Clarke, R. v

This appellant appeals against his conviction for murder and for arson with intent to endanger life. He was convicted after a lengthy trial at Woolwich Crown Court, presided over by His Honour Judge Dunn QC. He was sentenced to life imprisonment with a minimum of seventeen years.

The nature of the appeal permits us to deal with the facts shortly. The prosecution case was that the appellant went to a crack house, 6 Smithers House, Penge, in order to retrieve a mobile telephone which another person had pawned in return for drugs. The flat was owned by a Housing Association. The tenant was a user of cocaine, and it appears that most, if not all, of the inhabitants dealt in, and used, drugs on those premises. It was alleged against the appellant that he was armed with a petrol can and in the confined space of the hall poured a quantity of petrol from it. He then lit that petrol, causing a fire which killed one 17 year old in the flat and injured a number of others, including one who, at the time of the trial, was suffering from brain damage. The deceased was seriously injured. He only regained consciousness when he was removed from the scene of the fire. He remained in hospital for two weeks. There was important evidence which showed that, when he was found by the fire crew, he was wearing gloves. He was wearing gloves at the time of the fire, since burn marks on his arms ended at the point where the gloves began and there were injuries to at least one of his fingers through holes caused by the fire in the gloves.

There was a body of evidence from those within the flat who described the appellant arriving with the petrol can. There was evidence from a man called Bull, who was a friend of the girl alleged to have taken and pawned the appellant's mobile phone. He had a number of serious previous convictions. The appellant contended that it was Bull who had brought the petrol and ignited it in the flat, not the appellant.

There was also evidence which came from others who were not in the flat, which tended to show that it was the appellant who had brought petrol to the flat and ignited it. In particular there was the evidence of the gloves, and evidence from someone who had sold the appellant a motor car the day before. In that motor car, so the vendor said, was a petrol can similar to the one found at the scene of the fire. It was a very common make of petrol can but it was not found in the car driven by the appellant after this incident.

There was DNA on the gloves matching that of the appellant, and also a handgun (although a model) which the appellant said he had been given by Bull. He said that he had taken it to the flat in case there should be trouble. Witnesses described him as wearing at the time a three-quarter length jacket in which was a red lighter, a box of matches and another disposable cigarette lighter.

There was forensic evidence as to the cause of the fire. The appellant not only said that he did not light the fire, but his defence raised the issue as to whether anybody had deliberately struck a match or lighter so as to ignite it. Expert evidence called by the Crown suggested that it was not a realistic possibility that anything else could have ignited the petrol; but there was canvassed the possibility that a lamp in the flat might, accidentally, when it was switched off, have ignited the petrol. The prosecution experts denied that as a realistic possibility. One of them described it as merely remote, although another said that it was possible to cause a spark if the switch of the lamp was on the floor and was pushed from on to off.

The appellant accepted the motive which the prosecution sought to establish, namely anger that his mobile phone had been pawned, but he denied that he had introduced the petrol into the hallway. He said that it was the man Bull who carried a petrol can. He said that there was an argument about the telephone. Dealers in the flat had lunged towards him after he had shown them the model of the gun which he had been lent by Bull. There was a scuffle against the wall, he said, and then "the whole thing went up". It was an important plank of his case that he could not possibly be supposed to have ignited the petrol since he himself was clearly going to be injured by it. There was some evidence that the door through which he had entered had been locked.

The appellant also adduced evidence not only that the petrol can was very widely sold, but from an expert who said that because the lamp had no earth it was very dangerous, and that a spark from the switch, whilst unlikely, was very possible if there was a correct concentration of vapour within the switch.

Those were the rival facts and contentions. As counsel for the defence at trial and in the appeal before us, Mr Lovell-Pank QC submitted, there were three essential issues, the resolution of which dictated the appropriate verdicts. Firstly, had the prosecution made the jury sure that the appellant had the petrol can when he entered that flat, sprinkled petrol from it into the hallway and deliberately ignited it? If they were sure of that, he was guilty of murder. Secondly, if not sure of that, was the jury sure that the appellant sprinkled the petrol, but nevertheless not sure whether or not the ignition was caused accidentally by a spark from the lamp? If that was their state of mind -- in other words that it was not sure that he had deliberately ignited the petrol, he was not guilty of murder but guilty of manslaughter. A case could have been advanced by the Crown on the basis that the appellant was guilty of murder if he had brought the petrol into the confined space of the hallway and sprinkled it on the ground, if he had the necessary murderous intention, however it became ignited. But that was not the way the prosecution put the case, and we need not deal with that possibility further. Thirdly, if, as the appellant contended, the jury was not sure that he had the petrol can and not sure that he ignited the vapour, he was not guilty of any offence.

We turn to the issues in this appeal. Although the judge's directions in law in relation to murder and manslaughter formed the basis of criticism in this appeal under ground 2, Mr Lovell-Pank QC advanced them first. He was right to do so since they colour the approach that this court should take in relation to the summing-up as a whole and its effect upon the safety of the jury's verdicts.

We turn to the judge's directions as to murder and manslaughter. It was fairly accepted by Miss Joseph QC for the Crown (who also appeared at trial) that at the outset of his summing-up the judge confused the meaning of murder and voluntary manslaughter in an opening passage which not only served to confuse the jury, but was also wrong. It is necessary to set out the whole of that passage so as properly to appreciate whether it accurately conveyed to the jury the legal framework which they were bound to apply to the facts which they found. It reads:

Secondly, that repeated misdirection confused and undermined the direction as to the intention which the Crown had to prove to establish murder. It is true that the judge sought to distinguish between the first and second elements in murder, but his repeated references to what sober and reasonable people must have realised becomes meaningless and confusing when the jury turned to consider the second question, namely whether a murderous intention had been proved. If the prosecution must prove an intention to kill or to cause really serious bodily harm, the element erroneously introduced by the judge, requiring proof of what the reasonable person would realise, makes no sense.

Thirdly, nowhere in the passage we have cited does the judge relate his directions to the issues in the case. A recitation of the law of murder, without any relation to the facts in issue, may often not amount to a misdirection, even though this court frequently emphasises the need to relate directions to the facts of the case and omit directions which are irrelevant to the issues. But in this case it was incumbent on the judge to explain the difference between murder and manslaughter by reference to the issues raised by prosecution and defence. Although the judge referred to the issue as to whether the Crown could prove that the appellant had started the fire, he did not distinguish between proof that the appellant brought the can into the house and sprinkled petrol in the hallway and proof that it was he who ignited the petrol. This was a live issue. Although the appellant denied that it was he who had brought a can of petrol into the house and sprinkled its contents, the jury had to consider whether, even if he had done so, the Crown had proved that he had ignited it, or merely that it had been ignited by an accidental spark from a lamp, as the defence contended was a realistic possibility. The use of the expression "starting the fire" elides the two facts: bringing petrol in, and igniting it.

It was also suggested that the judge should not have used the word "intentional". It was never suggested that if the appellant had brought in the can and sprinkled petrol from it, that that was an accident. The only accident suggested was its ignition. If the summing-up had tied the definition of murder and manslaughter to the facts, there was no possibility of being misunderstood. But since the judge explained that intentional meant deliberate, we do not agree that by his repeated use of the word "intentional" the judge may have confused the jury, but he needed to say no more than that to prove murder the prosecution had to prove that the appellant lit the petrol deliberately. The issues were clear. It was not difficult to apply the law to them. By doing so, the judge could have achieved the clarity and accuracy which this case demanded. We conclude that his directions as to murder and the distinction between that of murder and manslaughter were wrong in serious and significant respects.

We turn to consider whether those defects were cured by what followed, as the Crown contended. An agreed correct version of the distinction between murder and manslaughter was handed up in writing by both counsel for the Crown and for the defence. Both of them were concerned as to the directions of law on the first day. The direction on murder and manslaughter were contained in a document headed "Directions on Murder and Manslaughter". It reads:

Taken on their own it seems to us that that was an adequate correction. However, there was no issue but that if the jury was sure that the appellant had brought petrol into the house and spread it into the hallway, he would be guilty of manslaughter. The repeated references to what reasonable people would have realised, and the reference to whether such sprinkling was a significant cause of death can hardly have clarified the issues in the mind of the jury. It was unnecessary to repeat those references. It would have been more helpful to refer to the facts and the way the prosecution relied upon them. The repetition of the mantra "reasonable and sober people" was not calculated to assist the jury. All that was required was a clear direction as to the different factual conclusions open to them on the evidence and their consequences in law.

Not surprisingly, it appears that the jury remained unclear as to the distinction between murder and manslaughter. After it had been sent out to consider its verdict, the jury returned with a note enquiring whether the judge could redefine "murder and manslaughter, the intent and the act". The judge attempted to do so. He said:

The Crown submits that by the end of those three attempts to direct the jury as to murder and manslaughter it is not to be supposed that the jury can have been under any misapprehension as to the possibilities. The addition of the unnecessary element appropriate only to manslaughter cannot have confused the jury as to the essential issues.

Before we determine the crucial question as to whether the jury might have been left in such a state of uncertainty and muddle as to the appropriate application of the law to the issues so as to affect the safety of the verdict, it is necessary to look at the other ground in relation to the character of the appellant. This formed the first ground of the appeal, which was primarily related not so much to whether the evidence of the appellant's bad character was admitted, but for what purpose, and as to the defects in the summing-up as to how the jury should deploy that evidence.

The application to admit evidence of bad character related to five convictions of the appellant. The first conviction was when he was much younger, in June 1998, six-and-a-half years before this offence, to which he pleaded guilty. It was for having an article with intent to damage or destroy property. The offence, contrary to the Criminal Damage Act 1971, took place on 21 October 1977, and he was ordered to serve community service for 180 hours. The second offence which the prosecution sought to adduce was for burglary and theft from a dwelling, for which he was sentenced to imprisonment for nine months. The third was for an offence of grievous bodily harm, to which he had pleaded not guilty (although there was a dispute as to whether he had only disputed a charge under section 18 of the Offences against the Person Act 1861); for that offence he was imprisoned for 18 months. The third were offences of threats to kill and common assault (to which he had pleaded not guilty), for which he was sent to prison for 18 months. The fourth was for burglary and theft, for which he was sentenced to six months' imprisonment to run concurrently with the sentences on the other offences to which he had pleaded guilty. The fifth (to which he pleaded guilty) was for having an article with a blade, for which he was sent to prison for two months, and assisting an offender by impeding his apprehension (he drove him off) for which he was sentenced to a concurrent sentence of six months.

In relation to the first conviction (having an article with intent to damage or destroy property) there were agreed facts advanced. The appellant said that he was driving in a car when someone else introduced into that car beer bottles containing petrol. Another person had thrown them out of the car. The appellant expanded that account when he gave evidence. The prosecution sought to adduce that conviction pursuant to section 101(1)(d) of the Criminal Justice Act 2003, in other words that it was relevant to an important matter in issue between the defence and the prosecution, namely whether the prosecution could prove it was he and not Bull who had the possession of the petrol can.

For the purposes of this appeal a number of submissions were advanced as to the propriety of introducing that conviction, having regard to the age of the appellant at the time, the lapse of time between that offence and the offences the subject matter of the instant appeal, and the fact that it was only one offence. But in the light of authority Mr Lovell-Pank QC, sensibly, did not pursue that ground of the appeal, although he did not abandon it.

The other offences, and the offence in relation to having possession of those bottles containing petrol, were also introduced pursuant to section 101(1)(g) of the 2003 Act. They were introduced because the appellant had attacked the character of Bull, introducing a number of previous convictions of which he had been found guilty, as well as accusing him of being responsible for introducing the petrol into that flat. The judge admitted all those offences through both those gateways, and also ruled that it would not have such an adverse effect on the fairness of the proceedings as to require him to exclude that evidence by virtue of section 101(3). Absent his giving any reasons for his conclusion under section 101(3), we naturally looked at the issue again, but we cannot say that it was outwith the range of reasonable responses to the statutory question whether there was such an adverse effect on the fairness of the proceedings that the judge was required to exclude the evidence (see paragraph 15 of R v Hanson [2005] EWCA Crim 824). The judge did not have the benefit of that decision but, in our judgment, Mr Lovell-Pank rightly recognised that the Crown was entitled to introduce evidence of those previous offences. But the fact of the admission of some offences of violence and some of dishonesty led to serious defects in the summing-up. It is to those failures we now return.

The judge sought to direct the jury in relation to the convictions of the appellant in his summing-up. He said:

The defect in these directions, in our judgment, was in failing to direct the jury as to which issues those disparate convictions went. It must be acknowledged in fairness to the judge that he did not have the guidance now available in a number of decisions of this court, but we have the benefit of those authorities: Hanson (to which we have already referred), R v Highton [2005] EWCA Crim 1985, and R v Edwards [2005] EWCA Crim 1813. For the purposes of guiding a jury in relation to the relevance of the evidence of the bad character of a defendant, the important statutory principle is that evidence is to be admitted in defined circumstances which may assist the jury in reaching a conclusion. Evidence of bad character is not admitted to prejudice the minds of the jury against the defendant. Part II of Chapter 1 of the 2003 Act establishes that principle by striking a balance between permitting a jury to hear evidence which may be of assistance in determining guilt or innocence and assessing the quality of the evidence, despite its obvious tendency to prejudice the minds of a jury, whilst avoiding unnecessary prejudice (contrast section 101(1) with section 101(3)). In order to achieve that aim judges must warn juries in the terms identified in Hanson at paragraph 18, namely that undue reliance must not be placed on previous convictions. Evidence of bad character cannot be used to bolster a weak case or to prejudice the minds of a jury against a defendant. Further, in order to achieve that aim, as the court in Edwards teaches at paragraph 3, it must be explained to the jury why it has heard the evidence, and the ways in which it is relevant. That crucial purpose cannot be achieved without both those two elements of the directions given to the jury (see paragraph 3 in Edwards, and the summing-up of His Honour Judge Mort cited at paragraph 77). Conversely, that purpose of avoiding prejudice is undermined if no clear direction is given to the jury as to how to use the evidence of bad character. Absent such guidance, the danger of prejudicing the minds of a jury against a defendant merely because he has offended in the past remains and is not repressed. As Highton explains (see paragraph 10), once evidence of bad character is admitted, it may go not only to propensity but also to credit. In those circumstances the obligation to give careful directions is all the more necessary (see paragraph 11 of Highton).

In the instant appeal some of the offences adduced went to propensity for violence. The conviction for possession of the bottles containing petrol went also to the issue as to possession of the petrol can. Other offences, particularly in relation to burglary, were admitted pursuant to section 101(1)(g) because the appellant had attacked the character of Bull and alleged that he was responsible for introducing the petrol into the hallway. Thus the jury was entitled to assess the quality of the appellant's evidence in the light of the character of the source of that evidence, as it had previously been entitled under the Criminal Evidence Act 1898.

Hampered by lack of authority though the judge was, he failed to seek guidance from counsel. The summing-up warned the jury on more than one occasion not to assume the guilt of the appellant because of previous convictions, but the judge undermined those warnings by his unfocused vituperation, referring on two occasions to the appellant's "ruthless streak". The need to avoid unfair prejudice requires both counsel and the judge to avoid inflammatory language. This judge did not. In so doing he encouraged the very prejudice his warnings were designed to avoid.

That was not his only error. He sought, correctly, to distinguish in the first passage we have cited between the burglary offences and the others, although he failed to mention that the appellant had pleaded guilty to those offences. But there remained a serious flaw in these directions. There was a live issue as to whether the appellant was guilty of manslaughter or murder, notwithstanding that he had introduced petrol into the hallway, if the prosecution case on that point was proved. The convictions for violence, let alone the other convictions, could not assist on that important distinction between murder and manslaughter. Thus whilst the convictions for violence might assist as to whether it was indeed the appellant who was responsible for introducing the petrol into the hallway, they could not assist as to whether he ignited it or not. The jury should have been given a clear warning not to use the convictions in a general way to resolve that issue. The resolution of that issue depended rather on their view as to the expert evidence and also as to whether it was anything more than a fanciful possibility that, having brought petrol into the house, having sprinkled it into the hallway, it was a mere mischance that it ignited.

We conclude that the directions as to character were flawed. They prompted prejudice in the language the judge adopted. They failed adequately to relate the particular offences to relevant issues, and they failed to warn the jury that they could be of no assistance in distinction between murder and manslaughter in the circumstances of this particular case. In short, they failed to do that which every summing-up must do, namely guide the jury as to how properly to deploy the evidence, whilst avoiding unnecessary prejudice.

We must now return to the effect of those defects. Had the misdirections as to murder and manslaughter stood alone, we would not have concluded the verdicts were unsafe. By the end the judge just about got them right. But when those defects are added to those in relation to bad character, we take the view that the summing-up as a whole was so unfair as to affect the safety of the verdicts. We acknowledge that the evidence against the appellant was strong. Miss Joseph QC submitted that the jury cannot have convicted unless it was sure that the appellant had introduced the petrol into the flat and had ignited it. But we cannot be confident that the process by which the jury reached that conclusion remained unclouded by the defects we have identified. Accordingly we allow this appeal.

The next question is as to disposition. We would propose, subject to submissions from either side, to order a retrial.

MISS STANGOE: My Lord, that would be what I was seeking.

LORD JUSTICE MOSES: Mr Lovell-Pank?

MR LOVELL-PANK: My Lord, I do not think that there is any real argument that I can advance properly to say that there should not be a retrial. I have thought about it.

LORD JUSTICE MOSES: Yes, quite. He is a young man.

MR LOVELL-PANK: I do not think I can advance a proper argument.

LORD JUSTICE MOSES: It is very difficult both for him and his family and for the family of the victims. We shall quash both the counts on the indictment on which he was convicted and order him to be retried on both, direct that a fresh indictment be preferred, and that the defendant be arraigned on that fresh indictment within two months. Is there any application for bail?

MR LOVELL-PANK: No, my Lord.

LORD JUSTICE MOSES: Will you need further representation orders?

MR LOVELL-PANK: Yes, I think I will.

LORD JUSTICE MOSES: We will make them as they were before, for leading and junior counsel and solicitors. We make the further order that the venue for the retrial should be determined by the presiding judge of the circuit. There is no risk of the same judge trying this again -- or any case, we gather. I do not think we need say more, except thank you to both sides.

MR LOVELL-PANK: Thank you very much.