England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL Wednesday, 4 November 2015

1. THE VICE PRESIDENT: On 10 April 2014 in the Crown Court at Reading, the appellant was convicted of an offence of arson with intent to endanger life. On 13 June 2014 His Honour Judge Ross sentenced him to a term of 8 years' imprisonment, ordered to be served consecutively to a sentence of 3 1/2 years imposed two months before at the Winchester Crown Court for conspiracy to commit burglary. He applies for an extension of time of some 90 days for the application in respect of conviction and 26 days for sentence. Mr Rule has explained in his written submissions that there was some confusion over whether or not he would continue to act for the applicant.
2. The facts are that on Sunday 6 October, the applicant was involved in a collision with a parked car belonging to Mr and Mrs Portsmouth in Mercian Way, Slough. They called the police and the applicant was arrested. He was bailed. He was on bail for another matter at the same time, a conspiracy to burgle. This involved his wearing an electronic tag. Mrs Portsmouth was woken that night by the sound of her fire alarm and the smell of smoke. Mr Portsmouth, medicated and with poor hearing, was sleeping downstairs and not disturbed. Fortunately, Mrs Portsmouth managed to wake him. He discovered that his front door was ablaze. While his wife called the emergency services, he tackled the fire with buckets of water from the kitchen sink. By the time the police and the fire brigade had arrived, ten buckets of water had extinguished the fire. It had been started by somebody pouring petrol through the letterbox and setting that petrol alight. But for the fire alarm, the fire might have spread, releasing toxic smoke which is the main cause of deaths in house fires.
3. The only person of whom the Portsmouths could think who would want to cause them harm was the applicant. Because he was on a tagged curfew, police officers could establish that he had apparently left his home at 3.56 am, returning at 4.05 am. CCTV footage indicated a hooded figure walking the same route the applicant would have walked to the Portsmouth house from his own home.
4. Police officers could smell petrol when they went to arrest him, in his home, in his bedroom and on his clothes. They found a hooded top fitting the description of that seen on the CCTV footage. His mother's car, thought to be the source of that used in setting the fire, reeked of petrol.
5. The defence case was that the applicant had not been driving the car at the time of the accident, but was a passenger in it. At the time of the fire he had been having a bath and this had prevented the tag from working. Petrol had got onto his clothes from a carburettor he purchased on the Saturday.
6. Mr Rule advances four grounds of appeal against conviction and two grounds of appeal against sentence. He argues that the conviction is unsafe in the following respects.

Ground 1

7. The judge's direction as to the proper approach for the jury to take to evidence of intoxication and consumption of alcohol by the applicant was wrong. The judge in his summing-up to the jury said this:

"I need to touch on the issue of drink. There is evidence from the defendant that he had been drinking that night, following his return home from the police station and hospital. A drunken intention to endanger life is no different from a sober intention to do this. Intentions formed when inhibitions are eased as a result of the consumption of alcohol are to be treated as if they were intentions formed when sober. So the fact that someone might do something when drunk that they would not do when sober does not mean that they are unable to form the intention that is required here."

8. Mr Rule maintained that the judge was obliged to go further and direct the jury that drunkenness was part of the overall circumstances of the case to be borne in mind when deciding on the question of specific intent. He took us to the recommended directions provided by the Judicial Studies Board as it was, now Judicial College. He placed reliance on the decision in R v Brown and Stratton [1998] Crim LR 485, in which the court held at page 486:

"In a case requiring a specific intent, such as a section 18 offence, it is in our view necessary, as the form of direction in the Crown Court Bench Book makes quite clear, to inform the jury that in deciding whether the defendant had the specific intent they must take into account the evidence that he was drunk and that if, because he was drunk, the jury considers that he did not intend or may not have intended to cause the requisite degree of harm, then the defendant is entitled to be acquitted."

Mr Rule complains that the judge compounded his error by directing the jury wrongly on count 2, the reckless arson charge, that drink was irrelevant.

Conclusions on Ground 1

9. We can deal with this ground swiftly. First, and most importantly, unlike the facts of R v Brown and Stratton drunkenness was not an issue at the applicant's trial; the defence was alibi. The applicant said that he had been drinking but did not suggest he was drunk or that drink had played any part in his conduct or thought processes. Had drunkenness been an issue we might have seen some force in the criticism that the judge's directions in respect of the relevance of drink could have been fuller. However we have considered the directions overall and in the context of the facts of this case. We are satisfied the judge directed the jury in clear terms that they could only convict of count 1 if they were sure that the applicant deliberately set the house on fire intending to endanger life.

Ground 2

10. The second ground was drafted in 2014, before Mr Rule had the benefit of the judgment in R v Hunter and Ors [2015] EWCA Crim 631; [2015] 2 Cr App R 9. This ground was based on the fact that the judge failed to give a positive direction upon the applicant's character in relation to a lack of propensity. The applicant had convictions but not for arson or criminal damage. The only evidence adduced as to character was that the applicant was on electronic curfew at the time of the fire. This was adduced as relevant background evidence on timings. The jury were told simply that it had no bearing whatsoever on the likelihood of his having committed the offence.
11. Nevertheless, Mr Rule submitted that there was enough character evidence before the jury for the judge to give at least the second limb of the good character direction, the propensity limb. He submitted it was relevant to the jury's assessment of the two key issues: the identity of the perpetrator and the perpetrator's intent. He tried to advance a argument that it is unfair to allow the prosecution to rely on evidence of propensity but not to require judges to give a defendant the benefit of a lack of propensity direction.

12. Conclusions on Ground 2

12. Mr Rule's argument was considered in Hunter and rejected, and, Mr Rule should have abandoned it when he read the judgment. As Hunter makes clear, there is nothing to prevent the defence adducing evidence of character and arguing a lack of propensity, but it does not follow that they may demand a propensity direction from a trial judge. A defendant with convictions is not entitled as of right to any part of the good character direction, for the simple reason he does not have a good character.
13. The approach of the court in R v Gray [2004] EWCA Crim 1074 was expressly disavowed on this issue in Hunter. If the conviction or convictions qualify under all three heads of being old, minor and irrelevant (which they did not here), the judge must decide whether to treat a defendant as of effective good character. If he does, then the judge should give the direction. Where an offender has convictions that are not old, minor and irrelevant (as here), it is a matter for the judge to decide whether or not to give any part of the good character direction. He or she has a broad discretion, with the exercise of which this court will be reluctant to interfere. We do not intend to do so here.
14. We add only this: this is not the first appeal since the judgment in Hunter was delivered where an offender with previous convictions or a bad character generally has claimed an entitlement to at least part of the good character direction. The same seems to have happened in R v Styles [2015] EWCA Crim 1619. Most unfortunately the court in Styles was not referred to R v Hunter. It should have been. Had it been, the court would have placed no reliance on Gray on this issue. Nothing said in Styles, therefore, should be taken as in any way undermining the clear principles set out in Hunter. Reliance should not be placed on Styles for the purposes of seeking a good character direction or trying to persuade this court one should have been given.

Ground 3

15. Mr Rule argued that the judge's directions on the treatment to be given to lies (otherwise known as the Lucas direction) were inadequate or wrong. The judge gave the jury a Lucas direction, but told them to consider potential innocent explanations of a very generic nature. He also failed to direct the jury to separate the issues of establishing the identity of the perpetrator from establishing evidence as to specific intent. Mr Rule placed reliance on R v Bullen [2008] 2 Cr App R 25 at 364, on the basis of which he submitted that the judge failed to do what was required of him, which was to tailor the Lucas direction to the specific circumstances of the particular case. He failed to direct the jury upon the very real possibility that the applicant's lie or lies were directed at avoiding responsibility for a lesser offence. Therefore, even if the jury was satisfied that he had lied on one or more issues, it did not necessarily establish that he had the specific intent required for count 1. Mr Rule also suggested that the judge's directions may have suggested to the jury that a lie alone might prove guilt.
16. Finally on this ground, Mr Rule complained that the judge's Lucas direction was not restricted to the one lie about the identity of the driver who collided with the Portsmouths' parked van. The judge referred to a number of alleged lies, most of which Mr Rule described as not proven, not admitted and going only to peripheral issues. In this way, Mr Rule submits that the judge has diluted the essential message of a Lucas direction and failed to give the applicant the benefit of it.

Conclusions on Ground 3

17. The judge directed the jury that someone may lie through panic, confusion, or may lie to bolster a true defence. He could have phrased the direction on the capability of lies to establish guilt in rather better fashion, but again, looking at what he has said in the context of the summing-up as a whole, we are satisfied that the direction was adequate. The judge's directions left the jury in no doubt of the task ahead of them. He was entitled to a remind them of the series of lies upon which the Crown relied.

Ground 4

18. Mr Rule complains that there was a failure to sum up fairly and or adequately place the defence case before the jury. This he claimed gave the appearance of bias in favour of the prosecution case. He concedes that the judge reminded the jury of evidence upon which he relied and arguments he advanced but he contended the judge did not go far enough and took matters in the wrong order.

20. Conclusions on Ground 4

19. In our judgment, this criticism has no merit whatsoever, and, with respect, Mr Rule is being over-sensitive. The summing-up is full, fair and even-handed. The judge was not obliged to rehearse all the evidence and all the arguments every time he referred to the issue of specific intent. Further it is a matter for a trial judge how he structures the summing-up, provided it is of course fair to a defendant overall. The jury in this case could have been in no doubt as to the issues, the evidence, the arguments and the principles of law to be applied.

Appeal against sentence

20. Mr Rule submitted that the sentence is excessive for two primary reasons. First, the judge failed to have regard to important matters of mitigation that ought to have led to a reduction in sentence. Second, the aggregate of the consecutive sentences resulted in a sentence that offended the principle of totality. Mr Rule reminded us that the judge had taken as the appropriate term for the present offence 9 1/2 years' imprisonment. He had then made a reduction to reflect totality. Mr Rule suggests that the total sentence of 11 1/2 years remained too high.
21. He properly acknowledged a number of aggravating features of the arson: the fact that the domestic premises were occupied; that the offence was committed in the early hours of the morning; that the applicant was on bail at the time of the offence and in breach of his curfew; that there was significant psychological harm and distress caused to the victims; that this was a revenge attack, and there was some planning involved.
22. However, he also advanced a number of mitigating features: no serious physical injury was caused; the fire was a small fire that was short-lived; it was set by the front door and the Portsmouths could escape by the rear, the applicant would have known this because his mother lived in a similar house; the majority of the petrol was outside the property, not inside; the applicant must have been aware there was a loud television and lights on; he had no previous convictions for offences of violence to the person or property; there were significant pressures in his life at the time of the offence, putting him under considerable stress - pressures at work, in the home and from particular family events; he had no previous interventions in his life by way of a community penalty or custodial sentence; and he was assessed as being at medium risk of re-conviction. Finally, Mr Rule placed emphasis on character references put before the court that showed another side to the applicant's character. They also spoke as to the problems he had experienced in the build-up to the offence.

Conclusions on sentence

23. The trial judge was well placed to assess the applicant's criminality. He was well aware both of the facts of the offence and of the offender. He had the available mitigation in mind when he considered the issue of the applicant's dangerousness with some care. It was only with a degree of hesitation that he found in the applicant's favour that he was not dangerous. There were, as conceded by Mr Rule, multiple aggravating features to the attack which we do not need to repeat. The only thing we will add is that it is pure good fortune that nobody was more seriously injured or died in the arson attack.
24. For all those reasons, we find there is nothing excessive about the sentence, either taken in isolation or in combination with the existing sentence. If the cases reveal a bracket of 8 to 10 years for offences of arson with intent as Mr Rule argued, we do not accept that it imposes some kind of upper limit on offences, no matter how serious. In any event we have our doubts as to the extent to which a so called bracket can assist a judge sentencing for offences of this kind. Offences of arson with intent merit a particularly intense focus on the facts of the individual offence and of the individual offender.
25. The application for an extension of time and the applications for leave to appeal both conviction and sentence are accordingly refused.
26. Mr Rule, have you been working pro bono?
27. MR RULE: Yes.
28. THE VICE PRESIDENT: You have done a huge amount of work and we do understand and appreciate that, but a word of warning: not so much next time.