McPeake, R v

MR JUSTICE TREACY: At the outset of the judgment we would like to express our appreciation to Mr Heywood for his assistance in having accepted the court's invitation to provide advice to Mr McPeake this morning at short notice and then in making submissions to us.

The appellant in this case is Joseph Charles McPeake. He is 56 years of age. On 15th April 2005 in the Crown Court at Bradford, the appellant pleaded guilty on the third day of his trial. He pleaded guilty to an offence of arson being reckless as to whether life is endangered. That was count 2 upon the indictment at that time. The lives endangered were expressed to be those entering the appellant's property as rescuers. The jury was discharged, on that plea being entered, from returning a verdict on count 1, which was also a count of arson being reckless as to whether life was endangered. On that count the particulars indicated that the lives in question were those of the occupants of neighbouring houses. On the same day the trial judge imposed an extended sentence of some five and a half years. The custodial element was fixed at three and a half years and the extension period was fixed at two years.

The appellant appeals against conviction by leave of the single judge. The single judge refused his application for leave to appeal against sentence, but that has been renewed before us.

The circumstances are these. At about 7.15 a.m. on the morning of 28th October 2004 the appellant, who had consumed a considerable amount of alcohol, made a determined attempt to take his life by setting fire to the house which he and his former wife owned. He had purchased large quantities of an accelerant, turpentine, which he placed around the house. He linked the quantities of accelerant together by tied pieces of newspaper. He also placed bottles of whiskey around his house which he said he intended to drink as he set each fire in order to render himself unconscious as the fires took hold. He then set fire to a motorcycle outside his house. That motor cycle belonged to his ex-wife. He then returned inside and set fire to the papers on a table in the living room downstairs.

Neighbours had noticed the fire outside and called the fire brigade. However, that fire (that is the fire relating to the motor cycle) burnt itself out and the neighbours cancelled the call to the fire brigade. However, they then noticed a fire inside the house and saw the appellant in the same room as the fire. The neighbours entered the house with a fire extinguisher, and whilst one put the fire out, the other one restrained the appellant who was trying to prevent the fire being extinguished. Those neighbours then left the house, but subsequently noticed a further fire burning on the first floor. They called the fire brigade again. The fire brigade attended and pulled the applicant to safety despite his protests that he wished to remain in the house to die. The appellant admitted that his purpose was not only to commit suicide, but also to deprive his former wife of any substantial interest in the property.

We turn, first, to the appeal against conviction. Count 1, as stated, related to a count of arson being reckless as to whether life was endangered where the particulars referred to the occupants of neighbouring houses as being the endangered persons. The appellant's version of events at trial was that using his expertise and knowledge of the house he believed that the fire would be contained within the walls of the house and therefore that it represented no danger to his neighbours.

The trial before the jury progressed without any questioning of prosecution witnesses called by the Crown, it having been indicated in advance that their evidence could be agreed.

The appellant was called to give evidence. He gave evidence in line with the version already mentioned. Whilst he was being cross-examined, prosecution counsel started to cross-examine him along the lines of dangers which would be caused to people entering the premises as rescuers. The trial judge intervened and stopped that line of questioning. However, it seems that that intervention by the judge and the line of cross-examination which had been embarked upon by the Crown, led to a reassessment of the position. The Crown then sought and obtained leave from the judge to amend the indictment to include count 2 to deal with the rescuers' aspect of the case. That application and that leave to amend the indictment took place in the absence of the jury.

The case was then adjourned overnight on the second day of the trial so that the defence could consider their position. On the third morning of the trial the appellant pleaded guilty to this newly added second count. The appellant pleaded guilty to the new count in the presence of the jury, but the jury were not invited to return a guilty verdict on the learned judge's direction. Prosecuting counsel had indicated that the jury should return a verdict, but the judge took the view that the appellant had never been put in charge before the jury on that count so they did not have to return a verdict. It is correct to say that the jury had never in fact been put in charge on count 2. Once the plea was entered, the jury were then discharged from returning a verdict on count 1.

Grounds of appeal submitted by trial counsel rely on the decisions of this court in the case of Hancock 23 Cr App R 16 and Heyes 34 Cr App R 161. Those were cases where the appellant had admitted his guilt upon a count during the trial in relation to which a jury was in charge. In those cases the judge took the verdict without reference to the jury and then proceeded to sentence. In each of those cases it was held that the procedure was a nullity because it was for the jury to return a valid verdict once they had been put in charge. Accordingly, trial counsel advised that there were valid grounds of appeal on the basis that the verdict in this case was a nullity. The single judge gave leave on the basis of counsel's advice.

When the matter came to the Crown's attention, leave having been granted, the Crown pointed out that there was a recent authority of this court which was relevant to the decision. That decision was the case of Poole [2002] 2 Cr App R 13. In that decision the decisions in Hancock and Heyes were not followed. This was apparently unknown to counsel then acting for the appellant, and, as we have said, had not been drawn to the attention of the single judge.

Poole is a case where the appellant had pleaded guilty during the trial to a count upon which the jury had been in charge since the start of the trial. The judge discharged the jury and accepted the guilty plea as if it had been taken before a jury was sworn. The issue before the court was whether, where a defendant tendered a guilty plea on rearraignment while in the charge of the jury, the jury's verdict had to be taken.

The court held that there was no possible unfairness or disadvantage to a defendant who elected to change his plea after the start of the trial, if his plea was treated in precisely the same way as it would have been if it had been tendered before the jury was sworn. It involved a personal statement made publicly by the defendant that he was guilty of the crime alleged in the indictment. The protection to which he was entitled was the absolute freedom to enter whatever plea he wished. The requirement that the jury should enter the verdict after a change of plea was little more than a formality and should not act as a limitation on the trial judge's discretion to discharge the jury from giving the verdict, when, in his judgment, it was right to do so.

In the decision in Poole Judge LJ explains in detail at paragraph 22 of the judgment the significant legislative and procedural changes which had taken place since the cases of Hancock and Heyes were decided. It provides the relevant context in which those decisions are no longer to be followed. We consider that the case of Poole is decisive for the reasons briefly referred to and therefore that leads to the conclusion that this appeal against conviction must be dismissed.

We would add that the facts of the present case are even stronger in favour of this conclusion. Heyes, Hancock and Poole were all cases where the jury were actually in charge of the defendant on the relevant count. In the present case the jury had never been put in charge on count 2 because of the way matters developed in the trial. The requirement of putting in charge and then taking a verdict in those circumstances would be a wholly empty formality. Accordingly, we dismiss the appeal against conviction.

Before leaving the matter, we should point out that defence counsel's grounds appear to be based on what is now paragraph 7-358 of the 2006 edition of Archbold. The cases of Hancock and Heyes are cited, but Poole is not. The editors may wish to consider an amendment to this passage to reflect the decision in Poole, as it plainly misled the appellant's counsel in this case, and the passage does not now appear to reflect the existing law.

We turn, then, to the renewed application for leave to appeal against sentence. This appellant was 56 years of age. The material available to the court showed that he had suffered a number of adverse matters in his personal life. His marriage had broken down. He had been living on his own in an isolated part of North Yorkshire. He had lost his employment and he had abused alcohol to a significant extent. It was a combination of those features which had apparently led him to make this determined suicide attempt.

His antecedents showed that he had two recent convictions for driving with excess alcohol. He had never served any previous custodial sentence and had spent a period of two months or so as a condition of bail on the secure wing in a local psychiatric hospital.

The submission made to us is that the custodial element in this case of some three and a half years was too severe and gave insufficient credit for the fact of the guilty plea at the first opportunity. We treat this matter as a case where the plea of guilty was entered at the first opportunity, since a plea to the count in the form in which it was framed was not available to the appellant until the third day of the trial.

It is pointed out to us, in addition, that the appellant has no conviction prior to this for arson and that the judge accepted that there was little likelihood of the spread of the fire to adjoining buildings. We are asked to bear in mind that the offence was committed in the context of personal difficulties to which we have already alluded. It is submitted that the custodial element must have represented a five year starting point for the judge in order to result in a three and a half year term, and it is submitted that that, in the circumstances, was too high.

In sentencing the trial judge pointed out, rightly, that this was a well planned offence. The judge acknowledged that credit should be given to the appellant for his guilty plea, and for his acknowledgment that he had always accepted that he had started the fire.

We have considered the contents of a psychiatric report which was available to the judge. That report was produced by a Dr Hyde. The report indicated that the appellant was suicidal at the time of the fire, and that he had suffered from low moods, but it went on to say that he had acted in the context of life circumstances rather than in reaction to any major depressive episode. The conclusion of Dr Hyde was that the appellant showed no evidence of major mental illness, or severe depressive illness. He assessed the appellant's personality as having clear narcissistic traits which at times would lead to maladaptive responses to situations. It was unlikely that longer term psychological therapy would change his underlying personality, or that further treatment in a psychiatric hospital would benefit the appellant.

The assessment of Dr Hyde included the observations that the appellant showed no remorse for his conduct, that he did not recognise the risk that was caused to others by his behaviour and that he was uninterested in engaging in any therapeutic manner with hospital staff. He was unwilling, according to Dr Hyde, to accept responsibility for his actions.

For offending of this type, and taking into account the contents of the psychiatric report, a custodial sentence was plainly appropriate, as was an extended period of licence of the type imposed by the judge. The issue is whether the custodial element of three and a half years was too long in the circumstances.

We have considered the matters which have been urged on us by Mr Heywood this morning, and which were set out also in trial counsel's grounds of appeal. This was, in our judgment, a serious and determined case of arson. The site of the fire had been set in a number of places. It was plainly preplanned. The appellant's determination to continue with the offence is shown by the fact that he sought to prevent efforts to put out the fire by neighbours who had come into his premises with a view to stopping him. Even after they had departed, the fire was set upstairs in the premises and thus necessitated the arrival of the fire brigade. The charge was one which recognised the risk to the lives of those who came into the premises as rescuers. On two occasions people were required to do that: in the first instance neighbours and in the second instance members of the fire brigade. Accordingly, in our view, the case called for a substantial custodial sentence.

We have considered the authorities to which trial counsel drew attention, but are not persuaded that, in all the circumstances, this sentence was excessive. We take the view that when the circumstances are carefully considered, notwithstanding the matters of mitigation to which we have helpfully been referred, this sentence cannot be described as too long, or wrong in principle. Accordingly, this renewed application is refused.

LORD JUSTICE MOSES: Mr Heywood, we will make an order that you should be paid for legal assistance out of whatever the appropriate fund is. Thank you.

MR HEYWOOD: Thank you.