Farnon & Anor, R v [2015] EWCA Crim 351

Case No 2014/03661/B3

[2015] EWCA Crim 351

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CROWN COURT AT CROYDON

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 10/03/2015

Before

LORD CHIEF JUSTICE OF ENGLAND AND WALES

MR JUSTICE MITTING

MR JUSTICE GOSS

Between

ReginaRespondent

John Farnon and Nia EllisAppellants

Miss Miranda Moore QC for both appellants

John McGuinness QC and Jocelyn Ledward for respondent

Hearing Hearing date: 17 February 2015

Judgment

Lord Thomas of Cwmgiedd, CJ:

Introduction

[1]On Monday, 10 June 2013 the appellants JF (a boy then aged 14½) and NE (a girl then just aged 16) and two other young persons, AL and MM, visited a derelict building which had been a Sea Cadet centre in Croydon. They went into the basement, set fire to a discarded duvet, which was on top of a pile of discarded tyres. Once it was smoking, they left. The smoking duvet melted on to the tyres which then caught light. Within five minutes thick, acrid smoke filled the basement rooms. It killed a homeless Polish male who was in the building at the time. JF and NE were arrested and subsequently tried at the Crown Court at Croydon before HH Judge McKinnon, the Recorder of Croydon, on a count of manslaughter through an unlawful and dangerous act and a count of arson, being reckless as to whether life was endangered.

[2]On 27 June 2014 both were convicted of manslaughter but acquitted of arson being reckless as to whether life was endangered and convicted of the alternative and lesser offence of simple arson. On 18 August 2014 both received a sentence of three years detention for each of the offences of which they had been convicted. They appeal by leave of the Single Judge against their conviction for manslaughter and the sentences passed.

[3]The issue on the appeal against conviction for manslaughter was whether the judge had correctly directed the jury on intent and foreseeability.

[4]We dismissed the appeal against conviction, reserving our reasons to be given at a later date. For reasons we then gave we allowed the appeal of each appellant against sentence, quashed the sentences of 3 years detention on each count and substituted a 24 month Detention and Training Order on each count.

The evidence

[5]There was in reality little dispute as to the evidence. The former Sea Cadet centre in Croydon was a derelict building as it had suffered acts of vandalism and had been badly fire damaged in 2010. Although there were no obvious signs of squatters, four Polish men, including the deceased, had been living in the building for seven months prior to the fire in June 2013. One of those who lived in the building explained there was not anyone usually in the building during the day. The basement rooms were dark and they used torches to find their way around.

[6]It appeared from the evidence given by MM, one of the two who had accompanied the appellants, that she had not gone into the building with the others. After about 10 minutes the appellants and AL who had gone into the building came out; there was smoke and they all ran off.

[7]AL’s evidence was that she had gone into the building with JF, her boyfriend, and NE. JF and NE produced lighters and she asked them what they were doing as there could be a man inside for all they knew. JF and NE then started a fire. When she saw smoke she left. She had seen a table in the room with shoes on it and a baked beans can. She had taken a video of the incident but it had been deleted.

[8]Neither JF nor NE gave evidence. Each had given an account in interview. i) NE admitted she had been into the building on the day of the fire and on a previous occasion. She had seen a tin of baked beans on the table but did not remember AL warning them that there might be someone in the building. She did not think there was anyone in the building. ii) JF said in interview that he used his lighter to light some paper and a log on the table. When NE had set light to the duvet, he blew on his little fire and it spread. They had left because of the smoke. He admitted he knew people slept there. On an occasion a few months before the fire when he and his friends had been there he had spoken to a homeless man who had told them that someone else there had axes and knives. When he went on the day of the fire he went to the area where people slept and because he did not see a light he believed that there was no-one there. If he had thought that there might be someone there he would have stopped and told the others to do the same.

[9]There was also evidence from a Consultant Forensic and Clinical Psychologist that JF had a low IQ of 68-74. His reasoning skills were poor. She had found him to be exceptionally childlike, overly compliant and unusually suggestible. His functioning was in the bottom 2 per cent of the population. Her evidence was that his answers in police interviews should be judged as if he were a six year old child. The judge’s direction to the jury

[10]The judge carefully discussed with counsel the directions he should give the jury. He provided them with not only a route to verdict but a very clear statement of the matters they would have to consider if they were to find the appellants guilty of manslaughter and arson being reckless as to whether life was endangered.

[11]As to the unlawful act of manslaughter he first gave directions as to the unlawful act – as set out on the indictment, namely criminal damage to the building (as opposed to the discarded paper or duvet) under the Criminal Damage Act 1971. He made it clear that the prosecution had to prove that the damage to the building was done either intentionally, “intending to cause damage to the building” or recklessly. In explaining recklessly he said “A person acts recklessly if he is aware that his act has created a risk that damage may be caused i.e. that the fire would spread to the tyres and to the building and it is in the circumstances known to him unreasonable to take such a risk”

[12]He directed the jury that in a case of manslaughter where the unlawful act was arson to a building there was a twofold test. “Firstly it must be proved that at the time of starting the fire the defendant foresaw or contemplated the possibility that some person or persons, known or unknown, might be in the building. Secondly, the unlawful act has to be a dangerous one in that all sober and reasonable people would inevitably have recognised that such person or persons might sustain some physical harm however slight resulting from the fire. It is immaterial whether or not the defendant actually knew or actually realised that the act was dangerous in the sense I have defined it for you and whether or not he intended any harm to result therefrom. And the sober and reasonable man is endowed with the knowledge which the defendant possessed before and at the time of starting the fire.”

[13]In respect of arson being reckless as to whether life be endangered the directions as to intention were:

“That it was done either intentionally i.e. intending to cause damage to the building or recklessly. What is meant by recklessly? A person acts recklessly if he/she is aware that his/her act has created a risk that damage may be caused i.e. that the fire would spread to the tyres and to the building and it is in the circumstances known to him unreasonable to take such risk. That at the time of setting the fire he/she was reckless whether the life of another or others would thereby be endangered. What has to be proved by the evidence is that the defendant was actually aware of a risk that his setting fire to the building would endanger the life of another or others and that in the circumstances that were known to him/her it was unreasonable to take that risk. If that is proved by the evidence, then he/she is guilty.”

[14]The directions highlighted that, whereas for the offence of arson with intent to endanger life subjective foreseeability of endangerment of life was required, in the case of manslaughter, although subjective foreseeability was required as to each of the appellants foreseeing or contemplating the criminal damage to the building and the possibility that persons might be in the building, the test as to whether the act was dangerous was an objective one.

[15]It was contended on the part of the appellants that the objective test as to whether the act was a dangerous one was a test which should have been adapted to take into account the foreseeability of persons of the appellants’ ages and, in the case of the appellant F, his mental capacity. It was submitted that by the acquittal on count 2 but conviction of simple arson, it was clear that the jury considered that neither JF nor NE had the subjective appreciation of the risk of harm to any person.

The case law

[16]As is explained in the Law Commission Consultation Paper No 135, 1994, Involuntary Manslaughter, the ways of committing the offence of involuntary manslaughter have evolved over time into gross negligence manslaughter and unlawful act manslaughter. In unlawful act manslaughter two elements must be carefully differentiated - the requisite state of mind and the requirement of dangerousness in relation to the unlawful act. (a). The requirement of dangerousness in relation to the unlawful act

[17]It is convenient first to consider the requirement of dangerousness in relation to the unlawful act. In 1937 the House of Lords made clear in R v Andrews

[1937] AC 576

that where death resulted from negligent performance of a lawful activity that was insufficient to found unlawful act manslaughter, even though the simple negligence made the activity unlawful. Following that decision, the requirement that death must result from an unlawful act which was objectively dangerous was clearly set out in R v Larkin

[1943] 1 KB 174

(1943) 29 Cr App R 18

. A woman had died when her throat was cut by a razor and which was in the defendant’s hand when she received the cut. It was the defendant’s case that he was flourishing the open razor for the purpose of frightening another person. The judge directed the jury that there were only two verdicts which they could return, either a verdict of murder or a verdict of manslaughter:

“A man who rushes into a house flourishing a naked razor and wounds someone, even accidentally, is still guilty of manslaughter if that person dies.”

In considering that direction the Court of Criminal Appeal (Viscount Caldecote, CJ, Humphreys and Asquith JJ) made clear the distinction between gross negligence manslaughter and unlawful act manslaughter; for the latter, the act had not only to be unlawful, it also had to be dangerous. “Perhaps it is as well once more to state the proposition of law which has been stated by Judges for generations and, so far as we are aware, never disputed or doubted. If a person is engaged in doing a lawful act, and in the course of doing that lawful act behaves so negligently as to cause the death of some other person, then it is for the jury to say, upon a consideration of the whole of the facts of the case, whether the negligence proved against the accused person amounts to manslaughter, and it is the duty of the presiding Judge to tell them that it will not amount to manslaughter unless the negligence is of a very high degree. The expression most commonly used is “unless it shows the accused person to have been reckless as to the consequences of the act”. That is the law where the act is lawful. Where the act which a person is engaged in performing is unlawful, then if at the same time it is a dangerous act, that is, an act which is likely to injure another person, and quite inadvertently the doer of the act causes the death of that other person by that act, then he is guilty of manslaughter.” The decision therefore made clear that the test for establishing dangerousness where death resulted from an unlawful act which was dangerous was objective.

[18]That was followed in R v Church

[1966] 1 QB 59

. The defendant was charged with the murder of a woman who had died from drowning but whose body was badly injured. His account was that after attempting to have sexual intercourse with her, he was mocked for failing to satisfy her and a fight ensued. He knocked her semi-conscious. He tried to rouse her but, thinking that she was dead, panicked and threw her into the river. He was acquitted of murder but convicted of manslaughter. In relation to manslaughter, the judge had directed the jury to consider whether the defendant’s act in throwing the woman into the river had been utterly reckless. In giving the judgement of the court (Edmund Davies, Marshall and Widgery JJ) considered the three bases on which the issue of manslaughter had been considered(a) criminal negligence,

(b) provocation and

(c) an unlawful act causing death. The court, in holding that the judge had misdirected the jury in stating that whenever an unlawful act was committed which resulted in death there must be at least a conviction of manslaughter, made clear that that was no longer the law. The law was to be stated as follows:

“… the conclusion of this court is that an unlawful act causing the death of another cannot, simply because it is an unlawful act, render a manslaughter verdict inevitable. For such a verdict inexorably to follow, the unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm.”

See, for example, R v Franklin; R v Senior; R v Larkin in the judgment of the court delivered by Humphrey J; R v Buck & Buck; and R v Hall.”

[19]In DPP v Newbury

[1977] AC 500

the House of Lords unanimously stated that the law as set out in those two decisions was correct. In that case two fifteen year old boys pushed a paving stone over a railway bridge into the path of an oncoming train. It killed the guard. The question of law certified for the House of Lords was “Can a defendant be properly convicted of manslaughter, when his mind is not affected by drink or drugs if he did not foresee that his act might cause harm to another?” Lord Salmon said in referring to the judgment of the Court of Appeal in R v Lamb

[1967] 2 QB 981

(to which we refer at paragraph 24) said at page 507:

“It makes it plain (a) that an accused is guilty of manslaughter if it is proved that he intentionally did an act which was unlawful and dangerous and that that act inadvertently caused death and (b) that it is unnecessary to prove that the accused knew that the act was unlawful or dangerous. This is one of the reasons why cases of manslaughter vary so infinitely in their gravity. They may amount to little more than pure inadvertence and sometimes to little less than murder. … The test is still the objective test. In judging whether the act was dangerous the test is not did the accused recognise that it was dangerous but would all sober and reasonable people recognise its danger.”

[20]In giving the only other substantive judgment, Lord Edmund-Davies made clear that his judgment in R v Church marked no departure in the elements required in the offence of involuntary manslaughter through an unlawful act.

[21]It has therefore been established since at least 1943 (as affirmed by the House of Lords for nearly 40 years) that in determining whether the act was dangerous, the test is objective. In applying that test the knowledge of the circumstances attributed to the bystander are the circumstances known to the defendant (see R v Watson (Clarence) (1989) 89 Crim App R 211).

[22]There can therefore be no doubt that the judge correctly directed the jury on the basis of the well-established law.

(b) The requisite state of mind

[23]What then is the mental element required for the offence?

[24]In R v Lamb the defendant had shot his best friend when in jest and without any intention of doing any harm or firing a bullet he pulled the trigger of a revolver. There were no bullets opposite the barrel and he had not realised that the mechanism would rotate and fire the bullets that were in the revolving cylinder. His defence was one of accident. He was convicted of manslaughter on the basis that death had resulted from his grossly negligent act and his unlawful and dangerous act. The judge had taken the view that the pointing of the revolver and the pulling of the trigger was unlawful even if there was no attempt to alarm or intention to injure. In giving the judgment of the court allowing the appeal, Sachs LJ said at page 588 :

“… mens rea being now an essential ingredient in manslaughter (compare Andrews v DPP and R v Church that could not be established in relation to [unlawful act manslaughter] except by proving that element of intent without which there can be no assault.”

[25]In Newbury, Lord Salmon, after referring to the judgment of Lord Denning MR in Gray v Barr

[1967] QB 554

(where one reading of the judgment might suggest foreseeability was required) said at page 509:

“R v Lamb was referred to by Lord Denning M.R. for the proposition that in manslaughter there must always be a guilty mind. This is true of every crime except those of absolute liability. The guilty mind usually depends on the intention of the accused. Some crimes require what is sometimes called a specific intention, for example murder, which is killing with intent to inflict grievous bodily harm. Other crimes need only what is called a basic intention, which is an intention to do the acts which constitute the crime. Manslaughter is such a crime: see R v Larkin, and R v Church. R v Lamb is certainly no authority to the contrary.”

The judge gave two directions in relation to the state of mind of the appellants:

[26]i) The acts that constituted the crime in the present case were malicious damage to the building. The judge, as we have set out, directed the jury that they had to be sure that the appellants either intended that damage to the building or were subjectively reckless. ii) The judge then went on to direct the jury on the basis that the prosecution had to prove that the appellant had, at the time he or she started the fire, foreseen or contemplated the possibility that some persons might be in the building. The first direction required the jury to have the mens rea applicable to the unlawful act – the malicious damage to the building - as established by R v G

[2004] 1 AC 1034

; that was plainly sufficient in the light of Lamb and Newbury. The second direction went further than was required, as it stated the law more favourably to the appellants. It appears to have been derived from the decision of this court in R v Bristow

[2013] EWCA Crim 1540

, [2014] Crim LR 457, where issues of joint enterprise were engaged. That decision does not require the gloss on the well-established law which the judge set out in the further direction given by him to the jury in the present case.

[27]There was therefore no misdirection on the established law adverse to the appellants.

[28]It was submitted on behalf of the appellants that this court should reconsider the requirement of the objective test set out in the authorities on the basis of the decision in R v G

[2004] 1 AC 1034

, the well-known decision in which the House of Lords departed from the decision in Caldwell

[1982] AC 341

which had held that recklessness in the Criminal Damage Act 1971 was to be interpreted objectively. G was a case where the damage had been caused by two boys aged 11 and 12 setting fire to some papers which spread and caused significant damage. The House of Lords held that recklessness should be judged subjectively taking into account the age of the two boys.

[29]The appellants relied in particular on the observations in the speeches that it was unacceptable to ignore the special position of children in the criminal justice system, particularly in the light of the Convention on the Rights of the Child (Cm1976) which entered into force in January 1992 (see the speeches of Lord Bingham at paragraph 33 and Lord Steyn at paragraph 53).

[30]The issue raised by the appellant in this appeal is one where the law is clearly established. The Law Commission has considered the offence of involuntary manslaughter in their 1994 Consultation Paper to which we have referred, in their Report in 1997 (Law Com No 237) and in its 2006 Report Murder, Manslaughter and Infanticide (2 Law Com 304). The Commission has recommended reform which would require subjective foresight of the risk of causing some injury.

[31]In the present appeal, the jury were directed to consider whether the appellants had subjectively appreciated both the risk of damage to the building by fire and the risk that some person would be in the building. It is clear from the jury’s verdict on manslaughter that the jury must have found they appreciated both risks, but from the verdict on arson have concluded that the appellants did not appreciate the risk of endangering the life of any such person by the smoke and carbon monoxide that could kill a person in no more than 5 minutes in that basement. It would appear from the facts of the case that the appellants must therefore have appreciated the risk of some harm to a person from the setting of the fire, but not harm to the extent of endangering life. It is therefore not clear on this case that the verdict would have been different if the requirement in respect of dangerous act were modified so that the subjective realisation of the appellants of some harm was required.

[32]In any event, neither Parliament nor the Executive have sought to carry forward the recommendations in respect of unlawful act manslaughter. As is evident from the Law Commission Reports to which we have referred the issue as to the scope of the offence of manslaughter is one on which there has been significant debate. In commenting on the decision of this court in R v JM

[2013] 1 WLR 1083

where a different issue was involved, Professor Andrew Ashworth wrote at [2013] Crim LR 335:

“In the longer term, common law manslaughter ought to be revisited by the Law Commission, since its most recent review of homicide law was focused on other matters and consequently treated this form of manslaughter rather cursorily: Law Com. No.304, Murder, Manslaughter and Infanticide (2006), pp.61–64. It is unlikely that the conflict of principle referred to [earlier in the comment] will be resolved to the satisfaction of all, but it is more appropriate that there be wide consultation on detailed questions about the ambit of any such offence than that these issues be resolved piecemeal by the courts, without clear parameters to guide them.”

[33]We agree. As we have explained, the law is clear and well established. It must be for Parliament to determine whether the long established law needs changing in the light of the Law Commission’s various recommendations or whether a further examination is needed by the Law Commission.

The appeal against sentence

[34]As we have set out the judge concluded that it was not possible to distinguish between the appellants and sentenced them both to three years detention. In the light of their background as set out in the reports before the judge and the seriousness of the offences of which they were found guilty, we do not think it can be said that the sentence was manifestly excessive.

[35]However, as we explained when allowing the appeal against sentence, NA who will be 18 on 21 May 2015, had made very significant progress at the secure facility in which she has been detained. At the age of 18 she would be moved from the under 18 facility operated under the supervision of the Youth Justice Board, but if she had only a short period of a sentence to complete she would remain at that facility and be supported by the Youth Offending Service Team on release. It was plainly in the interests of rehabilitating her and protecting society from the commission of further offences by her that she not be moved, given the very significant progress made and the obvious risks to her continued progress by the different environment of an institution for those over the age of 18. In the light of those considerations and other matters drawn to our attention, we quashed the sentences of detention and substituted Detention and Training Orders of 24 months on each count. As the culpability of the appellants was the same, parity required that we take the same course in relation to JF.