A v Director of Public Prosecutions

For burglary with intent to cause criminal damage, the prosecution must establish the defendant’s intention to cause criminal damage when entering the building. Recklessness is not a substitute for that intention. An appellate court examines whether the magistrates’ stated reasons demonstrate, or may have conveyed, application of the wrong legal test. Where the reasons refer to recklessness in a way capable of creating genuine uncertainty about whether intention was found, the conviction cannot safely stand. The court may quash the conviction without remission where delay, the defendant’s age and the circumstances make a fresh hearing inappropriate.

An 11-year-old defendant was convicted by the Thames Division Youth Court of burglary with intent to cause unlawful damage, contrary to section 9(1)(a) of the Theft Act 1968. The justices had found that the defendants intended to remove fixed equipment and knew that removal would cause criminal damage. However, in announcing their reasons, they repeatedly referred to recklessness and stated that the defendants entered with a degree of recklessness.

The defendant appealed by way of case stated. The central issue was whether the justices’ language gave the impression that they had applied recklessness, rather than intention, as the required mental element.

1. The appeal was allowed and the conviction was quashed. The court was entitled to consider the separate issue concerning criminal damage resolved in favour of the defendant without treating that resolution as inconsistent with a burglary conviction.
2. Burglary under section 9(1)(a) of the Theft Act 1968 required proof that, at the time of entry, the defendant intended to cause criminal damage. The justices’ formal findings stated that intention, but their announced reasons first referred only to recklessness and later stated that the defendants entered with a degree of recklessness.
3. The decisive question was not whether the evidence could have supported a conviction. It was whether the reasons given by the justices might have conveyed that the wrong test had been applied. The reference to recklessness was plainly capable of causing that misunderstanding. The conviction therefore could not safely stand.
4. Evans v DPP [2001] EWHC Admin 369 was distinguishable. In that case the justices had expressly referred to weighing differences, indicating reliance on the balance of probabilities, and their later stated reasons appeared to change their earlier reasons. Those features were absent here.
5. The case was not remitted for reconsideration. Almost a year had already elapsed, a further delay would be substantial in the life of an 11-year-old, the other defendants were materially older, and there was no proper basis for doubting this defendant’s understanding of the finding made against him.

1. High Court (Administrative Court): allowed the case-stated appeal from the Thames Division Youth Court and quashed the conviction.