Regina
v.
Steer (Respondent)
(On Appeal from the Court of Appeal (Criminal Division))
JUDGMENT
Die Jovis 2° Julii 1987
Upon Report from the Appellate Committee to whom was
referred the Cause Regina against Steer, That the Committee
had heard Counsel on Thursday the 30th day of April last upon
the Petition and Appeal of the Chief Constable of the
Humberside Constabulary, County Police Headquarters, Queen’s
Gardens, Kingston-upon-Hull, Humberside, praying that the
matter of the Order set forth in the Schedule thereto, namely
an Order of Her Majesty’s Court of Appeal (Criminal Division)
of 16th May 1986, might be reviewed before Her Majesty the
Queen in Her Court of Parliament and that the said Order might
be reversed, varied or altered or that the Petitioner might
have such other relief in the premises as to Her Majesty the
Queen in Her Court of Parliament might seem meet; and Counsel
having been heard on behalf of Dennis Steer, the Respondent to
the said Appeal; and due consideration had this day of what
was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and
Temporal in the Court of Parliament of Her Majesty the Queen
assembled, That the said Order of Her Majesty’s Court of
Appeal (Criminal Division) of 16th May 1986 complained of in
the said Appeal be, and the same is hereby, Affirmed; That the
Certified Question be answered by a Declaration that:
“Upon the true construction of section l(2)(b) of the
Criminal Damage Act 1971 the prosecution are required to
prove that the danger to life resulted from the
destruction of or damage to property; it is not
sufficient for the prosecution to prove that it resulted
from the act of the defendant which caused the
destruction or damage:”
and that the said Petition and Appeal be, and the same is
hereby, dismissed this House: And it is further Ordered That
three-quarters of the costs of the Respondent incurred in
Lincoln Crown Court be paid out of Central funds pursuant to
section 16 of the Prosecution of Offences Act 1985; And it is
also further Ordered, That the Cause be, and the same is
hereby, remitted back to the Court of Appeal (Criminal
Division) to do therein as shall be just and consistent with
this Judgment.
Cler: Parliamentor:
Judgment: 2.7.87
HOUSE OF LORDS
REGINA
v.
STEER
(RESPONDENT)
(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL
DIVISION))
Lord Bridge of Harwich
Lord Griffiths
Lord Ackner
Lord Oliver of Aylmerton
Lord Goff of Chieveley
LORD BRIDGE OF HARWICH
My Lords,
In the early hours of 8 June 1985 the respondent went to
the bungalow of his former business partner, David Gregory,
against whom he bore some grudge. He was armed with an
automatic .22 rifle. He rang the bell and woke Mr. and Mrs.
Gregory, who looked out of their bedroom window. The respondent
fired a shot aimed at the bedroom window. He then fired two
further shots, one at another window and one at the front door.
Fortunately no one was hurt. It was never suggested that the
first shot had been aimed at Mr. or Mrs. Gregory.
Arising from this incident the respondent was arraigned on
an indictment containing three counts. He pleaded not guilty to
possession of a firearm with intent to endanger life, contrary to
section 16 of the Firearms Act 1968 (count 1) and to an offence
of damaging property with intent, contrary to section 1(2) of the
Criminal Damage Act 1971, which was alleged in the particulars as
originally framed as having been committed “intending by the said
damage to endanger the lives of David Gregory and Tina Gregory
or being reckless as to whether the lives of David Gregory and
Tina Gregory would be thereby endangered” (count 2). He pleaded
guilty to a separate offence of damaging property, contrary to
section 1(1) of the Act of 1971 (count 3).
Section 1 of the Act of 1971 provides:
“(1) A person who without lawful excuse destroys or
damages any property belonging to another intending to
destroy or damage any such property or being reckless as to
whether any such property would be destroyed or damaged
shall be guilty of an offence.
– 1 –
(2) A person who without lawful excuse destroys or
damages any property, whether belonging to himself or
another –
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intending to destroy or damage any property or being
reckless as to whether any property would be
destroyed or damaged; and -
intending by the destruction or damage to endanger
the life of another or being reckless as to whether
the life of another would be thereby endangered;
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shall be guilty of an offence.
(3) An offence committed under this section by destroying
or damaging property by fire shall be charged as arson.”
It is to be observed that the offence created by subsection
(2), save that it may be committed by destroying or damaging
one’s own property, is simply an aggravated form of the offence
created by subsection (1), in which the prosecution must prove, in
addition to the ingredients of the offence under subsection (1), the
further mental element specified by subsection (2)(b). In this case
presumably count 2 was intended to relate to the damage done by
the shot fired at the bedroom window and count 3 to the damage
done by one or other or both of the other two shots. It is also
significant to note the maximum penalties attaching to the three
offences charged. For an offence under section 16 of the Act of
1968 it is 14 years’ imprisonment, for an offence under section
1(2) of the Act of 1971 life imprisonment, for an offence under
section 1(1) of the Act of 1971 10 years’ imprisonment.
At some stage in the trial the particulars of count 2 were
amended by deleting the words alleging an intent to endanger life
and leaving only recklessness in that regard as the mental element
relied on to establish the offence under section 1(2). The
prosecution, it appears, presented the case on the footing that
counts 1 and 2 were alternatives and, if the case had been left to
the jury, the judge would presumably have directed them that, if
they found that the respondent intended to endanger the lives of
Mr. and Mrs. Gregory they should convict on count 1, but if they
found that he was merely reckless with regard to such danger,
they should acquit on count 1 and convict on count 2.
At the conclusion of the case for the prosecution, however,
counsel for the respondent submitted that there was no case to
answer on count 2 on the ground that, in so far as the lives of
Mr. and Mrs. Gregory had been endangered, the danger had not
been caused by the damage done to the bungalow, but by the shot
fired from the respondent’s rifle. Of course, it is obvious that
any danger to life in this case was caused by the shot from the
rifle itself, not by any trifling damage done to the bedroom
window or to any property in the bedroom. But the judge rejected
counsel’s submission and accepted the submission made for the
Crown that the phrase in section l(2)(b) of the Act of 1971 “by
the destruction or damage” refers on its true construction not only
to the destruction or damage to property as the cause of the
danger to life on which the mental element in the aggravated
offence under the subsection depends, but also to the act of the
– 2 –
defendant which causes that destruction or damage. On the basis
of the judge’s ruling the respondent changed his plea to guilty on
count 2. He appealed against conviction on the ground that the
judge’s ruling was erroneous. The Court of Appeal (Criminal
Division) (Neill L.J., Peter Pain and Gatehouse JJ.) allowed the
appeal, but certified that their decision involved a question of law
of general public importance in the following terms:
“Whether, upon a true construction of section 1 (2)(b) of the
Criminal Damage Act 1971, the prosecution are required to
prove that the danger to life resulted from the destruction
of or damage to the property, or whether it is sufficient for
the prosecution to prove that it resulted from the act of
the defendant which caused the destruction or damage.”
The Crown now appeals by leave of your Lordships’ House.
We must, of course, approach the matter on the footing,
implicit in the outcome of the trial, that the respondent, in firing
at the bedroom window, had no intent to endanger life, but
accepts that he was reckless as to whether life would be
endangered.
Under both limbs of section 1 of the Act of 1971 it is the
essence of the offence which the section creates that the
defendant has destroyed or damaged property. For the purpose of
analysis it may be convenient to omit reference to destruction and
to concentrate on the references to damage, which was all that
was here involved. To be guilty under subsection (1) the defendant
must have intended or been reckless as to the damage to property
which he caused. To be guilty under subsection (2) he must
additionally have intended to endanger life or been reckless as to
whether life would be endangered “by the damage” to property
which he caused. This is the context in which the words must be
construed and it seems to me impossible to read the words “by the
damage” as meaning “by the damage or by the act which caused
the damage.” Moreover, if the language of the statute has the
meaning for which the Crown contends, the words “by the
destruction or damage” and “thereby” in subsection (2)(b) are mere
surplusage. If the Crown’s submission is right, the only additional
element necessary to convert a subsection (1) offence into a
subsection (2) offence is an intent to endanger life or recklessness
as to whether life would be endangered simpliciter.
It would suffice as a ground for dismissing this appeal if the
statute were ambiguous, since any such ambiguity in a criminal
statute should be resolved in favour of the defence. But I can
find no ambiguity. It seems to me that the meaning for which
the respondent contends is the only meaning which the language
can bear.
The contrary construction leads to anomalies which
Parliament cannot have intended. If A and B both discharge
firearms in a public place, being reckless as to whether life would
be endangered, it would be absurd that A, who incidentally causes
some trifling damage to property, should be guilty of an offence
punishable with life imprisonment, but that B, who causes no
damage, should be guilty of no offence. In the same
circumstances, if A is merely reckless but B actually intends to
– 3 –
endanger life, it is scarcely less absurd that A should be guilty of
the graver offence under section 1(2) of the Act of 1971, B of the
lesser offence under section 16 of the Firearms Act 1968.
Counsel for the Crown did not shrink from arguing that
section 1(2) of the Act of 1971 had created, in effect, a general
offence of endangering life with intent or recklessly, however the
danger was caused, but had incidentally included as a necessary,
albeit insignificant, ingredient of the offence that some damage to
property should also be caused. In certain fields of legislation it
is sometimes difficult to appreciate the rationale of particular
provisions, but in a criminal statute it would need the clearest
language to persuade me that the legislature had acted so
irrationally, indeed perversely, as acceptance of this argument
would imply.
It was further argued that to affirm the construction of
section 1(2)(b) adopted by the Court of Appeal would give rise to
problems in other cases in which it might be difficult or even
impossible to distinguish between the act causing damage to
property and the ensuing damage caused as the source of danger
to life. In particular it was suggested that in arson cases the jury
would have to be directed that they could only convict if the
danger to life arose from falling beams or similar damage caused
by the fire, not if the danger arose from the heat, flames or
smoke generated by the fire itself. Arson is, of course, the prime
example of a form of criminal damage to property which, in the
case of an occupied building, necessarily involves serious danger to
life and where the gravity of the consequence which may result as
well from recklessness as from a specific intent fully justifies the
severity of the penalty which the Act of 1971 provides for the
offence. But the argument in this case is misconceived. It is not
the match and the inflammable materials, the flaming firebrand or
any other inflammatory agent which the arsonist uses to start the
fire which causes danger to life, it is the ensuing conflagration
which occurs as the property which has been set on fire is
damaged or destroyed. When the victim in the bedroom is
overcome by the smoke or incinerated by the flames as the
building burns, it would be absurd to say that this does not result
from the damage to the building.
Counsel for the Crown put forward other examples of cases
which he suggested ought to be liable to prosecution under section
1(2) of the Act of 1971 including that of the angry mob of
striking miners who throw a hail of bricks through the window of
the cottage occupied by the working miner and that of people who
drop missiles from motorway bridges on passing vehicles. I believe
that the criminal law provides adequate sanctions for these cases
without the need to resort to section 1(2) of the Act of 1971.
But if my belief is mistaken, this would still be no reason to
distort the plain meaning of that subsection.
Some reference was also made to damage caused by
explosives. This is the subject of specific provision under the
Explosive Substances Act 1883 as amended. The offence created
by section 3(l)(a) of that Act as substituted by section 7(1) of the
Criminal Jurisdiction Act 1975, of doing “any act with intent to
cause … by an explosive substance an explosion of a nature
likely to endanger life, or cause serious injury to property”
– 4 –
obviates the need to resort to the Act of 1971 when explosives
are used.
The trial judge was, it seems, in large part persuaded to
rule as he did in reliance on a sentence from the judgment of the
Court of Appeal (Criminal Division) delivered by Parker L.J. in
Reg. v. Hardie [1985] 1 WLR 64, 67, where he said in reference
to the state of mind of a defendant who commits the actus reus
of an alleged offence under section 1(2) of the Act of 1971:
“If, when doing that act, he creates an obvious risk both
that property will be destroyed and that the life of another
will be endangered and gives no thought to the possibility of
there being either risk, the requirements of the subsection
are in our judgment clearly satisfied.”
The case of Hardie was concerned solely with the effect of self-
administered tranquillising drugs on the state of mind of the
defendant. It had nothing whatever to do with the issue of
causation arising in the instant case. If I may say so without
offence, the judge’s error vividly illustrates the danger, which is
particularly acute in the field of statutory construction, of reading
a judicial dictum entirely out of context and treating the precise
words used as relevant to the decision of an issue to which the
author of the words had never applied his mind.
I can well understand that the prosecution in this case
thought it necessary and appropriate that, even if they could not
establish the intent to endanger life necessary to support a
conviction under section 16 of the Act of 1968, they should
include a count in the indictment to mark in some way the
additional gravity of an offence of criminal damage to property in
which a firearm is used. But they had no need to resort to
section 1(2) of the Act of 1971. A person who, at the time of
committing an offence under section 1 of the Act of 1971, has in
his possession a firearm commits a distinct offence under section
17(2) of the Act of 1968: see Schedule 1 to the Act of 1968, as
amended by section 11(7) of the Act of 1971. If the respondent
had been charged with that offence in addition to the offence
under section 1(1) of the Act of 1971, he must have pleaded guilty
to both and, if the prosecution were content to accept that there
was no intent to endanger life, this would have been amply
sufficient to mark the gravity of the respondent’s criminal conduct
in the incident at the Gregory bungalow.
I would accordingly dismiss the appeal. The certified
question should be answered as follows:
“Upon the true construction of section 1 (2)(b) of the
Criminal Damage Act 1971 the prosecution are required to
prove that the danger to life resulted from the destruction
of or damage to property; it is not sufficient for the
prosecution to prove that it resulted from the act of the
defendant which caused the destruction or damage.”
– 5 –
LORD GRIFFITHS
My Lords,
I have had the advantage of reading in draft the speech
delivered by my noble and learned friend Lord Bridge of Harwich.
For the reasons which he has given I agree that the appeal should
be dismissed and I would answer the certified question in the way
in which he has suggested.
LORD ACKNER
My Lords,
I have had the advantage of reading in draft the speech
delivered by my noble and learned friend Lord Bridge of Harwich.
For the reasons which he has given I also agree that the appeal
should be dismissed and the certified question answered in the
manner indicated by him.
LORD OLIVER OF AYLMERTON
My Lords,
I have had the advantage of reading in draft the speech
delivered by my noble and learned friend Lord Bridge of Harwich.
For the reasons which he has given I agree that the appeal should
be dismissed and the certified question answered in the sense
which he has indicated.
LORD GOFF OF CHIEVELEY
My Lords,
I have had the advantage of reading in draft the speech
delivered by my noble and learned friend Lord Bridge of Harwich.
For the reasons which he has given I also agree that the appeal
should be dismissed and the certified question answered in the
manner indicated by him.
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