Neutral Citation Number: [2008] EWCA Crim 1222
Case No: 200704612 C2 
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SHEFFIELD CROWN COURT
Cox J
T20020626
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 10/06/2008
Before:

THE RT HON LORD JUSTICE TOULSON
MR JUSTICE JACK
and
MR JUSTICE SIMON
- - - - - - - - - - - - - - - - - - - - -
Between:

	R	Respondent	
	- and -		
	Matthew Stringer	Appellant 	

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Mr P Watson QC and Miss L Marshall for the Appellant
Mr R M M Jameson QC for the Respondent

Hearing dates: 14 March 2008
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Toulson: 
1.	After a trial lasting over 7 weeks Matthew Stringer was convicted on 1 August 2007 at Sheffield Crown Court before Mrs Justice Cox of the murder of his brother Adam and arson with intent to endanger life.  He appeals against his convictions by leave of the single judge.  He also seeks leave to call fresh evidence in support of an additional ground not considered by the single judge.  Matthew was born on 11 July 1992.  He was 14 at the time of the offence and had his fifteenth birthday during the trial.
2.	The prosecution arose from a fire which occurred at Matthew’s home at 8 Kitchin Road, Wombwell near Barnsley at about 6.45am on 3 November 2006.  When the fire broke out, all the occupants of the house other than Matthew were upstairs in bed.  There were 6 of them – his mother, his brothers Craig (aged 24), Gary (aged 20) and Adam (aged 15), his sister Jade (aged 13) and Gary’s girlfriend Carys (who was aged 18 and was 6 months pregnant).  It was a semi-detached 3 bedroom property.  Jade and Carys shared a small bedroom at the front.  Matthew shared a larger bedroom at the front with his 3 brothers.  His mother slept alone in a bedroom at the back.  The fire was started by igniting white spirit which had been poured around the hallway, the bottom of the stairs and the lower steps.  When people upstairs became aware that the house was on fire their only escape was via the windows.  
3.	Mrs Stringer jumped from her bedroom window onto wooden decking outside the rear door.  She suffered severe smoke inhalation, serious burns, broken vertebrae in her neck and back and a fractured collar bone.  Craig and Gary jumped out of their bedroom window onto concrete at the front.  Craig suffered smoke inhalation, a broken nose, a broken wrist, bruises and abrasions.  Gary fractured both his ankles.  Jade jumped from her mother’s bedroom window and Carys jumped from the boys’ bedroom window onto a grassed area.  They escaped with grazing and bruising. 
4.	Tragically Adam did not wake up because he was wearing earphones.  In the smoke, panic and confusion none of the other occupants realised that he was still in bed and he died in the fire.
5.	Matthew had woken before the rest of the family and had gone out.  He reappeared when the house was ablaze.  He was arrested on the same day and in a series of interviews he gave a false account of his movements.  He said that he had left home early to help a friend, Jamie Hibberd, who had a paper round.  He had walked to Jamie’s house, where he had met Jamie and they had done Jamie’s round together.  At the trial the prosecution called uncontradicted evidence from Jamie and his mother that Matthew did not visit their house that morning and did not do a paper round with Jamie.
6.	Matthew did not give evidence at the trial.  His defence statement was placed before the jury and it included the following:
1.	The defendant denies that he was responsible for lighting a fire in the hallway of 8 Kitchen Road on the morning of 3 November 2006.
2.		He contends that he left the address at approximately 6.45am that day, at which time there were no visible signs of the house being alight.  The defendant maintains that the doors to the property had been left unlocked over night and were left unlocked by the defendant as he was not in possession of a key to the property.
3.	He returned to the address approximately 10 minutes later by which time the house was ablaze, the defendant noticing smoke coming from the windows of the property.  The defendant ran immediately to the home of his friend Stephen Jolly, to raise the alarm of the property being ablaze.  Thereafter he returned to the property and remained with his mother, who by this stage was laid on the decking area in the back garden.
4.	The defendant accepts that the account of his movements that he gave to the police in interview was untrue.  In October 2006 the defendant was Finally Warned for an offence of theft of cash from his brother.  During the summer of 2006 the defendant had become involved in the use of drugs.  He became indebted to a drug dealer.  The defendant was being pressured to repay that debt.
5.	On the morning of 3 November the defendant stole Gary Stringer’s wallet intending to draw cash from his bank account.  The defendant intended to use that cash to repay some of his debt to the drug dealer and ease the pressure that he was being placed under.  However, having considered the ramifications of the consequences within the family of his earlier theft from his brother Craig, the defendant changed his mind and returned to the family home.
6,	The defendant maintains that he panicked when asked to provide a full account of his movements to the police and that he fabricated a story in relation to his movements that morning in an attempt to conceal his involvement in the theft of the wallet.
7.	The prosecution’s case consisted of evidence of neighbours about events on the morning of the fire, evidence of motive and scientific evidence.
8.	As to motive, the prosecution called evidence from a number of children who said that Matthew had told them that he would burn his house down and try to kill his mother.  It was the prosecution’s case that Matthew’s relationship with her had been very difficult after his parents had separated in 2005 and that he had become particularly resentful after she had grounded him for stealing from his brother Craig.  This evidence was strongly challenged on Matthew’s behalf.
9.	There was scientific evidence that Matthew’s trainers bore traces of white spirit.  Innocent explanations for this were put forward by Matthew in interview and on his behalf at the trial, and were contradicted by evidence for the prosecution.
10.	Evidence of Matthew’s behaviour on the morning of the fire came from a number of witnesses.  There were inconsistencies between them.
11.	Among the witnesses were five members of the Matthews family, who lived in a house diagonally opposite to Matthew.  Kyle Matthews (aged 9 at the time of the fire) shared a bedroom with his brother Christopher (aged 13).  Kyle said that he woke about 6.30 am.  After having a drink he looked out of the window and saw Matthew sitting on the doorstep outside his house, fully dressed in his school uniform.  He then saw Matthew start a fire by throwing a lighted match through the letterbox.  He saw little flames that increased in size.  He then went back to sleep.  He woke again at about 7 am.  Christopher was getting dressed and said that the Stringers’ house was on fire.  His parents then came into the bedroom.  His account was strongly challenged, and he could not explain why he had done nothing except go back to bed after seeing Matthew start a fire in his own house.
12.	Christopher’s account was that sometime after 6.30 am he heard shouting, looked out of the window and saw flames.  Carys was shouting “help” and he immediately went to get his parents.  They came to the window.  He saw Matthew approach the front of the burning house and then go casually around to the back.
13.	Luke Matthews (aged 15) said that sometime after 6.30 am Christopher came into his room and told him to look out of the window.  He saw flames coming out of the door to number 8 and told Christopher to wake their parents.  His parents then came into his room.  He then went into Christopher’s bedroom.  From the window he saw Matthew looking at the burning house and nodding to himself.  He could also see somebody lying in front of the house and a woman dressed in pink, who was Craig’s or Gary’s girlfriend.
14.	Michael and Lesley Matthews (the parents of Kyle, Christopher and Luke) also gave evidence.  Michael Matthews said that Christopher alerted him to the fire at about 6.40 am.  From the window he saw flames coming from the door of number 8 and smoke rising from the lintels of the windows.  He then saw Matthew come from the side of the house.  He put his hand on the house wall and looked at the fire before turning his back and walking away.  A few seconds later the house seemed to ignite like a furnace.
15.	Mrs Matthews said that she was woken by Christopher at 6.45 am and that she was accurate about the time because she had looked on her mobile phone.  When she looked out of the window there were flames coming from the front door of the property.  She saw Matthew walk from behind the property and look at the house.  He then slowly walked away to the back of the property but must have seen the fire.  She then washed but felt stupid that her neighbours’ house was on fire and she was not doing anything.  She opened a side window but heard a neighbour shout that she had called the fire brigade.  There were people all around.  After dressing she returned to the window at about 6.50 am and shortly afterwards she went outside.  She saw Matthew after a couple of minutes standing in the middle of the road. 
16.	The first telephone call to the fire brigade was made at 6.56 am.  Prior to that Matthew was seen by some other witnesses a little distance away from his house.  Matthew spoke to a paperboy called Jason Hibberd by an alleyway or ginnel which ran from Kitchin Road to a shop.  The point where they spoke would have been a little over 50 meters from Matthew’s house.  After they parted Jason Hibberd went on the shop, where he arrived at 6.55 am as recorded on CCTV.  It would have taken Jason about a minute to reach the shop, so he must have been talking to Matthew a couple of minutes or so before the first call to the fire brigade.  Another witness, Mrs Becket, said that she saw Matthew walking up Kitchin Road away from his home at about 6.40 am, but this was an approximation.  The defence called two witnesses, Mr and Mrs Latham, who said that they drove past the Stringer’s house at 6.45 am and saw nothing untoward.
17.	Mr and Mrs Matthews were plainly important witnesses for the prosecution.  If they were right, Matthew was standing on his own outside the property, looking at the fire before it engulfed the property, and then simply walked away.
18.	The trial naturally attracted a good deal of local media interest.  Afterwards Mr and Mrs Stringer voiced their concern that neighbours had seen the fire before it had spread through the property and had not immediately called the emergency services.  A reporter from the Barnsley Chronicle, Mr Mike Cotton, followed this up with Mr and Mrs Matthews and wrote a piece about it.  In his report he quoted Mrs Matthews as saying:
“I admit I didn’t phone the fire brigade because when I first saw it I was in total shock.  Even if we had phoned the fire brigade as soon as we saw the fire there was no way Adam could have been saved.  There was nothing we could do.
When I first thought about calling the fire brigade, I heard they were on there way.  We do not stand there watching even for 5 minutes.  It happened very quick.
I don’t believe it was 6.56.  There is no way we stood watching that fire for 16 minutes.  If it was 6.56 then it means all our times are wrong.”
19.	Mr Watson QC submitted that this report should be admitted as fresh evidence and that it makes Matthew’s convictions unsafe.  He argued that Mrs Matthews’ acknowledgement that she might have been wrong in her evidence about time was highly significant.  If she was right in putting the time when she woke up and looked out of the window at 6.45 am, and in saying that the house was then already on fire and that she saw Matthew on his own outside it, this was very damaging to the appellant’s case, because he must then have walked up Kitchin Street to the ginnel where he met Jason Hibberd.  If Mr and Mrs Matthews did not see Matthew until several minutes later, he may have been coming back to his home after the fire was discovered.  This would be in keeping with the evidence of their sons, Luke and Christopher, that when they looked out of the window they could hear or see others from the house.
20.	We do not consider that the statement made by Mrs Matthews leads to the conclusion that Matthew’s convictions should be considered unsafe.  There were undoubted inconsistencies between the evidence of the different members of the Matthews household about what they saw and when.  These matters were explored at the trial.  The only certain timings were the time of the first 999 call and the time when Jason Hibberd was recorded on CCTV as he returned to the paper shop.  The other timings given by various witnesses could not all be reconciled.  
21.	We accept that it is entirely possible that Mr and Mrs Matthews were wrong in saying that they looked out of the window at 6.40 am or 6.45 am and that it was a few minutes later.  But we cannot see what difference it would have made to the jury’s evaluation of their evidence about what they saw if either or both of the Matthews parents had said that they might be wrong in their recollections of timing.  What really mattered was what they saw.  If, for the sake of argument, it was around 6.50 am that they looked out of the window, it would not undermine the quality of their evidence about what they saw and it would not have been inconsistent with Matthew talking to Jason Hibberd by the alley 3 or 4 minutes later.  
22.	There was also cogent evidence that not long after Matthew parted from Jason Hibberd he went to the home of a friend, Chris Parkin, at 25 Kitchin Road, where he banged on the door and said that his house was on fire.  Another youth, Stephen Jolly (referred to in Matthew’s defence statement), was at Chris Parkin’s home at the time.  Both Chris Parkin and Stephen Jolly gave evidence.  It was their evidence that when he left 25 Kitchin Road and went back to his own house others had already gathered on the street.  There was also evidence from a number of other witnesses to the effect that when Matthew reappeared there were already others outside the house.  So Mr and Mrs Matthews cannot have been describing his conduct at that stage.  Nor was their account consistent with the suggestion in paragraph 4 of his defence statement that at an earlier stage he had seen the house on fire and (rather than try to raise the alarm at the property or next door) had run up the road to see Stephen Jolly.  So the central challenge put to Mr and Mrs Matthews in cross examination was that they had never seen Matthew on his own outside the property at a time when it was on fire and they were adamant that they had.  Accepting that in all probability the jury were significantly influenced by their evidence in concluding that Matthew was responsible for starting the fire (although there was also much other evidence against him), for the reasons stated we do not consider that the safety of that conclusion is affected by the possibility that Mr and Mrs Matthews’ timings were inaccurate.
23.	We therefore refuse the application relating to fresh evidence and turn to the grounds on which leave to appeal was given by the single judge.
24.	These concern the admissibility of part of Matthew’s police interview and the way in which the judge dealt with it in her summing-up.  Matthew was interviewed at considerable length but with appropriate intervals.  His solicitor and an appropriate adult were present.  Throughout the interviews he denied any involvement in starting the fire.  In one of the last interviews the police wanted to explore his understanding of the natural consequences of a person pouring white spirit around the bottom of the stairs and starting a fire when people were upstairs in bed.  The questioning went as follows:
“Q.	What did you think would happen if, if brothers and sister and mother were upstairs asleep and somebody poured paraffin all over the floor and set fire to it.  What do you think the consequences would be?
A.	They’d get burnt.
Q.	Anything else?
A.	No.
Q.	They’d just get burnt? What else might happen?
A.	They might burn to death.
Q.	So you can, can you see Matthew that by setting the hallway alight with white spirits.
A.	No I didn’t
Q.	and that they were asleep upstairs it was sort of virtually certain that they would die
A.	I didn’t do it
Q.	Did you hear what I said?
A.	Yes
Q.	Can you see that Matthew do you accept that if you’re setting the hallway alight
A.	I didn’t do it
Q.	with the white spirit?
A.	No 
Q,	and these are upstairs asleep it’s virtually certain that people the occupants upstairs are going to die?
A.	If I did it yes, but I didn’t do it.
…
Q.	And what you just said to Tony is yes you understand that the consequences of setting a house on fire is that they’d get burnt and they might burn to death?
A.	Yes
Q.	You’ve agreed that by setting a hallway on fire 
A.	No I didn’t say I did it
Q.	No I am not saying that, I am saying that by setting a hallway on fire with people upstairs asleep its virtually certain that people are going to burn or burn to death you can see that?
A.	Yes
…
Q.	But you can see how dangerous it is, because deaths will occur when people are asleep in houses, fast asleep like your brothers were, like Carys was, that setting the hallway on fire with something so flammable like turps and shutting the door and not raising the alarm is virtually certain someone is going to die?
A.	But I didn’t do it
Q.	But you can see that?
A.	Yes
…
Q.	Matthew, is fire dangerous?
A.	Yes
Q.	Can it harm a human being?
A.	Yes
Q.	What else is given off when you light a fire?
A.	Smoke, heat, light
Q.	So would lighting a fire then in a house in the hallway with people upstairs asleep is that dangerous?
A.	Yes
Q.	It’s dangerous from what the fire and smoke?
A.	Both
Q.	Both, so Matthew you can see that setting fire to your house with everyone upstairs asleep would cause really serious harm to them?
A.	But I didn’t do it and yeah it would
Q.	You didn’t do it but you accept that it would?
A.	Yes
Q.	What do serious harm to them?
A.	Yes.”
25.	At the trial Mr Watson objected to the admission of this evidence because he submitted that it was wrong for the police to ask Matthew to speculate as to a hypothetical situation which he did not admit, and it really amounted to no more than comment from the police officers in the form of leading questions.
26.	Mr Watson also submitted that the case should not be complicated by the introduction of concepts such as foreseeability of virtually certain consequences.  This led to submissions from both sides about how the jury should be directed on the question of intent.  The judge adjourned her ruling in order to consider the authorities on intent.
27.	She concluded that in this case it was appropriate to give the jury an extended direction as to intent based on R v Woollin [1999] 1 Cr App R 8 and that in the circumstances the relevant interview passages were admissible.  In her ruling the judge observed:
“[Matthew] has, on the report before me, a low/average IQ and Mr Watson had indicated to me the considerable difficulties faced by his legal team in obtaining instructions, and as to the defendant’s inability to concentrate which would require a reduction in normal sitting hours and regular breaks.  By agreement, the jury were therefore told by me at the outset, in explaining the adaptations and the need for regular breaks, that the defendant has a number of disadvantages which relate to his level of IQ, his reading ability and his ability to concentrate for long periods of time, all of which may affect his ability to participate effectively in his trial and which mandated the special measures which were described to them.”
28.	Although the original grounds of appeal included a challenge to the judge’s decision to give the jury an extended direction on intent, Mr Watson did not pursue this ground.  He accepted that the judge was entitled in law to give such a direction and that no complaint could be made about the terms in which it was given.  However, he submitted that the judge was wrong in her ruling about the admissibility of the interview passages.
29.	Mr Watson accepted that it was legitimate for the police to explore Matthew’s understanding of what would be the natural consequences of setting fire to the property, but only by open questions.  He submitted that it was wrong for the police officers to put suggestions to Matthew in the way that they did, and that the questioning was made worse by the way in which the interviewing officers conflated and confused a variety of levels of possibility (from what might happen to what was virtually certain to happen).  Furthermore the questioning was heavily influenced by hindsight, because by this stage everyone knew what the terrible effects of the fire had been.
30.	In our judgment it was a proper subject for the interviewing officers to explore, and no less so because of Matthew’s age.  In due course a jury would have to consider whether his thought processes regarding the consequences of his conduct might have been different from those of an adult.
31.	Although it was a legitimate matter to explore, it was also a difficult matter to explore.  The defendant was denying responsibility for causing the fire and therefore could not be asked what he in fact appreciated at the time. The officers could only address the questions whether death or serious injury was a virtual certainty and whether Matthew had the capacity to appreciate this.  The questioning was repetitive and in places was clumsy, but it was not suggested that it reached the stage of being oppressive or unfair.  Matthew’s answers indicated that he understood the questions and was not just going along with what was being put to him.  He was articulate in his responses.  At the end of the relevant passage he agreed that setting fire to his house with everyone upstairs asleep would cause really serious harm to them but denied that he had done it.
32.	Since the jury had been told that Matthew had disadvantages relating to the level of his IQ, they were bound to have to consider whether his appreciation of the dangerousness of starting the fire might on that account have been different from that of an adult, and Mathew’s answers when questioned on the topic were relevant.  In our judgment this evidence was properly admissible.  As the judge observed in her ruling, she did not know what evidence might be adduced on Matthew’s behalf.  It might have been helpful for the jury to have had evidence from a child psychiatrist, but that would have been in the hands of the defence.  Matthew might also have given evidence himself, in which case there could have been no objection to him being cross-examined on the same lines as the interview.
33.	The final criticism relates to the summing-up.  The judge gave the jury written directions on intent, beginning with the question “are you sure that, at the time he set the fire, Matthew intended to kill or to cause really serious bodily harm?”  As to intention, she said:
“Intent is not necessarily the same as desire.  If Matthew wanted to cause death or serious harm, that would be intent. ...  Even if he did not, he may still have intended either result if he foresaw that death or serious harm were virtually certain.  But if you are not sure when you are considering all the evidence that Matthew wanted to cause death or serious harm, you are not entitled to find that he did intend to kill or cause serious harm unless you are sure that death or serious harm was a virtual certainty, barring some unforeseen intervention, as a result of Matthew’s actions in setting the fire, and also that Matthew himself appreciated that death or serious harm was a virtual certainty.
As you know, the Crown rely in particular in this respect on answers that Matthew gave in his eleventh interview at exhibit number 132 in suggesting that Matthew did appreciate that, and I shall be reminding you about that evidence later on.”
34.	The reminder, when it came, was as follows:
“You have in a separate bundle, I know, all the interviews that were conducted with Matthew and I told you when I began this summing-up on Friday that I wasn’t going to take time in this summing-up to go through them all again with you now.  They were referred to in great detail by counsel when they were giving their closing speeches to you and I know that you will read them carefully when you retire to consider the evidence in the case.  I ask you to read with particular care the answers that Matthew gave in exhibit 132, one of the final interviews in the case, having regard to Matthew’s answers given in that interview to questions as to what he knew about the consequences of anybody taking action in this house to set a fire in this way, because, as you know, when you come to consider all the evidence and apply the directions I gave you, you have to set about deciding the question of intent, and the prosecution rely in particular on the answers Matthew gave to those questions in his interview about what he foresaw of consequences.”
35.	In the final passage quoted, in referring to the interview the judge conflated the two questions, one as to the inevitability of death or injury, and the other as to Matthew’s appreciation and intention that morning.  We appreciate that the distinction may be a narrow one, but it was an important one in the case of this particular 14 year old.
36.	We consider that rather than being directed as in the last passage quoted from the summing up, the jury should have been reminded of the distinction and directed that they should look at all the evidence to decide Matthew’s intention and whether he did that morning appreciate that death or serious injury was a virtual certainty.  In our view, the judge was in error in highlighting the passage in the interview as she did.
37.	However that is as far as we can go with the defence submission.
38.	Applying the judge’s written direction on intent, if the jury were satisfied (as they must have been) that Matthew started the fire after putting accelerant at the foot of the stairs, that he watched it take hold and then walked away, there could be only one answer to the question whether in fact it was a virtual certainty that somebody in the house would suffer really serious harm or death from Matthew’s actions. It would be wholly unrealistic to imagine all the occupants escaping from the house by jumping from the upstairs windows without any of them suffering any serious harm.  This must have been obvious to any ordinary person at the time. Even taking account of Matthew’s age and the fact that his IQ was low/average, the inference that he must have appreciated it on that morning was also overwhelming. On the facts as the jury must have found them, the conclusion that Matthew had the necessary intent was bound to follow. 
39.	In summary, on the facts of this case and the evidence before them, once the jury were satisfied that Matthew started the fire in the way that the prosecution alleged and walked away from the building, their verdicts were not unsafe and this appeal must be dismissed.