingly the court concluded could endanger the lives of passengers.[13]In Warwick (heard at the same time as Asquith) it was similarly held that from an intention to break a window a jury could infer an intention to shower the driver of a police car, which was bombarded with stones, with broken glass causing him to lose control of his vehicle and that a series of such incidents of damage could properly be charged as a single course of conduct. This case is far removed from that. The incident of damage was unrelated to the incident which gave rise to the risk of endangerment to life.[14]Unfortunately, whoever was responsible for drafting the indictment in this case failed to pay proper attention to the terms of the Act. Equally, it is a matter of regret that prosecuting counsel, defence counsel and indeed the judge similarly failed to review the position appropriately. In the circumstances the case proceeded on an entirely false and inaccurate premise which could have been corrected at any time without injustice but was not. This offence could not be made out as an offence of damaging the window being reckless as to whether life was endangered, whatever other offence or offences might have been disclosed.[15]In the circumstances, these appeals against conviction succeed.