Nos: 97/8371/X2, 97/8462/X2 & 97/8450/X2
IN THE COURT OF APPEAL
CRIMINAL DIVISION

							Royal Courts of Justice
							Strand
							London WC2A 2LL

							Thursday 23rd July 1998

	B e f o r e:

	LORD JUSTICE HENRY
	SIR PATRICK RUSSELL
	and
	HIS HONOUR JUDGE BEAUMONT QC
	(Sitting as a Judge of the CACD)

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	R E G I N A

	- V -

	STEPHEN BOOTH
	SAXON WOOD
	and
	NOEL MOLLAND

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	(Handed Down Transcript of Smith Bernal Reporting Limited
	180 Fleet Street, London EC4A 2HD
	Tel: 0171 831 3183
	Official Shorthand Writers to the Court)

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MR B EMMERSON appeared on behalf of the Appellant

MR R ONSLOW and MISS K LUMSDEN appeared on behalf of the Crown

	- - - - - - - - 
	J U D G M E N T
	(As Approved by the Court)
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	Crown Copyright

LORD JUSTICE HENRY:
This is the judgment of the Court.  On the 13th November 1997, after a trial lasting some 2½ months before His Honour Judge Selwood, sitting in the Crown Court at Portsmouth, the appellants Booth, Molland and Wood were convicted on an indictment drawn in the following terms:
"STATEMENT OF OFFENCE
	
	CONSPIRACY TO INCITE contrary to Section 1(1) of the Criminal Law Act, 1977
	
PARTICULARS OF OFFENCE
	
	Saxon Swayne Burchnall-Wood, Noel Ray Caseley Molland, Stephen Booth and Simon Peter Russell on a day between the 1st day of January 1991 and the 17th day of January 1996 conspired together with Paul Nigel Rogers and Robin Lewis Webb to unlawfully incite persons unknown to commit criminal damage, contrary to Section 1(1) plus (3) of the Criminal Damage Act, 1971."

	They were each sentenced to three years’ imprisonment.  Their co-accused Russell was acquitted.  The three appellants now appeal against conviction with the leave of the Single Judge, who granted them bail.

	The appeal centres on the form of the indictment, and in those circumstances only a bare summary of the case is necessary.  A single conspiracy was alleged between the six named conspirators to incite, through the pages of various publications controlled by some of the conspirators, the readers of those publications to commit offences of criminal damage and economic sabotage in the causes of environmentalism and animal liberation.  Not all were animal rights zealots, some were anarchists of various hues.

	The judge was to leave to the jury five categories of incitement.  First, instructional articles on how to commit criminal damage, eg how to make an incendiary device.  Second, direct exhortations to direct action.  Third, promotional literature containing inciting material.  Fourth, the bare reporting of incidents.  Fifth, narratives of cases of criminal damage.

	The Crown were permitted, despite defence objection to call a considerable body of evidence of the commission of acts of criminal damage and arson that occurred around the country during the conspiracy period.  These were put in by way of background to show that such events were regularly occurring, though it was not suggested that any of those offences were connected with any of the defendants, nor to have been incited by the publications for which the defendants were responsible.

	The criminal damage complained of fell into two categories.  First, evidence of simple (as opposed to aggravated) criminal damage:  eg the breaking of shop windows by means of a catapult, the use of etching fluid to damage shop windows, superglue inserted into shop doorlocks, damage to vehicles through the use of paint, paint-stripper, etching fluid or placing sugar into petrol tanks, the painting or spraying of graffiti onto buildings or vehicles.  The second concerned the evidence of arson damage, admissions, statements, photographs and video tapes, concerning arson to, amongst other targets, abbattoir and farm buildings by means of incendiary devices, arson to an agricultural college in Shropshire, video-taped evidence produced by the Manchester Fire Brigade depicting the ignition of an incendiary device constructed in a manner similar to the instructions given in certain of the publications.  Only some of the publications dealt with incendiary devices.  But it is clear that the evidence of incitement to arson constituted an important part of the Crown’s case.

	The defence of each of the defendants was a challenge to each and every ingredient of the Crown’s case.  For instance, Booth, who, in his writings, welcomed any harbinger of the Apocalypse, said that his pieces were not to be taken seriously.  Wood, a pacifist, believed in freedom of speech, while he had no desire to see violent attacks mounted on property.  Molland, we were told, believed in the chronicling and reporting of all criminal acts committed in the name of animals, and considered people had a right to know about them.  He said that he supported criminal damage, but not arson.  All the defendants bar Booth gave evidence.

	We return to the form of the indictment.  As the Prosecution Statement of Case makes clear, the indictment was clearly intended to cover both simple criminal damage and arson, and counsel’s submissions confirm this.  Arson is nowhere specifically referred to in the indictment.  The indictment refers to criminal damage.  But that criminal damage is expressed to be contrary Section 1(1) plus (3) of the Act.  The Act so far as relevant reads:
	"1	Destroying or damaging property
	
	(1)	A person who without lawful excuse destroys or damages property belonging to another intending to destroy or damage 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 shall be committed under this section by destroying or damaging property by fire shall be charged as arson.
	
	...
	
	4	Punishment of offences
	
	(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.
	
	...
	
	11	Minor and consequential changes in existing law, and repeals
	
	(1)	The common law offence of arson is hereby abolished."

	The wording of the indictment cannot have been closely examined by anyone at the trial.  To take the points in logical order, though the offence incited was described as criminal damage, that is an offence contrary to Section 1(1), and not an offence contrary to Section 1(1) plus (3).  Second, that latter offence is arson, and must be charged as arson.  But the particulars of the offence did not charge it as arson, but as criminal damage.  The reason for the insistence on arson being charged as such clearly stems from the fact that the substantive offence of arson carries with it a higher maximum penalty (see Section 4).  Whilst Section 11(1) abolished the common law offence of arson, Parliament thought it important to preserve the offence of arson rather than making it another form of aggravated criminal damage.

	When the trial judge came to sum up the case he put the offence to the jury in the words of the indictment, ie “To unlawfully incite persons unknown to commit criminal damage, contrary to Section 1(1) and (3) of the Criminal Damage Act, 1971.  He then continued:
	"Conspiracy to incite persons unknown to commit criminal damage.  Let us go to the far end of the chain that exists here.  First.  Criminal Damage.  The aim of this alleged conspiracy is unlawfully to incite persons to commit criminal damage.  A person commits criminal damage within the terms of this section if, without lawful excuse - and there is no suggestion that the people we are contemplating who might be involved in committing criminal damage would have any lawful excuse to do so:  breaking butchers’ shops windows, slashing the tyres of contractors’ vehicles, all the things you have heard, there is no suggestion of lawful excuse here.  So it is criminal damage if a person, without lawful excuse, deliberately damages property belonging to another.  That is very simple and it does not require any further definition from me."

	It will be observed that in that passage the judge only directs them as to simple criminal damage.  The examples he gives are of simple criminal damage.  Nowhere in his summing-up does he give the jury any direction as to the separate offence of arson.  The likelihood must be that in a long trial, criminal damage was simply used as a catch-all term for what was complained of, and no-one, not Prosecution, not Defence, and perhaps consequent on the first two, not the judge, realised that an offence contrary to Section 1(1) plus (3) of the Criminal Damage Act, 1971 could only refer to arson.  (See R -v- Aylesbury Crown Court ex parte Simons [1972] 3 All England Law Reports 574.)

	The judge started his summing-up on 5th November 1997, and completed it on 10th November.  Ten days later, on 20th November 1997 in another Division of this Court, Lord Justice Phillips gave judgment in an appeal against conviction in another animal related case:  R -v- Roberts and Others CACD No 97/02548/Z3.  The conspiracy there alleged was
	"To commit offences of criminal damage at various locations in East and West Sussex."

	The case centred about the protests at the port of Shoreham in relation to the export of live veal calves.  The acts of criminal damage complained of extended from minor acts of criminal damage, to those causing a risk to life, including offences involving arson.  In that case, various points as to the indictment were taken at trial, including one by Mr Gold, counsel for Taylor (which his co-defendants adopted):
	"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."

	In that case the judge directed the jury that:
	"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 ..."

	In allowing the appeal and quashing the convictions, this Court established the following key principles which in our judgment apply, mutatis mutandis, to this case.

1)	Section 1 of the Criminal Damage Act, 1971 creates a number of separate offences, including simple criminal damage (Section 1(1)) and arson contrary to Section 1(1) and (3).
2)	It is open to the Crown where it alleges a single conspiracy embracing more than one offence to break the indictment down into a number of separate counts.
3)	On the other hand, it is permissible for the Crown to allege in a single count a conspiracy to commit both offences since a single count of conspiracy contrary to Section 1 of the Criminal Law Act, 1977 can charge a course of conduct involving a number of offences carrying different penalties.
4)	However, where as in Roberts and in this case, a single count charges a conspiracy to commit (or in our case, incite) more than one offence, the Crown must probably prove that the conspiracy embraces all the offences alleged in the particulars, or at least that it embraces the offence which is the most serious of those alleged.  As Phillips LJ said (ibid, transcript 11 - 12):
	"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."

5)	Where a count alleges a conspiracy in relation to one or more offences, the count must identify the individual offences in question.  The Court said:
	"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.’"

	Neither the indictment in Roberts case nor the indictment in this case complies with these rules.  Here the Crown assert that the appellants were convicted of both simple criminal damage and arson.  But “criminal damage contrary to section 1(1) plus (3)” is not an offence known to the law, because arson must be charged as such, and criminal damage can only be described as contrary to Section 1(1).

	So much for questions of form in Roberts’ case.  The Court then continued to give the ratio.
	"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 the 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."

	That case is in our judgment indistinguishable from the case before us (save in one respect, which we will consider) and for the reasons there set out the procedure in this case too was fatally flawed.  The material respect in which this case is distinguishable is that in Roberts the indictment on its face, appeared good:  it was in the proper form for an indictment for inciting criminal damage.  That was not so in this case.  Here the count is defective in that it particularises one half of what is required to particularise criminal damage (the name of, but not the statutory foundation for the offence) and one half of what is required to particularise arson (the statutory foundation but not the name).  Consequently, there was a breach of Section 1(3) of the Criminal Damage Act, 1971 because destroying property by fire was charged as criminal damage and not as arson.

	That requirement is plainly mandatory.  It is found in an Act “to revise the law of England and Wales as to offences of damage to property”.  This Act abolishes the common law offence of arson, but replaces it with Section 1(1) and (3).  The requirement to charge it as arson was no “comparatively meaningless formality” (see Morais below), but a statutory requirement to preserve in statutory form the offence of arson, in order to ensure that whenever property was unlawfully destroyed or damaged by fire that was charged as arson so that arson and the intent to commit arson were properly considered by a properly directed jury, thus ensuring that there was a clear jury finding as to whether or not arson was proved.  Parliament specifically entrusted the jury with the decision whether the sentencing judge must apply the higher penalties permitted for and normally associated with arson.

	The facts of this case show just why it should be mandatory:  if the requirement is not observed, the jury will not or may not be directed as to the ingredients of arson, the judge cannot know whether they have convicted of arson, and yet (as the sentencing remarks suggest, but do not say explicitly) the sentences were increased to reflect incitement to commit arson:  thus in the words of Phillips LJ (Roberts:  transcript, p 14) arrogating to the judge a decision Parliament left to the jury.

	This was precisely the situation which the statute sought to avoid.

	We would adapt to fit our facts and apply the words of Lord Lane, CJ in R -v- Morais [1988] 98 Cr App R 9 at 14:
	"The answer is to be found in the intention of the draftsman ....  The Act was intended to fill the gap which was left [by the abolition of the common law offence of arson.  It was intended that whenever property was destroyed or damaged without lawful excuse, that should be charged as arson.].  We have come to the conclusion that it is not a comparatively meaningless formality ... but ... a necessary condition precedent to the existence of a proper indictment ....  Therefore in the present case there was no valid indictment, there was no trial, no valid verdict, and no valid sentence.”"

	Therefore the appeal against conviction must succeed.  We now consider whether, as the Crown submit, there should be a retrial.

	The first submission made is that these are now stale offences.  The basic timings are these.  The period of the alleged conspiracy is from January 1991 to January 1996.  Some of the published material in that goes back even longer - one of the worst publications dealing with incendiary devices was before Henry LJ at a comparable trial ten years ago in Cardiff.  The defendants were first arrested at the end of March 1995, and released on police bail to report again in June.  In May the requirement for them to attend again was cancelled.  That might have seemed the end of it, but on 16th January 1996 they were re-arrested.  They were released on bail and contested their committal.  Their trial began on 27th August 1997 and they were convicted on 13th November 1997.  On 27th March 1998 they were released on bail by the order of the Single Judge when he granted leave to appeal against conviction.  Therefore it will be seen that they have served the equivalent of approximately nine months of their sentence.

	Next, personal mitigation.  Each appellant had appealed against the sentences imposed.  They were clearly sentenced on the basis that they were guilty of incitement to arson.  Booth is a married man, 38 years old with a son aged 15, he served in the RAF for nine years from 1977 to 1996, he had no previous convictions.  We are told and accept that he was not the most seriously involved in the material published, and had not editorial control over either Green Anarchist or Green Anarchist Mail Order Service, which provided the most inflammatory incitements, but we are told that the vast bulk of his writing was of a non-inciting character, and “was characterised by a mixture of confused thinking and impassioned rhetoric against the State and civil society”.  One of his novels has been reviewed in the mainstream Press, and is considered to have literary merit.  He was what was described as an old-fashioned anarchist rather than an animal liberation activist.

	Wood was a pacifist, describing himself as a peaceful environmentalist.  He had become a “green anarchist” at the age of 14 or 15, and had become involved with the Green Anarchist publication in 1990.  He was also responsible for Green Anarchist Mail Order.  He became the “counter-culture editor responsible for music news and reviews”.  He had no Animal Liberation Front links.  When he first became involved with Green Anarchist, it was a publication dealing with environmental and political issues.  He was not responsible for or interested in the animal rights issues or activism which followed.  Though he believed in freedom of speech, his position was that he had neither the intent nor the desire to incite criminal damage.  We are told that in the course of his evidence he renounced the Green Anarchist newspaper, and called its editor a “nutter”.  He too had no convictions, and has never written an inciting article.

	Molland had been the animal liberation editor for Green Anarchist from the Spring of 1994.  He had never met with any of the co-defendants prior to their first arrest.  He was clearly not the most seriously involved in the material published;  he did not have editorial control over Green Anarchist;  like Booth, he had no connection with Green Anarchist Mail Order.  He was 25 years old with no previous convictions.  By the time of the trial he had disassociated himself entirely from Green Anarchist and had stopped publishing his publication Eco-Vegan.  He suffers from a serious speech impediment which makes employment difficult, and since early 1996 has been a full-time volunteer with a registered homeless charity who value his contributions, as letters to the trial court disclosed.

	The sentencing remarks show that the judge took a very serious view indeed of the “terrorism” advocated by some of the more extreme publications.  Certainly when one looks at the criminal damage record of the supporters of the Animal Liberation Front movement, it can be said that they attacked by criminal damage and fire a wide variety of targets.  When a front-line bomber is convicted, he can expect sentences of upwards of ten years.  For such central involvement, the word terrorism is appropriate.

	In his sentencing remarks the trial judge rightly emphasises the scale and the serious nature of such attacks on property.  He rightly makes the point that these defendants were on the “network” of those disseminating material which might incite.  What he does not do is to analyse where each of these appellants was placed on that network, though he said (we hope with a measure of understatement)
	"that there may very well be others whose responsibility for all that happened was greater, perhaps even very much greater, than the responsibility of any of the three of you."

	This Court feels entitled to question whether the sentences passed were not excessive given the individual responsibility of these misguided men.  They were at the fringes of the network.  The judge did not find them to be major players, and in our opinion plainly they were not.  These men have now been through a long trial, have served the equivalent of nine months’ imprisonment, and have had these matters hanging over them now for more than three years since their first arrest.  While it would not be right to describe them as having succeeded in their appeal on a technicality (because the events that flawed their trial were too fundamental to be so described) the grounds on which they succeeded did not go to the merits of their defences.  However, this Court is entitled to take into account that the trial judge may have over-emphasised both their influence and their individual responsibility.

	We have considered carefully in each man’s case the need to punish, the need to deter, and the need to protect the public.  Since their arrests in March 1995 this matter has been hanging over them (with a false reprieve in May 1996).  They have endured a long trial, and have served the equivalent of nine months’ imprisonment.  If they have not learnt their lesson from all that has happened since their arrest, then that will be an aggravating factor in any crime they may commit.  But we are prepared to accept that the lesson has been learnt and in all the circumstances do not think it necessary to order a new trial.