Kelleher, R v

LORD JUSTICE MANTELL: The Court as presently constituted heard this appeal on 3rd September. That was, of course, during the long vacation. It was indicated then that judgment would be reserved to be handed down at a later date. In fact the judgment in draft was sent out to counsel on 17th October. It was indicated that it was due to be handed down formally on 23rd October.

In the meantime the Court came to appreciate that there might be a point which needed to be argued which had not been argued on the first occasion, namely, having regard to the conclusions reached by this Court, whether it could still be said that the conviction was safe. Accordingly, the Court took the slightly unusual step of informing counsel then appearing for the appellant that it would be prepared to entertain further argument on a date convenient to herself, that date being today, with argument being limited, of course, to the one matter.

It appears, though we will hear explanation in a moment or two no doubt, that in the meantime the appellant has dispensed with the services of leading counsel. So it would appear that he is here today to represent himself.

THE CASE LAWYER: I am Dr Paul Burns, the case lawyer. I am actually the case lawyer.

LORD JUSTICE MANTELL: I am so sorry. Mr Kelleher is not here today?

MR LADENBURG: No, my Lord.

LORD JUSTICE MANTELL: That is most unfortunate. We are confident, are we, that he was given due notice of this hearing?

THE CASE LAWYER: Certainly he was aware of the hearing date because he had actually been in discussion with his legal representatives and had actually seen them and he was aware that this was the date.

LORD JUSTICE MANTELL: Well, it is doubly unfortunate then that he should no longer, so it appears, be represented, or present. I think the Court will adjourn for, perhaps, ten minutes or so to allow him a further opportunity to make an appearance. (Pause). The Court has been informed, and perhaps this ought to go on the transcript, that someone who knows Mr Kelleher is outside the Court and his understanding is that Mr Kelleher is intending to attend. We will rise for a little while.

LORD JUSTICE MANTELL: Before you arrived, Mr Kelleher, I was explaining that the hearing of this appeal took place on 3rd September.

THE APPELLANT: Yes, my Lord.

LORD JUSTICE MANTELL: It was then indicated that the judgment would be reserved to be handed down later. The draft judgment was sent out to counsel on 17th October, just over a fortnight, after the start of term, and it was due to be handed down on 23rd October.

In the meantime the Court appreciated that in the light of its decision, as indicated in that draft judgment, it may be that counsel then appearing for you would wish to have an opportunity to argue, or submit that, notwithstanding the provisional judgment arrived at, it would not be safe to uphold the conviction. Accordingly, I took the unusual step of speaking to your leading counsel, then acting on your before, and said that we would be prepared to hear further argument in respect of that point, and that point alone, and today was set aside for the further hearing. Our understanding, which you will be able to confirm or not as the case may be, is that in the meantime you have dispensed with the services of counsel?

THE APPELLANT: My Lord, I am left with no real alternatives. As these matters were pressed, I was pressed into a corner where my life is completely unsustainable.

LORD JUSTICE MANTELL: As to whether that was a wise decision or not we express no opinion, but we are now giving you, in place of your counsel, the opportunity to make some submissions, if you think fit, as to that one point and that one point. Do you wish to make any?

THE APPELLANT: Yes, my Lord. ...

LORD JUSTICE MANTELL: In this appeal the Court is invited to examine, once again, the breadth of the defence of "lawful excuse" to a charge of criminal damage. We say "once again" because the question has previously been considered by this court in R v Hunt (1978) 66 Cr App R 105, R v Ashford and Smith (1988) Crim LR 682 and R v Hill and Hall 89 Cr App R 74. The Court is also asked to consider in what circumstances, if any, a judge is entitled to direct a verdict of guilty.

It comes about in this way. Paul Kelleher has strong and sincerely felt concerns about certain policies of the United States, the United Kingdom and other western countries which, he foresees, are leading the world towards its eventual destruction. He is particularly troubled about the future of his infant son and others in like circumstances. Among his bugbears are the prevailing materialistic values and the influence which major corporations seem to be able to exercise over supposedly democratic governments. Baroness Thatcher is among those he holds responsible.

So it was on 3rd July 2002 he visited the Guildhall Gallery, which houses the Corporation of London art collection, armed with a cricket bat and with the intention of knocking the head off a statue of Lady Thatcher, that statue being on temporary loan from the House of Commons. The cricket bat proving ineffectual, Mr Kelleher took hold of a metal stanchion, which supported the cordon round the statue, and with that was able to achieve his purpose. We understand that the statue was damaged beyond repair and will cost £150,000 to replace.

Having done what he set out to do, Mr Kelleher calmly awaited the arrival of the police. To them he explained his philosophy and his motives. At one point he said, "I fear genuinely for the future of my son. I don't believe he has a very rosy outlook to life". He made it plain that in acting as he did he was seeking publicity for his views in the hope that, if accepted by others, they might bring about improvements in the world situation.

He was charged with criminal damage. In the first instance he stood trial at Southwark Crown Court before Aikens J and a jury. He represented himself. None of the Crown's evidence was in dispute and all of it was read. In his defence Mr Kelleher read from a prepared statement in the course of which he once again explained his philosophy and his motives. This passage occurs:

The learned judge was troubled about how to leave the matter to the jury. He raised it with prosecuting counsel. He wanted to know whether "lawful excuse" was an available defence and whether it should be left to the jury. Prosecuting counsel conceded that on a broad interpretation of the statutory provision, read in conjunction with the Human Rights Act 1998 and Article 1 of Protocol 1(1) to the Convention for the Protection of Human Rights and Fundamental Freedoms as amended, the defence was available. Aikens J summed up accordingly. The jury failed to reach a verdict and was discharged.

The retrial took place on 22nd January this year, again at Southwark Crown Court, but this time presided over by His Honour Judge Bathhurst-Norman. HHJ Bathhurst-Norman took the view that what Mr Kelleher was saying, in all material respects being no different from what he had said in the earlier trial, did not engage the statutory defence available under the Act. He so ruled and in due course directed the jury as follows:

Mr Kelleher was convicted and sentenced to a term of three months' imprisonment. He now appeals against that conviction with leave of the single judge.

The grounds relied upon are that: (i) the judge was wrong to rule as a matter of law the defence was unavailable; and (ii) , in any event, was wrong to direct the jury to return a verdict of guilty.

We take those grounds in turn. We begin by setting out the relevant statutory provisions. Section 1(1) of the Criminal Damage Act 1971 provides:

It is further provided by section 5 as follows:

In R v Hunt the appellant had been charged with setting fire to a guest room in an old people's home. He claimed that he had done so to draw attention to a defective fire alarm system. He sought to set up a statutory defence under section 5(2) by claiming to have had a lawful excuse in doing what he did. The trial judge withdrew the defence from the jury. In giving the judgment of this Court Roskill LJ, as he then was, said at page 108:

That approach was followed in Ashford and Smith where the appellants had attempted to cut the wire fence surrounding an American Air Force base to demonstrate their opposition to nuclear weapons. They were charged with possession of an article with intent to damage property. The judge ruled that the purported reason for having the articles did not fall within the definition of a lawful excuse and, therefore, no evidence to that effect could be called. A ground of appeal was that the judge erred in so ruling. Following the reasoning in Hunt the Court held that whether or not an act was done or made in order to protect property belonging to another must be, on the true construction of the statute, an objective test and the judge had ruled correctly.

In a trenchant criticism of the decision Professor Sir John Smith in his commentary to the report beginning at page 683 suggested:

Nevertheless, the passage from Roskill LJ's judgment was cited with approval by the Court in R v Hill and Hall. That was another case where the applicants, for such they were, were separately tried on an indictment charging possession of an article with intent to damage property contrary to section 3 of the Criminal Damage Act 1971. In each case the article in question was a hacksaw blade and it was the prosecution case that each of the applicants intended to use one to cut part of the perimeter fence of a United States Naval Facility. The defence in each case was one of lawful excuse. It was put forward that the actions were aimed at forcing the United Kingdom to abandon nuclear weapons; thereby saving their own property and that of their neighbours from destruction.

The trial judge in each case had directed the jury to convict on the basis, first, that the causative relationship between the acts and the alleged protection was so tenuous and nebulous the acts could not, objectively, have amounted to protection. On applications to appeal against conviction it was contended that the test was a subjective one and that it should have been left to the jury as a question of fact as to what in each case the applicant believed. A further point was taken that the judge had been wrong to direct the jury to convict. That second ground is a matter to which we shall have to return.

Having stated that the decision in Hunt was correctly decided and, in any event, binding upon the Court, Lord Lane, Chief Justice, giving the judgment of the Court, went on to say:

We, too, are bound by the decisions in Hunt, Ashford and Smith and Hill and Hall. If it were necessary to do so we would also agree with the construction of the section adopted by this Court in those cases. Of course, Professor Sir John Smith is right to say that the words "in order to" involve a consideration of a defendant's state of mind, but what a judge has to decide is whether the defence of lawful excuse is raised on the evidence. In other words, does the declared or stated purpose engage the subsection?

In our view the trial judge was right to conclude that the appellant's stated purpose in damaging the statue did not raise the defence of lawful excuse for the jury's consideration. If we have any criticism at all of his direction it is simply that it fails to make reference to property belonging to "another" or a right or interest in property which he believed to be vested in "another". It seems to us, however, that on the evidence of the appellant himself the defence was unavailable whether by reference to his own property or right or interest, or that of anyone else. Accordingly, we would hold that the judge was entitled, and indeed correct, to withdraw the defence from the jury.

But was he entitled and correct to direct the jury as he did? So long as a defendant remains in the charge of the jury he or she can only be acquitted or convicted by the verdict of the jury. If authority is required for that trite proposition see R v Heyes [1951] 1 KB at 29. Where, as not uncommonly happens, a defendant having put himself upon his country (ponit se super patriam) wishes to change his plea to one of guilty, then, with leave of the judge, the indictment may be put again and a new plea entered in the presence of the jury, following which the jury may be invited to return a verdict there and then. An alternative, sometimes employed, might be to discharge the jury and allow the defendant to be re-arraigned. That, however, leaves open the possibility of abuse by a manipulative defendant. Even where there has been a change of plea from not guilty to guilty to a count on the indictment and that has occurred in the presence of the jury it is not the usual practice (query whether it could ever be the correct practice) for the judge to direct a verdict of guilty. He or she will usually invite someone to act as foreman, explain what has happened, say that what they have listened to may seem to them to be the strongest possible evidence of guilt, invite consultation without retirement and then to take a verdict which invariably will be one of guilty.

To that extent the practice differs from that adopted following a ruling of "no case". There the judge will direct an acquittal and the verdict is returned "by direction of the judge". The distinction was underlined in the well-known case of DPP v Stonehouse (1977) 65 Cr App R 192, [1978] AC 55 and particularly in the speech of Lord Salmon at pages 219 and pages 79-80 respectively:

The majority decision in that case was to the effect that there can never be circumstances in which it would be right for a judge to direct a conviction in terms. To continue the quotation from Lord Salmon's speech:

R v Stonehouse was followed and applied by this Court in R v Gent (1989) 89 Cr App R 247. In that case Lloyd LJ, as he then was, giving the judgment of the Court said.

Clearly the Court was suggesting that the opportunity to change plea, not any re-arraignment, should be in the absence of the jury. The usual practice was and remains that any change of plea should be tendered in the face of the jury who would then be in a position to act upon it in the manner previously indicated.

Interestingly, Gent was decided the year following the decision of this Court in Hill and Hall. Hill and Hall does not appear to have been cited in argument and certainly is not referred to in the judgment. In each of the cases of Hill and Hall the judge had in effect directed a verdict of guilty. The Court referred to the case of Stonehouse and to the passages which we have recited at an earlier place in this judgment, making the distinction between a direction to convict based on the Crown's affirmative case and the withdrawal of a defence which was unsupported by evidence. This is what was said by the Lord Chief Justice at page 81:

The Court then went on to say that there was no other issue and in that case the judge had been entitled to direct a verdict of guilty. For our part we can quite see the distinction between a ruling that a defendant has not satisfied the evidential burden necessary to raise a particular defence which may lead, quite properly, to the issue being removed from the jury's consideration, but, as it seems to us, in every case it will be necessary for the prosecution to establish an affirmative case. So even though it may be ruled, quite correctly, that the defence of lawful excuse is not available, it is still for the Crown to prove to the satisfaction of the jury that the offence of criminal damage has been committed. It matters not that the evidence is overwhelming, or even that by his evidence the appellant has seemingly admitted all the constituents of the offence; it remains for the jury to return its own voluntary verdict. For that reason and in this one respect we consider that the Court in Hill and Hall was in error.

How does that affect the present appeal? This was not a case where the judge directed the jury in terms to convict. The jury was invited to retire, which they did, and in due course returned a verdict of guilty. It is the case, however, that the passage from the summing up already quoted includes the following:

Now whilst it is true that any other verdict might be regarded as perverse, and the judge would certainly have been entitled to say "you may think that there can only be one verdict in this case and that is one of guilty", it can hardly be denied that the words used could be taken as a direction to convict. We can well understand having read Hill and Hall how this conscientious judge came to express himself as he did and we certainly do not criticise his withdrawal of the defence of "lawful excuse". But in our view the general issue of guilt or innocence should have been left to the jury and the words used crossed the line which separates forceful comment from a direction to convict.

One question remains. Was this conviction safe? The evidence was truly overwhelming. The appellant admitted the constituents of the offence. There was no defence available to him. Following a proper direction a verdict of guilty was or should have been inevitable. However, there is a difficulty. As was noted in R v Davis & Others (2001) 1 Cr App R 115 at 130 and following, there relying upon what was said in Hickey & Others CA July 30 1997, this Court is not concerned with the guilt or innocence of the appellant, but only with the safety of the conviction. As was said by Roch LJ giving the judgment of the court in Hickey & Others:

As has already been noticed, so long as the defendant remains in charge of the jury only the jury can return a verdict of guilty or not guilty. Where there has been a direction to convict, therefore, can it be said that the verdict returned is the voluntary and therefore the true verdict of the jury and, further, if not, in such a case can it be said that there has been a conviction, let alone a safe conviction?

In R v Stonehouse the complaint had been that the trial judge had failed to leave to the jury one of the constituents of an attempt. It was held that he had directed them to find that constituent proved. Nevertheless the Court was invited to apply the proviso to section 2(1) of the Criminal Appeal Act 1968. Among the majority Lord Salmon said this (65 Cr App R at 219; (1978) AC at 79 respectively):

Lord Edmund Davis (pages 227 and 89 respectively) stated:

Lord Keith, also being of the "majority" and having agreed that it was never appropriate to give a direction to convict (pages 232 and 94 respectively), continued:

It is clear that in R v Gent, the Court saw no difficulty in principle in applying the proviso although it was unpersuaded to do so having regard to the state of the evidence.

We do not think that the approach has been changed significantly by the amendment to section 2(1) which requires the Court to allow an appeal where, for whatever reason, the conviction is considered unsafe. In Davis and Others the Court, having reviewed a number of authorities, attempted to extract certain principles. These appear at pages 131 and 132 of the judgment:

Applying that test and following the powerful precedent provided by the House of Lords in R v Stonehouse and notwithstanding the logical difficulty to which we have referred, we conclude that the conviction of Mr Kelleher is to be regarded as "safe". Accordingly his appeal against conviction must be dismissed.

LORD JUSTICE MANTELL: Thank you both for attending.

THE APPELLANT: My Lord, may I have a few moments of the Court's time for section 12(4) of the Human Rights Act, freedom of expression, and 13(1), freedom of thought, conscience and religion, please?

LORD JUSTICE MANTELL: Have you got an application to make, Mr Kelleher?

THE APPELLANT: Yes, my Lord.

LORD JUSTICE MANTELL: What is it?

THE APPELLANT: The application is that we now have to move this forward.

LORD JUSTICE MANTELL: We have what?

THE APPELLANT: To move this forward, my Lord. I suppose the most direct route would be the House of Lords next and then to the European Court of Human Rights. I am finding it very difficult to accept --

LORD JUSTICE MANTELL: I think -- someone will help me I am sure -- I think you have got 14 days in which to prepare a question which you consider suitable for consideration by the House of Lords and then you can come back to this Court and ask, first of all, for us to certify that question as being of general public importance, and, secondly, to ask for leave to appeal to the House of Lords. If we certify it as being of general public importance and refuse leave, you can then seek leave from the House of Lords itself, Mr Kelleher. Now, it is really very important that you try to get a question drafted in the sort of form which the Court considers sensible. You have --

THE APPELLANT: I don't consider this Court sensible, my Lord.

LORD JUSTICE MANTELL: There is no need to be rude.

THE APPELLANT: My Lord, I am not trying to be rude. I have the utmost respect for the Court. This Court has the best customer service I have ever seen in this Court, my Lord. It is beyond -- I am humbled by the customer service, but I don't mean to be rude at all, my Lord.

LORD JUSTICE MANTELL: You don't agree with the judgment, Mr Kelleher.

THE APPELLANT: Of course I don't, my Lord.

LORD JUSTICE MANTELL: That is your privilege.

THE APPELLANT: But, my Lord, it's in your opinion then that Lord Aikens was wrong?

LORD JUSTICE MANTELL: I am not answering questions, Mr Kelleher. I am advising you as to your next course.

THE APPELLANT: On 16th September 2002 in Lord Aikens' court universal law was declared. That was binding. That is effective law and it is binding now.

LORD JUSTICE MANTELL: You have heard what I said, Mr Kelleher, please be quiet for a moment. You've heard what I have said. If you want to take the matter further then you have to follow the procedure which we have indicated. Now you may think it sensible to try to get the help of Miss Humphreys who represented you in drafting a question which you think is suitable for consideration by the House of Lords.

THE APPELLANT: But the House of Lords don't understand, my Lord, that respect, trust, peace, care, family, faith, hope and happiness.

LORD JUSTICE MANTELL: Mr Kelleher, that's all I intend to say to you. The Court will rise.

THE APPELLANT: I didn't mean to offend you, my Lord.