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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Kelleher, R v [2003] EWCA Crim 3525 (20 November 2003) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2003/3525.html Cite as: [2003] EWCA Crim 3525 |
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CRIMINAL DIVISION
Neutral Citation No: [2003] EWCA Crim 2846.
Strand London, WC2 |
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B e f o r e :
MR JUSTICE ELIAS
MR JUSTICE JACK
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R E G I N A | ||
-v- | ||
PAUL KELLEHER |
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Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR G LADENBURG appeared on behalf of the CROWN
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Crown Copyright ©
(10.33)
(10.38)
"If humanity is so intent of going to its own destruction then this is my play for the Crown and this is me being intent going to my own destruction. I do not want my children to grow up in a world where the order of the day is for mankind to act like dangerous parasites, stripping all that is good from each other and this fine planet earth. To do so is to leave nothingness, unless you call living hell something. 'Thy kingdom come thy will be done on earth as it is in heaven' - really!"
"I have used the words 'lawful excuse'. I have to decide as a matter of law whether there is anything in the defendant's evidence which is capable of amounting to a lawful excuse. I have to tell you as a matter of law, his evidence and everything he has said, clearly very sincerely, clearly very honestly, but it does not amount to a lawful excuse. As matter of law his reasons for his action by way of political beliefs, anti-globalisation belief, cannot -- his need to protect his son as he sees it -- amount to a lawful excuse. I say that because even though he honestly believes that what he did was justified by his dislike of Mrs Thatchers' policies in tying us too close to the United States in pursuing the aims of globalisation, and as he sees it, in the need to protect the safety and future of his son, he had no property belonging to himself which was in need of protection and no right or interest which was in immediate danger so as to need immediate protection. Even if he had such a right, the means adopted -- in other words knocking the head of the statute off -- were not reasonable having regard to all of the circumstances, that action in itself was not capable of protecting anyone's property, it was not even going to begin to achieve his objective.
The law in this field is really within a very narrow [compass]. Let me give you a simple example. If, for instance, I see the wall of your house bulging so far that I think it is going to fall down and damage the wall of my house and I go out and knock it down, that would be me acting in protection of my own property which was in immediate danger because of the fear of your wall falling down on it. Another simple example: If I have a right of way across your land and you put up a gate to stop me exercising it, then I will be acting in protection of my proprietary interests in that right of way if I knocked the gate down. That is the field in which lawful excuse arises. It is defined very narrowly within the Statute. Therefore, in the light of what the defendant admits that he did, I must direct you that there can only be one verdict in this case and that is one of guilty. The case is nothing to with whether you like or dislike Mrs Thatcher: Whether you like or dislike her policies, it is simply a question of, whether as a matter of law it amounts to criminal damage."
"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."
"5(1) This section applies to any offence under section 1(1) above [simple criminal damage] ...
(2) A person charged with an offence to which this section applies shall, whether or not he would be treated for the purposes of this Act as having a lawful excuse apart from this subsection, be treated for those purposes as having a lawful excuse --
(a) ...
(b) if he destroyed or damaged or threatened to destroy or damage the property in question or ... in order to protect property belonging to himself or another or a right or interest in property which was or which he believed to be vested in himself or another, and at the time of the act or acts alleged to constitute the offence he believed --
(i) that the property, right or interest was in immediate need of protection; and.
(ii) that the means of protection adopted or proposed to be adopted were or would be reasonable having regard to all the circumstances.
(3) For the purposes of this section it is immaterial whether a belief is justified or not if it is honestly held.
(4) For the purposes of subsection (2) above a right of interest in property includes any right or privilege in or over land, whether created by grant, licence or otherwise.
(5) This section shall not be construed as casting doubt on any defence recognised by law as a defence to criminal charges."
"I have said that we will assume in his favour that he possessed the requisite honest belief. But in our view the question whether he was entitled to the benefit of the defence turned upon the meaning of the words 'in order to protect property belonging to another'. It was argued that those words were subjective in concept, just like the words in the latter part of section 5(2)(b) which are subjective. We do not think that is right. The question whether or not a particular act of destruction or damage or threat of destruction or damage was done or made in order to protect property belonging to another must be, on a true construction of the statute, an objective test. Therefore we have to ask ourselves whether, whatever the state of this man's mind and assuming an honest belief, that which he admittedly did was done in order to protect this particular property, namely the old people's home in Hertfordshire? If one formulates the question in that way, in the view of each member of this court, for the reasons Slynn J gave during argument, it admits of only one answer: this was not done in order to protect property; it was done in order to draw attention to the defective state of the fire alarm. It was not an act which in itself did protect or was capable of protecting property."
"... that the result could only be achieved by 'a gross distortion of the words of the statute, reading it as if the words, 'in order to', read, 'by an act likely to.'"
"There are two aspects to this type of question. The first aspect is to decide what it was that the applicant in this case, Valerie Hill, in her own mind thought. The learned judge assumed, and so do we, for the purposes of this decision, that everything she said about her reasoning was true. I have already perhaps given a sufficient outline of what it was she believed to demonstrate what is meant by that. Up to that point the test was subjective. In other words one is examining what is going on in the applicant's mind.
Having done that the judges in the present cases and the judge particularly in the case of Valerie Hill turned to the second aspect of the case and that is this. He had to decide as a matter of law, which means objectively, whether it could be said that on those facts as believed by the applicant, snipping the strand of wire, which she intended to do, could amount to something done to protect either the applicant's own home or the home of her adjacent friends in Pembrokeshire.
He decided again quite rightly in our view that that proposed act on her part was far too remote from the eventual aim at which she was targeting her actions to satisfy the test."
"Whilst there is no doubt that if a judge is satisfied that there is no evidence before the jury which could justify them in convicting the accused and that it would be perverse for them to do so, it is the judge's duty to direct them to acquit. This rule, which has long been established, is to protect the accused against being wrongly convicted. But there is no converse rule -- although there are some who think there should be."
"If the judge is satisfied that, on the evidence, the jury would not be justified in acquitting the accused and indeed that it would be perverse of them to do so, he has no power to pre-empt the jury's verdict by directing them to convict. The jury alone have the power to decide that the accused is guilty. In an appropriate case (and this was certainly such a case) the judge may sum up in such a way as to make it plain that he considers that the accused is guilty and should be convicted. I doubt however whether the most effective way of doing so would for the judge to tell the judge to tell the jury that it would be perverse for them to acquit. Such a course might be counter-productive."
"Whether or not there is still a category of rare cases where the judge is justified in directing a conviction, it is perhaps unnecessary to decide. There is no reference to any such cases in the speeches of the majority in DPP v Stonehouse; and the existence of such a category is inconsistent with the thrust of Lord Keith's speech at p.232 and p.94 respectively.
Our own view would be that, if such a category exists at all, it must be confined to wholly exceptional cases where, for example, there has been something in the nature of a formal admission of guilt. The fact that on the evidence, including the evidence of the defendant himself, only one verdict is possible, does not justify the judge in directing the jury to convict. If the judge takes the view the defendant has, in the course of his evidence admitted his guilt then it is always open to him to give the defendant an opportunity, in the absence of the jury, to change his plea. But if he maintains his plea, the defendant is entitled to the verdict of a jury, even though in the view of the judge, an acquittal would be perverse."
"The judge here was dealing with the defence of lawful excuse. Certainly the prosecution had to destroy that defence, but it was no part of their affirmative case. It bore a similarity to the defence of self-defence, and, as it that case, so in this, there was no need for the judge to direct the jury on those matters unless there was some evidence capable of constituting that defence. In fact there was none, as the judge in each case rightly held."
"Therefore, in the light of what this defendant admits that he did, I must direct you that there can only be one verdict in this case and that is one of guilty."
"This may, at first sight, appear an unsatisfactory state of affairs, until it is remembered that the integrity of the criminal process is the most important consideration for courts which have to hear appeals against conviction. If the trial process is not fair, if it is distorted by deceit or by material breaches of the rules of evidence or procedure, then the liberties of all are threatened."
"Anyone in the judge's position might easily have made the slip which he did of not leaving the jury to decide whether the facts proved amounted to the attempt charged. However obvious it may be that they did and that the accused was guilty, technically, the judge should still have left it to the jury to decide whether or not the evidence established the attempt charge and have found him guilty or not guilty accordingly. The technical slip on the part of the judge certainly made no difference to the result of the trial. There is no possibility that any reasonable jury could have had the slightest doubt that the facts proved did establish the attempt charged and accordingly would certainly have brought in a verdict of guilty. I am completely satisfied that no miscarriage of justice could have resulted from what technically was a misdirection and that therefore the proviso to section 2(1) of the Criminal Appeal Act 1968 should be applied."
"In several cases of misdirection of the kind which occurred in the instant case, the conviction has been upheld where the court was convinced that, on a proper direction, the jury would have come to the same conclusion. Applying that generally accepted test to the present case and being satisfied that no miscarriage of justice resulted from the misdirection complained of, I would apply the proviso."
"While that is my view upon the matter of principle, I cannot in the circumstances of the present case regard the misdirection as being other than purely technical. I do not consider that in these circumstances any reasonable jury could have come to the conclusion, having accepted the evidence as to what the appellant did, that his actions were merely preparatory to an attempt such that was charged. I am therefore of the opinion that this is a clear case where no miscarriage has resulted from the misdirection, and which is therefore a proper one for the application of the proviso to section 2(1) of the Criminal Appeal Act 1968."
"The court is concerned with the safety of the conviction. A conviction can never be safe if there is a doubt about guilt. However, the converse is not true. A conviction may be unsafe even where there is no doubt about guilt but the trial process has been 'vitiated by serious unfairness or significant legal misdirection' as in Smith (Patrick and Others) and in Weir. Usually it will be sufficient for the court to apply the test in Stirland (1945) 30 Crim App R 40 1944 AC 315, which as adapted by Mr Perry, might read:
'Assuming the wrong direction on law or the irregularity had not occurred and the trial had been free from legal error, would the only reasonable and proper verdict have been one of guilty?'"