Drayton, R. v

Criminal Damage Act 1971, section 1(3), requires an allegation of damage by fire to be charged as arson in substance. It does not require a magistrates’ court charge to use the technical word arson.

A charge which clearly alleges damage by fire gives the defendant the necessary notice that the enhanced sentencing regime for arson may apply. In the magistrates’ court context, damage by fire and arson are synonymous. A charge in ordinary language which identifies damage by fire is therefore valid, even though it does not use the word arson.

The applicant pleaded guilty to burglary in the Crown Court and to causing criminal damage by fire in the magistrates’ court. He was committed to the Crown Court for sentence on the latter offence.

On 30 November 2004, the Crown Court at Plymouth imposed 12 months’ imprisonment for burglary and two years’ imprisonment for the fire damage, to run consecutively because the latter offence was committed while the applicant was on bail.

His application for leave to appeal against sentence was referred to the full court because the charge alleged damage by fire but did not use the word arson. The central issue was whether that omission invalidated the charge and committal under section 1(3) of the Criminal Damage Act 1971.

1. The application for leave to appeal against sentence was refused. The individual sentences and their consecutive operation were within the proper sentencing range. There was no substantive sentencing complaint.

2. Section 1(3) of the Criminal Damage Act 1971 requires damage by fire to be charged as arson. Its mandatory substance is that the accused must know that damage by fire, rather than damage by another means, is alleged. That matters because section 1(4) provides a different and potentially more severe penalty regime.

3. In a magistrates’ court charge, alleging damage by fire is sufficient to charge arson. The expressions are synonymous. The statutory requirement does not make use of the word arson mandatory where the charge otherwise clearly identifies damage by fire and gives adequate notice of the allegation.

4. Booth [1999] Crim LR 144 was distinguishable. It concerned an indictment alleging conspiracy to incite criminal damage, where the particulars did not specifically identify arson despite encompassing damage by fire. Here there was one clearly particularised offence of damage by fire, to which the applicant knowingly pleaded guilty.

5. Rule 100 of the Magistrates’ Courts Rules 1981 supported the adequacy of the ordinary-language charge. In any event, section 123 of the Magistrates Courts Act 1980 would have permitted amendment had a defect been raised before the justices and the applicant had not been misled. The court nevertheless suggested that charging practice should be reconsidered so that the word arson is ordinarily used.

• Court of Appeal (Criminal Division) Application for leave to appeal against sentence refused.
• Crown Court at Plymouth On 30 November 2004, the applicant received 12 months’ imprisonment for burglary and two years’ imprisonment for damage by fire, to run consecutively.
• Magistrates’ Court The applicant pleaded guilty to the charge of damage by fire and was committed to the Crown Court for sentence.