Takhar, R. v

A conviction for arson with intent to endanger life is unsafe where the evidence does not permit a jury properly to be sure that the defendant intended to endanger another’s life. A direction allowing the jury to infer a fact unsupported by the evidence may itself render the conviction unsafe.

Substitution of a conviction for an alternative offence is inappropriate unless the appellate court can be sure that the jury would inevitably have convicted of it. Where a live factual issue bears on recklessness, that certainty may be absent.

The appellant was convicted at the Crown Court at Kingston upon Thames of arson and arson with intent to endanger life. The latter count arose after aggravated-arson counts were added on the first day of the trial. The jury was discharged from returning a verdict on the alternative count of arson being reckless as to whether life would be endangered.

He admitted setting fire to his own car outside his estranged wife’s home. The prosecution alleged that he intended thereby to endanger his wife, daughter or a bystander. His case was that he intended only to kill himself. He appealed, with leave, against the conviction for arson with intent to endanger life.

1. The appeal was allowed in part. The court quashed the conviction for arson with intent to endanger life. It dismissed the appeal against the conviction for arson.

2. The jury had been directed that it could conclude that the appellant was outside the vehicle when he set it alight, based on the location of burn marks on his jacket. The court held that the jury could not properly be sure of that fact. The position of the marks depended on the appellant’s orientation as the fire developed. That erroneous direction was, by itself, sufficient to make the conviction on count 2 unsafe.

3. There was also no evidence from which a jury could properly infer an intention to endanger the life of the appellant’s wife, daughter or a bystander. The burning vehicle was some seven or eight metres from the house, another car stood between it and the house, and the house was undamaged. The court therefore considered that there was no case to answer on count 2.

4. The court declined to substitute a conviction for the alternative reckless aggravated-arson count. It could not be sure that the jury would inevitably have found recklessness, particularly because the appellant’s position when the vehicle was ignited remained material.

5. The sentence on count 1 was left undisturbed. The court also quashed the requirement that the appellant pass an extended driving test, while leaving the two-year driving disqualification in place. A defendant’s costs order was made, subject to assessment.

• Court of Appeal (Criminal Division): Allowed the appeal against the conviction for arson with intent to endanger life, quashed that conviction, and declined to substitute the alternative reckless aggravated-arson count.
• Crown Court at Kingston upon Thames: On 24 September 2008, convicted the appellant of arson and arson with intent to endanger life. On 22 October 2008, imposed six years’ imprisonment for the latter offence and one year for arson.