England and Wales Court of Appeal (Criminal Division) Decisions

No. 9702548 Z3 9702556 Z3 9702605 Z3 9703590 Z3

Royal Courts of Justice

The Strand

London WC2

Thursday 20th November 1997

B E F O R E :

LORD JUSTICE PHILLIPS

MR JUSTICE JOWITT

and

SIR PATRICK RUSSELL

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R E G I N A

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MICHAEL STANLEY ROBERTS

JOHNATHAN TAYLOR

KEVIN CHAPMAN

TONY DALY

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Computer Aided Transcript of the Handed Down Judgment of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Tel No: 0171 421 4050 Fax No: 0171 831 8838

(Official Shorthand Writers to the Court)

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MR J ASPINALL QC & MR DEHAVAS appeared on behalf of the Appellant ROBERTS

MR J GOLD appeared on behalf of the Appellants TAYLOR and DALY

MR M HURST (Mr Bowen) appeared on behalf of the Appellant CHAPMAN

MR R CHERRILL & MR A CHAPLIN appeared on behalf of the Crown

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JUDGMENT

(As Approved by the Court )

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Crown Copyright

Thursday 20th November 1997

JUDGMENT

LORD JUSTICE PHILLIPS: On the 21st March 1997, after the longest trial that has ever taken place at Lewes Crown Court, the appellants Roberts, Taylor and Chapman were convicted on an indictment drawn in the following terms:

STATEMENT OF OFFENCE

CONSPIRACY TO COMMIT CRIMINAL DAMAGE , contrary to Section 1(1) of the Criminal Law Act 1977.

PARTICULARS OF OFFENCE

...between the 1st day of November 1994 and the 1st day of July 1995 conspired together with other persons to commit offences of criminal damage at various locations in East and West Sussex.

Roberts was sentenced to 6 years, Taylor to 4 years and Chapman to 2 years imprisonment.

Charged on the same indictment was the appellant Daly. He pleaded guilty and, after a Newton hearing, was sentenced to 3 years imprisonment.

All four appellants appeal against conviction, the first three with the leave of the single Judge and Daly with the leave of this Court.

Each appellant has attacked the form of the indictment and we decided to deal with that attack as a preliminary point as, if well founded, it might render it unnecessary to consider other grounds of appeal advanced by individual appellants.

Before the trial began, Mr Cherill for the Crown circulated to Defence Counsel an 'Opening Note' which set out the manner in which the Crown's case was to be opened to the jury. This summary is based largely upon that note.

In late 1994 Shoreham was chosen as a port for the export of live veal calves. This trade was abhorrent to many who were concerned for animal welfare. Some of these protested by lawful demonstrations against the trade. Others resorted to unlawful behaviour, including various forms of criminal damage.

Roberts founded an organisation called "Campaign against live freight", which was known as CALF. The other appellants were committee members of this organisation. Many protestors joined CALF and CALF performed the legitimate function of giving these protestors factual information in relation to matters such as arrival times of road convoys and sailing times of the export vessel, which was called "NORTHERN CRUISER". Within CALF, however, there were some, who included the appellants, who conspired to carry out a campaign of criminal damage against those involved in the export of live freight. Instances of criminal damage that had occurred were relied upon by the Crown as being the product of this conspiracy. The Crown's case is encapsulated in the following passage from the Opening Note:

The Crown does not seek to prove that each Defendant was responsible for all the offences of damage which took place or even that each knew that a particular act of damage was going to be done. It is alleged, however, that each was personally involved in one or more acts of damage some serious, some less so, and that they were acting with the common purpose of seeking to disrupt the trade not only by damage to property, sometimes, as in the case of The White Hart, causing a risk to life, but also by a policy of disruption. On one occasion, for example, the padlock on an electricity junction box was forced and the lighting at the Port extinguished. The Defendants, it is alleged, had possession of a small device consisting of a number of long nails mounted on a small wooden platform designed to be placed under the wheel of a lorry thereby causing damage to the tyres. Oil was deliberately deposited on a busy road known to be one used by the transporter lorries and other forms of obstruction to traffic used such as setting fire to a car in the road and the placing of barriers across the road. Away from the Port area, attacks were made on a "Lairage" at Chailey near Lewes, being a farm at which animals for export were kept overnight en route to the Port. The most potentially serious example was a petrol bomb attack at a time when the drivers of two transporter lorries were asleep in their cabs. Fortunately the attack was ineffectual and no damage was done. At least two of the Defendants were present at the time of this attack. This incident was on the same night, 23 February 1995, that the attack on the White Hart was carried out.

Much of the evidence called by the Crown was devoted to the serious offences that occurred on the night of the 23rd/24th February 1995, but evidence was also given of comparatively minor acts of criminal damage, which included incidents on the 6th/7th March when the tyres of a mobile crane were slashed, an electricity junction box damaged and fencing broken down; an incident on the 15th March, when oil was spilt on the roadway; an attempt to set a small car on fire on the 10th April; the placing of a device with protruding nails under the tyre of a lorry on the 12th April and damage to a lorry on the 18th April.

At the heart of the issue as to the form of the indictment are the following statutory provisions:

The Criminal Damage Act 1971

1. (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.

(2) A person who without lawful excuse destroys or damages any property, whether belonging to himself or another-

(a) intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and

(b) intending 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.

4. (1) A person guilty of arson under section 1 above or of an offence under section 1(2) above (whether arson or not) shall on conviction on indictment be liable to imprisonment for life.

(2) A person guilty of any other offence under this Act shall on conviction on indictment be liable to imprisonment for a term not exceeding ten years.

The Criminal Law Act 1977

1. (1) Subject to the following provisions of this Part of this Act, if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either-

(a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement, or

(b) would do so but for the existence of facts which render the commission of the offence or any of the offences impossible,

he is guilty of conspiracy to commit the offence or offences in question.

3. (1) A person guilty by virtue of section 1 above of conspiracy to commit any offence or offences shall be liable on conviction on indictment-

(a) in a case falling within subsection (2) or (3) below, to imprisonment for a term related in accordance with that subjection to the gravity of the offence or offences in question (referred to below in this section as the relevant offence or offences); and

(b) in any other case, to a fine.

(3) Where in a case other than one to which subjection (2) above applies the relevant offence or any of the relevant offences is punishable with imprisonment, the person convicted shall be liable to imprisonment for a term not exceeding the maximum term provided for that offence or (where more than one such offence is in question) for any one of those offences (taking the longer or the longest term as the limit for the purposes of this section where the terms provided differ).

Counsel for one or more of the appellants attacked the form of the indictment, both before at the outset of the trial and at the close of the Prosecution case. The attack was mounted on three different bases, which have been pursued before us.

1. The single count embraced three separate conspiracies and was void for duplicity. This was the primary basis for the attack mounted by Mr Aspinall, Q.C., on behalf of Roberts.

2. The single count embraced four separate offences. A guilty verdict would not indicate which, or how many, of the offences had been made out. It would be left to the Judge to sentence on the basis of his view of that matter. This was wrong in principle. This was the principle basis of the attack made by Mr Hurst, on behalf of Chapman.

3. For Taylor, Mr Gold - both before the beginning of the trial and at the close of the Prosecution case - advanced a different argument, which Counsel for the other Defendants adopted in the alternative. The indictment alleged an offence of conspiracy to cause criminal damage simpliciter, not damage in one of the aggravated forms. Most of the Prosecution case had been devoted to establishing a case of arson in circumstances involving at least recklessness as to endangering human life. Such evidence was irrelevant to the offence charged and highly prejudicial.

The position of Mr Daly is that he wished to plead guilty to conspiring to commit criminal damage simpliciter, but was not prepared to plead guilty to conspiracy to commit arson. The Judge refused to permit this, but held a Newton hearing and found him guilty of conspiring to commit arson. By so doing he usurped the function of the jury.

The initial ruling of the Judge, to which he adhered at the close of the Prosecution case, included the following conclusions:

In my judgment a conspiracy to commit criminal damage can encompass all types of damage and is not limited to damage by all forms other than by fire. In my judgment it is only necessary to invoke section 1(3) when charging a substantive offence of arson. A count alleging conspiracy to commit criminal damage can, in my view, include evidence of an agreement to commit arson and/or any other type of damage....

I remind myself, as I did during the course of the argument, of the definition of a statutory conspiracy, to be found at paragraph 33-9 of Archbold. "If a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either (a) will necessarily amount to, or involve the commissions of any offence or offences by one or more of the parties to the agreement"... I need not complete the definition there.

In my view, therefore, considering this count and the submissions relating to it, the inclusion of a range of various types of criminal damage does not make this count duplicitous; neither does -- and this has not been a matter referred to in argument today but is referred to in the skeleton argument -- the reference to various locations in East or West Sussex. The Crown have provided an opening note which in my view clearly sets out what they have alleged against the defendants in this case. Judges are very often required to assess the relevant parts played by defendants in multi-defendant/multi-count indictments.

In the course of his summing up the Judge gave the following direction as to the relevant law:

The allegation is that Mr. Roberts, Mr. Taylor, Mrs. Roberts, Mr. Chapman, between 1st November 1994 and 1st July 1995 conspired together with Daly and with the others that I have just read out to you, and others unknown, to commit offences of criminal damage at various locations in East Sussex. The date that is there, the 1st November to the 1st July, puts a limit on the outer period of time. It is not, and never is, a suggestion by the Crown that a particular conspiracy started at eleven o'clock in the morning of the 1st November and ended, say, at three o'clock in the afternoon of 1st July. It is just an outer limit in times of the area of time that the Crown are alleging a conspiracy existed; and therefore to that degree you do not have to worry about the precise dates on the indictment.

I do not think, actually, that anybody has during the course of this trial actually defined what the law calls "criminal damage". It is probably not, arguably so, probably not essential for me to do so, but I will do so because you are entitled to know as much about the law as I can possibly help you with. A person is guilty of committing the offence of criminal damage if, without lawful excuse, they damage any property belonging to another, and they intended to damage or destroy such property or were reckless as to whether such property would be destroyed or damaged. As I said, it has to be done without lawful excuse. As a matter of law, no question of anybody having a lawful excuse for committing criminal damage exists in this case. That would be the definition of the offence of causing criminal damage.

And just as it is a criminal offence to actually commit criminal damage, so is it a criminal offence for two or more persons to agree with one another to commit that offence; and an agreement to commit an offence, or offences, is called a conspiracy, and that is what is alleged against there defendants. An agreement to commit an offence or offences is a conspiracy; these defendants are charged with the conspiracy to commit offences of criminal damage.

Before a jury could convict a defendant of such an offence as is spelled out on this indictment, you would have to be satisfied of the following two things: you have got to be satisfied that there was in fact an agreement between two or more persons to commit criminal damage. That is the first matter. You have got to be satisfied that there was in fact an agreement between two or more persons to commit criminal damage; and, going on to the second matter, that the defendant, whose case you are considering at that moment, was a party to that agreement in the sense that he agreed with one or more of the other persons referred to in the indictment that the crime or crimes should be committed; and at the time of agreeing to this he intended that they should carry out the crime or crimes. I will say it again: you have got to be sure of two things: firstly, that there was in fact an agreement between two or more persons to commit criminal damage; and secondly, that the defendant whose case that you are considering at the particular moment in time, that that defendant was a party to that agreement in the sense that he agreed with one or more of the other persons referred to in the indictment that the crime or crimes should be committed; and at the time of agreeing to this he intended that they should carry out the crime or crimes.

When sentencing the four appellants, the Judge said this:

I have no doubt on the evidence accepted by this jury that all of you were a party to an agreement to use various forms of criminal damage, including arson, to further your personal aims.

What I should say very clearly is this, though, that what I cannot be satisfied about on the evidence put before me in this trial is that any of you had any specific intent to endanger life as opposed to being completely reckless as to whether your activities would endanger the lives of others. For that reason the sentences that I pass upon you are substantially less than the sentence imposed upon a defendant convicted of acting with the intention to endanger life.

It is thus apparent that the Judge sentenced the appellants on the basis that they had conspired to commit criminal damage, aggravated both because it took the form of arson and because it involved recklessness as to whether it would endanger life.

1. S.1 of the Criminal Damage Act 1977 creates a number of offences. This is recognised by the wording of S.4(1). It also follows inevitably from the fact that the maximum sentence differs, dependant upon whether or not arson is committed and upon whether or not criminal damage which does not consist of arson involves intention or recklessness as to the endangering of life - see the following passage from the speech of Lord Diplock in R.v.Courtie [1984] 1 A.C.463 at p.471:

My Lords, where it is provided by a statute that an accused person's liability to have inflicted upon him a maximum punishment which, if the prosecution are successful in establishing the existence in his case of a particular factual ingredient, is greater than the maximum punishment that could be inflicted on him if the existence of that particular factual ingredient were not established, it seems to me to be plain beyond argument that Parliament has thereby created two distinct offences, whether the statute by which they are created does so by using language which treats them as being different species of a single genus of offence, or by using language which treats them as separate offences unrelated to one another.

The offences embraced by section 1 are: criminal damage simpliciter contrary to section 1(1); criminal damage with intent to endanger life, contrary to section 1(2); criminal damage reckless as to whether life would be endangered, contrary to section 1(2); arson, contrary to section 1(1) and (3); arson with intent to endanger life, contrary to section 1(2) and(3); arson reckless as to whether life would be endangered, contrary to section 1(2) and (3) - see R. v.Hoof 72 Cr.App.R. 126, R. v.Hardie 80 Cr.App.R.157 and Archbold 1997 23-14.

2. The case that the Crown advanced, and that the Judge permitted the Crown to advance, was that the appellants had agreed that a course of conduct should be pursued that embraced all of the above offences, save that the Crown do not seem to have suggested that the agreement embraced criminal damage other than arson that involved risk to life. Mr Cherrill for the Crown sought to persuade us that the Crown's case did not extend to an intent to endanger life, but the Judge clearly considered that it did, for he expressly dealt with that possibility. It seems to us that the passage that we have quoted from the Opening Note, on its natural meaning, alleged that the course of conduct agreed to embraced arson with an attempt to endanger life.

3. We were unable to follow the argument advanced by Mr Aspinall that the course of conduct alleged by the Crown embraced not merely a number of offences, but a number of conspiracies. The Crown made it quite plain that they were alleging a single agreement to a single course of conduct.

4. It would have been legitimate for the Crown to allege, in a single count, a conspiracy to commit all, or a selection of, the offences embraced by Section 1 of the Criminal Damage Act. Section 1(1) and (3) of the Criminal Law Act 1977 makes it plain that a single count of conspiracy can charge a course of conduct involving a number of offences carrying different penalties.

5. If a single count charges a conspiracy in relation to the commission of more than one offence, each offence probably constitutes an essential element of the conspiracy so that, unless the Crown proves that the conspiracy extended to all the offences alleged, the charge will not be made out. We think that it is quite plain that, as the maximum sentence is governed by that which attaches to the ulterior offence that carries the longest term of imprisonment, the jury must be satisfied that the conspiracy embraced at least that offence. It may be arguable that, if satisfied of that, the jury need not be satisfied also that the conspiracy embraced the lesser offences alleged to be embraced by the conspiracy, although we incline to the view that such argument is not sound.

6. It is open to the Crown, where it alleges a single conspiracy embracing a number of offences, to break the indictment down into a number of separate counts. If support is needed for this proposition, we would refer to the following statement by Lord Bridge in R. v.Cooke [1986] 1 A.C.909 at 919:

"A single agreement to pursue a course of conduct which involves the commission of two different specific offences could perfectly properly be charged in two counts alleging two different conspiracies, e.g. a conspiracy to steal a car and a conspiracy to obtain money by deception by selling the car with false registration plates and documents".

7. A count alleging a conspiracy in relation to one or more offences must identify the individual offences in question. This seems to us to follow inevitably from the following provision of the Indictments Act 1915:

3. (1) Every indictment shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge.

Indictment Rules 1971, r.6 further provides:

6. Where the specific offence with which an accused person is charged in an indictment is one created by or under an enactment, then (without prejudice to the generality of rule 5 of these Rules)-

(a) the statement of offence shall contain a reference to-

(i) the section of, or the paragraph of the Schedule to, the Act creating the offence in the case of an offence created by a provision of an Act;

(ii) the provision creating the offence in the case of an offence created by a provision of a subordinate instrument;

8. The indictment in the present case, on its face, charged a single conspiracy to commit criminal damage simpliciter which did not embrace any of the aggravated forms of that offence. It was not duplicitous. "Duplicity in a count is a matter of form; it is not a matter relating to the evidence called in support of the count" per Lawton L.J. in R. v.Greenfield (1973) 57 Cr.App.R. 849 at p.855.

Mr Cherrill argued that the indictment should be read subject to the particularisation of the Crown's case provided in the Opening Statement. The Judge observed that this set out clearly what the Crown alleged against the Defendants. Had the trial proceeded on the basis that the jury could only convict if they were satisfied that the conspiracy embraced the aggravated versions of the offence of criminal damage to which the Opening Note referred, it might have followed that deficiencies in the indictment itself were mere technicalities, which should not invalidate the verdicts. That, however, was far from the case and we would in any event denigrate any trend that diluted the importance of setting out proper particulars of the offence or offences charged in the indictment itself.

Thus far we have been concerned with questions of form. As a matter of form, this trial was one which involved a charge of conspiracy to commit criminal damage simpliciter. In substance, however, the Prosecution was bent on demonstrating that the conspiracy had embraced an aggravated form of criminal damage and that allegation provided the focus of the trial. The approach of the Judge was that the indictment required the jury to return a guilty verdict provided that they were satisfied that the conspiracy embraced any form of criminal damage. Once that was proved, it was for him to decide whether, and in what respect, a conspiracy to perform an aggravated form of the offence had been made out and to sentence on the basis of that finding.

The direction on the law given to the jury was, accordingly, that appropriate in the case of a conspiracy to commit criminal damage simpliciter. The jury were never directed to apply their minds to the question of whether the conspiracy extended to arson, or embraced a course of conduct that intended to endanger life or was reckless in that regard. We would add that quite tricky problems arise in a case such as this in relation to conspiracy to commit offences of specific intent. Thus the Judge arrogated to himself the decisions that were of most significance in the case.

In the course of argument before us it was asked why he should not do so. As the Judge himself stated, "Judges are very often required to assess the relevant parts played by defendants in multi-defendant, multi-count indictments." It was observed that a Judge will be just as well placed as the jury to do this at the end of the evidence. That must be true in the case of every trial, and there are indeed cases where it is better that the Judge be left to assess the degree of involvement of the various participants in a trial than that the jury should risk being confused by a profusion of counts designed to achieve this end. Such an approach cannot be appropriate in a conspiracy that involves different offences subject to different maximum penalties. For these reasons the procedure adopted in this case was fatally flawed.

It might be possible to uphold the verdicts in respect of the first three appellants on the basis that they related simply to a conspiracy to commit criminal damage simpliciter, as to which the jury were plainly satisfied, and to attempt to adjust the sentences which have wrongly been imposed on the basis of guilt of the aggravated offences. We do not, however, consider that this is the appropriate course. The length of the trial and the issues explored at it were manifestly inappropriate for a trial on a charge of conspiracy to commit criminal damage simpliciter, whether or not it be arguable that evidence in relation to the aggravated offences could be relevant to such a charge. We have concluded that the appropriate course is to quash these convictions.

Daly is in a different position. He has appealed both against conviction and against sentence, but on analysis he has advanced an alternative case. His appeal against conviction proceeds on the premise that his plea of guilty was capable, subject to the finding of the Judge on the Newton hearing, of being treated as a plea to conspiracy to commit arson. On that basis he claims that the implication of his plea was never explained to him. In the alternative, he appeals against the sentence of three years on the ground that he pleaded guilty only to the offence of conspiracy to commit criminal damage simpliciter, but was sentenced on the basis of being party to a conspiracy to commit arson. It seems to us that his appeal against conviction must fail, for his plea was, as he says he believed, a plea to no more than a conspiracy to commit criminal damage simpliciter. It also follows, however, that he is correct to contend that the Judge sentenced him on a basis that was not legitimate. We indicated to his Counsel, Mr Gold, that we would afford him the opportunity to make further submissions after ruling on the form of the indictment but, subject to anything that he may wish to say, we would propose to dismiss Daly's appeal against conviction but allow his appeal against sentence to the extent of reducing that sentence to 12 months imprisonment, with the effect that he will be entitled to immediate release.

MR CHAPLIN: My Lord, on behalf of the respondent may I first extend apologies for Mr Cherrill, who is unable to be here today and, second, may I say that we have been anxiously considering your Lordships' judgment overnight, and those at CPS headquarters would like the benefit of further reflection before possibly reverting to the Court in order to ask the Court to consider certifying a point of law of general public importance. We are aware, of course, of the time limits within which that would have to be done.

It is also, I suppose, strictly right that those instructing myself and Mr Cherrill would like to have the benefit of advice as to whether or not there may be any invitation to the Court to consider its powers to order a retrial. No concluded view has as yet been taken, but I felt it right perhaps to put down markers.

LORD JUSTICE PHILLIPS: I hear the marker, but is it an appropriate one? Our judgment has held that there has been a trial of one count of simple criminal damage. There would not, as I understand it, be an application for retrial of a count of simple criminal damage. If it were intended to have a trial on a quite different and more serious count, I am not sure that technically that would require any leave from this Court at all.

Having said that, we would not wish those words to be taken in any way as encouragement to have a further trial. We would have thought that a month of cross-examination of the Crown's principal witness might well be considered enough in this case.

MR CHAPLIN: My Lord, I am grateful for those observations. There is nothing further I think that I can add this morning.