No. 2004/00224/D1
Neutral Citation Number: [2004] EWCA Crim 2758
IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Wednesday 13 October 2004

B e f o r e:

LORD  JUSTICE  JUDGE
(Deputy Chief Justice of England and Wales)

MR  JUSTICE  MOSES

and

MR  JUSTICE  ROYCE

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R E G I N A

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MARK  ANTHONY  CASTLE
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Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4
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MR C JUDGE appeared on behalf of THE APPELLANT

MRS A EVANS appeared on behalf of THE CROWN
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J U D G M E N T
Thursday  21  October  2004

LORD JUSTICE JUDGE:  
1.  On 3 December 2003, in the Crown Court at St Albans, before Judge Cripps and a jury, Mark Anthony Castle was convicted of arson being reckless whether life was endangered.  He had earlier pleaded guilty to a charge of burglary.  On 9 January 2004, he was sentenced to 18 months' imprisonment for burglary and to four years' imprisonment for arson.  Those sentences were ordered to run concurrently.  The arson took place in the premises which the appellant had burgled.  He appeals against conviction with the leave of the single judge.  
 
2.  We can take the facts very shortly.  On the night of 26 July 2002, the offices of chartered accountants in London Road, St Albans, were burgled.  After the burglary those premises were set alight.  At the time when the fire started, no one was present in the building.  This part of London Road, St Albans, is partly residential and partly business.  On the accountants' side of the road generally there were offices, some, but not all, of which had residential flats above.  These particular offices occupied a ground floor, with two flats above.  
 
3.  In the course of the burglary, office equipment worth about £700 (of which part was recovered later) was stolen.  The fire with which we are concerned lasted about 20 minutes, from 11.50pm on the 26th to just after midnight, 12.10am, on the 27th.  The seat of the fire was one of the side windows in an alley adjacent to the building.  According to the fire service and the forensic science service an accelerant, probably lighter fuel, had almost certainly been used.  The result of the fire was extensive damage to the offices, estimated at £150,000.  The flats were unoccupied at the time of the fire: the occupant of one flat was away for the weekend; the occupant of the other at a wedding.  Their flats were smoke and soot damaged, but nobody was hurt.  
 
4.  The evidence linking the appellant to the crime was blood found on various items, including a window, a hammer and a fax machine, which was eventually traced to him.  In December he was arrested.  In interview, on legal advice, he largely had no comment to make.  But during part of his first interview he lied, in effect denying that he had ever been to No 68.  
 
5.  In his defence at trial, which was rejected by the jury, he said that the fire had nothing whatever to do with him.  It is unnecessary for us to recite the history, which the jury did not find credible.   
6.  The jury was addressed in the usual way.  The judge summed up the case.  The summing‑up was admirably prepared and carefully crafted.  The judge defined the offence which the jury had to consider, distinguishing with clarity between what he described as "simple arson" (arson with intent to damage or to destroy property) and arson which recklessly endangered human life.  He described that aspect of the offence as the "extra ingredient".  He then identified two distinct issues.  First, the jury had to be sure that the appellant had indeed been the person who started the fire.  If not, he was to be found not guilty.  If, however, they were sure that he had started the fire, then they should go on to consider whether it was proved that he had been reckless whether or not life had been endangered.  
 
7.  Effectively it was agreed on all sides at trial that if the appellant had indeed caused the fire, the intent to damage property was proved.  Rightly, as the law then stood, the judge directed the jury on the way in which they should approach this legal concept of recklessness.  He did so in the traditional way explained in the judgment of the House of Lords in R v Caldwell [1982] AC 341.  He said to the jury:  
 
		"The test is would an ordinary, prudent bystander have perceived that there was an obvious risk that setting fire to the paper in the offices would create an obvious risk that a person in the flats above would or might have their lives endangered?  
 
		.... you [the ordinary, prudent bystander] then go on to consider whether it is not just simple arson but the aggravated being reckless as to whether the lives of Ann Woodward and Simon Heath would thereby be endangered.  You know that the first and second floors have flats, residences, and you know that flats are there for people to live in, and you know that it is reasonable when you have two flats that there will be someone up there late at night asleep or enjoying themselves.  So you as an ordinary prudent bystander watching what was happening but unable to play any part might say to yourself, 'Oh, it is obvious, anyone who does that is being reckless as to whether the lives of the people who might be upstairs are endangered ...."  

8.  That direction, entirely objective as it is, is no longer appropriate.  In R v G and another [2004] AC 1034, the House of Lords revisited its earlier decision in Caldwell and re‑examined the meaning of "recklessness" in the context of the Criminal Damage Act 1971.  The question certified for decision of the House of Lords was answered in this way:  
 
		"A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to:  
 
		(i)	a circumstances when he is aware of a risk that it exists or will exist; 
 
		(ii)	a result when he is aware of a risk that it will occur; 

		and it is, in the circumstances known to him, unreasonable to take the risk."  

9.  Mrs Evans for the Crown submitted that the judge had addressed this very issue in a short later passage in his summing‑up.  He reminded the jury that the appellant had given evidence that he did not know that there were any flats above the offices.  He directed them that it was a piece of evidence they should take into account.  We suspect that the judge was doing his best to try to find some intellectually acceptable way with which to alleviate the harshness of the Caldwell principle.  He did not, because he could not, relate that direction or explain how it might impact on the ordinary prudent bystander test, or undermine or negative it.  If the Crown is right, at best from the Crown's point of view the judge's directions were confusing.  
 
10.  It seems to us plain that, following the decision of the House of Lords in G, this conviction cannot stand.  Accordingly the appeal will succeed.  
 
11.  We have then had to consider whether to order a new trial, which is one possible alternative, or simply to substitute a verdict of guilty of the "simple offence" of criminal damage under section 3 of the Criminal Appeal Act 1968.  The jury's verdict clearly demonstrated that the Crown had indeed proved that the appellant was responsible for the fire which caused serious damage to property.  If they had not been satisfied that the appellant had been reckless in the way in which the judge directed them to address that issue, on the judge's remaining directions it is plain that they would have convicted him of simple arson on the basis that he intended to damage the property.  Accordingly, as we are invited to do by counsel on the appellant's behalf, we exercise our powers to substitute an alternative verdict of guilty of causing criminal damage with intent to damage property.   
12.  That leaves sentence.  The appellant is in his mid‑forties.  He has previous convictions.  We recognise that his recent offending has been much less significant than it was in his younger days and that the last sentence of imprisonment was passed on him in 1991.  All that said, he committed the burglary to which he pleaded guilty, and then this criminal damage by arson when his only motive for doing so was the destruction of any evidence which might connect him with the burglary.  The result was very substantial damage and he lacked the mitigation of a guilty plea.  

13.  We have taken account of the material which has been shown to us about the appellant's progress in prison.  In particular he is making efforts to break the drug taking habit which has been a bane of his life.  We also take note that in this particular case the way in which the Crown advanced the case to the jury was that the offence of which the jury convicted him, recklessly endangering life, was a more serious offence than the offence of simple arson with intent to damage property.  It should not be assumed that the simple offence involving deliberate intent is necessarily less serious than the offence which contains what the judge described as the "extra ingredient" as it was understood in Caldwell.

14.  In the circumstances, given the way in which the case was advanced to the jury, we think that as a matter of fairness we should make a small reduction in sentence now that the appeal against what was said to be the more serious aspect of the crime has been successful.  We do so with great reluctance.  This was a very serious offence of its kind.  But to acknowledge the basis on which the case was put to the jury, we shall reduce the sentence from four years' imprisonment to one of three‑and‑a‑half years' imprisonment.  We know that by doing so, that will have a dramatic effect upon the length of time this appellant will spend in custody.