Foster & Anor v. The Queen (Barbados) [2007] UKPC 20 (23 Janaury 2007)

Privy Council Appeal Nos. 60 and 61 of 2006

(1) Trevor Anderson Foster
(2) Cedric Leon Williams							Appellants
v.

The Queen 	 Respondent

FROM

THE COURT OF APPEAL OF
BARBADOS

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REASONS FOR DECISION OF THE LORDS OF THE
	JUDICIAL COMMITTEE OF THE PRIVY COUNCIL, OF THE
23rd January 2007, Delivered the 29th March 2007

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Present at the hearing:-

	Lord Hoffmann
	Lord Hope of Craighead
	Lord Scott of Foscote
	Lord Carswell 
	Sir Paul Kennedy
	
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		[Delivered by Lord Carswell]

1.	The felony murder rule has been abrogated in many common law jurisdictions (it was abolished in England and Wales by the Homicide Act 1957), but it still remains the law in some.  Until 1 September 1994 it was part of the law of Barbados and it was so part when the appellants were tried and convicted.

2.	The appellant Trevor Anderson Foster was convicted of the murder of Ruby Grecia on 25 April 1989 after a trial before Chase J and a jury and the judge passed the then mandatory sentence of death.  He appealed against conviction to the Court of Appeal of Barbados, which on 18 October 1994 dismissed his appeal.  In or about the year 2004 the sentence was commuted to one of imprisonment for life.

3.	The appellant Cedric Leon Williams was convicted on 26 May 1993 of the murder of Cynthia Martin after a trial before Belgrave J and a jury and sentenced to death.  His appeal against conviction was dismissed by the Court of Appeal on 5 April 1994.  His sentence was also commuted to life imprisonment in or about 2004.

4.	On 23 July 1996 both appellants were granted special leave to appeal as poor persons, but for reasons which remain obscure neither appeal was brought on until the solicitors and counsel now acting for each appellant received the papers, realised the situation and proceeded to have the records completed and the appeals listed for hearing.  The delay is highly regrettable, but in no respect the fault of the appellants’ present solicitors and counsel, and their Lordships thought it right to proceed with the hearing of the appeals and deal with their substance.  At the conclusion of the argument the Board announced that they would humbly advise Her Majesty that both appeals should be dismissed, with their reasons to be given later.  This judgment now contains the reasons of the Board.

Trevor Anderson Foster’s appeal 

5.	The deceased woman Ruby Grecia, otherwise Kellman, the grandmother of the appellant Foster, lived in a house at Cambridge, St Joseph, which was also occupied by the appellant’s father Denzil Grecia, his uncle Winston Grecia and the appellant himself.  The house, which was some 30 feet by 22 feet, was of wooden construction with a galvanised roof.  It had three bedrooms, one of which was occupied by the appellant.  Ruby Grecia was aged about 83 years at the time of her death and had limited mobility, being able to move around only with the assistance of another person.

6.	On the evening of 6 November 1988 a fire broke out in the house, which was burned down.  Ruby and Winston Grecia were burned to death in the fire.  It was not in dispute that the fire had been caused by the actions of the appellant in his bedroom, but the issue in the trial was the nature and intent of those actions.  The Crown case was that he deliberately set the house on fire, with the intention of causing death or grievous bodily harm to his father and uncle.  The appellant’s case, on the other hand, was that the fire was accidentally caused when he spilled kerosene in the course of attempting to top up an oil lamp.

7.	The Crown case was based on a written statement made by the appellant and on oral statements attributed to him by witnesses who gave evidence at trial.  The appellant denied making the oral statements and claimed that some of the content of the written statement did not represent what he had told the police and that the statement was not voluntary, on the ground that when he made it he had had no food for fifteen hours and was very hungry, which he claimed constituted oppression.

8.	Some time after 9 pm in the evening of 6 November 1988, four men were playing dominoes under a street light near to the appellant’s house when they saw the appellant approach from the direction of his house.  According to their testimony he spoke to them to the effect that he had just lit the house and that they should go to help.  He then continued on his way.  Apparently the domino players entertained some doubt about the truth of his remark, for they did not suspend their game but sent a spectator to find out, only going to help when they were informed that the house was indeed on fire.  Each of the three witnesses from the domino game insisted that the appellant had suggested that they should go to help, as distinct from asking them to come and help him to extinguish the fire.

9.	Station Sergeant Lyboon Sobers deposed that he saw the appellant at District “F” police station at about 1.25 am on 7 November 1988.  He told the appellant that he had reason to believe that he was the person who set fire to the house and that when he did so he knew that Ruby Grecia, Winston Grecia and Denzil Grecia were in the house.  He cautioned the appellant, who replied “I din want the old lady, I did want the next two.”  The next morning about 9 am he told the appellant that he had made this remark the previous night, reminded him that he was under caution and invited him to make a written statement.  He wrote down what the appellant told him, in accordance with the Judges’ Rules.

10.	In the statement, taken between 9.10 am and 9.53 am on 7 November 1988, the appellant averred that on the day of the fire both Winston and his father had bullied and beaten him and told him not to come back to the house, threatening to put him out and, in Winston’s case, to “chop him up”.  Following the second of these episodes the appellant went home.  The statement went on:

“When I get home Ruby, Winston and my old man did home.  I went in my bedroom and tek up some kerosene I had in a plastic jug and I throw de kerosene oil pun de bed and light it wid some matches.  I left de jug in my bedroom and run out through de door nearest to my bedroom.  When I left de fire did burning in my bed and I see Winston and my old man gine to out it.  I then went down to Belleplaine Police Station and tell the Police that I was in some trouble because I light the house.”

11.	In giving evidence before the jury about the taking of this statement S/Sgt Sobers was taken in examination in chief as far as the point at which he was about to read its contents, having deposed that he took a statement and the manner in which it was taken.  It is then recorded that at that stage the appellant’s counsel objected to its admission on the grounds that it was not voluntary and required to have a voir dire to have it tested.  Only then were the jury asked to withdraw.  The witnesses were cross-examined on the lines that the appellant had been told that if he did not make a statement he would not receive a meal.  At the conclusion of the voir dire the judge ruled that the statement was admissible as having been made being in a free and voluntary manner.  The jury was recalled and the trial continued.  The witnesses gave evidence of the circumstances in which the statement was taken and were cross-examined on the same lines.

12.	The appellant gave sworn evidence, to the effect that he noticed that the lamp in his bedroom was burning low and needed oil.  He got some oil in a jug and in the course of filling the lamp he knocked it over.  The burner slid out of the lamp and caused the fire.  The appellant “shouted for fire”, then got the burner off the bed and threw it out of the room.  He claimed that he and his father and uncle tried without success to extinguish the fire, so he rushed out for help and asked the group of men playing dominoes to come and give assistance.  He also tried to obtain help from Foster’s house, but there was no light there.  The appellant gave evidence that after his arrest he had been kept without food for a long period and was feeling hungry and hurt when he was told that he was to give a statement.  Only after its conclusion did he receive any food.  He denied making the oral statement attributed to him by S/Sgt Sobers.  He also denied that the written statement represented what he told the police and disclaimed major parts of it, in particular the narrative about pouring kerosene on his bed and lighting it and the allegation of ill-treatment by his father.

13.	In the course of his summing up to the jury the judge dealt with the admission of the appellant’s written statement in the following passage (Record, pp 75-6):

“Mr Foreman and Members, you will remember that at this stage the Prosecution sought to produce the statement as evidence in this trial and Counsel for the Defence objected to the admission of the statement on the ground that it was not a voluntary statement.  I investigated the circumstances surrounding the making of the statement, and I ruled that the statement was made by the Accused Trevor Foster and that it was a voluntary statement and was therefore admissible in law.  Accordingly, it was admitted in evidence.  
However, despite the fact that I have admitted the statement in evidence, it is for you, the Members of the Jury, to say what weight, if any, you attach to this statement, having regard to all the circumstances in which the statement was taken.
Its probative value, that is, how much reliance you can place on it is for you to determine, having regard to all the circumstances.  The mere fact that a statement is ruled admissible by the Judge does not necessarily mean that you should accept it, it is still your duty to look at it and see what weight, if any, you should attach to it, since admissibility and weight are two different things.  Admissibility is a matter of law for the Judge, weight is a matter for the Jury.  It is therefore the Jury’s responsibility to find the truth of what took place.
If you accept that it was really the statement of the Accused, then you would consider the weight and probative value to attach to it by paying careful attention and due consideration to all the circumstances surrounding the making of the statement.
The matter rests with you as a question of fact, whether or not the statement was made by the Accused.”

14.	When he came to define the intent that must be proved before the appellant could be found guilty of murder in the course of a felony, the judge dealt with the issue in several passages of his summing-up.  At pages 61-2 of the Record he defined murder as the unlawful killing of another person without lawful justification or excuse with malice aforethought.  He defined malice as follows:

“Malice can be proved in different ways, depending on the circumstances.  Malice can be proved by establishing an intention to kill or an intention to cause really serious bodily harm.  Malice can also be proved by establishing that the killing occurred in the course of, or in the furtherance of the commission of a felony.
The law in this regard is that where a person does a felonious act which is unlawful and dangerous, and the act is likely to injure another, and that act causes the death of another, even inadvertently, the person doing the act is guilty of murder.
To set fire to a dwellinghouse with another person in it is a felony.  Indeed Section 3 of the Malicious Injury to Property Act, Chapter 140 of the Laws of Barbados provides that:
‘Any person who unlawfully and maliciously sets fire to any dwellinghouse, any person being therein shall be guilty of felony.’
Where the word maliciously is used in a statutory definition of a crime, malice must be taken as requiring either, one, an actual intention to do the particular kind of harm that is in fact done or two, recklessness as to whether such harm should occur or not.  That is to say, the Accused must have foreseen that the particular kind of harm might be done, that is, that the house might burn down with the persons in it and yet gone on to take the risk of it.”

He then dealt with accident and directed the jury (Record, p 63) that if it was established or left in doubt whether the fire started accidentally, they must return a verdict of not guilty.  Finally, at the conclusion of his summing-up he directed the jury on what he regarded as the essential issue, in the following terms (Record, pp 93-4):

“If in your final determination of all the evidence before you, bearing in mind that the Accused has nothing to prove, and that it is the duty of the Prosecution to prove his guilt beyond reasonable doubt, you are satisfied that Ruby Grecia met her death as a result of accidental fire, or you are left in a state of doubt as to whether or not the fire started accidentally, then you will return a verdict of not guilty.
If on the other hand you do not accept that the fire occurred accidentally, and you are not in any doubt about that on the evidence, then, if you are satisfied on the totality of the evidence and feel sure that the Accused deliberately and intentionally, that is, not accidentally set fire to the dwellinghouse at Cambridge, St Joseph, knowing other persons were inside, and that the death of Ruby Grecia resulted from the setting of the house on fire, then you will find the Accused guilty of murder as charged.”

15.	The appellant appealed to the Court of Appeal against conviction and sentence, and the court (Williams CJ, Husbands and Belgrave JJ) dismissed the appeal on 18 October 1994.  No record of the court’s judgment or its reasons can now be found and the Board is accordingly without the benefit of knowing how the Court of Appeal viewed the case or its reasoning on the several issues.

Cedric Leon Williams’ appeal

16.	The deceased woman Cynthia Martin lived in a house at 3rd Avenue, Long Gap, Spooners Hill, St Michael, with members of her family.  These included her daughter Maureen Barker and the latter’s daughters Nicole Barker and Cyrilene Martin, who was the former girl friend of the appellant.  A fire occurred at the house on 27 December 1991, which caused severe burns and shock to the deceased, who died of resulting septicaemia on 1 January 1992.

17.	Cyrilene Martin had previously lived with the appellant, but left him because of problems with their relationship and went back to live with her family.  Her mother and grandmother disapproved of the appellant and would not let her go out to see him when he called for her.  There was evidence that the appellant had made threats to burn down the house.  Nicole Barker said that she heard him say that he was going to throw gasoline round the house of her grandmother and burn it down.  On one occasion her grandmother had run the appellant away from the house with a garden fork.  Maureen Barker also testified that she had previously heard him threaten to burn down the house.  Trevor Gaskin, a friend of the appellant, deposed that two weeks before Christmas 1991 he saw him and had a talk about Cyrilene.  The appellant told him that she had left him and that he was going to kill her and her family.  He repeated this threat on the evening of the fire on 27 December 1991.

18.	Maureen Barker gave the following evidence of seeing the appellant start the fire (Record, p 8):

“On 27/12/91 about 7.00pm I was at home in the dining room my mother was in her bedroom.  I saw the accused come and stand up at the side door of our house.  The accused had a white salt meat bucket in his hand.  He also had a green cigarette lighter.  I saw the accused take the bucket he threw gasoline across the table cloth and he lit the table cloth with the lighter.  I smell the gasoline when he threw it on the table cloth.  The table cloth caught fire – the house started to burn.”

19.	Sergeant Wade Gibbons testified that on 28 December 1991 he went to the home of the appellant, informed him that he was investigating a house fire at the house of Cynthia Martin and asked him to come to the station for further investigations.  He cautioned the appellant, to which the appellant replied “I do shite man and I sorry”.  At the station he asked the appellant why he had set the house on fire and again cautioned him.  The appellant replied “If Cyrillene had come back to me I would not have done Mrs Martin nor nobody nothing.”

20.	At about 11.05 am the same day the appellant was seen by Sergeant John Scantlebury and PC Kenneth Alleyne.  The sergeant explained that he was investigating the fire and that he had information that the appellant was involved in setting fire to the house.  He cautioned the appellant, who replied “I had to defend myself.”  He then made a brief written statement, the admissibility of which was not challenged, in the following terms:

“Yesterday Friday I went at my girlfriend mother house to talk to she.  I had to arm myself because sometime when I go there de family does come at me with forks and knives and things like that.  So I get some gasoline and went by de door and stop by de table.  I call for my girlfriend Cerlene and de mother come out from de bedroom with a knife and then de rest gather round like they want to attack.  I then throw de gasoline all bout de house wild and light it.  I get catch first and I run.”

21.	At trial the appellant made an unsworn statement from the dock, in which he made the case that the starting of the fire was accidental.  He had purchased some gasoline in order to carry out some work.  He bought some cigarettes and wished to smoke, so he obtained a light from Trevor Gaskin, as he claimed that he did not have any matches.  He decided to call at Cyrilene’s house to see if she was there.  He entered the house by the side door, carrying the container and smoking at the time.  He found Cyrilene’s sister Nicole in the house and spoke to her, then heard another voice.  His statement then continued:

“I saw the door of a bedroom open and I saw the face of Cerlene’s mother which was facing me.  She and I were face to face.  Within a split second, before I could think or reverse, Cerlene’s mother took up a knife from a barrel which was in the left hand corner of the bedroom.  She came towards me at full force.  I could not reverse.  It was too late, so I pulled up the container with the gas with my right hand to block the knife and the container which had on a cover which was loose.  The gasoline spilt out all over the place where I was standing.  The cigarette which I had in my mouth, fell on the left side on to the table cloth.  I reached down to take it up but it was too late.  When I reached for it, the flames came off the table and I was caught on fire on my left side.  The fire then spread fast from my left side to my right side.  I dropped the container which had the gasoline, ran outside with my clothes on fire.”

22.	In the course of his summing-up the judge directed the jury on the content of the felony murder rule and dealt with the defences which might be open to the appellant of accident, self-defence and provocation.  In the first part of the summing-up, in which he gave directions on matters of law, he said (Record, pp 23-4):

“Before a verdict of guilty can be returned in this case on this Indictment, the Prosecution must make you feel sure that the Accused Cedric Williams killed Cynthia Martin and that the killing was unlawful and that the killing was accompanied by malice.
Malice can be proved in different ways depending on the circumstances.  Malice can be proved by establishing an intention to kill or an intention to cause really serious bodily harm.  Malice can also be proved by establishing that the killing occurred in the course of or in the furtherance of the commission of a felony.
The law in this regard is that where a person does a felonious act which is unlawful and dangerous and the act is likely to injure another and that act causes the death of another, even inadvertently, the person doing the act is guilty of murder.
To set fire to a dwellinghouse with another person in it is a felony, because section 3 of the Malicious Injury to Property Act, Chapter 140 of the Laws of Barbados contains the following provisions.
‘Any person who unlawfully and maliciously sets fire to any dwellinghouse with any person being therein shall be guilty of a felony.’
Where the word maliciously is used in the statutory definition of a crime, malice must be taken as requiring, either (i), an actual intention to do the particular kind of harm that was in fact done, or (ii), recklessness as to whether such harm should occur or not.  That is to say, the Accused must have foreseen that the particular kind of harm might have been done, that is, that the house might burn down with the person or persons in it and yet went on to take the risk of that event coming to pass.”

23.	The judge went on to direct the jury that if they concluded that the fire had been or might have been started accidentally, they should return a verdict of not guilty.  He reviewed the evidence of the several witnesses and commenced to summarise the issues before the jury in the concluding part of his summing-up.  He referred to the argument of the appellant’s counsel that if the conduct of the appellant constituted recklessness, the proper verdict should be one of manslaughter.  The judge accepted (Record, p 58) the correctness of that statement of the law and stated as follows:

“… if you felt that he didn’t go there to burn down the house, he didn’t go there to kill anybody or to cause grievous bodily harm to anybody, but if you think that he went there to look for his girlfriend and he carried along a bucket of petrol instead of carrying some flowers or sweets, some chocolate or icecream, if you believe that, but whilst there through his recklessness, a fire started, then you will have to find him not guilty of murder, but guilty of manslaughter.”

24.	The jury found the appellant guilty of murder and the judge imposed the then mandatory sentence of death.  The appellant appealed to the Court of Appeal (Williams CJ, Husbands and Smith JJ), which dismissed the appeal in a written decision given on 5 April 1994.  The amended grounds of appeal were referable to the defences of self-defence and accident and contained a claim that the verdict was unsafe and unsatisfactory.  No argument was addressed to the Court of Appeal about the felony murder rule.  The court rejected the submissions made on behalf of the appellant, dismissed the appeal and upheld the conviction and sentence.  None of the grounds of appeal argued before the Court of Appeal was in issue before the Board.

Submissions in the Privy Council

25.	The written case for each appellant was confined to an argument on the mens rea applicable to cases of felony murder.  Mr Blake QC, who appeared for both appellants, confirmed that he did not propose to present any argument in Williams’ case in respect of self-defence or provocation.  Nor was he pursuing in Williams’ appeal the argument in respect of felony murder, in light of the judge’s directions in that case.  He did not pursue the argument advanced in the addendum to his printed case in Foster’s appeal that the judge ought to have directed the jury on the lines laid down by the House of Lords in R v Mushtaq [2005] UKHL 25, [2005] 1 WLR 1513.  In Foster’s case he argued that the judge should have given a direction that if the jury found that the appellant was or may have been reckless in setting fire to the house, without appreciating the risk to the occupants, their verdict should be one of manslaughter.  He also submitted, relying upon the decision of the Board in Mitchell v The Queen [1998] AC 695, that there was an irregularity in the trial which prejudiced the appellant Foster, in that the judge informed the jury that he had admitted Foster’s written statement in evidence.  Their Lordships will deal with the latter issue first.

The Mitchell argument

26.	Mr Blake submitted that for the judge to inform the jury that he had admitted Foster’s statement in evidence was an irregularity which created the risk of unfair prejudice to him.  In Mitchell v The Queen [1998] AC 695, on which he relied as authority, prosecuting counsel had quite properly informed the judge in coded language that the court might be “entering a particular stage of the trial at this point” and referred him to the possibility of excusing the jury for a period.  Defence counsel then, in front of the jury, in Lord Steyn’s words, “blurted out in graphic detail” what her case would be on the voir dire.  A voir dire was held, following which the judge ruled that the statements were voluntarily made.  When he came to sum up to the jury, he informed them that he had ruled that the statements were voluntary, after which he gave them a sufficient direction that they should decide whether the statements were true, bearing in mind the allegations of ill-treatment which the appellant had repeated in the main trial.

27.	The Board held that for the judge to inform the jury of his decision on the voir dire created the risk of prejudice.  Giving the judgment of the Board, Lord Steyn said at pages 703-4:

“The decision on the admissibility of a confession after a voire dire is the sole responsibility of the judge.  There is no logical reason why the jury should know about the decision of the judge.  It is irrelevant to the consideration by the jury of the issues whether the confession was made and, if so, whether it is true.  There is also no practical reason why the jury need to be informed of the judge’s decision.  This is underlined by the fact that in modern English practice the judge’s decision after a voire dire is never revealed to the jury.
Moreover, if the judge reveals his decision to the jury, the risk of unfair prejudice to a defendant is created.  That risk will often be greater than in the case of a no case submission.  That is so because in the typical case, of which the present is a paradigm, the decision of the judge on the voluntariness of the confession may convey to the jury that the judge believed the police witnesses and disbelieved the defendant.  It is true, of course, that in a summing up a judge may for the assistance of the jury make tentative observations which could reflect adversely on the veracity of a defendant.  Provided that the judge does so in a fair and balanced way that is unobjectionable.  But that situation does not bear comparison with the judge informing the jury of his decision on the voluntariness of a statement.  That will typically involve a concluded view on the credibility of the police and the defendant.  The reason why it is wrong for a judge to reveal his decision to a jury is not because it would amount to a withdrawal of an issue from the jury and it does not amount to a misdirection.  The vice is that the knowledge by the jury that the judge has believed the police and disbelieved the defendant creates the potentiality of prejudice.  A jury of laymen, or some of them, might be forgiven for saying: ‘Well the judge did not believe the defendant, why should we believe him?’  At the very least it creates the risk that the jury, or some of them, may be diverted from grappling properly and independently with a defendant’s allegations of oppression so far as it is relevant to their decision.  And such an avoidable risk of prejudice cannot be tolerated in regard to a procedure designed to protect a defendant.
In these circumstances, and relying particularly on the irrelevance of the judge’s decision to the task of the jury taken together with the potentiality of prejudice created by informing the jury of the judge’s decision, their Lordships hold that the jury ought not to be informed of a judge’s decision on a voire dire held to determine the admissibility of a confession.  Any contrary practice in The Bahamas or elsewhere in the Caribbean ought to be discontinued.”

He went on, in a passage at page 704, to outline the correct procedure which should be adopted where a challenge to the admissibility of a defendant’s statement is to be made.  Their Lordships continue to regard this as representing good practice and commend it to the attention of all trial judges.  The course followed by the appellant’s counsel in the present case of deferring his request for a voir dire until the jury had heard that a statement had been made does not represent such good practice and should not be adopted in future trials.

28.	It is necessary, however, to analyse critically in each case the issues in regard to the admission of any confession statement.  The practice prescribed in Mitchell is of particular relevance and importance where it is common case that the defendant made the impugned statement but claims that it was not voluntary because of ill-treatment or oppression.  In such a case there will ordinarily be a head-on conflict between the defendant’s version of events preceding or surrounding the taking of the statement and that given by the police witnesses called in relation to the taking of the statement.  If the judge gives an indication that he believes the police officers’ version and rejects the defendant’s, that creates the risk that some jurors at least may be over-influenced by knowledge of the judge’s views.

29.	In the present case, however, there was no factual issue between the appellant and the police which involved accepting or rejecting the appellant’s version or deciding on his credibility.  The issue was whether on the undisputed facts the appellant’s statement had been obtained through oppression.  In these circumstances the mischief to which the Mitchell ruling is directed was not present and their Lordships consider that on these facts the judge’s informing the jury that he had admitted the statement did not create a risk of unfair prejudice.  Furthermore, when the judge in his summing up told the jury that he had ruled that the statement was a voluntary statement and was therefore admissible by law, he was merely reminding them of what they knew already, because in the presence of the jury the appellant’s own counsel had asked the judge to exclude the statement on the ground that it was not voluntary, and the judge carefully explained to the jury that what if any weight they gave to the statement was a matter for them.

The felony murder argument

30.	Mr Blake submitted that the judge should have directed the jury that if they found that the victim’s death was or may have been caused recklessly, in the sense of a grossly negligent act without subjective appreciation by the appellant of the risk of fatal consequences, then they should return a verdict of manslaughter.  He argued that the judge should have posed three factual possibilities (a) intentional causing of death, which would also include subjective recklessness, viz actual foresight of the risk of death, coupled with indifference as to that consequence (b) accidental causing of death, connoting absence of any intention to cause it or appreciation of the risk of death (c) recklessness without subjective foresight of the risk of fatal consequences.  The first would lead to a verdict of murder, the second to acquittal and the third to a verdict of manslaughter.  Counsel advanced the proposition that to convict the appellant of felony murder the prosecution must prove either that he deliberately intended to endanger life or was subjectively aware of the danger to life and proceeded to set fire to the house indifferent to that danger.

31.	The felony of arson in the law of Barbados is defined in section 7 of the Malicious Injury to Property Act:

“Any person who unlawfully and maliciously sets fire to any building, other than those specified in sections 2 to 5, shall be guilty of felony …”

Arson of an occupied dwelling-house, carrying the sanction of liability to imprisonment for life, is provided for in section 3.  The meaning of “maliciously” in the equivalent context under the English Malicious Damage Act 1861 was addressed by Professor Kenny in the first edition of his book Outlines of Criminal Law, published in 1902, in terms which were adopted by Lord Bingham of Cornhill in the House of Lords in R v G [2003] UKHL 50, [2004] 1 AC 1034, 1044, para 9:

“ … in any statutory definition of a crime, ‘malice’ must, as we have already seen, be taken – not in its vague common law sense as ‘wickedness’ in general, but – as requiring an actual intention to do the particular kind of harm that in fact was done … For it is essential to arson that the incendiary either should have intended the building to take fire, or, at least, should have recognised the probability of its taking fire and have been reckless as to whether or not it did so.”

The appellant would accordingly be guilty of arson under section 7 and, subject to the necessary proof of occupation, also under section 3, if he intended deliberately to set fire to the house or if he was subjectively reckless, that is to say, he appreciated the risk that his act would set fire to the house but was indifferent as to the occurrence of that consequence.  Mr Blake argued that in order to constitute felony murder a further element had to be proved, actual intention or subjective recklessness as to the risk of death being caused as a consequence.  Unless it was proved that the appellant had actual foresight of the risk of death, the offence would not be murder, even if such a risk would be apparent to a reasonable person.

32.	The argument was based on dicta to be found in a series of cases to the effect that a person who commits a felony involving personal violence does so at his own risk and is guilty of murder if the violence results in death: see DPP v Beard [1920] AC 479, 493, per Lord Birkenhead LC; R v Betts and Ridley (1930) 22 Cr App R 148, 153, per Avory J;  R v Jarmain [1946] 1 KB 74, 80, per Wrottesley J; Gransaul v The Queen (1979, unreported), per Lord Salmon, cited with approval by Lord Mustill in Moses v The State [1997] AC 53, 62;  Griffith v The Queen [2004] UKPC 58; [2005] 2 AC 235, 239, para 6, per Lord Rodger of Earlsferry.  Mr Blake accepted that arson with subjective foresight of the danger of death would rank with felonies involving violence for the purposes of felony murder, a proposition supported by the terms of Stephen J’s direction to the jury in R v Serné (1887) 16 Cox CC 311.

33.	The contrary argument would be to the effect that these dicta do not purport to be comprehensive definitions of the extent of the felony murder, as most of them are unexceptionable statements that causing death in the course of committing a felony involving violence was sufficient for a conviction for murder.  In R v Serné Stephen J qualified the rigour of the original felony murder rule going back to Coke (though see the doubts expressed on the correctness of this rule by Holt CJ in R v Keate (1697) Comb 406, 409).  He said at page 313:

“I think that, instead of saying that any act done with intent to commit a felony and which causes death amounts to murder, it would be reasonable to say that any act known to be dangerous to life, and likely in itself to cause death done for the purpose of committing a felony which caused death, should be murder.”

In this formulation, which was adopted by the judge in the present case, it appears doubtful whether proof is required of subjective foresight of the danger of causing death on the part of the defendant, so long as the act was objectively dangerous to life and likely in itself to cause death.  Many of the older cases support this view: see the references in the 1954 edition of Archbold’s Pleading, Evidence & Practice in Criminal Cases, paras 1654-5.  The learned editors of Archbold did express the view, however, in para 1655 that felony murder

“would now be limited to a felony of such a kind that the actual commission would involve at least a threat of violence.”

34.	The precise extent of the felony murder rule in modern law in those jurisdictions where it still prevails cannot be said to be definitively settled, but their Lordships do not find it necessary to determine it in this appeal.  They do not consider that the facts would support a finding of objective recklessness or gross negligence.  The Crown case was that the appellant deliberately set fire to the house and that he either had the intention of causing death or grievous bodily harm to some at least of the occupants or took the risk of its being burnt down with occupants inside, with knowledge that that risk existed.  The defence case made at trial in the appellant’s evidence was that it was a pure accident, which did not leave him liable to a criminal sanction.  If the defence of accident was rejected, the case was entirely clear.  Setting the house on fire was obviously dangerous to life and likely in itself to cause death.  As the appellant was aware that there were people in the house, he must when he started the fire have foreseen that danger to them, especially to an old lady with limited mobility.  There was no room on the facts for an obvious alternative to murder which would suggest itself to the mind of any ordinarily knowledgeable and alert criminal judge (R v Coutts [2006] UKHL 39; [2006] 1 WLR 2154, 2167, para 23, per Lord Bingham of Cornhill).  In these circumstances the possibility did not exist of a version of the facts which might have called for a direction on the lines advocated on behalf of the appellant.

35.	Their Lordships will therefore humbly advise Her Majesty that the appeal of each appellant be dismissed.