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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> B, R v [2001] EWCA Crim 1104 (16 February 2001) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2001/1104.html Cite as: [2001] EWCA Crim 1104

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		Friday, 16th February 2001

Friday, 16th February 2001

JUDGMENT.
1. LORD JUSTICE MANCE:On 13th August 1999, in the Crown Court at Winchester before Mr Recorder Martin, the appellant was convicted of three offences of arson being reckless as to whether life would be endangered. That is counts one, four and six; counts one and four by a majority of eleven to one, and count six unanimously. He was acquitted of arson with intent to endanger life and no verdict was taken in relation to three other alternative counts.
2. He appeals against conviction by leave of the single judge who limited leave to the first ground, but an application has been made before us to renew the application for leave to appeal in respect of those other two grounds and we have heard argument on that.
3. The background facts are that the appellant lived with his parents and younger siblings at a rented mid-terrace house in Winchester where the family had lived for about five years. Within a matter of some five days the fire brigade was summoned to that house to extinguish three successive fires.
4. The first fire was on 10th March 1999 at about 10pm in the upstairs toilet where a mattress which had fallen over the toilet pan was burning and a discarded cigarette end was found nearby. The next morning, very early (about three hours later) at 1.00am on 11th March, the bottom of curtains to the rear window of the ground floor livingroom were burned. On 15th March, shortly after 4.00pm, a fire was set under a bed in the first floor bedroom. The appellant was then arrested at 4.30 that day and had matches in his pocket.
5. The Crown case was that the appellant set each fire. The Crown relied upon evidence and connections, particularly the fact that the fires occurred in the same house, involving the same family in a very close proximity of time, and also involved some knowledge of the house. In the case of the third fire that knowledge involved knowing the means of access through a rear window downstairs which, due to its previous use by this appellant, would no longer lock.
6. The Crown then relied upon the presence of this appellant; either his actual presence at the time of the fire or presence in the vicinity around the time of the fire. The Crown also relied upon the fact that this appellant had a grievance against his family, especially his father but also at least one of his sisters and apparently his mother, and had been told to leave the house after the first fire. He also disliked the house itself and wished they did not live there.
7. The defence case was that the appellant may have caused the first fire by carelessly discarding a cigarette in the toilet to which he had just been, as he accepted, but that he had not set either of the other two fires.
8. After he had been thrown out of the house after the first fire he went to a nightshelter but he could not gain admittance. The reason he was seen in the presence of the house not long after the fire brigade came to extinguish the second fire was that he could not gain that admittance.
9. On 15th March, he said that he could not have been in the vicinity of the house at all because, although he had been to London and arrived back at Winchester by train, his movements to the Job Centre and then to the Sorting Office did not allow sufficient time. However, there was Crown evidence to the effect that he was seen both going to the house and coming back from it around the time of the fire.
10. At the Magistrates' Court it was proposed to commit on four counts: three of simple arson and a fourth of arson being reckless as to whether life would be endangered. But, after hearing evidence, the magistrates refused to commit in relation to the second fire.
11. The Crown Court hearing opened with the Crown applying to stay the original four count indictment and to prefer a fresh seven count indictment with three pairs of counts in the alternative, one pair relating to each of the three fires, and a further count of arson with intent to endanger life in relation to the second fire.
12. The Crown argued that there was a prima facie case in relation to all three fires. After hearing submissions the Recorder decided to permit the amendment. He did so, as he said, in the light of the provisions of the relevant legislation, the Administration of Justice (Miscellaneous Provisions) Act 1933, and the proviso to it, which reads in section 2(2):

"(2) Subject as hereafter provided no bill of indictment charging any person with an indictable offence shall be preferred unless either --

(a) the person charged has been committed for trial for the offence or ...

(b) the bill is preferred by the direction of the Court of Criminal Appeal or by the direction or with the consent of a judge of the High Court ...;

Provided that -

(i) where the person charged has been committed for trial, the bill of indictment against him may include, either in substitution for or in addition to counts charging the offence for which he was committed, any counts founded on facts or evidence disclosed to the magistrates' court inquiring into that offence as examining justices, being counts which may lawfully be joined in the same indictment; ..."

13. The Recorder took into account the relationship of the appellant to his parents and his view of it; his dislike of the house; his availability at the time of the fire; his arrival soon after its discovery; his possession of the means to start the fire; and the comments he made to others. They were comments to the effect that if it was him it would have been a sensible thing to burn the house down, in answer to some question along those lines by the officer. Finally the Recorder took into account the two other fires and his view as to similar fact evidence. He applied the proviso.
14. Before us there is no objection made to the proposition that the counts were counts which might lawfully be joined in the same indictment (that is obvious). The first ground of appeal before us is that the jurisdiction to add counts in the way that was done under the proviso should only be exercised with considerable circumspection and in exceptional circumstances.
15. The trial proceeded. The jury heard evidence about the relationship between the appellant and his parents, and about his being told to leave, although he had previously been told to leave and such notices had been revoked. They heard evidence about the first fire, including evidence that the appellant had admitted smoking a cigarette while in the toilet upstairs and, having flushed the toilet, had chucked his cigarette end in the direction of the toilet and then left the house.
16. The appellant had told the police officer investigating that fire that he had no intention of causing it, it must have been the careless discarding of the cigarette end. Other evidence from a neighbour, Mrs Keith, was that after the fire the appellant came to her house and had a smile on his face. He was then given his "marching orders".
17. The jury heard evidence about the second fire, including the previous use of the window by the appellant which had damaged it, preventing it being locked, and the appearance of the appellant after the fire brigade came.
18. As to the third fire, there was a good deal of evidence about the appellant's movements. But, as we have said, the Crown evidence was that he was seen going towards his house and that this was before smoke was smelled and the fire brigade was then called. There was also evidence from Mr Keith who, a little later, said that he saw the appellant walking away from the house. The appellant said that if he was seen by Mr Keith he had on the contrary been walking towards his house and not away from it. There were signs of forcing of a downstairs window and three unused matches in the hallway. The fire was in the first floor front bedroom and deliberately caused.
19. In interview, the appellant put forward his account of events, in particular that he had no possible involvement in the second two fires. From his solicitor there was evidence about the time it would take to walk those distances. The appellant gave evidence about the relationship with his family, which he indicated was not such as would cause him to set the fires.
20. The grounds of appeal before us, following the jury's conviction in respect of all three fires of arson being reckless as to whether life would be endangered, focus, firstly, on the permitted amendment of the indictment to include three counts relating to the second fire.
21. Secondly, the two applications made assert that the Recorder was wrong to admit similar fact evidence in the circumstances of this case. It is said there was no signature or hallmark.
22. Thirdly, if he was otherwise right to do so, it is said that he nonetheless misdirected the jury as to the proper approach to such evidence. Further grounds which were originally mentioned are not pursued.
23. We take first the first ground on which leave to appeal was given. That there was jurisdiction to act as the Recorder did is clear and is not challenged, at least in the theoretical sense. What is challenged is the propriety of the Recorder's exercise of such jurisdiction. We were referred to authority, particularly R v Dawson and Wenlock 44 CAR 87 and Brooks v DPP [1994] 2 WLR 381, also reported at 1 AC 568. At page 390H, it is said that the judge should:

"... treat the decision of the ... magistrate with the greatest respect and regard their jurisdiction as one to be exercised with great circumspection [that is the jurisdiction to act under the proviso]. There have to be exceptional circumstances to warrant prosecuting a defendant after it has been found in committal proceedings that there is no case to answer: see the judgment of Ackner LJ in Reg v Horsham Justices, ex parte Reeves [1980] 75 Crim App R 236."

24. Accepting that approach, counsel submits to us that this was not such a case. We, too, accept that approach but differ from counsel in relation to his submission.
25. The only basis upon which, as it seems to us, the Magistrates' Court at the committal hearing can have come to the decision they did was by looking at each of the incidents entirely separately and in isolation from any other and in concluding on that basis that there was no sufficient case to justify committal in respect of the second incident. The approach of the magistrates is not one expressed in any reasons and the appellant and the Crown did not appear before them. But, as we have said, we find it very difficult to see how the magistrates could have reached their decision on any other approach.
26. That approach was wrong in law and, furthermore, it led to a situation which in our judgment would have been an affront to common sense if the matter had been pursued on that basis. The jury would have been faced with a course of events which were closely connected and which would inevitably have gone before the jury in their entirety. The jury would have been told that the charges before them related only to the first and third fires and that there was no suggestion that the defendant was responsible for the second fire when common sense would suggest a need to investigate the matter overall.
27. From the outset, the Crown would have had one hand behind its back. The situation would, in our judgment, have been entirely artificial. Matters of motive would have had to have been investigated in relation to each of the two fires before the jury, but at every stage the defence would have been able to say that there was no suggestion that the second fire was the appellant's responsibility and therefore somebody else must have had an equally good motive to start at least the third fire.
28. As we say, that would have been extremely artificial. In our judgment, the artificiality arose because the magistrates cannot have looked at the matter overall as they should have done. The position in relation to a series of offences is that it is entirely admissible and appropriate to look at the overall picture and to ask whether the relationship between a series of occurences is so inconsistent with any coincidence or accidental explanation that they must represent a series of deliberately committed offences.
29. The May 1999 direction on similar facts in the Crown Court Bench Book puts matter as follows in its standard direction:

"If you are sure that the events to which the witnesses have testified took place, you must look at the whole of this evidence and ask yourselves: is the relationship between the circumstances of these offences/occurrences (e.g. in time, place [and other respects], highlighting any particular unusual characteristics) so close that you are sure that they must be a series of similar offences committed by the same person?"

30. It goes on with further directions, for example:

"If that is so, looking at the case against this defendant is it possible that he had can have an innocent explanation for the fact that ..."

31. It then gives examples. In the present case one might say:

"for the fact that all three fires occurred in the way they occurred and at the place and time they occurred successively between 10th and 15th March 1999, or is the only reasonable explanation that such fires occurred in the way and with the mental state charged by the Crown."

32. The final standard direction is:

"If, but only if, you are sure that there is no credible innocent explanation you may take the whole of this evidence into account in deciding whether you are sure that [the defendant committed the offences charged in the way and with the intent with the mental state charged by the Crown]."

33. Those directions demonstrate the appropriateness of looking at the overall picture, and show that it is wrong to suggest that each offence must be separately analysed, or indeed that the jury must be satisfied as to the commission of any one offence looked at in isolation before it can take into account similar fact evidence in considering any other charge. The magistrates cannot have approached the matter on the right basis. It would have been quite wrong for the matter to proceed on the basis on which it was committed by the magistrates. The circumstances were, in our judgment, carefully and appropriately considered by the Recorder and they were exceptional in the sense of justifying his acting under the proviso.
34. For those reasons, the appeal on the ground for which leave was given fails.
35. We turn to the renewed applications for leave to appeal. The first we think – and as counsel, we understood, accepted – is really covered by the ruling we have already given on the appeal. The Recorder was not wrong to admit similar fact evidence. On the contrary, this case was as clear a case as one can envisage for the admission of similar fact evidence. We think it was admissible at every stage of the inquiry: as to whether the first fire was started deliberately or recklessly rather than accidentally; as to whether the appellant was responsible for starting the second fire and with what mental state; and as to whether the appellant started the third fire and again with what mental state. Under the decision in DPP v P [1991] 93 CAR 267, it is said that there should be some signature or hallmark before similar fact evidence can be admitted. What is in fact stated at page 280 is this:

"When a question of the kind raised in this case arises I consider that the judge must first decide whether there is material upon which the jury would be entitled to conclude that the evidence of one victim, about what occurred to that victim, is so related to the evidence given by another victim, about what happened to that other victim, that the evidence of the first victim provides strong enough support for the evidence of the second victim to make it just to admit it notwithstanding the prejudicial effect of admitting the evidence."

36. That was a case where the similarity depended upon a victim's evidence. Here, of course, the evidence about the other fires did not depend upon the victim's evidence in the same sense. It was largely unchallenged evidence of facts and circumstances. Lord MacKay went on in P:

"This relationship from which support is be derived, may take many forms and while these forms may include 'striking similarity' in the manner in which the crime is committed, consisting of unusual characteristics in its execution the necessary relationship is by no means confined to such circumstances. Relationships in time and circumstances other than these may well be important relationships in this connection. Where the identity of the perpetrator is in issue, and evidence of this kind is important in that connection, obviously something in nature of what has been called in the course of argument a signature or other special feature will be necessary. To transpose this requirement to other situations where the question is whether a crime has been committed, rather than who did commit it, is to impose an unnecessary and improper restriction upon the application of the principle."

37. We accept that to a large extent – certainly in relation to the second and third fires – the issue in the present case is as to the identity of the perpetrator. As to the first fire, of course, it is not so much as to identity but as to whether any crime had been committed.
38. Nonetheless, the words "other special feature" in our judgment amply cover the circumstances of the present case. We have identified the features of place, timing, motive, knowledge, presence and statements and they amply satisfy that test.
39. We turn to the directions which the judge gave and which constitute the ground of the second renewed application. At page 15, after directing the jury to give separate consideration to each charge, he said this:

"Now that does not mean, because clearly the evidence on each charge is not watertight, that does not mean that you ignore the evidence on other charges when considering any particular charge, but it does mean that you have to consider what facts are actually put in issue by the charge which you are considering and you look at those facts and you let the evidence affect you as you think it should. There may in fact be matters in common between the charges – there are clearly matters in common – and if they show you a pattern or whatever, then, members of the jury, obviously the pattern is part of the evidence which you consider in all the charges with it affects, and if you come to a particular conclusion about one incident, either because it is not in dispute or because you are satisfied of the evidence which specifically relates to it, and if that helps you, members of the jury, to decide another matter well then, members of the jury, that is all part of the jury's process of finding facts.

I have to address you particularly, members of the jury, about what lawyers call evidence of similar facts, because all these fires have a certain amount in common – depending on the facts you find it may be more, it may be less – and the evidence by which the prosecution seeks to prove that each of these three fires is the work of the defendant is different."

40. Then he went through the facts. He pointed out that the second fire was said to have had characteristics which showed it to be part of a series and the prosecution say that the series as a whole can be put down to the defendant. He pointed out the link between the appellant and the first fire (which was acknowledged) and also the link between the appellant and the third fire. He pointed out the common features which we have already identified: the place, timing, motive, knowledge, and presence at or around the time of the fire. He then said:

"Those are the common features, members of the jury, and they [that is the Crown] rely on these matters to show three things: that it was indeed the defendant whom Mrs Keith saw entering and leaving the house shortly before the fire became apparent on the 15th [March]; that it was the defendant who started the fire of the magazine, the carpet and the curtains inside the lounge window on 11th March; and in a different way, members of the jury, going not to the act but to the state of mind, that the first fire is no mistake, no coincidence, members of the jury, no accident, that as there was a pattern in the fires so there was a continuing intention to start them in the mind of the defendant. And so they say, through Mr Stevenson, that the only reasonable conclusion is that all three fires were started by the same person and that that person must have been at least reckless about causing damage in the first fire."

41. It seems to us that that direction covered the position in law very thoroughly and appropriately. Much of the challenge which has been mounted before us was to the proposition that one could look at the matter generally. It was suggested that one should look at a particular offence first and only invoke similar fact evidence once one was satisfied so as to be sure of guilt on at least one particular offence.
42. We have indicated our disagreement. It seems to us that the Recorder's direction there was wholly appropriate. It was not in the same words as the standard direction but it was to the same effect in relation to the first part of that direction. No criticism is made as to other aspects covered by later parts of the direction.
43. However, in what follows in the summing up, it is suggested that the Recorder put the matter somewhat differently and there is some force in the suggestion. What the Recorder said was this:

"And in considering whether a charge relating to one fire is supported by evidence relating to one or both of the others you have to consider these questions, members of the jury, and in this order: first of all, are you sure that the defendant was responsible for causing at least one these fires? The prosecution say the first is not denied, it is started by him. Secondly, if you are sure of that, are you sure that the common or connecting circumstances relied on by the prosecution are in fact proved? Are you satisfied of them so that you are sure? Well obviously, members of the jury, matters of time and place are not in dispute, nor is the general outline of the family differences. And you should ignore any allegation of a connecting circumstance of which you are not satisfied before you go on to the third question, and that has two limbs, members of the jury. The first is this, are you sure that there is so much in common between the fires which you are sure the defendant lit and those where otherwise you are in doubt of his starting them, that you are sure that those others must have been started by the defendant. That you can rule out any other cause, whether accident or some other person.

Secondly, members of the jury, are you sure that there is so much in common, such a close connection, between all the fires which you are sure he started, that he must have been at least reckless as to damaging property in both or all of them, and that you can rule out any suggestion of coincidence as being an affront to your common sense."

44. It is not clear from the summing up what the relationship of that direction was to the previous direction which we have already approved. By itself, that direction might be read as suggesting a need to be sure about one fire before similar fact evidence could be invoked in relation to any other fire. On the other hand, it may have been intended as an alternative approach if the jury was sure about one fire. The difficulty is that the fire which the Recorder chose to illustrate the proposition was the first fire which the Recorder pointed out was admittedly started by the appellant. The difficulty about starting from that premise is, however, that he did not admit starting it deliberately. There is a potential element of circularity in arguing from the proposition that because he started an accidental fire therefore he must have started other fires which were deliberate, and therefore the first fire must itself have been deliberate. That is a criticism which counsel vigorously pursues before us in his written material and oral submissions.
45. The matter goes somewhat further, however, because after a time the jury returned with a question which showed that they were focusing on this area. The question was:

"Can we base our decision on: 1. pattern of events, 2. circumstantial evidence, 3. commonsense/logic; or a combination of all three on count 4?"

46. That is the count relating to the second fire on which they convicted.
47. After discussion with counsel in the usual way, the Recorder answered that:

"The note asks whether you can base your decision in respect of Count 4 on the pattern of events, circumstantial evidence, commonsense and logic, or a combination of all three, and the answer to that, members of the jury, is that on all the counts you have to consider you base your decision on the evidence which you accept. You consider all the evidence and you base your decision on the evidence which you accept, and that includes the pattern of events, or it may include the pattern of events, and circumstantial evidence, you should very definitely apply commonsense and logic to this count and indeed to all counts which you decide; that is what you are there for. I hope that is of assistance."

48. It seems to us that that was a correct and adequate answer to the jury's question. It clarified the position in the sense of the first direction in the body of the summing up which we have approved. It did not repeat any fallacy in the second direction. It corresponded, as the Recorder indicated, not merely with the law but with common sense.
49. In those circumstances, whatever criticism might have been made of the summing up had that question not been asked and answered, we think it was overall fair and not open to the criticisms which counsel directs at it.
50. Another criticism which counsel has directed at the judge's summing up is that based on the decision of this court in R v Musquera [1999] CLR 857 that in cases where the similar fact evidence is in any way of doubtful nature or significance, the judge should give a warning that similar evidence should not be relied upon by the jury as showing propensity. Mere propensity is of no relevance.
51. It seems to us that the present case was in no way a doubtful case. The significance of the evidence was obvious. There was no danger that the jury would have treated the evidence as going merely to matters of propensity. It was explained to them in clear terms to what it went, namely whether there were such common features in the series of occurrences that they can really not have been committed except by one person with the same state of mind. In our judgment, that criticism, therefore, is of no weight.
52. In these circumstances, we consider that the single judge was correct to refuse leave to appeal in respect of the two applications which have been pursued before us. It follows that both the appeal and the those applications fail.
53. We add only this, that looking at the factual circumstances as a whole, we have no doubt about the safety of this conviction, whatever points may be made on the precise wording of the body of the direction given in respect of similar fact evidence.
54. We turn now to the application for an extension of time in which to renew an application for leave to appeal against sentence in respect of the three offences of arson being reckless as to whether life would be endangered which we have just dealt with as regards conviction.
55. The sentence passed by the judge below on 9th November 1999 was one of six years' detention in a Young Offender Institution on each count concurrent. It is important to mention at the outset that that was a difficult sentencing exercise made after a period during which the applicant was the subject of an interim hospital order.
56. A Dr Bradley wrote a very comprehensive report on 4th October 1999 which was in extremely clear terms and which recounted a dilemma. She was uncertain as to the mental state of Mr B., the applicant, and as to the proper diagnosis. After considerable hesitation, she rejected the strong possibility that this was a case for an hospital order and concluded on the balance of likelihood on the evidence then available that the psychotic episodes from which this applicant undoubtedly suffered were induced by the use of illicit substances. She said, however, very specifically that it was possible that this diagnosis may need to be revised in the future to one of schizophrenia, i.e. a chronic enduring mental illness. That is why she made no recommendation to the court for a medical disposal but it was, we very much emphasise, on a narrow balance.
57. We now have had the benefit of further medical reports and are aware of further developments, in particular a breakdown (as we may loosely call it) of the applicant following his sentence which led to him being hospitalised.
58. Both Dr Bradley and Dr Burnley, whose evidence we have heard today, have given reports which in their effect reverse the conclusions previously provisionally reached by Dr Bradley. The conclusion now is that at all times relevant to this case, in particular at the time of being sentenced, this applicant has suffered from schizophrenia; a severe form of mental illness demonstrated by acute episodes of the illness characterised by hearing hallucinatory voices, having strange beliefs and disordered thoughts, and by disordered behaviour. The condition may have deteriorated over time but it existed before and after his being sentenced in November 1999.
59. It is evidenced not merely by the fires of March 1999 and his conduct then, which Dr Burnley has explained to us may well have to some degree been based on misidentification of his family. It is evidenced by aggression in relation to his father with a penknife and an allegation – which the information in Dr Burnley's possession suggests occurred – that he was involved in a confrontation with a neighbour with a garden fork. Above all it is evidenced by the nature of his condition which we have described and the nature of his disorder.
60. Basing ourselves on this new information we have no doubt as to the course which the judge below would have taken on 8th November 1999 had he known the true facts. They existed but at that stage they were uncertain. It has now been possible to determine what they were.
61. The application comes before us as an application for leave to appeal against sentence, initially pursued on ground that the sentence of six years concurrent on each offence was too long. In the light of these reports, it has been amended to an application for an entirely different form of sentencing.
62. We can see no possibility of disposing of this matter by simple consideration of the appropriateness of a length of sentence of six years. It seems to us that the information now demonstrates that any sentence of imprisonment was inappropriate all along. The judge is in no way at fault. No-one had the full picture but, as we have said, the full picture now before us is clear.
63. It seems to us that this is a case where we must consider the alternative means of disposal available under the Mental Health Act section 37. We have the written evidence of Dr Bradley and we have the written and oral evidence of Dr Burnley (both medical practitioners) that this applicant is suffering from mental illness. We are satisfied by that evidence that the mental disorder from which he is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for treatment.
64. We are of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of this applicant, that the most suitable means of dealing with him is by means of a hospital order. We are satisfied that medical treatment is likely to alleviate or prevent a deterioration of his condition and that there is a considerable risk of it worsening if he is not in hospital subject to such treatment.
65. He is in hospital at the moment and has been since his breakdown, so we are satisfied that arrangements are in place for his admission to hospital now, since he is there and will remain there. The hospital in question is the Ravenswood House Medium Secure Unit, Knowle, Fareham, Hampshire, where Dr Burnley works. He and Dr Bradley agree on the diagnosis in all material respects. That therefore is the order which we should make under section 37.
66. The other aspect of the matter is whether there should be a restriction order under section 41 in conjunction with that hospital order. Having heard the oral evidence of Dr Burnley, we are satisfied (having regard again to the nature of the offence) from the applicant's antecedents and the risk of his committing further offences if at large which Dr Burnley has covered that it is necessary for the protection of the public from serious harm to make the restriction order.
67. We are also satisfied that the restriction order should be without limit of time. On the evidence of Dr Burnley there is no specified period which could sensibly be set. We are quite satisfied that the restriction order is necessary because, as we have said, he is likely to commit further offences which could involve a risk of serious harm to the public if one were not made.
68. In those circumstances we have no hesitation in giving leave to pursue this application out of time and we treat the matter as the hearing of the appeal and deal with it in the manner which we have indicated by making a hospital order under section 37 and a restriction order without limit of time under section 41 of the Mental Health Act 1983.