Castle, R v

For an offence under section 1 of the Criminal Damage Act 1971, recklessness requires the defendant’s awareness of the relevant risk and an unreasonable decision, in the circumstances known to that defendant, to take it. An objective direction based on what an ordinary prudent bystander would have perceived cannot establish recklessness.

Where such a misdirection affects only the aggravating element, the Court of Appeal may use section 3 of the Criminal Appeal Act 1968 to substitute a verdict for the lesser offence if the jury’s verdict necessarily established its elements.

The appellant was convicted at the Crown Court at St Albans of arson, being reckless whether life was endangered, after a fire was started in offices he had burgled. The offices had flats above them, although the flats were unoccupied. He was sentenced to four years’ imprisonment for the arson, concurrent with an 18-month sentence for burglary.

The trial judge directed the jury using the objective test in R v Caldwell [1982] AC 341. After the trial, the House of Lords decided R v G and another [2004] AC 1034. The appeal concerned the effect of that decision on the conviction and whether a lesser verdict should be substituted.

1. Appeal allowed. The conviction for arson reckless as to whether life was endangered could not stand. The direction invited the jury to decide recklessness by reference to an ordinary prudent bystander. That objective approach was no longer appropriate following R v G and another [2004] AC 1034.

2. Recklessness under section 1 of the Criminal Damage Act 1971 required proof that the appellant was aware of the relevant risk and that, in the circumstances known to him, it was unreasonable to take that risk. His evidence that he did not know of the flats was relevant to that inquiry. The later reference to that evidence did not cure the objective direction, because it was not related to, or capable of displacing, the ordinary-prudent-bystander test. At best the directions were confusing.

3. The court declined to order a retrial. The jury’s verdict necessarily established that the appellant started the fire and intentionally damaged property. On the remaining directions, the jury would have convicted him of simple arson. Exercising its power under section 3 of the Criminal Appeal Act 1968, the court substituted a verdict of guilty of criminal damage with intent to damage property.

4. The arson sentence was reduced from four years to three and a half years’ imprisonment. Fairness required a modest reduction because the Crown had presented the reckless-endangerment allegation as the more serious offence. The court nevertheless stressed that deliberate simple arson is not necessarily less serious than an offence involving recklessness as to endangering life.

• Court of Appeal (Criminal Division): allowed the appeal against conviction in [2004] EWCA Crim 2758, substituted a conviction for intentional criminal damage, and reduced the arson sentence.

• Crown Court at St Albans: on 3 December 2003 the appellant was convicted of arson reckless as to whether life was endangered; on 9 January 2004 he received four years’ imprisonment for that offence, concurrent with 18 months for burglary.