Drayton, R. v

MR JUSTICE HEDLEY: This is an application for leave to appeal against a sentence that has been referred to the Full Court by the single judge.

On 30th November 2004 the applicant appeared before His Honour Judge Taylor sitting in the Crown Court at Plymouth on an offence, which had been charged on indictment, of burglary in respect of which he was sentenced to 12 months' imprisonment and for an offence for which he had been committed for sentence from the Magistrates' Court of arson in respect of which he had received a sentence of two years' imprisonment to be served consecutively. The applicant had pleaded guilty to both offences both in the Crown Court and before the magistrates.

The applicant in due course put in his own grounds of appeal saying that the sentence was too long. It is worth simply saying this. Having regard to the facts of the case and his record, no complaint could ever had been made about the sentence passed for the burglary, and indeed no complaint was made. Nor could any complaint be made on the basis that the sentence in respect of arson was ordered to run consecutively because it was committed whilst on bail. The actual sentence passed for the offence of arson, as Mr O'Connor realistically recognises, was in fact well within the bounds of acceptable sentencing for this kind of arson, and although the applicant appears from his grounds of appeal not to have appreciated the gravity of the charge to which he had pleaded guilty there is no doubt that the sentence in itself was wholly acceptable.

There therefore seemed to be nothing in this application, except the matter that troubled the single judge. The reason that he referred the matter to this Court was this. The applicant had been charged under section 1(1), (3) and (4) of the Criminal Damage Act 1971. He had pleaded guilty before the magistrates and had been committed for sentence. The charge to which he had pleaded guilty ran as follows:

Section 1(3) of the Criminal Damage Act 1971 is in these terms:

The word "arson" does not appear either within the charge form or within the memorandum of conviction under which he was committed for sentence to the Crown Court. The point taken by Mr O'Connor is that that provision in the statute is mandatory, and if something is not charged as arson then it is an offence that is not immediately known to the law.

The single judge had been troubled by the case of Booth [1999] Crim LR 144. Thanks to the industry of counsel we have now been provided with the transcript of that judgment numbered 97/8371/X2. Having read the judgment, it is manifestly clear that the case of Booth was a very different one from the case with which this Court is now dealing.

In the case of Booth there had been a long trial involving alleged animal rights activists who had faced a single count of conspiracy to incite to criminal damage. The forms of criminal damage to which it is said others were incited include damage by fire. The Court took the view that it could not include damage by fire in an indictment which did not specifically identify arson. On page 7 of the transcript Henry J, as he then was, giving the judgment of the Court said this:

There are a number of obvious differences, as we have indicated, between this case and the situation that confronted this Court in Booth. First, and possibly quite importantly, this matter was dealt with by way of charge and committal and not by way of charge on indictment. Secondly, it is quite clear here that only a single offence of causing damage by fire was alleged or particularised and the applicant could have been under no doubt about what it was he was admitting when he tendered his guilty plea. It is apparent in this case, quite unlike Booth, that the focus is on damage by fire and nothing else at all.

Clearly on indictment where the rules require both a statement of offence and particulars of offence it is desirable that the word arson should continue to be used in the statement of offence. Whether the absence of that word arson from a count that plainly alleges damage by fire and nothing else invalidates the count must await decision as and when that point arises. Here the focus is on the charging process in the Magistrates' Court and whether the charge is appropriately laid and correctly laid in this case. It is the fact that the word arson is missing from the charge. It is also the fact that the charge is one of causing damage by fire committed recklessly.

It seems to us that the essence of section 1(3), the mischief which it is designed to address, is that the defendant shall know that he is facing an allegation of damage by fire, because by section 1(4) the penalties in relation to damage by fire are different and significantly potentially more severe than those of simple criminal damage by other means.

We have helpfully been referred to Rule 100 of the Magistrates' Courts Rules 1981. Whilst Rule 100 could not, as it were, reverse a statutory mandatory requirement, it may offer some assistance in discerning what the purpose is of a requirement such as that which one finds in section 1(3) of the Criminal Damage Act 1971.

What Rule 100 provides is this:

This charge undoubtedly complies with the requirements of rule 100 in that it undoubtedly describes the offence alleged in ordinary language, it undoubtedly avoids technical terms, like arson, and it undoubtedly gives reasonable information as to the nature of the charge, but it does not of itself dispose of the issue about whether the word arson must be used as a result of the mandatory requirements of section 1(3). It is worth observing that the form of charge which was used in this case is in fact the normal form of charge, and, unlike an indictment, a charge in the Magistrates' Court, whilst identifying the particulars of the statutory provisions, frequently does not articulate the legal name of the offence itself. As Mr O'Connor rightly recognised in the course of his helpful and forceful submissions, this is not a point that has any great merit so far as the true worth of the case is concerned. It is a purely technical point, but one that is not without a little importance.

In our judgment, a requirement to charge as arson means a requirement to charge as damage by fire, rather than damage by any other means as that can materially affect penalty. To charge causing damage by fire is to charge arson because that is exactly what arson means, no more and no less. Damage by fire and arson are exactly synonymous concepts. We hold that this charge was, in the context of a charge in the Magistrates' Court, a valid charge under section 1(3) of the Criminal Damage Act 1971 to which the applicant could lawfully plead and on which he could be lawfully committed. We do not believe for a moment that the purpose of the statutory provision was to invalidate any charge that did not use the word arson. The mandatory substance of that provision is that damage by fire, as opposed to anything else, had to be identified before anyone could be exposed to the penalties of arson.

That said, we think that the practice of not using the word arson in charges may be worth revisiting, partly to avoid any possible doubts, and partly to ensure that if someone is convicted of an offence of causing damage by fire then it appears on their record as arson. We think that whilst the use of the word "arson" is not mandatory, it might be helpful were it to be employed.

A further answer to Mr O'Connor's submissions may also lie in section 123 of the Magistrates Courts Act 1980. That provides:

That section is in very wide terms. There is no doubt that if the point taken by Mr O'Connor had been taken before the justices the matter would have been susceptible to amendment and no complaint could have been made of it. As we say, we are satisfied that this charge was sufficiently made out and sufficiently identified as required by section 1(3) of the Criminal Damage Act in any event.

In those circumstances, there being no merit in any complaint about the substance of the sentence itself, this application for leave to appeal against sentence should be refused.