A v Director of Public Prosecutions

1. LORD JUSTICE ROSE: There is before the court an appeal by way of case stated against a decision of the Thames Division Youth Court, sitting at Thames Youth Centre, on 17th February 2003. The appellant was then 11 (he is now 12) and he was the youngest of four defendants, the ages of the others being 13, 14 and 17. The justices at the conclusion of the prosecution case found that there was no case to be answered in relation to one of the informations which they were considering: namely, that the four jointly, on 27th July 2002, had "without lawful excuse damaged a computer keyboard and housing belonging to the London Borough of Tower Hamlets" at the Concierge Office, Spellman, London E1, contrary to section 1(1) of the Criminal Damage Act 1971. The justices went on to convict the appellant and the three co-accused of burglary committed at the same premises, with intent to cause unlawful damage, contrary to section 9(1)(a) of the Theft Act 1968.

2. The complaint which is made in this appeal is that the justices gave the impression that they had applied the wrong test in relation to the mental element required for burglary. There is a subsidiary complaint, not pursued in oral argument before us by Mr Cooper on behalf of the appellant, that the justices' conviction for burglary was inconsistent with upholding the submission that there was no case to answer in relation to criminal damage.

3. The findings of the justices, as appear from the case stated, were that police officers arrived at the scene where there was general mayhem in progress involving about 40 Asian youths. They were running amok, in and out of the security office, and equipment was being thrown about and damaged. Two of the officers went into the building and saw five youths near fixed equipment. It was common ground that four of those five were the defendants before the court. The officers saw what appeared to be the attempted removal of equipment. One officer saw wires moving and something falling to the ground. Another officer saw a youth with a keyboard in his hands. Both officers said that when the youths turned and started to go away, something fell to the ground. The justices were satisfied that the equipment was being interfered with. They drew no adverse inference from the fact that none of the defendants gave evidence. But they found that they did not believe the explanations given by the defendants, in interview, as to their presence in the building.

4. The explanation given by this appellant was that his mother had asked him to get his brother, and he had gone out from home about 7.15 pm, looking for his brother. In pursuance of that task, he then went near the security hut, where he saw 30 or more boys outside throwing tapes on the floor and sitting on chairs from the office. He went into the building to look for his brother but he was not there. He picked up a piece of wood, which was part of a cabinet, looked at the hinge on it and threw it down. He also looked at a video tape he found on the table and put it back on the table. He said he was going to check the toilets and then leave, when the police arrived.

5. The justices in the case stated say, in paragraph 23, that they were satisfied that "the defendants knew they were not entitled to enter the building" and "all of the defendants would have all been aware that the hut had already been entered by youths entering for an unlawful purpose and that items had been taken and damaged", but that "knowing this, the defendants nevertheless entered the building". In paragraph 25, in findings which Mr Cooper accepts are unimpeachable, the justices state in the case that they were satisfied that, at the point when the defendants entered the building, "it was the defendants' intention to remove fixed equipment", the defendants were aware that any attempt at removal "would have involved causing criminal damage", but that they "nevertheless proceeded to enter with the intention of removing equipment". "The defendants," they concluded, "intended to cause criminal damage". Although those unimpeachable conclusions are stated in the case, what was announced in court on two separate occasions, as appears from the case, was rather different. The first announcement of findings was in these terms:

"(1)There was a general mayhem when the officers arrived.

"(2)PCs Aitken and Wylie were in agreement as to certain things. PC Aitken saw wires moving, and something fall to the ground. PC Wylie was behind and saw a youth with a keyboard in his hands. Both said the youth turned away from them, and something fell to the ground.

"(3)No inferences were drawn from the fact that no defendant has given evidence.

"(4)There is no dispute that all four defendants were in the hut.

"(5)Three defendants in interview admitted that they were there for an unlawful purpose.

"(6)Any attempt to remove fixtures and fittings would have led to damage.

"We are satisfied as to recklessness. The defendants would all have been aware that the hut had already been entered and items taken and damaged."

It will be noted that that announcement, although it contains a reference to recklessness, contains no reference to the intention of the defendants in general, and the appellant in particular, when entering the building.

6. Perhaps not surprisingly, the clerk asked the justices to clarify their finding with regard to intent. They then made a further announcement, set out in paragraph 28 of the case:

"There is no dispute that the defendants were in the hut for an unlawful purpose. You entered knowing that others had been there. The evidence was all about you in the street.

"You were seen by police officers near equipment which was fixed. The two PCs saw what appeared to them to be an attempt to remove a piece of equipment.

"Any activity like that would have led to criminal damage. The removal of any item would have led to criminal damage.

"We believe it was in their minds to commit criminal damage at the point when they entered.

"We did not believe the reasons given by the boys in their statements.

"Our view is that, the boys, when they entered the hut, having seen what they had seen in the street, entered with a degree of recklessness, knowing that anything they removed would cause criminal damage."

The second question posed by the case is:

"2. Whether, in giving our judgment, our use of the words

"(i)'satisfied as to recklessness' and

"(ii)'entered with a degree of recklessness'

"gave the impression of applying the wrong test of the mental element required,

"and whether we came to a correct decision and determination in point of law."

7. For the reasons already explained, it is unnecessary to spend further time on the first question which the justices posed: they were clearly, as it seems to me, entitled to convict of burglary, notwithstanding their finding as to absence of a case in relation to criminal damage.

8. What Mr Cooper submits in relation to that second question is that there is a notable disjunction between the findings as expressed in paragraph 25 of the case, and the expression of reasons made at the time in the two announcements rehearsed in paragraphs 26 and 28 of the case. Mr Cooper submits that there has clearly been a muddle in the justices' minds, perhaps arising from the possibility of recklessness being pertinent when considering the offence of criminal damage. The justices might have considered that burglary was provable on the basis of recklessness alone. Mr Cooper points out that reference to recklessness appears in both the announcements of the justices' reasons, even though the second announcement was specifically made at their clerk's request in order to clarify the findings made by them in relation to intention. Mr Cooper further submits that the use of the phrase, "We believe it was in their minds to commit criminal damage at the point when they entered," is an inadequate expression of a finding beyond reasonable doubt of an intention to commit criminal damage.

9. For my part, I do not accept that submission directed to that passage of the announcement in isolation. Bearing in mind that the following sentence is, "We did not believe the reasons given by the boys", for my part, I would not have difficulty in concluding that the ordinary meaning of the justices' language, "We believe it was in their minds", if that passage stood in isolation, was a clear finding that the defendants had the necessary intention to cause criminal damage at the time when they entered. The phrase, of course, does not stand in isolation. It has to be judged in the context of the previous announcement which referred to recklessness without any reference at all to intent, and to the final passage, which I have already read, in the second announcement, which refers to "a degree of recklessness". Mr Cooper seeks sustenance for his submission from the decision in Evans v DPP [2001] EWHC Admin 369, a decision of the Divisional Court on 14th May 2001, when the principal judgment was given by Bell J sitting with Lord Woolf Chief Justice. It seems to me that that case is plainly distinguishable from the present because, as is apparent in particular from paragraphs 10 and 11 of the judgment of Bell J, the justices in that case had expressly made a reference to weighing up differences, which gave a clear indication that they were applying the wrong test relating to preponderance of probabilities rather than proof beyond reasonable doubt. And in the case which they subsequently stated, they gave reasons which Bell J concluded had the appearance of changing the reasons which they had earlier given. Neither of those features, as it seems to me, is present in the present case.

10. The question arises, however, as to whether or not the defendant may have gained the impression that the wrong test as to his mental element was being applied. In that regard, Mr Cooper reminds the court of the practice direction issued as a result of the case of Thompson and Venables in relation to Crown Court trials, which is set out in [2000] 1 Cr App R 483 and in particular, paragraph 11 of that direction. This concludes with the observation that a trial should, so far as practicable, be "conducted in language which the young defendant can understand". Mr Cooper uses that authority to underline the submission which he makes that, in the case of an 11 year-old of good character being tried by the youth court, it is of particular importance that the defendant should have explained to him clearly and comprehensively that of which he is found guilty.

11. On behalf of the respondent, Mr Harwood-Stevenson concedes that the last paragraph of the second announcement and its reference to "a degree of recklessness" muddied the waters in relation to what the justices had said earlier in that second announcement. But he submits that this was no more than an amplification of what the justices had clearly said in relation to their belief as to what was in the defendants' minds, which was of itself a sustainable finding, clearly expressed, of the relevant intention on the part of the defendant at the time of entry.

12. Mr Harwood-Stevenson submits that it may be that the justices were using the word "recklessness" in the lay sense of choosing to disregard risks of consequences, rather than in the specifically legal context of criminal damage. Mr Harwood-Stevenson also submits that it may be that an 11 year-old, told that his account was not believed, and that the justices believed that he had in his mind to commit criminal damage at the time when he entered, would not have paused long or at all to analyse the concept of recklessness advanced at the conclusion of the justices' second announcement. Mr Harwood-Stevenson also drew attention to an admission made by the appellant in the course of his interview that he had been "looking for something to break".

13. As it seems to me, the question before the court on this occasion is not whether or not the justices had before them evidence entitling them to reach the conclusion that the offence of burglary was proved against the appellant. The crucial question is whether the reasons which they gave, in the terms of the second question posed for this court, may have given the impression of applying the wrong test for the mental element required. As it seems to me, they may very well have given the impression that they were applying the wrong test. There was, as I have said, no reference in their initial announcement to intention at all; there was a reference to recklessness. In their second announcement, had they said, "We believe it was in their minds to commit criminal damage at the point when they entered", there could, as it seems to me, have been no room for misunderstanding. But the reference to "a degree of recklessness" which followed, in my judgment, was plainly capable of giving rise to misunderstanding as to whether or not the justices had indeed applied the right test.

14. Therefore, for my part, I would allow this appeal and quash the conviction.

15. Mr Harwood-Stevenson invites the court, bearing in mind that three others, who have not complained, were convicted of this offence, to remit this matter for reconsideration by another bench. For my part, I would not be disposed to accede to that suggestion. I say that for a number of reasons. First of all, it is now almost a year since this offence is said to have been committed, and it would certainly be at least a year before it could be reconsidered by justices. A year in the life of an 11 year-old, who is obviously now a 12 year-old, is a very substantial period of time. Secondly, the other defendants who were convicted were, as I indicated at an early stage in this judgment, all significantly older than this appellant. And thirdly, there is nothing before the court on which any conclusion could be reached, either by reference to the evidence which lay against them individually, or by reference to their understanding of what had happened, which would be capable of throwing into doubt their acceptance that, so far as they were concerned, they understood what the justices were finding in relation to them. So, for my part, if my Lord agrees, and this appeal is allowed, I would not order its remission; I would merely quash the conviction.

16. MR JUSTICE RICHARDS: I do agree.

17. MR COOPER: I am obliged, my Lord. The appellant has had the benefit of a representation order. I wonder if I might apply for the appropriate order?

18. LORD JUSTICE ROSE: Yes. I am not sure whether such an order is requisite. An application was made in the previous case, but if it is requisite, we make it.

19. MR COOPER: I am obliged.