England and Wales Court of Appeal (Criminal Division) Decisions

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Cite as: [1979] QB 695, [1979] EWCA Crim 1

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JISCBAILII_CASE_CRIME

		BAILII Citation Number: [1979] EWCA Crim 1
		Case No.: 2546/R/78

IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice,

25th May 1979.

B e f o r e :

LORD JUSTICE GEOFFREY LANE
MR. JUSTICE ACKNER
and
MR. JUSTICE WATKINS
____________________

	R E G I N A
	-v-
	BRIAN KEITH STEPHENSON

____________________

MR. P. WORSLEY appeared on behalf of the Appellant.
MR. A. CLARKSON appeared on behalf of the Crown.
____________________

HTML VERSION OF JUDGMENT
____________________

LORD JUSTICE GEOFFREY LANE: On 10th May 1978 at York Crown Court, this Appellant was found guilty by the jury of arson, contrary to section 1(1) and (5) of the Criminal Damage Act, 1971 and pleaded guilty to another count of burglary. He was made the subject of a probation order for three years with a condition of medical treatment. He now appeals against his conviction on the charge of arson by leave of the single judge.

The facts giving rise to the charge of arson were as follows. On 28th November, 1977 the Appellant went to a large straw stack in a field near Ampleforth, made a hollow in the side of the stack, crept into the hollow and tried to go to sleep. He felt cold, so he lit a fire of twigs and straw inside the hollow. The stack caught fire and damage of some £3, 500 in all resulted. The Appellant was stopped by the police soon afterwards. He first of all maintained that the fire had been caused by his smoking a cigarette. However, the next day he admitted what he had done. He said:

"I kept putting bits of straw on the fire. Then the lot went up. As I ran away I looked back and saw the fire was getting bigger. I ran off down the road, that's when I was picked up. I'm sorry about it, it was an accident. "

On those facts without more no jury would have had any difficulty in coming to the certain conclusion that the Appellant had damaged the straw stack and had done so being reckless as to whether the stack would be damaged or not, whatever the true definition may be of the word "reckless".

However, the Appellant did not give evidence, and the only witness called on behalf of the defence was Dr. Hawkings, a very experienced consultant psychiatrist. His evidence was to the effect that the Appellant had a long history of schizophrenia. This, he said, would have the effect of making the Appellant quite capable of lighting a fire to keep himself warm in dangerous proximity to a straw stack without having taken the danger into account. In other words he was saying that the Appellant may not have had the same ability to foresee or appreciate risk as the mentally normal person.

The guilt or innocence of the Appellant turned on the question whether the jury were satisfied so as to feel sure that he had been reckless when he lit the fire. The learned judge gave the following direction to the jury:

"The prosecution say to you, though, that he set fire to it in a situation and a frame of mind which amounted to recklessness as to whether the straw stack would be damaged. And when you come to deal with what is the difficulty of the frame of mind described as recklessness, one is up against this difficulty, that it is a frame of mind, which, in the first place, may relate to a large number of different kinds of activities, depending on what it is that is the charge made against an accused person. That is to say it may be to do not merely with setting fire to something, it may be to do with damaging something, injuring somebody; it may be to do with driving a motor car that recklessness is the frame of mind that has to be considered and, as well as having to relate to a large number of activities, it also has to deal, it may be, with a number of different frames of mind, and so the wording, the phrase that has been used so far, is that a man is reckless "if he realises that there is a risk, but nevertheless presses on regardless. It may be right to get the thing into more detailed words used by the Court of Appeal, by whom you and I are bound in a case last year. That case in fact was about a man...... doing damage I think to a telephone, and the frame of mind was losing his temper, but the same considerations apply and the same question of recklessness or not arises. And in that case what the Court of Appeal said was this: 'A man is reckless in the sense required' (that is to say in the sense which leads to conviction) 'when he carried out a deliberate act knowing or closing his mind to the obvious fact that there is some risk of damage resulting from that act, but nevertheless continuing in the performance of that act'. So far as the last phrase, that is what I call 'pressing on regardless'. Well now a man is reckless when he carried out a deliberate act knowing or closing his mind to the obvious fact that there is some risk of damage. First you perhaps want to ask yourselves whether in lighting the fire the accused carried out a deliberate act, and the answer to that one thinks must be yes, because he has said that he lit the fire. Secondly, you may want to ask yourselves whether you regard it or not as an obvious fact that there was some risk of damage, and when the act is the act of lighting a fire inside a straw stack, you may have little difficulty in dealing with the question whether it is an obvious fact that there is some risk of damage. Did he then do that knowing or closing his mind to the obvious fact, in the case from which these words are taken, as I say the reason advanced or the reason found for the man closing his mind to the obvious fact was that he was so angry that he pressed on regardless, and there may be...... all kinds of reasons which make a man close his mind to the obvious fact — among them may be schizophrenia, that he is a schizophrenic.

This direction is criticised on the grounds, first, that it is not in accordance with the decision of this Court in Briggs (1976) 63 C. A. E. 215 and secondly, because the judge "failed to make clear to the jury that the test of whether a man was reckless or not was a subjective test. "

With regard to the first ground of complaint, the judge in fact directed the jury in accordance with the terms of the judgment of this Court in Parker (1976) 63 C. A. S. 211 in which Briggs was Considered. In Briggs it was held that:

"A man is reckless in the sense required when he carries out a deliberate act knowing that there is some risk of damage resulting from that act but nevertheless continues in the performance of that act. "

In Parker this court expanded that definition in the words:

"A man is reckless in the sense required when he carries out a deliberate act "knowing or closing his mind to the obvious fact that there is some risk of damage resulting from that act but nevertheless continuing in the performance of that act. "

If that expansion was merely an extension or explanation of Briggs, then the judge's direction here was not, as alleged, contrary to Briggs. It has however been suggested that the additional words used by this court in Parker alter or obfuscate the clear words in Briggs. It is to be observed that in neither case was there any consideration of the earlier authorities. Both judgments were extempore. In any event we now have to decide what is the true meaning of the word "reckless" in section 1 of the Criminal Damage Act, 1971.

The problem is not difficult to state. Does the word "reckless" require that the defendant must be proved actually to have foreseen the risk of some damage resulting from his actions and nevertheless to have run the risk (the subjective test), or is it sufficient to prove that the risk of damage resulting would have been obvious to any reasonable person in the defendant's position (the objective test)?

The word "reckless" is appearing increasingly in modern statutes. The subjective test has the imprimatur of the law Commission Working Paper No. 31:

"A person is reckless if (a) knowing that there is a risk that an event may result from his conduct or that a circumstance may exist he takes that risk, and (b) it is unreasonable for him to take it having regard to the degree and nature of the risk which he knows to be present. "

It is also the view adopted by the authors of Smith & Hogan Criminal Law 4th Edition (see pp. 654-6) and Professor Glanville Williams in his Textbook of Criminal Law, p. 70 et seqq.

Furthermore, Counsel for the Crown in the present case has not sought to argue to the contrary.

The use of the word "reckless" in the Criminal Damage Act must be intended to reflect the ordinary everyday meaning of the word as defined or explained in decisions of the courts. The Shorter Oxford English Dictionary defines the word as "Careless of the consequences of one's actions", "heedless of something, " "lacking in prudence or caution". It is not altogether clear, but those definitions do not seem to involve the necessity of any foresight of danger. They seem to indicate that a man is reckless who does not stop to consider whether anyone or anything is being subjected to risk by his actions. This was the view adopted by Donovan J. in S. v. Bates (1952) 2 A. E. R. 842, at page 845:

"The ordinary meaning of the word 'reckless' in the English language is 'careless', •heedless', 'inattentive to duty'. Literally, of course, it means 'without reck'. 'Reck' is simply an old English "word, now, perhaps, obsolete, meaning 'heed', 'concern', or 'care'. In accordance with the accepted principles of construction I ought to give that meaning to the word, and, therefore, include that recklessness which is not dishonest, unless it is clear that in s. 12(1) (of the Prevention of Fraud (Investments) Act 1939) it bears a restricted meaning......I am unable to accede to the argument that the word 'reckless' in s. 12(1) should receive a restricted meaning connoting only in such recklessness as is dishonest. I think it must be left to bear its full meaning, and be construed, therefore, as covering also the case where there is a high degree of negligence without dishonesty. "

In Andrews v. D. P. P. (1937) A C 576 at page 583 Lord Atkin, discussing the mental element which must be proved in order to substantiate a charge of motor manslaughter, said this:

"Simple lack of care such as will constitute civil liability is not enough: for purposes of the criminal, law there are degrees of negligence: and a very high degree of negligence is required to be proved before the felony is established. Probably of all the epithets that can be applied 'reckless' most nearly covers the case. It is difficult to visualise a case of death caused by reckless driving in the connotation of that term in ordinary speech which would not justify a conviction for manslaughter: but it is probably not all-embracing, for 'reckless' suggests an indifference to risk whereas the accused may have appreciated the risk and intended to avoid it and yet shown such a high degree of negligence in the means adopted to avoid the risk as would justify a conviction. "

The most comprehensive exposition of the objective definition is to be found in the judgment of Megaw J. in Shawinigan. Ltd. v. Vokins & Co.. Ltd. (1961) 3 A. E. R. 396, at page 403. The learned judge was there considering the meaning of the words "knowingly or recklessly" in a contract: "... In my view, 'recklessly' means grossly careless. Recklessness is gross carelessness — the doing of something which in fact involves a risk, whether the doer realises it or not; and the risk being such having regard to all the circumstances, that the taking of that risk would be described as 'reckless'. The likelihood or otherwise that damage will follow is one element to be considered, not whether the doer of the act actually realised the likelihood. The extent of the damage which is likely to follow is another element, not the extent which the doer of the act, in his wisdom or folly, happens to foresee...... The only test, in my view, is an objective one.... "

Had those been the only authorities in point, there would have been no difficulty in coming to the conclusion that Parliament had intended the objective test to be applied. However, in Burlington v. British Railways Board (1971) 2 Q. B. 107, the Court of Appeal in deciding the duty in tort of an occupier of land towards a trespassing child had reason to consider the definition of recklessness given by Megaw J. in Shawinigan Ltd. v. Vokins & Co.. Ltd. Edmund Davies L. J. approved of the definition at (p. 153). Salmon L. J., whilst conceding that that definition may have been right in the context in which it was given, concluded that the meaning of "reckless" in the law of tort was the subjective meaning (at p. 126). When Burlington was considered by the House of Lords ((1972) A C 877) it was the interpretation of Salmon L. J. which received the approval of the majority. Lord Reid (at p. 898) says this:

"Recklessness has, in my opinion, a subjective meaning: it implies culpability. An action which would be reckless if done by a man with adequate knowledge, skill or resources might not be reckless if done by a man with less appreciation of or ability to deal with the situation. One would be culpable, the other not. Reckless is a difficult word. I would substitute culpable. "

Lord Wilberforce at page 921 said this:

"In the Court of Appeal he (the infant plaintiff) succeeded on a basis of recklessness......As to this, unless 'recklessness' means 'gross carelessness', and in my opinion not even then, there is no basis on which the appellants can be liable for this injury. But I agree with Salmon L. J. and not with the majority in the Court of Appeal that recklessness, in this context, has its classical meaning. "

Lord Pearson was of the same opinion (at p. 928). It would be strange if the meaning of "reckless" in the Criminal Damage Act were harsher towards an accused person than its meaning in the law of tort is to a defendant.

In the first edition of Professor C. S. Kenny's Outlines of Criminal Law published in 1902 and repeated in the 16th edition of 1952 (edited by Mr. J. W. C. Turner) at p. 186, appears the following passage:

"In any statutory definition of a crime, 'malice' must be taken not in the old vague sense of 'wickedness' in general but as requiring either (1) an actual intention to do the particular kind of harm that in fact was done; or (2) recklessness as to whether such harm should occur or not (i. e. the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it. )"

Now one of the reasons for the introduction of the Criminal Damage Act was to avoid the difficulties which had arisen from the difference between the popular meaning of the word "malicious" and its legal meaning. It is fair to assume that those who were responsible for drafting the 1971 Act were intending to preserve its legal meaning as described in Kenny and expressly approved by the Court of Criminal Appeal in R. v. Cunningham (1957) 2 Q. B. 396. In our view it is the subjective test which is correct.

What then must the prosecution prove in order to bring home the charge of arson in circumstances such as the present? They must prove that (1) the defendant deliberately committed some act which caused the damage to property alleged or part of such damage; (2) the defendant had no lawful excuse for causing the damage; these two requirements will in the ordinary case not be in issue; (3) the defendant either (a) intended to cause the damage to the property, or (b) was reckless as to whether the property was damaged or not. A man is reckless when he carries out the deliberate act appreciating that there is a risk that damage to property may result from his act. It is however not the taking of every risk which could properly be classed as reckless. The risk must be one which it is in all the circumstances unreasonable for him to take.

Proof of the requisite knowledge in the mind of the defendant will in most cases present little difficulty. The fact that the risk of some damage would have been obvious to anyone in his right mind in the position of the defendant is not conclusive proof of the defendant's knowledge, but it may well be and in many cases doubtless will be a matter which will drive the jury to the conclusion that the defendant himself must have appreciated the risk. The fact that he may have been in a temper at the time would not normally deprive him of knowledge or foresight of the risk. If he had the necessary knowledge or foresight and his bad temper merely caused him to disregard it or put it to the back of his mind not caring whether the risk materialised, or if it merely deprived him of the self-control necessary to prevent him from taking the risk of which he was aware, then his bad temper will not avail him. This was the concept which the court in Parker was trying to express when it used the words "or closing his mind to the obvious fact that there is some risk of damage resulting from that act. " We wish to make it clear that the test remains subjective, that the knowledge or appreciation of risk of some damage must have entered the defendant's mind even though he may have suppressed it or driven it out.

There is no doubt that the subjective definition of "recklessness" does produce difficulties.

One of them which is particularly likely to occur in practice is the case of the person who by self-induced intoxication by drink or drugs deprives himself of the ability to foresee the risks involved in his actions. Assuming that by reason of his intoxication he is not proved to have foreseen the relevant risk, can he be said to have been "reckless"? Plainly not, unless cases of self-induced intoxication are an exception to the general rule. In our judgment the decision of the House of Lords in D. P. P. v. Majewski (1977) A C 443 makes it clear that they are such an exception. Evidence of self-induced intoxication such as to negative mens rea is a defence to a charge which requires proof of a "specific intent", but not to a charge of any other crime. The Criminal Damage Act 1971, section 1(1) involves no specific intent (see R. v. O'Driscoll (1977) 65 C. A. R. at p. 54, 55). Accordingly it is no defence under the Act for a person to say that he was deprived by self-induced intoxication of the ability to foresee or appreciate an obvious risk.

How do these pronouncements affect the present appeal? The Appellant, through no fault of his own, was in a mental condition which might have prevented him from appreciating the risk which would have been obvious to any normal person. When the learned judge said to the jury "there may be...... all kinds of reasons which make a man close his mind to the obvious fact — among them may be schizophrenia —" we think he was guilty of a misapprehension, albeit possibly an understandable misapprehension. The schizophrenia was on the evidence something which might have prevented the idea of danger entering the Appellant's mind at all. If that was the truth of the matter, then the Appellant was entitled to be acquitted. That was something which was never left clearly to the jury to decide.

We should add this. The mere fact that a defendant is suffering from some mental abnormality which may affect his ability to foresee consequences or may cloud his appreciation of risk does not necessarily mean that on a particular occasion his foresight or appreciation of risk was in fact absent. In the present case, for example, if the matter had been left to the jury for them to decide in the light of all the evidence, including that of the psychiatrist, whether the Appellant must have appreciated the risk, it would have been open to them to decide that issue against him and to have convicted. As it is, we are of the view that, for the reasons indicated, the conviction for arson was unsafe and must be quashed.

The sentence, which was passed on the Appellant in respect of the burglary as well as arson, will remain unaltered.