Willoughby, R v

J U D G M E N T

1. 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.

2. 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.

3. 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.

4. The expert evidence before the jury was to this effect:

"Although I cannot entirely exclude the possibility that petrol vapours were actually ignited by a spark from an electrical appliance, it is my view a deliberate ignition by a flame was more likely."

The motive attributed to the appellant was financial. He had a mortgage which, with arrears, amounted to a total indebtedness in excess of £200,000 by August 2002. There was also a second charge on the property, to the brewery, amounting to a sum in excess of £47,000. Both the mortgagees were pressing for payment. The appellant had sought to sell the property for residential development but five successive planning applications which he had submitted had been unsuccessful. It seemed unlikely that planning permission would be forthcoming because of the wish to preserve the facade of the building. Unsurprisingly, in those circumstances, prospective developers lost interest in buying the property. It was in fact sold the following year.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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:

"...responsibility for the death arises, firstly, where there is a duty of care owed by the defendant to the victim; secondly, where that duty of care had been breached, causing the death of the victim; and, thirdly, that it was such that it would be characterised as gross negligence, and accordingly criminal."

The learned judge then went on to direct the jury that whether or not there was a duty of care was a matter for them to decide. At page 11, line 8 of transcript, he went on:

"...it is for you to decide which facts you find proved and whether you are sure that a duty of care existed.

Now here, of course, we are concerned with the owner of a public house, who the Crown say engaged Derek Drury to assist him in destroying that public house by fire, and to be with him at the pub while the preparations for the arson were taking place. Even though both were engaged on such an enterprise, there was still a duty of care on the defendant, you may think, when Drury was on or near the defendant's premises, the Crown say to safeguard his health and welfare, to ensure that he would be safe from the risk of injury.

If you are sure that those facts have been proved, then there is an evidential and a legal basis for you to say that a duty of care existed. As I say, the decision on that is yours.

If you are sure that such a duty existed, the breach of that duty of care occurred, the Crown say, when instead of doing that, he with Drury, in pursuance of the joint enterprise to destroy the pub by fire, set about to do just that, with one or other or both scattering petrol around the premises, itself an extremely dangerous action, it is said, putting them both in a high risk environment, when it would only take one spark for ignition to occur, and which could occur at any time, even if accidentally or unintentionally. And, as it turned out, ignition did take place, with the result that Drury was killed.

Thus, the Crown say that there is the duty of care to look after the health and welfare of the victim, to ensure that he was safe at the defendant's premises; that duty plainly breached by what the defendant with Drury were doing and which, as it turned out, caused the death of one of them. By 'caused the death of one of them', the law means that it contributed significantly to the death, even if it was not the sole or principal cause. You may think that, without the petrol, there would be nothing to ignite.

Thus it is said by the Crown that the spreading of the petrol, to the degree that must have happened, given the scale of the fire that resulted, contributed significantly to the death, the more so of course if by his own, as is the prosecution case, Drury himself was the cause of the ignition."

Thereafter the judge went on to direct the jury as to gross negligence and what that meant, in terms which are not and could not be the subject of criticism.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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:

"...no duty of care can be said to be owed by the appellant to the Chinese because they shared the joint illegal purpose which:

(a) Displaced the duty of care;

(b) Made it impossible for the court to define the content of the relevant duty of the care; and

(c) Made it inappropriate for the court to define the content of a relevant duty of care."

Kay LJ, giving the judgment of the Court, said at paragraph 30:

"There are occasions when it is helpful when considering questions of law for the court to take a step back and to look at an issue of law that arises without first turning to, and becoming embroiled in, the technicalities of law. This is such a case. We venture to suggest that all right minded people would be astonished if the propositions being advanced on behalf of the appellant correctly represented the law of the land. The concept that one person could be responsible for the death of another in circumstances such as these without the criminal law being able to hold him to account for that death even if he had shown not the slightest regard for the welfare and life of the other is one that would be unacceptable in civilised society. Taking this perspective of the case causes one immediately to question whether the whole approach adopted by both counsel and the judge in the court below can be correct, and we must, therefore, examine this matter.

31 The first question that it is pertinent to ask is why it is that the civil law has introduced the concept of ex turpi causa. The answer is clear from the authorities. Bingham LJ in Saunders v Edwards in the passage quoted in paragraph 17 above, explains that as a matter of public policy the courts will not 'promote or countenance a nefarious object or bargain which it is bound to condemn'.

32 In other situations, it is clear that the criminal law adopts a different approach to the civil law in this regard. A person who sold a harmless substance to another pretending that it was an unlawful dangerous drug could not be the subject of a successful civil claim by the purchasers for the return of the purchase price. However the criminal law would, arising out of the same transaction, hold that he was guilty of the offence of obtaining property by deception. Many other similar examples readily come to mind.

33 Why is there, therefore, this distinction between the approach of the civil law and the criminal law? The answer is that the very same public policy that causes the civil courts to refuse the claim points in a quite different direction in considering a criminal offence. The criminal law has as its function the protection of citizens and gives effect to the state's duty to try those who have deprived citizens of their rights of life, limb or property. It may very well step in at the precise moment when civil courts withdraw because of this very different function. The withdrawal of a civil remedy has nothing to do with whether as a matter of public policy the criminal law applies. The criminal law should not be disapplied just because the civil law is disapplied. It has its own public policy aim which may require a different approach to the involvement of the law.

34 Further the criminal law will not hesitate to act to prevent serious injury or detention even when the persons subjected to such jury or death may have consented to or willingly accepted the risk of actual injury or death. By way of illustration, the criminal law makes assisting another to commit suicide a criminal offence and denies a defence of consent where significant injury is deliberately caused to another in a sexual context (R v Brown (1993) 97 Cr App R 212, [1994] 1 AC 212). The state in such circumstances has a overriding duty to act to prevent such consequences.

35 Thus looked at as a matter of pure public policy, we can see no justification for concluding that the criminal law should decline to hold a person as criminally responsible for the death of another simply because the two were engaged in some joint unlawful activity at the time, or, indeed, because there may have been an element of acceptance of a degree of risk by the victim in order to further the joint unlawful enterprise. Public policy, in our judgment, manifestly points in totally the opposite direction.

36 The next question that we are bound to ask ourselves is whether in any way we are required by authority to take a different view. The foundation for the contention that ex turpi causa is as much a part of the law of manslaughter as it is a part of the law of negligence is the passage from the speech of Lord MacKay in Adomako set out in para 11 above. In particular it is Lord MacKay's reference to 'the ordinary principles of negligence'.

37 Adomako was a case where an anaesthetist had negligently brought about the death of a patient. It, therefore, involved no element of unlawful activity on the part of either the anaesthetist or the victim. We have no doubt that issues raised in the case we are considering would never have crossed the minds of those deciding that case in the House of Lords. Insofar as Lord MacKay referred to 'ordinary principles of the laws of negligence' we do not accept for one moment that he was intending to decide that the rules relating to ex turpi causa were part of those ordinary principles. He was doing no more than holding that in an 'ordinary' case of negligence, the question whether there was a duty of care was to be judged by the same legal criteria as governed whether there was a duty of care in the law of negligence. That was the only issue relevant to that case and to give the passage the more extensive meaning accepted in the court below was in our judgment wrong.

38 The next question which is posed is whether it is right to say in this case that no duty of care can arise because it is impossible or inappropriate to determine the extent of that duty. We do not accept this proposition. If at the moment when the vent was shut, one of the Chinese had said 'you will make sure that we have enough air to survive', the appellant would have had no difficulty understanding the proposition and clearly by continuing with the unlawful enterprise in the way that he did, he would have been shouldering the duty to take care for their safety in this regard. The question was such an obvious one that it did not need to be posed and we have no difficulty in concluding that in these circumstances the appellant did not voluntarily assume the duty of care for the Chinese in this regard. He was aware that no one's actions other than his own could realistically prevent the Chinese from suffocating to death and if he failed to act reasonably in fulfilling this duty to an extent that could be characterised as criminal, he was guilty of manslaughter if death resulted.

39 One further issue merits consideration, namely is it any answer to a charge of manslaughter for a defendant to say 'we were jointly engaged in a criminal enterprise and weighing the risk of injury or death against our joint desire to achieve our unlawful objective, we collectively thought that it was a risk worth taking'. In our judgment it is not. The duty to take care cannot, as a matter of public policy, be permitted to be affected by the countervailing demands of the criminal enterprise. Thus, in this case, the fact that keeping the vent shut increased the chances of the Chinese succeeding in entering the United Kingdom without detection was not a factor to be taken into account in deciding whether the appellant had acted reasonably or not."

It is apparent that the court in Wacker were there accepting that public policy considerations determine whether a duty of care exists.

21. 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.

22. 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.

23. 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.

24. 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:

(i) It would have been preferable and much simpler if this case had been left to the jury on the basis of death caused by an unlawful and dangerous act.

(ii) A verdict of manslaughter may , depending on the circumstances, be appropriate both by reason of an unlawful and dangerous act, and by reason of gross negligence.

(iii) Whether a duty of care exists is a matter for the jury once the judge has decided that there is evidence capable of establishing a duty.

(iv) There was here evidence for the jury's consideration in the four factors which we earlier identified, capable, in conjunction, of establishing a duty.

(v) In so far as the judge focused on ownership as giving rise to a duty, that was a misdirection. But it was not a material misdirection, having regard to his correct identification of the further relevant factors that the appellant engaged the deceased to participate in spreading petrol with a view to setting fire to the appellant's premises for the appellant's benefit.

(vi) Even if there were a material misdirection in relation to duty of care, in our judgment, in the light of the jury's verdict in relation to arson, there is no proper basis on which it can be said that their verdict in relation to manslaughter is unsafe.

25. Accordingly, this appeal against conviction must be dismissed.

26. 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.

27. 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.