HOUSE OF LORDS
 UKHL 50
on appeal from:  EWCA Crim 1992
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Regina v. G and another (Appellants) (On Appeal from the Court of Appeal (Criminal Division))
THURSDAY 16 OCTOBER 2003
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Rodger of Earlsferry
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Regina v. G and another (Appellants) (On Appeal from the Court of Appeal (Criminal Division))
 UKHL 50
LORD BINGHAM OF CORNHILL
1. The point of law of general public importance certified by the Court of Appeal to be involved in its decision in the present case is expressed in this way:
"Can a defendant properly be convicted under section 1 of the Criminal Damage Act 1971 on the basis that he was reckless as to whether property was destroyed or damaged when he gave no thought to the risk but, by reason of his age and/or personal characteristics the risk would not have been obvious to him, even if he had thought about it?".
The appeal turns on the meaning of "reckless" in that section. This is a question on which the House ruled in R v Caldwell  AC 341, a ruling affirmed by the House in later decisions. The House is again asked to reconsider that ruling.
2. The agreed facts of the case are very simple. On the night of 21-22 August 2000 the appellants, then aged 11 and 12 respectively, went camping without their parents' permission. In the early hours of 22 August they entered the back yard of the Co-op shop in Newport Pagnell. They found bundles of newspapers which they opened up to read. The boys then lit some of the newspapers with a lighter they had with them. Each of them threw some lit newspaper under a large plastic wheelie-bin, between which and the wall of the Co-op there was another similar wheelie-bin. The boys left the yard without putting out the burning papers. The newspapers set fire to the first wheelie-bin and the fire spread from it to the wheelie-bin next to the shop wall. From the second bin the fire spread up under the overhanging eave, to the guttering and the fascia and then up into the roof space of the shop until eventually the roof of the shop and the adjoining buildings caught fire. The roof collapsed. Approximately £1m worth of damage was caused. The appellants' case at trial was that they expected the newspaper fires to extinguish themselves on the concrete floor of the yard. It is accepted that neither of them appreciated that there was any risk whatsoever of the fire spreading in the way that it eventually did.
3. An indictment was preferred against the appellants charging them with arson contrary to section 1(1) and (3) of the Criminal Damage Act 1971. The particulars of the offence charged were that they on 22 August 2000 "without lawful excuse damaged by fire commercial premises belonging to
others being reckless as to whether such property would be damaged".
4. Section 1 of the 1971 Act provides:
"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."
Section 4(1) of the Act provides that a person guilty of arson under section 1 shall on conviction on indictment be liable to imprisonment for life.
5. The appellants stood trial before His Honour Judge Maher in March 2001. At the outset of the trial, submissions were made on the meaning of "reckless" in section 1(1) since the appellants were charged with being reckless whether the premises would be destroyed or damaged and not with intending to destroy or damage them. The judge ruled (in effect) that he was bound to direct the jury in accordance with R v Caldwell  AC 341.
6. This is what the judge did. He helpfully provided the jury with a typed copy of this part of his direction and said:
"If we look at this together, what the prosecution have to prove is: (1) the defendant damaged by fire the building, the commercial premises, shown in the photographs; (2) that the defendant in doing what he did, created a risk which would have been obvious to an ordinary, reasonable bystander watching that the building, the commercial premises, would be damaged by fire; and (3) that when he, meaning a defendant, did what he did, either he had not given any thought to the possibility of there being such a risk, or having recognised that there was some risk involved in doing what he did, nonetheless went on and did the act. The word 'risk' which appears in paragraph 3 means, as will be apparent, I hope, from the wording of paragraph 2, the risk that the building would be damaged by fire. So, those are the matters which the prosecution have to prove."
The judge pointed out that proof of the first of these matters was not in dispute. The judge then addressed the second matter and continued:
"That does not mean the boys are guilty of this offence, because it is questions nos 2 and 3 which are at the heart of this case. Question no 2: that the defendant, in doing what he did, created a risk which would have been obvious to an ordinary, reasonable bystander watching that the building, the commercial premises, would be damaged by fire. So, this requires you to find as a fact on the whole of the evidence in the case, what did they do? Having established that, this is the test that you will apply: first, focus upon the moment when the two boys left the compound. Then, find as a fact, upon the evidence, what it was that would have been visible to the reasonable bystander, the ordinary reasonable bystander, looking on. Then, ask yourselves question no. 2: at that moment, having determined that, would it have been obvious to that ordinary, reasonable bystander that there was a risk that the fire would spread from paper, or papers, to bin, or bins, up to the building? It is not necessary for the ordinary reasonable bystander to have foreseen in his mind the full extent of the damage which in fact occurred because, as you will well know, once fire takes hold, it is probably anybody's guess where it is going to end up.
The ordinary, reasonable bystander is an adult. He does not have expert knowledge. He has got in his mind that stock of everyday information which one acquires in the process of growing up. This is why to leave this question to a jury of twelve is probably the best tribunal that one could have for answering this question. You will notice also that we are using the language, the vocabulary of risk - not certainty. When you answer this question as to whether it would have been obvious to an ordinary reasonable bystander watching that the fire, in effect, would spread as I have just explained it, the ages of these defendants are irrelevant. Their good characters are irrelevant. No allowance is made by the law for the youth of these boys or their lack of maturity or their own inability, if such you find it to be, to assess what was going on. So, if it would have been obvious to an ordinary, reasonable bystander that there was a risk of the fire spreading (as I have just described) to the building, it is irrelevant that you say, 'Well, we think this is a bit harsh. We don't think it would have been apparent to these boys, even though it might have been apparent to an ordinary, reasonable bystander'. It is too bad. So, in that sense, when you are answering this question, you leave wholly on one side everything you know about these two young boys here because - I repeat - it is what would have been perceived by the ordinary, reasonable bystander which is the test."
The judge observed:
"Now, I say to you, quite frankly, that you may think this is a harsh test to apply to youngsters, because no allowance is made for age and immaturity. Many people would be sympathetic with you. But, it is my task to expound the law to you as it is, and it is your duty to apply the law as it is - not as you might like it to be - to the facts of the case. Sympathy can play no part in the answering of this question.
Now, I cannot tell you - or even begin to help you - and it would be quite wrong for me to try and help you, with what the ordinary, reasonable bystander would not have perceived as a risk in terms of the fire spreading from paper to bin, to building. You have heard the evidence and you will decide."
The judge then directed the jury on the third of the matters he had listed:
"Let me assume the prosecution have jumped hurdle no. 2. Hurdle no. 3 must also be jumped, and here you see it is in two parts: that when he did what he did, either he had not given any thought to the possibility of there being such a risk, or having recognised that there was some risk involved in doing what he did, nonetheless he went on and did the act.
Now, I begin with the second part of paragraph 3 which is a question that does concern the state of mind of the two boys. If you were to say, 'We are, all twelve of us, satisfied so that we are sure that these boys when they started the fire and left the compound, appreciated in their minds that there was some risk of the fire spreading from paper to bin, to soffit, to building, and nonetheless went on and did what they did', then it is difficult to see how they could be anything other than guilty of this offence. It is not primarily the way the prosecution put their case. As you know, to cut a long story short, the boys have said to you, each of them, as they said in their second interview to the police, that it never crossed their minds for a moment that there was this risk of the fire actually spreading to the building itself. Now, it is a matter for you whether you believe them, but I am going to proceed on the basis that you will say either that you are satisfied that they --- that their minds did not perceive the risk of the fire spreading to the building, or you will say, 'Well, we can't be sure that that serious finding can be made against them'. If that is so, then the first part of paragraph 3 is satisfied - that they had not given any thought to the possibility of there being such a risk - that is, a risk of the fire spreading, as I have just described, to the building itself. You will see that if a defendant says, 'I didn't give any thought whatsoever to the possibility of the fire spreading from what I had done to a building itself', that is no defence if question no 2 is answered by a jury against such a person. So, pulling it all together - and I suspect that your deliberations may centre around this - if you say, 'Well, hurdle no. 1 is jumped, and we don't think these young boys, in their minds, gave any thought to the possibility of the fire spreading from paper, to bin, to soffit, to building, but ---- but, it would have been obvious to an ordinary, reasonable bystander watching that the fire might spread to the building, and that the building might be damaged by the fire', then they are guilty of the offence."
7. After the jury had retired on the afternoon of 21 March the judge made clear, in the presence of the appellants, that "nothing unpleasant" awaited them even if the jury convicted. But the jury had difficulty reaching a verdict. Later that afternoon they asked the judge why they should consider the risk as perceived by a reasonable person or layman. He replied:
"The answer to that lies in my task. My task is to give you directions on the law as it is, and it is your task to apply the directions on the law as I have expounded it to you to the facts as you find them. I am not free to give you a direction on the law which perhaps some of us might like it to be; nor are you free to substitute your own view of what the law is for the law as I have explained it to you. At the beginning of the trial you took an oath to try the case on the evidence presented to you, and part of that involves taking the law from me. That is my function.
Just to explain a little more to you, the Criminal Damage Act 1971 creates the offence of criminal damage. It was not new; it has existed, as you know, for centuries. But, that is the up-to-date statute. The higher courts - the House of Lords, in particular ---- The Law Lords have given guidance to all courts as to how juries are to be directed as to the meaning of the word 'reckless' in this context. That direction must be followed by trial judges because I am no more free to invent the law, or to make it up as I go along, than anyone else is. It is my task to do my best to identify the law, and to expound it to a jury clearly and accurately so that the jury know what the relevant principles of law are. That is what I have done. That is the task that every judge in every trial has. The jury must act upon the direction which they are given. You may remember, I said that some may feel it is a harsh test, and there are many who would be sympathetic to that view. But, sympathy does not permit me to give you a direction on the law other than as it is.
Similarly, applying that direction means that you - if I may answer your question - must consider the risk as perceived by a reasonable person or layman because that is the test; that is the law which is applicable in this area."
The judge went on to repeat his direction on the three matters the prosecution had to prove. The jury were unable to agree on a verdict that afternoon. They returned on another day and convicted. On receiving the verdict the judge adjourned the proceedings for a pre-sentence report, but said:
"For the benefit of whoever may speak to the preparer of the report, I am quite satisfied that they did not intend to burn down the building. Indeed, the prosecution never alleged that they so intended. I am quite satisfied in my mind that they subjectively did not perceive a risk in their minds that the building would be burned down. As we know, the question posed by the jury as to why they had to act upon the direction which I gave to them strongly suggests to me - and this is the basis upon which I propose to proceed - that the correct approach to sentence is that they have been convicted - this is the basis upon which I propose to sentence - that the risk they created would have been perceived by an adult; by a reasonable bystander as carrying with it a risk of damage to the building."
The judge expressed regret at the law he had felt bound to apply, and added:
"I am satisfied in my mind that this is just one of those almost childish - maybe 'prank' is too mild a word - which just went horribly wrong, and there, but for the grace of God, go many people.
Members of the jury, with respect, it is irrelevant as to whether you share these sentiments, but I see that some of you may do."
In due course the judge made a one year supervision order in the case of each appellant. It was not suggested in argument before the House that the judge's directions to the jury were other than correct on the law as then understood and applied.
The historical background
8. Section 51 of the Malicious Damage Act 1861 (24 & 25 Vict c 97) provided, so far as relevant,
"Whosoever shall unlawfully and maliciously commit any damage, injury, or spoil to or upon any real or personal property whatsoever
.. the damage, injury, or spoil being to an amount exceeding five pounds, shall be guilty of a misdemeanour
The defendant in R v Pembliton (1874) LR 2 CCR 119 was charged under this section. He had been fighting in the street and had picked up a large stone and thrown it at the people he had been fighting with. The stone missed its human target but broke a window causing damage of a value exceeding £5. The jury convicted the defendant, although finding that he had not intended to break the window, and the recorder referred the case to the Court of Crown Cases Reserved (Lord Coleridge CJ, Blackburn J, Pigott B, Lush J and Cleasby B) which quashed the conviction. The words "unlawfully and maliciously" were very widely used in the 1861 Act and the issue on appeal was whether the defendant had acted "maliciously". Lord Coleridge CJ said (at page 122):
it seems to me that what is intended by the statute is a wilful doing of an intentional act. Without saying that if the case had been left to them in a different way the conviction could not have been supported, if, on these facts, the jury had come to a conclusion that the prisoner was reckless of the consequence of his act, and might reasonably have expected that it would result in breaking the window, it is sufficient to say that the jury have expressly found the contrary."
Blackburn J was of the same opinion:
"The jury might perhaps have found on this evidence that the act was malicious, because they might have found that the prisoner knew that the natural consequence of his act would be to break the glass, and although that was not his wish, yet that he was reckless whether he did it or not; but the jury have not so found, and I think it is impossible to say in this case that the prisoner has maliciously done an act which he did not intend to do."
Thus the court interpreted "maliciously" as requiring proof of intention, but were inclined to accept that intention could be shown by proof of reckless disregard of a perceived risk. This was also the approach followed in R v Welch (1875) LR1 QBD 23, where the defendant faced charges of unlawfully and maliciously killing, maiming and wounding a mare contrary to section 40(1) of the 1861 Act. The trial judge was held to have been right to direct the jury to convict if they found that the defendant in fact intended to kill, maim or wound the mare or, in the alternative, that he knew that what he was doing would or might kill, maim or wound the mare and nevertheless did what he did recklessly and not caring whether the mare was injured or not.
9. The first eight sections of the 1861 Act all related to arson and all used the expression "unlawfully and maliciously". In the first edition of his Outlines of Criminal Law published in 1902, Professor Kenny addressed the meaning of "maliciously" with particular reference to arson. He wrote (pages 163-165, footnotes omitted):
"(a) 'Maliciously.' Burning a house by any mere negligence, however gross it be, is, as we have seen, no crime; (an omission in our law which may well be considered as deserving the attention of the legislature). Even the fact that this gross negligence occurred in the course of the commission of an unlawful act, or even of a felonious one, will not suffice to render the consequent burning-down indictable as an arson. For in any statutory definition of a crime, 'malice' must, as we have already seen, be taken?not in its vague common law sense as a 'wickedness' in general, but?as requiring an actual intention to do the particular kind of harm that in fact was done. Consequently, if a criminal, when engaged in committing some burglary or other felony, negligently sets fire to a house, he usually will not be guilty of arson
.. But it must not be supposed that everyone who has maliciously set fire to some article which it is not arson to burn, will necessarily become guilty of arson if the fire should happen to spread to an arsonable building. For when a man mischievously tries to burn some chattel inside a house, and thereby, quite accidentally and unintentionally, sets fire to the house, this does not constitute an arson. And even if his setting fire to this chattel inside the building was intrinsically likely to result in setting fire to the building itself, he still will not necessarily be guilty of arson. For it is essential to arson that the incendiary either should have intended the building to take fire, or, at least, should have recognised the probability of its taking fire and have been reckless as to whether or not it did so. Of course the mere fact that this probability was an obviously manifest one will be strong evidence to warrant the jury in finding, if they think fit, that the prisoner did, in fact, thus recognise the danger and regard it with indifference."
One of the cases cited by Kenny was R v Harris (1882) 15 Cox CC 75, where the charge was of setting fire to a dwelling house. The judge, at page 77, directed the jury:
"Again, if you think that the prisoner set fire to the frame of the picture with a knowledge that in all probability the house itself would thereby be set on fire, and that he was reckless and utterly indifferent whether the house caught fire or not, that is abundant evidence from which you may, if you think fit, draw the inference that he intended the probable consequences of his act, and if you draw that inference, then, inasmuch as the house was in fact set on fire through the medium of the picture frame, the prisoner's crime would be that of arson."
This was consistent with the ratio of R v Child (1871) LR1 CCR 307 (also cited by Kenny) where it was held that the defendant had not intended to set fire to a house and had thought that what he was doing would not do so. Another case cited by Kenny was R v Faulkner (1877) 13 Cox 550, decided in the Irish Court of Crown Cases Reserved. The defendant had set fire to a ship while stealing rum from its hold. He had been boring a hole by candlelight and some rum had spilled out and been ignited. It was conceded that he had not intended to burn the vessel, and his conviction was quashed. Barry J (at page 555) said:
"[R v Pembliton] must be taken as deciding that to constitute an offence under the Malicious Injuries to Property Act, section 51, the act done must be in fact intentional and wilful, although the intention and will may (perhaps) be held to exist in, or be proved by, the fact that the accused knew that the injury would be the probable result of his unlawful act, and yet did the act reckless of such consequences."
10. R v Pembliton was again relied on in R v Cunningham  2 QB 396. The defendant in that case had wrenched a gas meter from the wall and stolen it. Gas had escaped. He was charged under section 23 of the Offences against the Person Act 1861 with unlawfully and maliciously causing a noxious thing, namely coal gas, to be taken by the victim. He pleaded not guilty but was convicted. Giving the reserved judgment of the Court of Criminal Appeal, Byrne J said (at page 399-400):
"We have considered those cases [among others, R v Pembliton and R v Faulkner], and we have also considered, in the light of those cases, the following principle which was propounded by the late Professor C S Kenny in the first edition of his Outlines of Criminal Law published in 1902 and repeated at p.186 of the 16th edition edited by Mr. J. W. Cecil Turner and published in 1952: 'In any statutory definition of a crime, malice must be taken not in the old vague sense of wickedness in general but as requiring either (1) An actual intention to do the particular kind of harm that in fact was done; or (2) recklessness as to whether such harm should occur or not (i.e., the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it). It is neither limited to nor does it indeed require any ill will towards 'the person injured''. The same principle is repeated by Mr. Turner in his 10th edition of Russell on Crime at p. 1592."
That was accepted as an accurate statement of the law. In the course of his able address, Mr Perry (for the Crown) pointed out, correctly, that the words quoted had not appeared in the first (1902) edition written by Professor Kenny. It does not, however, appear that the later summary misrepresents what the Professor had written, quoted in paragraph 9 above.
11. R v Mowatt  1 QB 421 arose from the robbery by the defendant of a victim W. When W retaliated, the defendant struck him in the face. He was charged with wounding with intent to do grievous bodily harm contrary to section 18 of the Offences against the Person Act 1861, on which an alternative verdict of unlawful wounding contrary to section 20 of that Act was open to the jury. The trial judge gave no direction to the jury on the meaning of "maliciously" and the jury convicted under section 20. The defendant's appeal against conviction on the ground of this non-direction failed. In a judgment of the Court of Appeal (Diplock LJ, Brabin and Waller JJ) reference was made to R v Cunningham  2 QB 396 and the court (page 425) cast no doubt on the proposition that "maliciously in a statutory crime postulates foresight of consequence", but the court regarded Professor Kenny's more general statement as inapposite to the specific alternative statutory offences described in sections 18 and 20 (pages 425-426). The court held (page 426) that "maliciously" imports an awareness that an act may have the consequence of causing some physical harm to some other person, even if the harm foreseen was relatively minor. The court ruled (pages 426-427):
"But where the evidence for the prosecution, if accepted, shows that the physical act of the accused which caused the injury to another person was a direct assault which any ordinary person would be bound to realise was likely to cause some physical harm to the other person (as, for instance, an assault with a weapon or the boot or violence with the hands) and the defence put forward on behalf of the accused is not that the assault was accidental or that he did not realise that it might cause some physical harm to the victim, but is some other defence such as that he did not do the alleged act or that he did it in self-defence, it is unnecessary to deal specifically in the summing-up with what is meant by the word 'maliciously' in the section
In the absence of any evidence that the accused did not realise that it was a possible consequence of his act that some physical harm might be caused to the victim, the prosecution satisfy the relevant onus by proving the commission by the accused of an act which any ordinary person would realise was likely to have that consequence
The 1971 Act