R v Stephenson [1979] QB 695

Stephenson, a schizophrenic vagrant, lit a fire inside a straw stack to keep warm, causing extensive damage. The Court of Appeal held that “recklessness” under the Criminal Damage Act 1971 requires a subjective awareness of risk. Because the jury were misdirected, his arson conviction was quashed.

Facts

On 28 November 1977 the appellant, Brian Keith Stephenson, made a hollow in the side of a large straw stack in a field near Ampleforth, crawled inside and tried to sleep. Feeling cold, he lit a fire of twigs and straw inside the hollow. The stack caught fire, causing damage of about £3,500.

Stopped shortly afterwards by the police, he initially claimed the fire had been started by a cigarette, but the next day admitted lighting the fire, stating:

“I kept putting bits of straw on the fire. Then the lot went up. As I ran away I looked back and saw the fire was getting bigger. I ran off down the road, that’s when I was picked up. I’m sorry about it, it was an accident. “

He was charged with arson, contrary to section 1(1) and (5) of the Criminal Damage Act 1971, and with burglary. He pleaded guilty to burglary and was convicted of arson at York Crown Court on 10 May 1978.

The defence called a consultant psychiatrist, Dr Hawkings, who gave evidence that the appellant had a long history of schizophrenia. In his opinion, Stephenson could have lit a fire so near the straw stack without having taken the danger into account, and may not have had the same ability to foresee or appreciate risk as a mentally normal person. The appellant did not give evidence.

The trial judge imposed a three-year probation order with a condition of medical treatment for both offences.

Issues

The appeal turned on whether the conviction for arson was safe in light of the directions given to the jury on “recklessness” under section 1 of the Criminal Damage Act 1971.

Main legal issues

• Whether “reckless” in section 1 of the 1971 Act imports a subjective test (requiring proof that the defendant actually foresaw the risk of damage and unreasonably took it) or an objective test (that the risk would have been obvious to a reasonable person).
• Whether the judge’s direction, based largely on the Court of Appeal’s earlier decision in Parker, correctly stated the law on recklessness.
• How mental abnormality (here schizophrenia) affects assessment of recklessness, in particular whether it can mean that the risk never entered the defendant’s mind at all.
• The relationship between recklessness and self-induced intoxication, in light of DPP v Majewski.

Judgment

The Court of Appeal (Criminal Division), constituted by Geoffrey Lane LJ, Ackner J and Watkins J, allowed the appeal and quashed the arson conviction.

The trial judge’s direction

The judge had directed the jury using language derived from Parker, including that a man is reckless when he carries out a deliberate act:

“knowing or closing his mind to the obvious fact that there is some risk of damage resulting from that act, but nevertheless continuing in the performance of that act”

He suggested that there could be many reasons why a person might “close his mind” to an obvious risk, including schizophrenia:

“there may be…… all kinds of reasons which make a man close his mind to the obvious fact — among them may be schizophrenia, that he is a schizophrenic.”

This direction was challenged as inconsistent with Briggs and as failing clearly to present a subjective test of recklessness.

Meaning of “reckless” under the Criminal Damage Act 1971

The Court reviewed relevant authorities and academic commentary.

It noted that in Briggs it had been held that:

“A man is reckless in the sense required when he carries out a deliberate act knowing that there is some risk of damage resulting from that act but nevertheless continues in the performance of that act. “

In Parker, the definition had been expanded to include a person:

“knowing or closing his mind to the obvious fact that there is some risk of damage resulting from that act but nevertheless continuing in the performance of that act. “

The Court had to determine whether these formulations were to be understood subjectively or objectively, and what the true meaning of “reckless” is in section 1 of the 1971 Act.

The Court considered the Law Commission Working Paper No 31, which defined recklessness as:

“A person is reckless if (a) knowing that there is a risk that an event may result from his conduct or that a circumstance may exist he takes that risk, and (b) it is unreasonable for him to take it having regard to the degree and nature of the risk which he knows to be present. “

It also referred to leading textbooks, which supported a subjective approach, and recorded that counsel for the Crown did not argue otherwise.

After reviewing dictionary definitions and earlier case law, including S. v Bates, Andrews v DPP, Shawinigan Ltd v Vokins & Co Ltd and British Railways Board v Herrington (considering Burlington v British Railways Board), the Court concluded that in the context of criminal damage the proper test is subjective, following the understanding of “malice” in Kenny’s Outlines of Criminal Law and its approval in R v Cunningham:

“(2) recklessness as to whether such harm should occur or not (i. e. the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it. )”

The Court held that it is the subjective test which is correct for “reckless” in section 1 of the 1971 Act.

Elements the prosecution must prove

The Court set out what must be proved to establish arson or criminal damage in circumstances like these:

1. The defendant deliberately committed an act which caused the damage, or part of it.
2. The defendant had no lawful excuse.
3. The defendant either intended to cause the damage, or was reckless as to whether the property was damaged.

On recklessness, the Court stated that a person is reckless when he performs the deliberate act appreciating that there is a risk that damage to property may result, but the risk must be one which it is unreasonable, in all the circumstances, for him to take.

The Court emphasised that the fact that a risk would have been obvious to anyone in his right mind is not conclusive, though it may strongly support an inference that the defendant did appreciate the risk. The language used in Parker about “closing his mind” was explained as covering the situation where the defendant actually had knowledge or appreciation of risk and suppressed or disregarded it; the Court made clear that the test remains subjective and that the idea of risk must have entered the defendant’s mind.

Self-induced intoxication

The Court acknowledged that the subjective test of recklessness presents difficulty where a defendant has, by self-induced intoxication, deprived himself of the ability to foresee risks. Referring to DPP v Majewski, the Court held that such cases form an exception to the usual rules: for crimes not requiring a specific intent, including section 1(1) of the Criminal Damage Act 1971, self-induced intoxication cannot be relied upon to negate mens rea.

Application to the appellant’s mental condition

Stephenson’s schizophrenia was not self-induced. It was, on the psychiatric evidence, a condition that might have prevented him from appreciating a risk that would have been obvious to a normal person. The trial judge had treated schizophrenia as a possible reason for “closing his mind” to an obvious risk, which presupposed the idea of risk had entered his mind and been shut out.

The Court held that this was a misapprehension. On the evidence, the schizophrenia might have meant that the danger did not enter his mind at all. If that were so, he could not be said to have been reckless under the proper subjective test and would be entitled to an acquittal.

The judge had not clearly left this crucial issue to the jury. Consequently, the jury were not properly invited to consider whether, in light of all the evidence including the psychiatric evidence, the appellant in fact appreciated the risk of the straw stack catching fire when he lit the fire inside it.

The Court noted that even in the presence of mental abnormality, a jury might still conclude that, on a particular occasion, the defendant must have appreciated the risk and therefore was reckless. In this case, however, because of the misdirection, the conviction could not safely stand.

Outcome

The Court concluded that the conviction for arson was unsafe and must be quashed. The probation order imposed, which related to both the burglary and arson counts, was ordered to remain unaltered.

Implications

This decision is a leading authority on the meaning of “recklessness” under the Criminal Damage Act 1971. It confirms that recklessness is to be judged subjectively: the prosecution must prove that the accused actually appreciated the relevant risk and unreasonably took it.

The judgment clarifies that the “closing his mind” language from Parker does not introduce an objective element; it describes a situation where the defendant, having appreciated the risk, consciously or unconsciously suppresses it yet proceeds. The risk still has to have entered the mind of the accused.

The case also distinguishes between non-culpable mental conditions, such as schizophrenia, which may prevent any appreciation of risk and so negate recklessness, and self-induced intoxication, which cannot generally be used to deny recklessness in crimes not requiring specific intent, following Majewski.

More broadly, the decision aligns criminal law’s approach to recklessness with the legal understanding of “malice” in earlier authorities, and limits reliance on purely objective formulations. It remains significant for offences of criminal damage and arson, and for assessing the impact of mental disorder on mens rea outside the formal insanity rules.

Verdict: Appeal allowed; the conviction for arson was quashed, although the existing probation order, imposed in respect of both burglary and arson, was left unaltered.

Source: R v Stephenson [1979] QB 695