Disclosure of information by prosecution - public interest immunity - appointment of independent special counsel

R v H and another: CA (Lord Justice Rose, Mr Justice Penry- Davey and Mr Justice David Clarke): 16 October 2003

The defendants were charged with conspiracy to supply a class A drug (heroin) valued at approximately 1.8 million.

At a preparatory hearing, the Crown sought a ruling from the trial judge on the question of whether material could be withheld from disclosure to the defence on the grounds of public interest immunity.

The judge held that the effect of the European Court of Human Rights' decision in Lewis v United Kingdom (2003) The Times, 29 July, was to compel the use of independent counsel to ensure compliance with article 6 of the European Convention on Human Rights.

In interlocutory proceedings, under section 35 of the Criminal Procedure and Investigations Act 1996, the Crown appealed against that ruling.

David Perry and Sean Morris (instructed by the Crown Prosecution Service, York) for the Crown; Leonard Smith and Jonathan Lennon (instructed by Rahman Ravelli, Halifax) for the defendant, H; Robin Howat and Tamia Tagon (instructed by Middleweeks, Manchester) for the defendant, C.

Held, allowing the appeal, that if a determinative ruling on an issue of fact had to be given by reference to undisclosed material, the judge could invite the Attorney-General to appoint special independent counsel to act as an advocate of the court; but that where the material was not relevant to any preliminary determinative ruling, such as an application to stay proceedings, the existing procedure should be followed; that nothing in Lewis v United Kingdom required the appointment of independent counsel at the stage the case had reached; and that, accordingly, when the judge came to look at the material, it would then be necessary for him to consider whether it was one of those rare and exceptional cases in which special independent counsel should be appointed.

Recklessness - requirement to prove awareness of risk - defendant's age and personal characteristics relevant

R v G and another: HL (Lord Bingham of Cornhill, Lord Browne-Wilkinson, Lord Steyn, Lord Hutton and Lord Rodger of Earlsferry): 16 October 2003

In the early hours of the morning, the defendants, boys aged 11 and 12 respectively, entered the backyard of a shop, set fire to some newspapers which they threw under a plastic dustbin, and then left the yard without putting out the burning papers.

The fire spread to the shop and adjoining buildings, causing approximately 1 million worth of damage.

It was accepted at their trial for arson, contrary to section 1(1)(3) of the Criminal Damage Act 1971, that neither defendant had appreciated that there was any risk of the fire spreading.

The trial judge directed the jury, in accordance with R v Caldwell [1982] AC 341, that in the context of recklessness, the question whether there was an obvious risk of property being damaged had to be assessed by reference to the reasonable man and no allowance was to be made for the defendants' youth or lack of maturity.

The jury convicted both defendants and the Court of Appeal [2002] EWCA Crim 1992; [2003] 3 All ER 206, dismissed their appeals on the ground that the decision in R v Caldwell was binding.

The defendants appealed.

Alan Newman QC and Andrew Jefferies (instructed by Pictons, Milton Keynes) for G; Alan Newman QC and Isobel Ascherson (instructed by Borneo Linnells, Milton Keynes) for R; David Perry and Richard Whittam (instructed by the Crown Prosecution Service) for the Crown.

Held, allowing the appeal, that in section 1 of the 1971 Act, Parliament's intention had been to replace the expression 'maliciously', which had previously been used with the more familiar expression 'reckless', but no relevant change in the mens rea necessary for proof of the offence had been intended; that conviction of a serious crime should depend on proof not simply that the defendant caused (by act or omission) an injurious result to another, but that his state of mind when so acting was culpable; that it was clearly blameworthy to take an obvious and significant risk of causing an injurious result to another, but it was not clearly blameworthy to do something involving such a risk if (for reasons other than self-induced intoxication) one genuinely did not perceive the risk; that such a person might fairly be accused of stupidity or lack of imagination, but neither failing should expose him to conviction of a serious crime or risk of punishment; that the model direction formulated by Lord Diplock in R v Caldwell was based on a misinterpretation of 'reckless' within the meaning of section 1, and was capable of leading to obvious unfairness so that the need to correct it was compelling; that it was neither moral nor just to convict a defendant, least of all a child, on the strength of what someone else would have apprehended if the defendant himself had no such apprehension; that the test for assessing recklessness in the context of arson as formulated in R v Caldwell was wrong and should not be followed; and that the correct approach was that a person acted recklessly within the meaning of section 1 with respect to:

- A circumstance when he was aware of a risk that it existed or would exist;

- A result when he was aware of a risk that it would occur, and it was in the circumstances known to him, unreasonable to take the risk.

(WLR)