England and Wales Court of Appeal (Criminal Division) Decisions

Royal Courts of Justice

The Strand

London WC2

Thursday 10th October 1996

B E F O R E :

LORD JUSTICE HUTCHISON

MR JUSTICE ROUGIER

and

HIS HONOUR JUDGE VAN DER WERFF

(Acting as a Judge of the CACD)

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R E G I N A

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SHOFIK MIAH

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Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Tel No: 0171 831 3183 Fax No: 0171 831 8838

(Official Shorthand Writers to the Court)

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MR B A W REECE appeared on behalf of the Appellant

MR P PRYCE-ROWLANDS appeared on behalf of the Crown

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JUDGMENT

( As approved by the Court )

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Crown Copyright

Thursday 10th October 1996

LORD JUSTICE HUTCHISON: On 6th November 1995 in the Crown Court at Caernarfon the appellant was convicted by a majority of 11 to 1 of arson being reckless as to whether life would be endangered and on 12th December 1995 was sentenced to six years' imprisonment. His application for leave to appeal against conviction and sentence was originally refused by the single judge, but on renewal the full Court granted leave to appeal against conviction, referring the matter of sentence to this Court.

The matter arose in the following way. On 25th December 1994 a fire was started at the appellant's restaurant in Holyhead. He was in London at the time; the prosecution accepted as much. Their case was that he had heavy debts and procured someone to set fire to the premises in order to make an insurance claim, and further, that the appellant's plan involved making it appear as though a burglar had been responsible. There was no direct evidence of the appellant's involvement.

His defence was that he was not involved in the fire and that the prosecution were unable to say who it was that had started it. He suggested that it might have been somebody by the name of Porky, an acquaintance who had threatened him and who was known to exist. He asserted that the burglary was genuine. In due course a defence submission of no case, which was made, as it seems to us, on a quite unsustainable basis, was correctly rejected by the judge.

The prosecution's case in a little more detail was to this effect. The appellant had owned this restaurant, known as the Nejam Indian Restaurant and Takeaway in London Road, Holyhead, since 1992. The property was insured with the Sun Alliance, the building for £95,000 and the glass for £2,000. The restaurant was situated in a terrace between a public house on one side and a family house on the other.

At 6.55 pm on Christmas Day 1994 a Mrs Bourne Fox, who lived opposite the restaurant, was walking with her daughter when they saw smoke and flames inside the restaurant. She contacted the fire brigade, who broke through the front door. In the lobby the fire officers found a milk bottle containing petrol with some towelling material in it that was burning. In the dining room they found a partly melted plastic bottle which also contained petrol. In their view the fire had been burning for between 5 and 30 minutes. The police arrived on the scene just after 7 pm. Not surprisingly perhaps, it was readily concluded that the fire had been started deliberately.

The police examined the premises. Their evidence was that the kitchen was very greasy everywhere and there was food in tins and saucepans; in other words, it did not give the appearance of having been properly cleaned and tidied up before the occupants left. The kitchen window had a section from the transom sawn out, with one security bar removed and the other loosened. The hatch bolt was not working. The window frame was greasy. There were fresh debris and sawdust on the windowsill, which appeared undisturbed. There was no sawdust lying on the ground under the sill. There were no marks in the sawdust or in the grease to suggest that anyone had come through the window and no signs of disturbance outside. There was no sign that the securing bolt of the shutter or the transom window had been forced. It is to be noted that the prosecution's case was that the appellant, who purported to have spent some time on the evening before leaving for London clearing up the premises, had in fact during that time been involved in setting up the appearance of a burglary before leaving for London at 1 am on Christmas Eve.

Mr McNaught, the next door neighbour, said that among the things that the appellant had told him was that the restaurant was having financial problems. Moreover, he gave evidence that on Christmas Eve the appellant had asked him to look after a briefcase for him. Mr McNaught refused to do this and suggested that the appellant should take it with him to London.

The appellant had a number of debts at the time, which the Crown proved and which amounted to just under £10,000. They were mounting and he was not repaying them, although he had a Halifax Building Society account that contained £5,630 on 22nd December from which no withdrawals had been made during the latter part of 1994. He also had a small credit balance in a Trustee Savings Bank account. The point is made on his behalf that, though in debt to the extent indicated, he obviously had the means to pay some of his debts and had determined not to do so.

Police officers arrested him on 29th December. They went to his flat (which had outside access only, and which was above the restaurant) and gave the appellant's keys to his cousin, Ful Miah because Ful Miah had no key to the restaurant. There were no other restaurant keys found at the flat during the police search. In the flat they discovered some evidence of a vital nature. First, there was the appellant's briefcase under his bed. It contained only some old documents; there was no money in it and no money was ever recovered. What was found, however, was a wood saw, wrapped in carrier bags, near the kitchen door and another saw and a hacksaw near the entrance door. There were bin bags full of documents and under the bin bags was the security bar from the restaurant kitchen window. Pieces of wood were found in a cardboard box wrapped in a tea towel, which scientific evidence positively established came from the transom window.

In interview the appellant denied the offence. His account was that he had closed the restaurant on Christmas Eve at about 11.30 pm; that then he and his cousin had cleaned up and locked the front door and the back fire door. Everything was secured when he left. The kitchen window was intact and the shutter was locked, apart from the transom window at the top which could not be locked. He said that at about 12.30 am he went upstairs and left for London shortly afterwards, taking the keys with him. The flat was locked and secure. No one else had keys to it. He left his briefcase, which he said had £1,200 in it, in the flat. The wood saw, he said, was bought for him by a builder.

He spoke of the man Porky. He said that he had previously broken his restaurant window and that before Christmas Porky was banging on the window and swearing at him. It should be observed, as we have already indicated, that Porky's existence was accepted and there was some evidence of hostility between him and the appellant. He said that Porky had threatened to stab him and burn his restaurant. On an occasion his keys had been taken by Ashley, a friend of Porky's, one evening from 9.30 pm until 1 am. There was evidence from the police in this connection that there was no key cutting establishment open in Holyhead at that time; hardly surprisingly perhaps.

The appellant initially submitted some grounds of appeal of his own, but in due course the grounds which we have had to consider today were submitted by Mr Reece, who represents him in this Court, though he was not counsel at the trial. Those grounds are four in number and we shall consider them separately.

The first ground asserts that the learned judge misdirected the jury, in that he failed to state that it was necessary for them to be sure that the appellant was reckless whether lives of others would be endangered. In the circumstances, it is contended, the jury might have convicted of that offence (which was the only offence charged on the indictment) on the basis that they were sure, first, that the unknown person who lit the fire was reckless whether lives would be endangered and that the appellant had asked the unknown person to set fire to the restaurant, and was therefore guilty of the aggravated offence, without considering the state of mind of the appellant.

It is contended in the grounds, and was submitted by Mr Reece in his most helpful and cogent submissions to us today, that the jury should have been directed that what was important was not the state of mind of the fire setter but the state of mind of the appellant, who procured him to start the fire. The jury should have been directed that, for the appellant to be guilty of the aggravated offence, they had to be sure that he, the appellant, in organising and getting the fire lit, was reckless as to whether, when lit, it would endanger the lives of others.

The relevant matters to be considered in connection with that ground of appeal can be put in this way. The appellant, as we have said, faced a single count of arson being reckless as to whether life would be endangered, contrary to section 1(2) and (3) of the Criminal Damage Act 1971. The Crown's case was that he set fire to the premises by getting someone else to do that; that he procured that the premises should be set on fire. The particulars in the indictment read as follows:

"Shafik Miah and another on the 25th day of December 1994 without lawful excuse damaged by fire the Mejam Indian Restaurant [and the address is given] belonging to the said Shafik Miah intending to destroy or damage property and being reckless as to whether the lives of the occupants of adjoining properties and members of the emergency services would thereby be endangered."

The ingredients of the offence charged were as follows - this, in other words, is what the Crown had to prove: First that the premises were unlawfully and deliberately set on fire.

Second that whoever started the fire did so at the behest and with the knowledge of the appellant.

Third that the appellant's intention was to destroy or damage the premises.

Fourth that the appellant was reckless as to whether life would be endangered by the intended destruction or damage.

It is the judge's direction as to the fourth element that is criticised in ground 1, to which we have referred.

The judge, when explaining the ingredients of the offence to the jury, adopted a different order to that which we have adopted, as will appear from the passage we are about to cite from his summing-up, in which he dealt as his fourth and fifth heads with recklessness and procurement. What he said was this.

"Fourth [they must prove that] in setting that fire, that person, the person who actually set those items alight, was reckless as to whether the lives of the occupants of adjoining properties and members of the emergency services would thereby be endangered. I will come back to the question of recklessness in a moment because I have to give you a separate direction on that. It has a meaning in law, members of the jury, and I have to tell you what it is.

Fifthly and crucially, was it the defendant who put someone else up to setting that fire? In other words, procured another person to commit the arson and you may think, members of the jury, that is the essential question in this case. Has the prosecution proved that?

Now let me deal with the last two ingredients. Firstly, recklessness. You must be satisfied so as to be sure firstly that the person who set the fire did an act which created a serious risk that the lives of those in adjoining properties and/or members of the fire brigade would be put in danger. So that is the first matter to be proved. That is an objective test, members of the jury.

You are to look at it -- can I suggest you do it in this way. You put yourselves at the scene at the time, seeing what is happening; would you come to the conclusion from what you saw that what happened, the setting of those two fires, created a serious risk of endangering the lives of those people in adjoining properties and/or the fire brigade which attended to put the fire out. If you say well clearly it did create that sort of risk, then you go on to consider the defendant -- I am sorry, not the defendant but the actual man who lit the fires state of mind. In other words, you turn to a subjective assessment.

The prosecution must prove that the person who set the fire either firstly had not given any thought to the possibility of there being such a risk, and that is for you to decide in relation to the first branch of it; or secondly, knew there was some risk of endangering life involved but nonetheless he went on to set the fires.

In other words, if I can recap members of the jury, the prosecution must prove that the risk which I have mentioned to you would have been obvious to any reasonable prudent person. That is where you have to assess it, putting yourselves at the scene, and then there are alternative tests in relation to the fire setter's own state of mind. Firstly, that he had not given any thought to the possibility of there being such a risk or knew there was some risk but went on to take that risk nevertheless."

It will be clear, therefore, that in relation to recklessness as to whether life would be endangered the judge was inviting the jury to consider only the state of mind of the unknown accomplice (assuming they found him to be an accomplice) and not that of the appellant, the procurer.

Mr Reece, by his ground 1, as we have indicated, contends that that was a misdirection. In our judgment he is plainly correct. It is the mind of the defendant (now the appellant) and whether he was reckless that the jury were concerned with, not with the mind of the unknown accomplice.

However, we have to assess the materiality of that misdirection and decide whether the conviction is unsafe in the light of the fact that the jury properly directed as to all other elements must have been sure of them; and that they received an accurate direction in accordance with Caldwell [1982] AC 341 as to the question of recklessness, albeit vis a vis the state of mind of the accomplice, and were plainly satisfied that he (the accomplice) had been proved to be reckless.

This fire, as we have indicated in our recitation of the facts, was started between 6 and 7 pm on a Christmas evening in premises in a terrace of houses in Holyhead. On one side was The Boston Public House, in which the landlord, Mr Gerwyn Davies, and his family lived; and on the other was the house in which Mr McNaught and his wife and young children lived. That some at least of those persons would be in their homes at such a time was, to put it at its lowest, highly probable. That the fire brigade would attend and its members undertake fire fighting duties was inevitable. The jury plainly found that the accomplice must have been reckless, and that the accomplice was acting at the behest of the appellant.

In these circumstances it is, we consider, inconceivable that the jury, if properly directed, would have reached any conclusion other than that the appellant had been reckless as to endangering life. There is, in truth, no sensible reason for thinking that his conviction is unsafe because, as we ventured to observe during the argument, it is difficult to imagine a more clear cut case of arson being reckless as to whether life would be endangered. In the circumstances, though accepting, as we do, that the learned judge misdirected the jury in relation to recklessness, we are not satisfied that the conviction is in consequence unsafe.

The second ground of appeal asserts that the judge in the course of summing up made an improper comment - improper because, it is said, it was unfair. The comment was as follows. We shall start with the previous paragraph just in order to get the sense (page 14):

"What may be curious about that document and you will be able to see it, members of the jury, because it is an exhibit, is that no withdrawals seem to have been made at all during the latter part of the 1994 even though these debts were in existence and, of course, building up.

What the explanation for that is one simply does not know, but it may be a fair comment, members of the jury, and it is a matter for you to decide, that despite having this money available, the defendant was not prepared to use it to pay his debts. So perhaps, and it is a matter for you because this is what the prosecution says, he was not going to use that money, he was going to pay his debts in other ways and keep that money and make more on top."

Mr Reece points out that there was no evidence before the Court that the appellant had intended to pay his debts by any other means and suggests that that comment was gratuitous and unfair. However, as it seems to us, it was the Crown's case that the appellant's motive was to obtain insurance monies to alleviate his indebtedness, and in our view the judge was here doing no more than telling the jury as much. In so far as what he said embodied his own comment, he had earlier (see page 9 of the transcript) correctly directed them in conventional terms as to how they should approach any comments he might make, and in the passage complained of he reminds them that it is a matter for them. There is, in our view, no substance in this ground.

The third ground -- and the one on which most of the argument has focused -- is that the appellant's case was not properly prepared or presented by those advising him. It is against counsel who represented him at the trial that this criticism is advanced and there are two main limbs to it. The first is the contention that no or no proper efforts were made to seek to refute or undermine the Crown's case on motive - that is to say, that his object was to obtain the insurance monies to enable him to defray his debts. The second is that the defence persisted in inviting the jury to conclude that there had been a genuine burglary of the premises, instead of advancing the suggestion that the explanation for all that was found at the premises was that some person ill-disposed towards the appellant had sought not only to destroy his restaurant but also to make it appear that the appellant had done it and incompetently tried to dress it up as a burglary. This, it is said, had two consequences. First, since on the evidence a genuine burglary was incredible, it enabled the judge (as he quite properly did) to demolish point by point the burglary theory to the appellant's detriment. Secondly, it meant that the jury did not have before them the only possibly viable explanation (other than that the appellant was implicated) for what was found.

As to the first point, the position in summary was, as we know as a result of the matters that have been put before us by Mr Reece, to this effect:

1) The property, which seems to have been worth about £100,000 or a little more, was owned by the appellant but was subject to a mortgage for £29,000, the lender's interest being noted on the policy of insurance.

2) The terms of the policy were such that payment of any substantial sum in fact being made to the appellant following fire damage to the property was not by any means certain - Mr Reece would say was unlikely in the extreme. The cover was for cost of rebuilding or restoring damage or reduction in value, but the company had an option to insist on reinstatement or rebuilding. It is suggested that, with the lender's interest in the policy, it is highly likely that they would have exercised that option or been induced by the lender to exercise it.

3) Accordingly, the likely result of a major fire would, it is said, have been to exacerbate rather than alleviate the appellant's problems. He would have been left with his debts and he would have been deprived of the opportunity to run his restaurant and obtain whatever income that brought him.

4) As it was, all the jury had was a single sheet summary of the cover (which we have been shown, as we have been shown the policy), and from that single sheet and the way the case was presented they would have been left with the impression that the appellant did stand to gain considerably from the fire.

We have to say that undoubtedly, in our judgment, it was a grave omission on the part of those advising the appellant not to make some investigation as to what the insurance position was and what were the prospects of his obtaining money had the fire taken hold and destroyed the premises. Not surprisingly Mr Reece, in making the criticisms, of which this is the first, that he advances against trial counsel, sent a copy of his grounds of appeal to counsel for his comments. We have been provided with those comments, which we have read. On this point, however, it is fair to say that the comments of trial counsel really advance no explanation or excuse.

However that may be, it seems to us that the crucial question is what the appellant knew and believed about the insurance consequences of the fire. If he knew or believed that he stood to gain nothing significant, then, given the motive attributed to him by the Crown, he must, as it seems to us, have instructed his advisers to advance this point - it is inconceivable that he would not immediately have said, 'Here is the motive that has been suggested; I know that the terms of the insurance cover are such that I stand to gain nothing.' There is, so far as we can detect, no suggestion that he ever did so. Moreover, there are strong indications that he was not aware of the details of the insurance position.

Our attention was drawn by Mr Rowlands for the Crown to some answers in the course of the interview which the police conducted with the appellant. One finds on continuation sheets 14 and 15 of his first interview the following exchanges:

"Q. Did you not mention to an officer the other night that you were insured with the Sun Alliance?

A. I spoke to him, yeah. What's the cover like? You know. So he said its not covered. It was furniture, everything, yeah. So I said, you know, is that possible. I got the insured for, one insurance for John Lyon."

Then there was some more answers and over the page one finds this:

"Q. And your whole building is covered with that?

A. Yeah. Whole building. I think so, I do. I'm not sure. I don't know. I can't read it all, everything myself like you know."

It seems from those answers a not illegitimate conclusion that the appellant, like, we suspect, many people, some of them perhaps more articulate and better able to cope with such a document than he was, do not read their policies or know the precise details of their contents or effect.

In these circumstances we have no reason to think that this evidence would significantly have undermined the Crown's case on motive; and had the defendant been called to give evidence, which he was not, in this case, he would in the face of his interview answers have been in great difficulty in advancing a credible case that he knew that he stood to gain nothing if the premises were burnt by fire.

As to the persistence in running the burglary theory, we should begin by saying that we accept that to do so was plainly ill advised and likely to be unproductive or counterproductive, since it was unsustainable and so had the disadvantages already referred to.

Trial counsel in his comments has made it clear that his recollection is that he did advance the case on the basis of a deliberate attempt by someone to frame the appellant. As to this, we have to say that we have found nothing in the summing-up to suggest that he did so; on the contrary there are clear statements, which it is unnecessary to cite, in which the judge attributes to the defence the assertion that this was a genuine burglary and there is no indication of any correction having been made when the learned judge said that. Moreover, counsel for the prosecution has told us that he has no recollection or note of such a case being advanced and, moreover, that he is confident that if it had been he (or defence counsel) would have drawn the judge's attention to the judge's omission to remind the jury about it.

We are in the difficult position that we have not heard from counsel who conducted the defence at trial. He has, as we have indicated, submitted from his recollection, now nearly a year later, what he says happened at the trial. It may be that his recollection after this lapse of time is at fault. But we are reluctant, without having heard from him, to make a positive finding to that effect, and we do not do so. We have for the purposes of considering this appeal assumed, without deciding, that the submissions advanced by Mr Reece as to the facts of what was and was not advanced by way of defence are correct and we proceed on that basis.

Approaching the case in this way we next consider how damaging that omission may have been.

In our view, it was in the highest degree unlikely that the jury would have been impressed by it. It must have involved that the supposed intruder had keys to the restaurant; had not only arranged an obvious fake burglary, but had also hidden the wood and the bar from the window in the flat upstairs, to which also he would have had to obtain access by means of a key. The only candidate who might have been advanced by the defence for such acts was the man Porky, about whom the jury knew. It is not, in our view, to be supposed that they would have been more inclined to accept him as such if it were suggested additionally that he was intent on implicating the appellant as well as damaging his property. They plainly were not attracted by the idea that Porky was the intruder who had started the fire.

Moreover, there are other important pieces of evidence damaging to the appellant. There is the matter of the request to Mr McNaught to leave the briefcase in his premises over the weekend and, more importantly, there is the point about the cleaning of the kitchen to which we have already referred. In the circumstances we are sceptical as to the importance of this point, though, as we have indicated, we readily accept that it was sensibly the only viable way in which this part of the case could have been put.

Having expressed our views as to those two arguments, we address the question of the way in which we should approach the alleged incompetence of counsel and his failure to conduct the defence in the most advantageous way. In that regard we have considered the decision of this Court in the case of Clinton (1993) 97 Cr App R 320 where in the judgment of my Lord, Rougier J, at page 325, one finds these observations:

"During the course of any criminal trial counsel for the defence is called upon to make a number of tactical decisions not the least of which is whether or not to call his client to give evidence. Some of these decisions turn out well, others less happily. In Gautum this Court concisely explained why such decisions could not generally afford valid grounds of appeal."

He then summarises that. He also refers to the case of Ensor and the case of Swain. He continues in the next paragraph:

"More recently the case of Wellings, heard in another division of this Court on December 20th, 1991, repeated the principle. Giving the judgment of this Court, the learned Lord Chief Justice said:

'The fact that counsel may appear to have made at trial a mistaken decision, or has indeed made a decision which in retrospect has been shown to have been mistaken, is seldom a proper ground of appeal. Generally speaking it is only when counsel's conduct of the case can be described as flagrantly incompetent advocacy that this Court will be minded to intervene.'

We would, however, draw attention to the fact that in both Gautum and Wellings the principle was stated in general rather than restrictive, inflexible terms. In our judgment the Court was not thereby intending to derogate from the plain wording of section 2(1)(a) of the 1968 Act. [My Lord was referring to the Act before the recent amendments.] Mr Maxwell has, rightly we think, urged upon us that it is basically to the wording of the subsection itself that the Court must look. We think that the proper interpretation of the cases to which we have referred is that the Court was doing no more than providing general guidelines as to the correct approach. The Court was rightly concerned to emphasise that where counsel had made decisions in good faith after proper consideration of the competing arguments, and, where appropriate after due discussion with his client, such decisions could not possibly be said to render the subsequent verdict unsafe or unsatisfactory. Particularly does this apply to the decision as to whether or not to call the defendant. Conversely and, we stress, exceptionally where it is shown that the decision was taken either in defiance of or without proper instructions, or when all the prompting of reason and good sense pointed the other way, it may be open to an appellate Court to set aside the verdict by reason of the terms of section 2(1)(a) of the Act. It is probably less helpful to approach the problem via the somewhat semantic exercise of trying to assess the qualitative value of counsel's alleged ineptitude, but rather to seek to assess its effect on the trial and verdict according to the terms of the subsection."

The question, therefore, which this Court has to pose in the light of the amended provisions of section 2, is whether we consider that what we have categorised as the errors and omissions on the part of trial counsel were such as to render this conviction unsafe.

That is a question to which we have given careful consideration. But for reasons implicit in the conclusions which we have stated as to the two grounds, we have concluded that there is no reason for holding that this conviction was unsafe. In truth the case against the appellant was extremely strong and the discovery in the flat upstairs of the items which we have detailed made it almost overwhelming. In the circumstances we have not been impressed by that third ground.

There remains only the fourth ground, which is that counsel was wrong not to invite the judge to leave to the jury a lesser alternative of simple arson, and the judge was wrong not to do so.

Without going into details we are satisfied that such an alternative was, on the facts of this case, and by reason of the interest of the mortgage lenders in the property, open to be left. However, it is seldom that such an alternative is left in arson cases and we are quite satisfied that it would have been inappropriate in the circumstances of this case. The judge was not invited to take that course, and we can understand why. This was, as we indicated when dealing with the first ground of appeal, a case, if ever there was one, in which it was the subsection (2) offence or nothing, and we see no reason why the judge should have thought it necessary to leave the lesser alternative to the jury. There is no danger, in our view, that the jury may have been tempted to compromise with their consciences by convicting the appellant of a graver offence for want of a lesser offence of which to convict him rather than see someone who had been guilty of discreditable acts get clean away.

The essential question here was whether it had been proved by the Crown, as they sought by inference from the circumstantial evidence that they adduced to prove, that it was the appellant who had arranged for the fire setter to do what he did. Plainly they were satisfied of that and it inevitably followed that they would find that he was reckless as to whether life was endangered from that.

In the circumstances, having dealt now with all four grounds of appeal so persuasively advanced by Mr Reece, we are satisfied that this appeal should accordingly be dismissed.

(Submissions re renewed application for leave to appeal against sentence followed).

LORD JUSTICE HUTCHISON: We have now to consider the applicant's application for leave to appeal against sentence. As we indicated, the learned judge sentenced him to six years' imprisonment.

He is a young man who was born in Bangladesh in December 1968. He has only one previous conviction for theft in 1992.

It is suggested by Mr Reece that this was a very long sentence bearing in mind his youth and character and the fact that very little damage was done to the premises because the fire was extinguished at a very early stage.

It has to be said, however, that that was due to the fortuitous circumstance that the lady we have mentioned spotted the fire and alerted the fire brigade and the police. The intention was, on the jury's finding, to burn these premises. It was a carefully planned undertaking and it created, potentially, the utmost danger for the two families living on either side in that terrace. The applicant did not have the mitigation that a plea of guilty would have secured. In the circumstances, like the judge, who expressed himself in terms which showed that he considered it to be a grave case, we consider that it was a case deserving a severe sentence.

We have no reason to conclude that a sentence of six years was in the circumstances manifestly excessive and we refuse leave to appeal.