Willoughby, R v

THE VICE PRESIDENT: On 27th November 2003, at Maidstone Crown Court, following a trial before His Honour Judge McKinnon, this appellant was convicted by the jury of reckless arson, contrary to sections 1(2) and (3) of the Criminal Damage Act 1971, and manslaughter. On 7th April 2004 he was sentenced to 7 years' imprisonment for arson and 12 years concurrently for manslaughter, that is to say the total sentence was one of 12 years' imprisonment. He appeals against conviction by leave of the Single Judge limited to the judge's direction in relation to manslaughter.

For present purposes the facts can be quite shortly stated. The appellant was the owner of The Old Locomotive, a disused Victorian public house in Canterbury. On 18th August 2002, a little before 9.30 in the evening, the premises were destroyed by fire and an explosion. It was the Crown case that the appellant had recruited a man called Derek Drury (known as 'Bindy') who was a local taxi driver, to help him set fire to the building. Derek Drury was the man of whose manslaughter the appellant was convicted.

The two, according to the Crown, went to the premises to set fire to it, using petrol as an accelerant. In the explosion which followed the ignition the premises collapsed, killing Mr Drury and injuring the appellant, who was found outside the premises in a state of shock.

The expert evidence before the jury was to this effect:

The appellant, who was of good character, denied the offence. He claimed, in the evidence which he gave before the jury, to have gone there with Mr Drury because they thought there were or might be squatters in the building, though none were actually found on the evening of the conflagration. Mr Drury, according to the appellant, had stayed on the premises while the appellant went to get a torch in order to explore the cellar. The fatal explosion took place while he was in the process of returning to the building.

The issue for the jury was whether or not the appellant was party to this conflagration and, in consequence, criminally responsible for Mr Drury's death. There was evidence that, on the afternoon before the fire Mr Drury had had a £50 note in his possession, was the sort of notes someone which to whom he owed money at the time had never previously seen in Mr Drury's possession.

In the early hours, following the fire, police recovered from the boot of the deceased's car a red petrol can and a torch. They also found another torch leaving the appellant's fingerprints at the entrance to the nearby car park.

In the course of giving evidence, the appellant said he had never poured petrol and had no reason to do so; any petrol was attributable to squatters. He also referred to having smelt gas on occasions at the premises, though he had not detected such a smell on 18th August.

The learned judge summed up the matter in relation to gross negligence in a manner which Mr Barraclough QC, appearing now, as at trial, for the appellant, described as classically appropriate, that is to say, as appears from page 10 line 19 of the summing-up:

Mr Barraclough's submission is that the judge's direction was inadequate because it amounted to no more than that two men had set fire to the public house owned by one of them. They had spread petrol, which was a risky business, and the owner was negligent by failing to avoid risk of injury, such as is inherent in such a risky enterprise. Mr Barraclough submitted that no doubt an owner can be guilty of gross negligence manslaughter, wherever the relationship sensibly permits a duty of care to be established. The question, however, is whether an owner owes a duty, without more, to ensure the safety of a co-actor as together they lay petrol. If a duty is owed, Mr Barraclough posed the question: is it by virtue of his position as owner/occupier or commissioning agent, or is it because co-actors owed a duty to each other to ensure each other's safety when, in particular, spreading petrol? Mr Barraclough sought to distinguish R v Wacker [2003] 1 Cr App R 329 on the basis that, in that case, there was a relationship between vulnerable passengers and the driver, if the driver closed the vent ultimately causing the suffocation of those in the vehicle. Here, however, submitted Mr Barraclough, the two who undertook the operation were of equal degree. He posed the question: could it be convincingly argued that the deceased was guilty of manslaughter in the absence of a specific act by him which took them beyond the normal potential consequences of such a high risk enterprise? The difference between the present case and Wacker, submitted Mr Barraclough, is that it is possible to smuggle people safely, which was the activity concerned in Wacker, whereas, although it is possible to burn a place down safely, it is not not possible to do so by the use of petrol without there being a substantial and inevitable risk. He conceded that there can be circumstances in which one criminal owes another engaged on the same enterprise a duty of care. He gave as an example where two agree to burn down a shed which one of them, but not the other, knows contains explosives. In the present case, however, submitted Mr Barraclough, there were no special features, at any rate identified by the trial judge, to render the appellant criminally liable over and above the arson reckless as to endangering life.

Mr Barraclough took us to a number of passages in the judgment of Chief Justice Mason and the judgment of Justice Brennan in the Australia decision Garla v Preston 100 Australian Law Reports 29, a civil case in which damages were claimed. In the course of both those judgments there is a helpful analysis of principle in relation to civil activity which may give rise to criminal consequences.

As to unlawful act manslaughter, Mr Barraclough submitted that the spreading of the petrol was a lawful act and, furthermore, was no more than a merely preparatory act such as a defendant equipping himself with a knife, rope and binding tape, as in R v Geddes [1996] Crim LR 894. But Mr Barraclough conceded that, if a squatter had been killed, the appellant might be guilty of manslaughter, because the act of laying the petrol by him and by the deceased, in conjunction with the deceased's act of ignition, would create liability by way of joint enterprise.

Mr Barraclough also referred the Court to a number of cases involving the supply and injection of Class A drugs, such as R v Dalby 74 Cr App R 348, R v Dias [2002] 2 Cr App R 10 and R v Rogers [2003] 2 Cr App R 10. But, as it seems to us, there are different considerations at play in relation to those authorities, which do not assist in determining whether or not the spread of petrol, in the circumstances which we have described, was capable of being an unlawful and dangerous act.

On behalf of the Crown, Mr Hillen, who did not appear in the court below, submitted that it would have been simpler had this case been presented by the prosecution, and in due course by the judge to the jury, as unlawful act manslaughter rather than gross negligence manslaughter. But he did not concede that this could not be a case of gross negligence manslaughter. He submitted that it was for the jury to decide whether the appellant owed a duty to the deceased, whether there was a breach of that duty causing death, and whether the appellant's conduct was so gross as to require criminal penalty. All the judge had to do, submitted Mr Hillen, was to identify the factors which might have given rise to proximity in the present case, without having to go into details of proximity as a legal concept.

In that respect, submitted Mr Hillen, the relationship between the appellant and the deceased was not an equal one. The deceased was not a co-actor. The appellant was setting fire to his own premises, for financial purposes, and had engaged the deceased to assist in that process by the ignition of petrol. Mr Hillen also referred to certain passages in Wacker and to those, in a moment, we shall come.

As to unlawful and dangerous act manslaughter, Mr Hillen pointed out that the deceased was named in the indictment as a potential victim, and what here took place in the spreading by both men of petrol was much more than a merely preparatory act. Furthermore, in the light of the conviction by the jury of arson on count 1, there could be no defence to manslaughter by unlawful killing. The jury would inevitably have convicted, having once rejected the defence that the defendant was not, for the reasons which we have mentioned, responsible for the conflagration.

As it seems to us, by their verdict convicting the appellant of arson reckless as to whether life was endangered, the jury showed that they were sure, in the light of the directions which they had been given, (part of which we have already rehearsed, but also including appropriate directions as to causation), that the defendant, on his own, or jointly with the deceased, had deliberately sprayed petrol in the public house, intending that, or reckless as to whether, it be destroyed and reckless as to life. That being so, provided they were also sure that his conduct had caused the death, they were bound to convict of manslaughter.

It is, in our judgment, unfortunate that they were not directed along these lines. For, approached in this way, if the jury made the necessary findings, a straightforward case of manslaughter, death having resulted from the unlawful and dangerous act of spreading petrol pursuant to a plan to set fire to the premises, would have been apparent. As it seems to us, it was entirely unnecessary in this case to have recourse to the principles of manslaughter by gross negligence.

Before turning to consider whether the jury's verdict on the gross negligence basis is unsafe because of the terms of the summing-up, it is necessary to point out that, as a matter of law, the two categories of manslaughter, by an unlawful and dangerous act and by gross negligence, are not necessarily mutually exclusive. In some circumstances a defendant may be guilty of the offence by both routes. Two examples suffice: first, an employer travelling with an employee driver, whom he has required to deliver goods at high speed, through a built-up area, causing the death of an innocent pedestrian; secondly, a doctor who dangerously waives a scalpel (as the defendant did a R v Larkin 29 Cr App R 18), cutting the throat of a patient. Both employer and doctor could be guilty of manslaughter by both routes.

In the present case, we accept that there could not be a duty in law to look after the deceased's health and welfare arising merely from the fact that the appellant was the owner of the premises. But the fact that the appellant was the owner, that his public house was to be destroyed for his financial benefit, that he enlisted the deceased to take part in this enterprise, and that the deceased's role was to spread petrol inside were, in conjunction, factors which were capable, in law, of giving rise to a duty to the deceased on the part of the appellant. In a very different situation the lorry driver in Wacker was held to owe a duty of care to the illegal immigrants he was carrying. The civil law doctrine of ex turpi causa was held not to apply in the criminal law. In that case, counsel for the appellant had argued, as is apparent from paragraph 26 of the judgment, that:

It is convenient to say something about a conflict which there is in the present authorities as to whether the judge should decide whether a duty of care exists, or whether he should give appropriate directions to the jury, in a case where there is evidence capable of establishing a duty, so that they may determine whether a duty exists.

As it seems to us, the clear implication from the words used by Lord Mackay of Clashfern, Lord Chancellor in R v Adomako [1995] 1 AC 171, in the well-known passage at 187B to 187C, particularly the words "the jury must go on" is that existence of duty, breach causing death and judgment of criminality are all three usually matters for the jury. That is the way in which this Court interpreted that speech in R v Khan & Khan [1998] Crim LR 83 (transcript 18th March 1998) followed in R v Sinclair 148 New Law Journal 1353 (transcript 21st August 1998). In R v Singh [1999] Crim LR 582 (transcript 19th February 1999), where the court apparently approved the trial judge's direction to the jury that a duty of care was owed, neither Khan nor Sinclair appear to have been cited and Adomako is not referred to in the judgment. Archbold 2005 edition, paragraph 19 - 111 prefers the approach in Khan. A footnote in Smith & Hogan 10th ed, page 387 prefers Singh. Khan, Sinclair and Singh were all cited in Wacker. The trial judge in that case (see paragraphs 19 and 22 of the Court of Appeal's judgment) directed the jury that they had to be sure that a duty of care was owed and there is no criticism by the Court of Appeal in that case of that approach. Similarly, in Mark and Nationwide Heating Services [2004] EWCA Crim 2490, the trial judge had directed the jury (see paragraph 18 of the Court of Appeal's judgment) that they must be sure that the defendant owed a duty of care. On an application for leave to appeal, that direction attracted no criticism from highly experienced leading counsel or from the Court of Appeal, in which Scott Baker LJ presided.

We add that there may be exceptional cases, for example where a duty of care obviously exists, such as that arising between doctor and patient, or where Parliament has imposed a particular type of statutory duty, in which the judge can properly direct the jury that a duty exists. But, for the reasons which we have sought to explain, that is a question normally for the jury's determination.

In the light of the illuminating analysis of principle in Wacker, with which we respectfully agree, and the other authorities and principles to which we have referred, we can summarise our conclusions in relation to the present appeal as follows:

Accordingly, this appeal against conviction must be dismissed.

MR BARACLOUGH: Before the appellant is taken down, can I tell my Lords that an appeal against sentence was, in error, omitted from the grounds. We have been advised by the Registrar to go through the normal channels.

THE VICE PRESIDENT: It surfaced before me at a late stage last week. It had not, I think, gone before the Single Judge. We had no transcripts of sentencing remarks or antecedents or anything of that sort, so it was quite impracticable for us to deal with it, even had we wished to do so. But, of course Mr Barraclough, the appellant must take whatever course he is advised in that regard.