B e f o r e :
THE LORD CHIEF JUSTICE OF ENGLAND (Lord Lane)
MR. JUSTICE MUSTILL
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MR. JUSTICE McCULLOUGH
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R E G I N A
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JOHN THOMAS DENTON
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(Transcript of the Shorthand Notes of Walsh, Cherer & Co. Ltd., 36-38
Whitefriars Street, Fleet Street, London, EC4Y 8BH. Telephone Number: 01-583 7635.
Shorthand Writers to the Court. )
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MR. R. HEAP appeared on behalf of the Appellant.
MR. S. J. D. FAWCUS appeared on behalf of the Crown.
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HTML VERSION OF JUDGMENT
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THE LORD CHIEF JUSTICE: On 13th January this year at the Crown Court at Wigan, this appellant, John Thomas Denton, was convicted on the second count of an indictment laid against him, containing two counts of arson. The first count alleged arson with intent, contrary to section 1(2) and 1(3) of the Criminal Damage Act 1971; count 2 charged him with arson contrary to section 1(1)
and 1(3) of the Criminal Damage Act 1971, the particulars being that "John Thomas Denton on the 3rd day of January 1980 without lawful excuse damaged by fire a building known as Barnfield Kill belonging to Leslie Fink & Co. Ltd. and the contents thereof belonging to Albus Products Ltd. intending to damage such property or being reckless as to whether such property would be damaged. "
He appeals against that conviction on the certificate of the trial Judge. He was, as a matter of history, sentenced to seven months' imprisonment, suspended for two years, and a supervision order for one year was made in respect of that sentence.
The facts of the case were somewhat unusual. There is no dispute that Denton on 3rd January 1980 set light to some machinery in the cotton mill. The machinery was very badly damaged, and as a result of that conflagration damage was also done, to a much lesser degree it is true, to the building itself. The total damage to stock and building was said to be some £40, 000.
On Monday 17th March 1980 the appellant presented himself at the police station and told the police that he had in fact started that fire. He described how he had done it, and he then made a statement under caution, in which he gave his reason for having started the fire: that it was for the benefit of the business, because the business was in difficulties, and, although he was going to get no direct benefit from it himself, he thought he would be doing a good turn to the financial status of the company if he were to set light to the premises and goods as he did. Hence the charge against him.
When it came to the trial, by this time of course there were two counts against him as I have already described. He gave evidence that his employer — to whom we will refer to "T" for obvious reasons — had asked him to put the machines out of action and he had agreed to set light to it. The reason given to him by the employer for that request was because the company was in difficulties; the way that T put it was:
"There is nothing like a good fire for improving the financial circumstances of a business".
There was then a discussion between learned counsel and the Judge as to the extent to which those facts, if accepted, could provide a defence to this man. The Judge ruled against the defendant on his counsel's submission. With the defendant pleading guilty to the second count in the light of the Judge's ruling, the trial continued on the first count and he was on that count acquitted.
The certificate given by the learned Judge reads as follows:
"As to count 2 the defendant's defence was that he believed he had not only the permission but the encouragement of the proprietor of the business for which he worked, to set fire to the goods of that business with a view to obtaining insurance monies for that proprietor by fraud.
"After hearing submissions of counsel at the conclusion of the evidence, I ruled the word 'entitled' in section 5(2) Criminal Damage Act 1971, despite the proprietorial basis of the Criminal Damage Acts, carried a connotation of general lawfulness in addition to private title.
"On the basis the proprietor could not be said to be 'entitled' to consent to damage for a fraudulent purpose the defendant changed his plea to guilty. "
Section 1(1) of the Criminal Damage Act 1971 reads as follows: "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. "
Section 5, which was the section round with the arguments and submissions revolved in the court below, reads as follows:
"(1) This section applies to any offence under section 1(1) above and any offence under section 2 or 3 above other than one involving a threat by the person charged to destroy or damage property in a way which he knows is likely to endanger the life of another.... ".
"(2) A person charged with an offence to which this section applies shall, whether or not he would be treated for the purposes of this Act as having a lawful excuse apart from this subsection, be treated for those purposes as having a lawful excuse — (a) if at the time of the act..... he believed that the person.... whom he believed to be entitled to consent to the..... damage to the property in question had so consented.... ".
It was agreed on all hands for the purpose of this case that T was the person who, any evil motives apart, was entitled to consent to the damage. It was likewise conceded that the appellant Denton honestly believed that T occupied that position and was entitled to consent.
It is plain from the way that the Judge put the matter in his certificate, that he had come to the conclusion that the word "entitled" was in some way qualified by a word which does not appear in the section, namely "honestly". It is upon that basis that Mr. Fawcus for the Crown here seeks to support the Judge's direction.
In order perhaps to see what the scheme of the Criminal Damage Act 1971 entails, it is necessary to have regard to the earlier Act, namely the Malicious Damage Act l86l. Under that Act certainly by section 3, and also by two other sections (sections 13 and 59), a man's right to do what he likes to his own property was restricted, and it was, amongst other things, an offence to set fire to certain buildings, if there was an intent to injure or defraud, even if those buildings were in the possession of the defendant. It is very striking to observe that the words "with intent to injure or defraud" are absent in the terms of the 1971 Act which I have just read. It is quite apparent from that, indeed in this Court it is not argued to the contrary, that in so far as the 1971 Act is concerned, it is not an offence for a man to damage or injure or destroy or set fire to his own premises.
One therefore turns to see what the situation would have been had T made a confession in the same, or similar, terms to that made by Denton, and to see what would have happened on the Crown's argument if the two of them, T and Denton, stood charged under section 1(1) of the 1971 Act at the Crown Court at Wigan. It is not an offence for a man to set light to his own if property. So T would have been acquitted. But the Crown is correct, Denton, the man who had been charged with the task of actually putting the match to the polystyrene, and setting the fire alight, would have been convicted.
Quite apart from any other consideration, that is such an anomalous result that it cannot possibly be right. The answer is this, that one has to decide whether or not an offence is committed at the moment that the acts are alleged to be committed. The fact that somebody may have had a dishonest intent which in the end he was going to carry out, namely to claim from the insurance company, cannot turn what was not originally a crime into a crime. There is no unlawfulness under the 1971 Act in burning a house. It does not become unlawful because there may be an inchoate attempt to commit fraud contained in it; that is to say it does not become a crime under this Act, whatever may be the situation outside of the Act.
Consequently it is apparent to us that the learned Judge, in his ruling in this respect, was wrong. Indeed it seems to us, if it is necessary to go as far as this, that it was probably unnecessary for the appellant to invoke section 5 at all, because he probably had a lawful excuse without it, in that T was lawfully entitled to burn the premises down. The appellant believed it. He believed that he was acting under the directions of T and that on its own, it seems to us, may well have provided him with a lawful excuse without having resort to section 5.
The result is that the plea of guilty to the second count in the indictment was based upon a wrong view of the law by the learned Judge.
Consequently, despite the plea of guilty, the conviction on the second count must be quashed and the appeal allowed.
MR. FAWCUS: My Lord, may I make application for the prosecution costs incurred on this appeal be paid out of central funds?
THE LORD CHIEF JUSTICE: Prosecution costs to be paid out of central funds. Are you legally aided Mr. Heap?
MR. HEAP: Yes.
THE LORD CHIEF JUSTICE: Should you not apply for costs?
MR. HEAP: Yes, I think that is right.
THE LORD CHIEF JUSTICE: You may have them.
