R. v Steer [1986] UKHL 6

House of Lords
Between
R.AppellantSteerRespondent
Before
Lord Bridge of HarwichDate 16 May 1986
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal (Criminal Division) of 16th May 1986 complained of in the said Appeal be, and the same is hereby, Affirmed ; That the Certified Question be answered by a Declaration that:
"Upon the true construction of section l(2)(b) of the Criminal Damage Act 1971 the prosecution are required to prove that the danger to life resulted from the destruction of or damage to property; it is not sufficient for the prosecution to prove that it resulted from the act of the defendant which caused the destruction or damage:"
and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered That three-quarters of the costs of the Respondent incurred in Lincoln Crown Court be paid out of Central funds pursuant to section 16 of the Prosecution of Offences Act 1985; And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Court of Appeal (Criminal Division) to do therein as shall be just and consistent with this Judgment.Cler: Parliamentor:

Judgment: 2.7.87

HOUSE OF LORDS

REGINA v.

STEER

(RESPONDENT)

(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL

DIVISION))

Lord Bridge of Harwich Lord Griffiths Lord Ackner Lord Oliver of Aylmerton Lord Goff of Chieveley

LORD BRIDGE OF HARWICH

My Lords,In the early hours of 8 June 1985 the respondent went to the bungalow of his former business partner, David Gregory, against whom he bore some grudge. He was armed with an automatic .22 rifle. He rang the bell and woke Mr. and Mrs. Gregory, who looked out of their bedroom window. The respondent fired a shot aimed at the bedroom window. He then fired two further shots, one at another window and one at the front door. Fortunately no one was hurt. It was never suggested that the first shot had been aimed at Mr. or Mrs. Gregory.Arising from this incident the respondent was arraigned on an indictment containing three counts. He pleaded not guilty to possession of a firearm with intent to endanger life, contrary to section 16 of the Firearms Act 1968 (count 1) and to an offence of damaging property with intent, contrary to section 1(2) of the Criminal Damage Act 1971, which was alleged in the particulars as originally framed as having been committed "intending by the said damage to endanger the lives of David Gregory and Tina Gregory or being reckless as to whether the lives of David Gregory and Tina Gregory would be thereby endangered" (count 2). He pleaded guilty to a separate offence of damaging property, contrary to section 1(1) of the Act of 1971 (count 3).Section 1 of the Act of 1971 provides:
"(1) A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.

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(2) A person who without lawful excuse destroys or damages any property, whether belonging to himself or another -intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; andintending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered;shall be guilty of an offence.(3) An offence committed under this section by destroying or damaging property by fire shall be charged as arson."It is to be observed that the offence created by subsection (2), save that it may be committed by destroying or damaging one's own property, is simply an aggravated form of the offence created by subsection (1), in which the prosecution must prove, in addition to the ingredients of the offence under subsection (1), the further mental element specified by subsection (2)( b ). In this case presumably count 2 was intended to relate to the damage done by the shot fired at the bedroom window and count 3 to the damage done by one or other or both of the other two shots. It is also significant to note the maximum penalties attaching to the three offences charged. For an offence under section 16 of the Act of 1968 it is 14 years' imprisonment, for an offence under section 1(2) of the Act of 1971 life imprisonment, for an offence under section 1(1) of the Act of 1971 10 years' imprisonment.At some stage in the trial the particulars of count 2 were amended by deleting the words alleging an intent to endanger life and leaving only recklessness in that regard as the mental element relied on to establish the offence under section 1(2). The prosecution, it appears, presented the case on the footing that counts 1 and 2 were alternatives and, if the case had been left to the jury, the judge would presumably have directed them that, if they found that the respondent intended to endanger the lives of Mr. and Mrs. Gregory they should convict on count 1, but if they found that he was merely reckless with regard to such danger, they should acquit on count 1 and convict on count 2.At the conclusion of the case for the prosecution, however, counsel for the respondent submitted that there was no case to answer on count 2 on the ground that, in so far as the lives of Mr. and Mrs. Gregory had been endangered, the danger had not been caused by the damage done to the bungalow, but by the shot fired from the respondent's rifle. Of course, it is obvious that any danger to life in this case was caused by the shot from the rifle itself, not by any trifling damage done to the bedroom window or to any property in the bedroom. But the judge rejected counsel's submission and accepted the submission made for the Crown that the phrase in section l(2)( b ) of the Act of 1971 "by the destruction or damage" refers on its true construction not only to the destruction or damage to property as the cause of the danger to life on which the mental element in the aggravated offence under the subsection depends, but also to the act of the

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defendant which causes that destruction or damage. On the basis of the judge's ruling the respondent changed his plea to guilty on count 2. He appealed against conviction on the ground that the judge's ruling was erroneous. The Court of Appeal (Criminal Division) (Neill L.J., Peter Pain and Gatehouse JJ.) allowed the appeal, but certified that their decision involved a question of law of general public importance in the following terms:
"Whether, upon a true construction of section 1 (2)( b ) of the Criminal Damage Act 1971, the prosecution are required to prove that the danger to life resulted from the destruction of or damage to the property, or whether it is sufficient for the prosecution to prove that it resulted from the act of the defendant which caused the destruction or damage."
The Crown now appeals by leave of your Lordships' House.We must, of course, approach the matter on the footing, implicit in the outcome of the trial, that the respondent, in firing at the bedroom window, had no intent to endanger life, but accepts that he was reckless as to whether life would beendangered.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.It would suffice as a ground for dismissing this appeal if the statute were ambiguous, since any such ambiguity in a criminal statute should be resolved in favour of the defence. But I can find no ambiguity. It seems to me that the meaning for which the respondent contends is the only meaning which the language can bear.The contrary construction leads to anomalies which Parliament cannot have intended. If A and B both discharge firearms in a public place, being reckless as to whether life would be endangered, it would be absurd that A, who incidentally causes some trifling damage to property, should be guilty of an offence punishable with life imprisonment, but that B, who causes no damage, should be guilty of no offence. In the same circumstances, if A is merely reckless but B actually intends to

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endanger life, it is scarcely less absurd that A should be guilty of the graver offence under section 1(2) of the Act of 1971, B of the lesser offence under section 16 of the Firearms Act 1968.Counsel for the Crown did not shrink from arguing that section 1(2) of the Act of 1971 had created, in effect, a general offence of endangering life with intent or recklessly, however the danger was caused, but had incidentally included as a necessary, albeit insignificant, ingredient of the offence that some damage to property should also be caused. In certain fields of legislation it is sometimes difficult to appreciate the rationale of particular provisions, but in a criminal statute it would need the clearest language to persuade me that the legislature had acted so irrationally, indeed perversely, as acceptance of this argument would imply.It was further argued that to affirm the construction of section 1(2)( b ) adopted by the Court of Appeal would give rise to problems in other cases in which it might be difficult or even impossible to distinguish between the act causing damage to property and the ensuing damage caused as the source of danger to life. In particular it was suggested that in arson cases the jury would have to be directed that they could only convict if the danger to life arose from falling beams or similar damage caused by the fire, not if the danger arose from the heat, flames or smoke generated by the fire itself. Arson is, of course, the prime example of a form of criminal damage to property which, in the case of an occupied building, necessarily involves serious danger to life and where the gravity of the consequence which may result as well from recklessness as from a specific intent fully justifies the severity of the penalty which the Act of 1971 provides for the offence. But the argument in this case is misconceived. It is not the match and the inflammable materials, the flaming firebrand or any other inflammatory agent which the arsonist uses to start the fire which causes danger to life, it is the ensuing conflagration which occurs as the property which has been set on fire is damaged or destroyed. When the victim in the bedroom is overcome by the smoke or incinerated by the flames as the building burns, it would be absurd to say that this does not result from the damage to the building.Counsel for the Crown put forward other examples of cases which he suggested ought to be liable to prosecution under section 1(2) of the Act of 1971 including that of the angry mob of striking miners who throw a hail of bricks through the window of the cottage occupied by the working miner and that of people who drop missiles from motorway bridges on passing vehicles. I believe that the criminal law provides adequate sanctions for these cases without the need to resort to section 1(2) of the Act of 1971. But if my belief is mistaken, this would still be no reason to distort the plain meaning of that subsection.Some reference was also made to damage caused by explosives. This is the subject of specific provision under the Explosive Substances Act 1883 as amended. The offence created by section 3(l)( a ) of that Act as substituted by section 7(1) of the Criminal Jurisdiction Act 1975, of doing "any act with intent to cause ... by an explosive substance an explosion of a nature likely to endanger life, or cause serious injury to property"

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obviates the need to resort to the Act of 1971 when explosives are used.The trial judge was, it seems, in large part persuaded to rule as he did in reliance on a sentence from the judgment of the Court of Appeal (Criminal Division) delivered by Parker L.J. in Reg. v. Hardie [1985] 1 WLR 64 , 67, where he said in reference to the state of mind of a defendant who commits the actus reus of an alleged offence under section 1(2) of the Act of 1971:
"If, when doing that act, he creates an obvious risk both that property will be destroyed and that the life of another will be endangered and gives no thought to the possibility of there being either risk, the requirements of the subsection are in our judgment clearly satisfied."
The case of Hardie was concerned solely with the effect of self- administered tranquillising drugs on the state of mind of the defendant. It had nothing whatever to do with the issue of causation arising in the instant case. If I may say so without offence, the judge's error vividly illustrates the danger, which is particularly acute in the field of statutory construction, of reading a judicial dictum entirely out of context and treating the precise words used as relevant to the decision of an issue to which the author of the words had never applied his mind.I can well understand that the prosecution in this case thought it necessary and appropriate that, even if they could not establish the intent to endanger life necessary to support a conviction under section 16 of the Act of 1968, they should include a count in the indictment to mark in some way the additional gravity of an offence of criminal damage to property in which a firearm is used. But they had no need to resort to section 1(2) of the Act of 1971. A person who, at the time of committing an offence under section 1 of the Act of 1971, has in his possession a firearm commits a distinct offence under section 17(2) of the Act of 1968: see Schedule 1 to the Act of 1968, as amended by section 11(7) of the Act of 1971. If the respondent had been charged with that offence in addition to the offence under section 1(1) of the Act of 1971, he must have pleaded guilty to both and, if the prosecution were content to accept that there was no intent to endanger life, this would have been amply sufficient to mark the gravity of the respondent's criminal conduct in the incident at the Gregory bungalow.I would accordingly dismiss the appeal. The certified question should be answered as follows:
"Upon the true construction of section 1 (2)( b ) of the Criminal Damage Act 1971 the prosecution are required to prove that the danger to life resulted from the destruction of or damage to property; it is not sufficient for the prosecution to prove that it resulted from the act of the defendant which caused the destruction or damage."

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LORD GRIFFITHS

My Lords,I have had the advantage of reading in draft the speech delivered by my noble and learned friend Lord Bridge of Harwich. For the reasons which he has given I agree that the appeal should be dismissed and I would answer the certified question in the way in which he has suggested.

LORD ACKNER

My Lords,I have had the advantage of reading in draft the speech delivered by my noble and learned friend Lord Bridge of Harwich. For the reasons which he has given I also agree that the appeal should be dismissed and the certified question answered in the manner indicated by him.

LORD OLIVER OF AYLMERTON

My Lords,I have had the advantage of reading in draft the speech delivered by my noble and learned friend Lord Bridge of Harwich. For the reasons which he has given I agree that the appeal should be dismissed and the certified question answered in the sense which he has indicated.

LORD GOFF OF CHIEVELEY

My Lords,I have had the advantage of reading in draft the speech delivered by my noble and learned friend Lord Bridge of Harwich. For the reasons which he has given I also agree that the appeal should be dismissed and the certified question answered in the manner indicated by him.

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