England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		30th January 2006

1. LADY JUSTICE HALLETT: On 7th April 2005 at the Haverfordwest Magistrates' Court Mark Booth was convicted of an offence of criminal damage pursuant to section 1(1) and (4) of the Criminal Damage Act 1971. He appeals to this court by way of case stated.
2. The Crown alleged before the magistrates that Mr Booth, at about 4.20pm on 28th July 2004, ran across Northgate Street, Pembroke, without looking to see whether it was safe to cross and collided with a motor vehicle driven by a Mrs Christine Chilton. As a result of the collision there was a dent to her car. The Crown argued that the collision had been unavoidable given the behaviour of the appellant, and they submitted that his behaviour amounted to recklessness. £517 worth of damage was caused as a result of the collision.
3. Before the magistrates Mrs Chilton gave evidence, as indeed did the appellant. In his evidence he said he had been drinking and smoking drugs. He described himself as "tipsy", but said that he knew what he was doing. He said that he had shouted at someone that he had seen on the other side of the road. He said he did not look where he was going or whether it was safe to cross. He did not judge the speed of the car, but he did say that he thought he could only make it across the road if he ran. He said he did not intend to get himself run over and he had no reason to jump on the bonnet of the car. He said he did not intend to cause any damage and he did not intentionally come into contact with the car.
4. Mr James, who appears on behalf of the appellant before us, has brought to our attention the fact that in announcing their decision the magistrates expressed the view that it was "a most unusual case where a driver is bringing a case to Court against a pedestrian for criminal damage".
5. In the case stated, under the heading "We heard the said information ... and found the following facts", the magistrates list, inter alia, that they found: (i) without checking for traffic, the appellant stepped into the path of an oncoming motor vehicle, causing damage to the said vehicle; (ii) despite the consumption of alcohol and cannabis which had some effect on the appellant he was not drunk or incapable, and retained sufficient competency to exercise the required judgment needed in matters such as crossing roads safely; (iii) through the consumption of cannabis and alcohol the appellant's sense of judgment was reduced; (iv) the appellant was walking at a quick pace, then suddenly and without warning ran into the road without regard for the traffic and without looking, into the path of an oncoming vehicle. The magistrates also noted that according to Mrs Chilton she had heard the appellant shout, "I am coming" as he jumped into the path of her car.
6. The magistrates found as a fact that Mrs Chilton was driving at the appropriate level of due care and attention, and essentially that as a result of the appellant's behaviour the collision was unavoidable. The appellant's intentional act of running into the road directly into the path of the car and jumping on to it was so quick that Ms Chilton could not avoid the collision.
7. The magistrates further found that although the appellant said that he considered he had could only cross the road if he ran across, the damage caused by his act was an obviously foreseeable consequence. They found the appellant "would have appreciated" the risk of damage to the vehicle by his actions.
8. There follows in the case stated a short statement of the evidence and the rival contentions. At paragraph 4.3 of the case stated the defence argument is recorded as follows:

"... it was not a reasonably foreseeable consequence that the appellant's actions would have caused damage to the bonnet. The Appellant would not have appreciated the risk of damage to the vehicle by his action."

I note the use of "would not have appreciated" as opposed to "did not appreciate".

9. At paragraph 4.6 the defence argument is recorded as:

"… there is a break in the chain of causation, and the Appellant's action in not looking where he was going when crossing the road is one step removed from the cause of the damage. Recklessness would only be satisfied if the defendant intentionally came into contact with the vehicle, not intending to cause damage, but foresaw that damage would be caused."

10. Under the heading "We were of the opinion that", the magistrates stated:

"7.1. Although the appellant had consumed alcohol and cannabis, he retained sufficient sobriety to appreciate the risks involved in crossing a road without checking first that it was safe to do so.

7.2. Although the appellant was aware of the risks, for reasons best known to him, he deliberately closed his mind completely to the risks and ran out in front of a motorcar.

7.3. That no blame was attached to Mrs Chilton's manner of driving.

7.4. As the car driven by Mrs Chilton was travelling slowly, the Appellant was aware when he ran into the road that he could protect his lower limbs by jumping on the bonnet of the car, which he did.

7.5. That the appellant was guilty of recklessly causing criminal damage to the complainant's vehicle.

7.6. The defendant was a person who was aware of the risks associated with running into the road, and knowing those risks went on to take them without regard to the consequences.

7.6. The appellant acted with a reckless disregard towards public safety and as to whether damage would be caused to property.

7.7. That as a matter of law the appellant was guilty of criminal damage upon our findings of fact."

11. Mr James reminded us that the law applicable to the alleged offence is now set out in R v G [2004] 1 AC 1034. In fact Mr Howells, who appeared on behalf of the Crown and who was in the court below, said that this decision was very much brought to the magistrates' attention. Both parties reminded the court that the test of recklessness had now changed and had changed recently, and the legal adviser also advised the magistrates in similar terms. In fact in the case stated at paragraph 6, G is there referred to.
12. However, Mr James, having reminded us of the test that is now set out in G, argued that the magistrates, by using the language that they have, have failed to apply the appropriate test. The test of recklessness is now: a person has acted recklessly within the meaning of section 1 of the Criminal Damage Act Act if: (i) he is aware of a risk of damage to property that exists or will exist; (ii) and it is, in the circumstances known to him, unreasonable to take the risk.
13. Mr James argued that Mr Booth's actions do not fall within this definition of recklessness. He argues that although the magistrates have stated that they found the appellant was aware of the risk of damage to property in their opinion, they have not said as much in their factual findings and he argues that the use of the words "would have appreciated" the risk is a reflection back to the old test under the R v Caldwell [1982] AC 341. He argues that the language used indicates that the magistrates have applied an objective rather than a subjective test. He submitted that if it were the case that the appellant had identified a specific risk of causing damage to a car as a result of crossing the road, the fact that the magistrates have made reference to his closing his mind to such a risk indicates that they are applying the objective test. He submits the two findings are inconsistent with the now totally subjective test.
14. Mr James submits in any event that on the evidence here it is inconceivable that the appellant would have been aware of the risk of causing damage to a car. He submits that if he was aware of any risk, it would have been the risk of causing personal injury to himself. He argued that the thoughts going through anyone's mind as they crossed the road would be thoughts of self-preservation, and the issue of damage to a vehicle as a consequence of there being a collision with a vehicle is so far removed from the chain of thought as to be inconceivable.
15. Further, Mr James argued that if the accused crossed the road without checking for traffic, as he said he did here, he cannot have been aware of the risk of causing damage to a vehicle until it was too late. He reminded us of the observations of Lord Bingham in his speech in R v G that the meaning of recklessness, as it was originally stated to be in R v Caldwell, was capable of leading to obvious unfairness. Lord Bingham said:

"It is clearly blameworthy to take an obvious and significant risk of causing injury to another. But it is not clearly blameworthy to do something involving a risk of injury to another if ... one genuinely does not perceive the risk. Such a person may fairly be accused of stupidity or lack of imagination, but neither of those failings should expose him to conviction of serious crime or the risk of punishment."

16. In the present case, Mr James argued, it would be unfair to hold Mr Booth criminally liable when he genuinely did not intend or perceive the risk of criminal damage. He suggested that the risk of damage to the vehicle was remote, and, as I have already indicated, that the only foreseeable risk was injury to himself. He accepted that Mr Booth's actions might well be categorised as stupid, but he said that should not expose him to a criminal conviction.
17. In reply, Mr Howells argued that the magistrates did in fact apply the right test. They have indeed found, at paragraph 7.6, that the defendant was a person who was aware of the risks associated with running into the road. He stressed the extent to which the magistrates had been reminded of the state of the law as it now is, and as set out in R v G.
18. Further, Mr Howells argued that the magistrates were perfectly entitled on the facts of this case to find as they did. He reminded us that they found the damage caused to Ms Chilton's car was an obviously foreseeable consequence of the appellant's act, which the appellant would have appreciated. The appellant was in fact trying to cross a relatively busy road in the Pembroke town centre. Traffic was moderate at the time of the offence, as the magistrates found. The magistrates accepted that the consumption of drink and drugs would have had some effect upon him, but it had not rendered him drunk and incapable. He also reminded us that the magistrates had found the appellant was walking at a quick pace and ran out into the road without looking where he was going.
19. If, as they found, Mrs Chilton was at all material times driving with the appropriate level of due care and attention, then plainly the collision was his fault. Mr Howells argued the magistrates were entitled to find that he was well aware of the risk of that collision.
20. Turning to my findings, in essence Mr James' submissions appeared to me to be an ill-disguised attack upon the magistrates' findings of fact. Although he did not use the word "perverse", that was in effect the argument that he was advancing. However, in my view their findings of fact were plainly open to them on the evidence. I have no doubt that they paid close attention to defence counsel's submissions at trial, that in crossing the road the risk uppermost in one's mind would be the risk of personal injury, but that does not mean that they were not entitled to conclude that whatever other risks the appellant was or was not aware of, he did in fact appreciate the risk to property. The magistrates were entitled to find, as Mr Justice Owen observed in the course of argument, that if he was aware of the risk of a collision, inherent in that risk of a collision was not only the risk of personal injury but the risk of damage to property.
21. Therefore, I am entirely satisfied that this was a matter for the magistrates to consider, having had regard to the whole of the evidence. I shall not rehearse the case stated in its entirety, but its contents lead me to the conclusion that they have very properly taken into account all the circumstances of the collision between the pedestrian and the car, and indeed the pedestrian's, namely the appellant's, version of events.
22. I turn to the issue which is at the heart of this appeal, which in reality amounts to an attack upon the use of the words "would have" rather than "did" appreciate the risks in the findings-of-fact section of the case stated. Mr James has also taken exception to the reference to the appellant's having closed his mind deliberately to the risk found.
23. In my view, his argument that the use of these words is a clear indication that the magistrates have applied the wrong test is misconceived. It ignores the clear findings the magistrates have made in their opinion that the appellant was aware -- not "should have been aware", or "would have been aware", but "was aware" -- of the risks associated with running into the road, namely the risk of a collision and the damage to property. Aware of those risks, he then deliberately put them out of his mind and, for reasons of his own, ran out into the path of a car. For my part, I see nothing inconsistent in those two statements. Indeed, they seem to me to echo the observations of Lord Steyn in G to the effect that:

"In any event, as Lord Edmund-Davies explained [I interpose that is a reference to the judgment in Caldwell], if a defendant closes his mind to a risk he must realise that there is a risk and, on the evidence, that will usually be decisive: ..."

24. Therefore, the fact that the magistrates have found that the appellant was aware of the risk and closed his mind to it, far from indicating to me that they have returned to the old law, leads me to the conclusion that they had applied the correct test.
25. I do accept that it would have been preferable had they been advised to use the same expression in both their findings of fact and in their opinion, but I reject Mr James' invitation to subject the case stated to what is, in my view, an overcritical textual analysis of the document. They have made it plain by their findings what they have found, and they have found that the appellant was aware of the risk. The words the subject of criticism may have crept into the case stated as an echo of defence counsel's submissions. But as we have been assured that defence counsel correctly addressed the magistrates on the law, then, for my part, I am not persuaded that it looks as if the magistrates have been in anyway misled.
26. Accordingly, having satisfied myself that the magistrates have applied the correct test and were entitled to make the findings that they did on the facts before them, I for my part would dismiss this appeal.
27. MR JUSTICE OWEN: I agree.
28. LADY JUSTICE HALLETT: Thank you Mr James. Thank you Mr Howells. I hope you get back to Wales without too much inconvenience. If you set off now you might make it before nightfall.
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