No: 93/2933/Y2
BAILII Citation Number: [1995] EWCA Crim 5
IN THE SUPREME COURT OF JUDICATURE
THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London WC2
Date: Thursday 2nd February 1995
B e f o r e :
LORD JUSTICE FARQUHARSON
MR JUSTICE HIDDEN
and
MR JUSTICE LONGMORE
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R E G I N A
v
DAVID STEPHEN MERRICK
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(Computer Aided Transcript of the Stenograph Notes of
John Larking, Chancery House, Chancery Lane, London WC2
Telephone No: 071 404 7464
Official Shorthand Writers to the Court)
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MR J LEA appeared on behalf of the Appellant

MISS S REED appeared on behalf of the Crown
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JUDGMENT

Thursday 2nd February 1995
LORD JUSTICE FARQUHARSON: Mr Justice Hidden will give the judgment of the Court.

MR JUSTICE HIDDEN: On 5th May 1993, during the course of his trial at Nottingham Crown Court before His Honour Judge Benson and a jury, the appellant asked to be re arraigned and pleaded guilty to count 6, a count of damaging property being reckless as to whether life was endangered contrary to section 1(2) of the Criminal Damage Act 1871. A verdict of not guilty was entered on the alternative count, count 5, which had charged him with damaging property with intent to endanger life. The remaining eight counts on the indictment were ordered to remain on the file.
Sentence was adjourned to the Crown Court at Leicester on 28th May 1993, when he was sentenced by the learned judge to 9 months' imprisonment suspended for 2 years. He now appeals against conviction by leave of the Single Judge and he also renews his application for leave to appeal against sentence, leave having been refused by the Single Judge at the same time.
The factual background to the offences alleged against the appellant arose in a somewhat unusual way. There existed in Nottingham, in 1991 and 1992, cabling and installations at homes around the city which formed part of a cable television network originally installed by Rediffusion but purchased in 1991 by a company called Kinshine Cable Vision Limited. The appellant had fallen out with Kinshine for reasons upon which it is unnecessary to pass judgment. As a result it was his practice to visit householders to whose property the old Rediffusion cabling was attached, and to enquire from them whether they were receiving wayleave payments from Kinshine. He made the inquiry on the basis that they were entitled to receive such payments in accordance with a wayleave agreement, and that if they were not receiving such payments the cable could not lawfully be attached to that property. He would offer to collect outstanding wayleave payments on their behalf for a percentage commission, and would further offer that if such payments were not made he would remove the cable in question together with any ancillary equipment.
It was the appellant's defence to each count of criminal damage that he had the written authority of the householder concerned to remove the cabling equipment and therefore had a defence of lawful excuse under section 5 of the Act. The prosecution were unable to produce any valid wayleave agreements for any of the properties concerned in the indictment and sought to argue the case on the basis of an implied licence to attach cable. After the submission was made to him the learned judge discharged the jury from giving verdicts on all counts except counts 5 and 6, where the defence of lawful excuse did not apply, and the trial proceeded.
The Crown led evidence that Mrs Julie Bell was the occupier of 250 Carlton Hill, Nottingham, where there was, in the front garden, a live electric mains cable feeding into an electrical repeater box which was used to boost the television signal strength. On 26th April 1992 the appellant visited Mrs Bell and obtained written consent from her to remove the repeater box. He came back the next day and removed and dismantled the repeater box which he placed in Mrs Bell's garage. The removal of the repeater box inevitably meant the exposure of the live electrical cable, a fact about which the appellant was totally aware. Indeed, he had taken with him to the site various materials to deal with this problem including cement and ballast. He duly buried the cable with rubble and cemented over it.
The prosecution led evidence that, having buried the cable, the appellant had left a potentially dangerous situation in that the cement was insecure and came away easily. Beneath it the cable was surrounded by rubble and screwed up newspapers and was wrapped in a plastic carrier bag, newspaper and a bin liner. If moisture had leaked into the exposed cable the base of the repeater box would have been made live and also the area around the cable would have become live. The learned judge indicated, perfectly correctly, that the risk to life must have arisen when the appellant did the damage, not when he tried to make it safe, because the damage was not caused accidentally but deliberately. After an unsuccessful submission of no case the prosecution indicated that the way they would put their case to the jury was on the basis that the damage, namely the removal of the repeater box, exposed the live cable and created a risk that life would be endangered.
The defendant then gave evidence that he knew there was a mains supply to the box and thus he came prepared to make good the damage and had taken the necessary materials to the site with him. He put a heavy duty plastic bag containing silica gel over the exposed cable, which he covered with plastic sheeting and placed in a thick plastic sack. He covered the sack with bits of wood, a metal sheet and layers of newspaper, thereafter laying concrete on top which he covered with a concrete slab, topsoil and paving slabs. He had also put a warning notice inside the original plastic bag. He said that he did not expect the cable to be left as it was for any length of time and did not see any risk whatsoever as a result of his actions. He did not believe there was any risk of endangering life at any stage because he would not have undertaken the work if he was not competent to do it.
In cross examination he denied that he had left the cable in a dangerous state or that he had left it in the state described by a prosecution witness. When he carried the repeater box to the garage with the help of Mr Bell, he had already carried out half of the protection work to the exposed cable. He agreed that to have left the cable exposed would have been dangerous. He accepted that he had created a risk by exposing the cable, but said that he took reasonable precautions to eliminate the dangers using the materials that he had brought to the site for that purpose. In re examination he estimated that the cable was exposed for about six minutes before he dealt with it.
It was at this stage in the case that, after submissions by counsel, the learned judge held as a matter of law that any precautions designed to eliminate the risk of endangering life must, to provide a defence, be taken before the damage was caused. The action taken by the appellant was only taken after the damage was caused, in order to remedy the situation.
As a result of that ruling the appellant was advised by his counsel that he had no defence and was thereupon re arraigned and pleaded guilty to count 6 of the indictment.
Mr Lea for the appellant took two main points. He said that the prosecution had put their case in opening on the basis of R v Steer [1988] 1 AC 111, which decided that for a person to be guilty of an offence under section 1(2)(b) the prosecution were required to prove that the danger to life resulted from the destruction or damage to property; it was not sufficient for the prosecution to prove that the danger to life resulted from the act of the defendant which caused the destruction or damage.
Mr Lea argued that the Crown had opened its case to the jury on count 6 on the basis that, having dismantled the repeater box, the appellant then buried the live cable so as to leave it in a potentially dangerous condition. The Crown had called evidence as to how the live cable had been buried and how this burial could have endangered life by electrocution or by explosion. Mr Lea argued that, following Steer, any danger to life which resulted from efforts to bury the live cable was irrelevant. The damage was complete when the live cable was exposed in the dismantling of the repeater box. The appellant did not therefore fall to be convicted of count 6 because of alleged negligent acts of remedial work undertaken in order to bury the cable.
Mr Godsmark, for the Crown, had accepted during the no case submissions that he did not "take any issue with what is being propounded by my learned friend to the proposition that the damage ceases when the cable has been exposed" and that that had been "a concession I was slow to make" at an earlier stage.
Mr Lea submitted that the only evidence in the course of the prosecution case as to endangerment had been directed to the possible risk either to pedestrians or to those who dug up the cable once it had been buried by the appellant. He further submitted that there was no direct evidence that, by dismantling the repeater box and thereby exposing the live cable, the life of another had been endangered. Accordingly, Mr Lea submitted, in the absence of direct evidence there was no case to answer.
He argued, alternatively, that if the Crown were entitled to rely upon an inference of endangerment, then the learned judge ought not to have allowed the case to continue because the jury would inevitably have been prejudiced by the evidence adduced as to the later risk of electrocution or explosion. In other words, that it was arguable that the appellant was prejudiced by the jury hearing a lot of evidence of what happened after the cable was exposed.
Mr Lea, very fairly, conceded that he did not, upon the judge's ruling that there was a case to answer, ask for an adjournment or seek to have the jury discharged in order that there should be a fresh trial. Equally properly, he conceded that he was anxious to have the evidence of what the appellant took with him in order to effect the various remedial measures and to have those measures in evidence before the jury during the prosecution case.
Miss Cohen, who appeared instead of Mr Godsmark at the appeal before us, questioned whether there had been a significant change of tack in the prosecution case. She said the case was opened on the basis of what the defendant did globally in dismantling the repeater box, exposing the live cable and thereafter making inefficient repairs. She said all the acts together constituted the actus reus. She agreed that probably more evidence was led as to what happened afterwards, after the cable was exposed, rather than before. She pointed to the fact that Mr Lea accepted that all the material the Crown had led could quite reasonably be led as relevant to the appellant's state of mind and so to his guilt of the offence. She argued that the mens rea had to exist at the time of the actual damage to the cable, and thus there was never any shifting of the allegation that it was the removal of the box and the exposure of the live wire which was the actual trigger of the offence.
Having considered the arguments on both sides, we are satisfied that there was here no fundamental change of tack in the prosecution case such as would have completely altered the basis of the charge the appellant had to meet. This was not a case in which, to use Mr Lea's graphic phrase in the court below, "the goal posts had been moved". Rather had the issues and, therefore, the goal posts become narrower by the concentration of the prosecution case on the correct point of time, namely that at which the live wire had been exposed and thus the damage completed.
We are fortified in that conclusion by the fact that Mr Lea accepted that he wished to have before the jury all the evidence of what the appellant did after that moment, in covering and burying the cable, as relevant to his state of mind and, if necessary, to mitigation.
We are satisfied that at the conclusion of the prosecution case there was a clear case for the appellant to answer and that the learned judge was right so to rule. We are also satisfied that there was no risk of prejudice to the appellant by the leading of any of the evidence which constituted the prosecution case. 
Mr Lea's second ground centred upon the classic definition of "recklessness" set out in Lord Diplock's speech in R v Caldwell [1982] AC 341, where Lord Diplock put the matter this way:
"In my opinion, a person charged with an offence under section 1(1) of the Criminal Damage Act 1971 is 'reckless as to whether any such property would be destroyed or damaged' if (1) he does an act which in fact creates an obvious risk that property will be destroyed or damaged and (2) when he does the act he either has not given any thought to the possibility of there being any such risk or has recognised that there was some risk involved and has nonetheless gone on to do it." 
Mr Lea contended that this appellant arguably fell outside the definition in that there was a third possible state of mind, where an accused had not failed to consider the risk (because he had thought about it) nor had he acted, nonetheless, recognising the existence of a risk (because he has decided that there was no risk). In that state of mind Mr Lea contended that the person concerned, in which he included the appellant, had ruled out the risk.
He sought support from Chief Constable of Avon v Shimmen [1987] 84 Cr.App.R 7, in which the Divisional Court had to consider not only the cases of Caldwell and Lawrence [1981] 73 Cr.App.R 1 but also a considerable volume of academic writing which had followed those two cases. Mr Lea argued that the appellant had recognised the possible risk to life because he had brought with him items intended safely to bury the cable, so that the risk presented by the live wire would be thereby eliminated. He therefore no longer considered there to be a risk that life could be endangered from the damage, the dismantling, that he intended to carry out. He was thus, argued Mr Lea, outside the definition of recklessness in Caldwell in that he had recognised the risk but had taken steps, thinking them to be and intending them to be, sufficient to eliminate that risk.
Mr Lea argued that the appellant was not reckless since, though he knew that by removing the repeater box he would expose the live cable which if left in that state would endanger life, he took steps to deal with that live cable by burying it in the ground in the state which he did. Mr Lea argued that the case should have been left to the jury.
The passage from Shimmen, from which Mr Lea seeks support, appears at page 11 where Taylor J (as he then was), giving the judgment of the Court, quotes from and then analyses a passage from an article by Professor Griew in the Criminal Law Review in 1981. The judgment of the court reads:
"The Professor said:
'The following cases are outside the terms of the model direction in Caldwell. (a) M. does give thought to whether there is a risk of damage to another's property attending his proposed act. He mistakenly concludes that there is no risk; or he perceives only a risk such as would in the circumstances be treated as negligible by the ordinary prudent individual. He missed the obvious and substantial risk. (b) N.'s case is a more likely one. He is indeed aware of the kind of risk that will attend his act if he does not take adequate precautions. He takes precautions that are intended and expected to eliminate the risk (or to reduce it to negligible proportions). But the precautions are plainly, though not plainly to him, inadequate for this purpose. These appear not to be cases of recklessness. Evidence of conscientiousness displaces what would otherwise be an available inference of recklessness, (to use the language of Lord Diplock in Lawrence, ...The position of the person doing his best is further considered in the special context of reckless driving...')
He then went on to refer to R v Lawrence.
Those two examples which were given by Professor Griew seem to me not to be 'on all fours.' In the first example, it may well be arguable that the lacuna exists because it is not a case where M. failed to give any consideration to the possibility of a risk. It is a case where he did give consideration to the possibility of a risk and concluded, albeit mistakenly, that there was no risk. In terms, therefore, of Lord Diplock's definition, he has not recognised that there was some risk involved. He therefore is outside the second possible state of mind referred to in R v Caldwell.
A different situation, however, seems to me to apply in the case of N. posed by Professor Griew. He was aware of the kind of risk which would attend his act if he did not take adequate precautions. He seeks to rely upon the fact that he did take precautions which were intended, and by him expected, to eliminate the risk. He was wrong, but the fact that he was conscientious to the degree of trying to minimise the risk does not mean that he falls outside the second limb of Lord Diplock's test. Lord Diplock's second limb is simply whether or not he has recognised that there was some risk. It seems clear to me that in the case of N. as posed by Professor Griew, N. certainly did recognise that there was some risk and went on to do the act.
In my judgment, therefore, the second example given by Professor Griew does not constitute any lacuna in the definition given by Lord Diplock."
We consider that there is no lacuna in the definition of recklessness as given by Lord Diplock on the facts involved in this appeal. There is a clear distinction to be drawn between the avoiding of a risk and the taking of steps to remedy a risk which has already been created. If an accused person is successfully to contend that the taking of certain steps has prevented him from falling within the definition then those steps must be ones directed towards preventing the risk at all, rather than remedying it once it has arisen. The appellant in this case was unable to do that. He accepted that he had created a risk by exposing the cable and further that the cable was exposed for about six minutes before he dealt with it. Though he said that he took reasonable precautions to eliminate the danger using the materials that he had brought with him for that purpose, by then he was inevitably remedying a risk that he had already created rather than preventing the risk which arose when the live wire was exposed.
It follows that despite Mr Lea's interesting and ingenious argument the learned judge was, we consider, right to indicate as he did, that the appellant's evidence had shown no defence to count 6. It follows also that we consider Mr Lea was right to advise the appellant as he did thereafter, with the result that the appellant sought to be re arraigned and then pleaded guilty.
We are grateful to both counsel for their careful argument on this point but it follows that this appeal must be dismissed.
LORD JUSTICE FARQUHARSON: Mr Lea, do you have an application? 
MR LEA: My Lord, no.
LORD JUSTICE FARQUHARSON: There was before the court an application for leave to appeal against sentence?
MR LEA: My Lord, there was. The difficulty that I have with that application, as I explained on the last occasion when indicating that Mr Merrick was not present, is whilst I had his instructions to pursue an appeal (because I succeeded in getting leave to pursue an appeal against conviction), I have never received further instructions, in the absence of leave, to pursue an appeal against sentence. So strictly speaking I have no instructions which enable me today to say to this court, "Can I please renew my application for leave to appeal against sentence?" Having said that, if your Lordships, having considered the matter, so to speak, in advance, would be determined to reduce the sentence in some way, then clearly it would be wrong for me to stand in the way of that happening. Strictly speaking I have no instructions which would allow me to ask the court to interfere with the sentence that was passed.
LORD JUSTICE FARQUHARSON: We shall treat the application as a non counsel application.
(Pause)
Leave to appeal against sentence in this case is refused.