Neutral Citation Number: [2010] EWCA Crim 2316
Case No: 200901919 C 4 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: FRIDAY, 14TH MAY 2010
 
B e f o r e:

LORD JUSTICE HOOPER 

MR JUSTICE DAVID CLARKE 
 
MR JUSTICE OPENSHAW 
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R E G I N A 

v 

AVTAR SINGH TAKHAR
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Mr A J Palfrey appeared on behalf of the Appellant 
Miss C Briscoe appeared on behalf of the Crown 
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J U D G M E N T 

1.	LORD JUSTICE HOOPER:  On 24 September 2008 at the Crown Court at Kingston upon Thames before His Honour Judge Campbell the appellant was convicted of arson, count 1 and arson with intent to endanger life, count 2.  The jury were discharged from reaching a verdict on count 3, arson being reckless as to whether life was endangered.  On 22 October 2008 he was sentenced to 6 years' imprisonment on count 2 and 1 year on count 1 and ordered that 118 remand days to be counted towards sentence pursuant to section 227 of the Criminal Justice Act 2003.  He also pleaded guilty to a summary offence of driving whilst disqualified.  He appeals against the conviction on count 2 only by leave of Macduff J who gave the necessary extension of time.  
2.	The case is a sad one.  The appellant had been married to Gurminder Takhar for some 30 years and they had 3 daughters.  On a number of occasions from 2006 police were called to their address in Hounslow because of reported domestic incidents.  In February 2008 he moved out of the property and his wife started divorce proceedings.  She also obtained a court order preventing him from contacting her or entering Wellington Avenue, where she was living. 
3.	On the evening of 26 May 2008 at about 10.00pm he drove a Renault Megane to the family home and parked on the driveway next to his wife's Honda.  The Renault was just behind the Honda and at right angles to it.  Almost all of the Renault was on the pavement but the two off side wheels, which were on the road.  He set fire to the Renault.  
4.	The prosecution's case was that his intention in setting fire to his vehicle outside his wife's home was not, as he claimed, to kill himself but to pester and intimidate her and to endanger the life of his wife, any other member of the family in the house and anyone nearby.  The defence case was that the appellant's sole intention in starting the fire was to kill himself, and he did not intend to put anyone in danger.  
5.	Mrs Takhar gave evidence of looking out of the window and seeing the Renault Megane on fire in the driveway.  She dialed 999.  She gave evidence that he had previously threatened that he would park the car in the driveway and burn himself to death.  Also present was a daughter, Rajvir Takhar, and she went downstairs to see what was going on.  The daughter gave evidence that there had been two telephone calls that she had answered.  She had recognised her father's voice and he said he wanted to speak to someone, probably Rajvir's mother.  She heard the noise, she looked out at the car and she again gave evidence that on previous occasions he had threatened to set fire to his car and himself.  She went outside and saw her father standing in the driveway where her mother's car was parked.  Her father walked towards her, fell to the ground.  By now firemen were on the scene and they pulled him away.  
6.	An officer gave evidence that when he arrived at the scene, the Renault was on fire.  The officers were escorted past the car to the appellant.  The officer's evidence was that the appellant was drunk.  Similar evidence was given by another officer.  The appellant was assessed by the police surgeon as unfit for interview until 4pm the following day.  He told the doctor he had consumed 1 and a half bottles of vodka during the course of the evening.  Miss Briscoe for the prosecution tells us he did not accept that when he gave evidence.  
7.	He gave a detailed account in interview which, as the judge told the jury, was similar to what he was to give at trial.  He said he found it difficult to come to terms with the breakdown of his marriage.  He had spent 2 weeks in a mental health unit.  By the 26 May he was feeling very depressed and the only thing he could think of was ending his life.  He got up in the late afternoon and drove to MacDonald's to get something to eat.  Later he parked the car in Victoria Avenue, which was near Wellington Avenue.  He sat there with the radio on and thought about his life.  He took a can containing about 5 litres of petrol from the boot and poured it on to the passenger seat.  He then drove to 44 Wellington Avenue and parked in the position we have described.  During the course of the argument this afternoon Miss Briscoe's recollection was that he had only poured out the petrol when he arrived at 44 Wellington Avenue.  The account we have given we take from the summing up.  
8.	He went on to say he drove to 44 Wellington Avenue, parked on the driveway, sat there for a minute in the driver's seat, struck his lighter and the car went up in flames.  He did not think about the fact his wife's car was close by.  He opened the driver's door and got out of the car.  His wife and daughter came out and his daughter was shouting. 
9.	In cross‑examination he maintained he had not intended to endanger his wife's life or teach her a lesson, in other words he did not accept the thrust of the prosecution's case on count 2.  He told his wife if she continued with the divorce he would take his own life by setting fire to a car outside her home.  He had said the same thing to other members of the family.  He knew he was not supposed to go to his wife's address.  
10.	He did not remember telling the police he had been drinking Vodka.  It was put to him by Miss Briscoe that when he started the fire he was not in the car at all, and this was denied.  We will come back to the issue later.  It was accepted thathe had burnt his thumb and singed his hair and that there was some damage to the jacket.  Again he denied putting anyone's life in danger or cause injury.  
11.	There are a number of grounds of appeal prepared by Mr Palfrey.  It is only necessary to deal with one ground of appeal.  As we have made clear to Miss Briscoe during the course of argument there were other aspects of this case which concerned us and we shall start with something which was not a ground of appeal, at least not directly a ground of appeal.  The appellant had appeared before the magistrates charged with arson contrary to section 113 of the Criminal Damage Act 1971.  The particulars of the charge before the magistrates were that on 26 day of May 2008 without lawful excuse he had destroyed by fire a Honda motor car, and the registration number is given, belonging to Gurminder Takhar, intending to destroy or damage such property, or being reckless as to whether such property would be destroyed or damaged.  Almost at the outset of proceedings we asked Miss Briscoe as to what damage had been done to the Honda.  She replied that the damage was insignificant.  We have looked at the report of the officer who attended the scene.  When the Renault was burning it had caused some of the paint on the Honda to bubble and had damaged the rear registration plate.  Given the fact that the damage was so insignificant one would not have expected a substantial penalty for an offence of this kind.  The defence case was assigned to an employed barrister in a firm of solicitors.  She has written to the court a letter dated 4 August 2009.  We know from another source that this was her third Crown Court trial.  In paragraph 1 of her letter she described the developments on the first day of the trial as exceptional, unjustified and unwarranted.  She wrote: 
  "2. from the defence point of view, the case has been reviewed at our office when Mr Palfrey had conduct of the case and there was no suggestion during those reviews of the case being anything other than a simple arson.  Mr Palfrey seemed entirely content for me to have conduct of the case when he worked for this firm.  Mr Palfrey's firm view was that the prosecution should not proceed as the case failed both the evidential and public interest test.  I agreed with these views but they fell on deaf ears throughout and on the first day of the trial seemed to inflame and entrench the Crown's position resulting in additional and for more serious counts.
3.  The main issue was whether Mr Takhar had the requisite mens rea, originally for the offence of simple arson and only simple arson, and latterly for the counts of aggravated arson.  His defence was that he had formed an intent to kill himself by setting himself alight inside his own car and this state of mind was all‑consuming and precluded the necessary mens rea of both intention and recklessness.  The damage in the original count of simple arson was to his wife's car and caused by the heat of his car once alight.  This gave rise to an additional issue of whether the defendant would have foreseen that by setting himself alight, it would have in turn set his own car alight which in turn again would have caused some damage to his wife's car which was parked nearby. 
4.  I had prepared the case on the basis that Mr Takhar would face only one count of simple arson and I felt that the case was within my experience and ability.  On the morning of the first day of the trial, the Crown canvassed whether the defendant would plead guilty and I took further instructions from my client and he resolutely failed to consider entering a guilty plea.  This was a sensitive matter as the client was clearly a vulnerable man with a mental health history but a guilty plea was not forthcoming.  The Crown then indicated that they intended to add a further count of simple arson of Mr Takhar's own car.  This is on the basis that the DVLA records showed the car to be registered to another person at the time of the commission of the offence.  It just happened that the other person had attended court (in support of Mr Takhar and not as a witness for either side) and he confirmed directly to the police that he had indeed sold the car to Mr Takhar a few weeks prior to the incident.  The Crown were therefore unable to add a further count of simple arson and I formed the view that this would be the end of the matter and the trial would proceed as originally planned.  The Crown had asked for more time but it was not clear why.  It only became clear when the case was recalled and I was handed the original indictment with the additional handwritten counts of aggravated arson.  I respectfully submit that the additional counts were added hastily and out of frustration and not as a result of a careful and balanced review of the case.
5.  I asked for more time with my client to take instructions on this development and was allowed to do this but only for a few minutes at the back of the court.  It may well have not occurred to the learned trial judge just how little notice the defence had been given of the additional counts and, with the benefit of hindsight, I concede that I did not appreciate just how significant a development had just taken place.  My initial view was that Mr Takhar's defence of lack of mens rea applied equally well to the additional counts.  It was only as the trial proceeded that I realised that the Crown had were fundamentally changing their whole case to portray Mr Takhar as a man acting with deliberate and considerable malice.  Originally, with the simple arson charge, the fact that it was his wife's car that had been damaged was of little importance and the case would have been almost identical if it had been a stranger's car that just happened to be outside his wife's house.  Had I realised how the Crown's view had altered and how the prosecution who be conducting then I would have made an application for an adjournment.  Firstly, it is unlikely that a case of arson with intent would have been allocated to me due to my experience and secondly, the additional counts changed the whole nature of the defence as the issues related to whether Mr Takhar formed a intention or was reckless as to whether a life was endangered.  I did not ask for an adjournment and one of the reasons was that Mr Takhar had been remanded in custody whilst awaiting trial and had more or less served the equivalent a guideline sentence for simple arson.  A postponement of his trial would almost inevitably have resulted in several more months in custody.  Further, the evidential basis for the additional counts seemed slim and at the time I genuinely believed that his interests were best served by the trial proceeding."   
As can be seen from those paragraphs, Miss Briscoe made, on the morning of the trial, an application to add two counts: count 2, which read as follows:
12.	"Arson with intent to endanger life contrary to sections 1, 2 and 3 of the Criminal Damage Act 1971."
The particulars were:
"the defendant without lawful excuse destroyed the car [registration number of the Renault] belonging to himself, intending to destroy such property and intending thereby to endanger the life of another."
Count 3, on which the jury did not have to bring in a verdict because of their verdict on count 2, alleged arson being reckless as to whether life would be endangered.  
13.	Miss Briscoe did not know and had no reason to suspect the lack of experience on the part of the barrister advocate sent to do this case, a comparatively simple case involving at the most a possible short period of custody had turned into a very serious case with all the risks associated with an offence of arson with intent to endanger life, including a possible indeterminate sentence.  
14.	We are unhappy about what happened on that first day, although it is not necessary for us to reach a concluded decision as to whether what happened prevented the appellant from having a fair trial.  Miss Briscoe, in her submissions, has very fairly accepted that she is concerned about the inexperience of the advocate and invites us to bear that in mind.
15.	The trial continued very quickly.  What became clear, so it appears to us, for the first time during the cross‑examination of the defendant was that the prosecution were going to say that there was evidence from the location of the burn marks on the jacket to support the proposition that the appellant was not in the car at the time he set light to it.  Clearly, if the jury could be sure that he was not in the car at the time he was setting light to it, that would destroy his story of an attempted suicide and make it much more likely the jury would go on to convict, at least on count 3.  The damage to the jacket was on the underside of the right arm and this, so it was put to the defendant, was inconsistent with the story that he was in the car when he set light to it.  We for our part have difficulty in seeing why that is; it would entirely depend upon which way he was facing when the fire was going.  If he was facing towards the fire, then it could well have damaged the right arm rather than the left.  Miss Briscoe very fairly admits that the jury could not be sure, and could not properly be sure, that he had stepped outside the car and then set light to it.  The judge however directed the jury that they could conclude that he was outside the car at that point.  That alone would be enough to make the conviction on count 2 unsafe.  
16.	Furthermore the car was quite some way from the house, some 7 or 8 metres.  There was the Honda between the Renault and the house and there was no damage to the house.  When the judge told the jury that the prosecution case was that he intended to endanger the life of the wife or daughter or a bystander, we cannot see evidence at all of that intent.  Indeed the judge said to the jury at one point, if he wanted to endanger the life of the wife or daughter, there were many other ways he could have achieved that.  We take the view that there was no case to answer at all on count 2 and we are concerned that that point was not taken at the trial.  We are concerned as to whether or not the advocate had sufficient experience to deal with the case as it was presented in fact, rather than how it was going to be presented as committed to the Crown Court.  
17.	We have to ask ourselves whether or not we should substitute a conviction on count 3, which was removed from the jury because of their conviction on count 2.  We do not feel that we should do that.  Again, we cannot say that the jury would have inevitably come to the conclusion that he was reckless, particularly having regard to the issue about where he was when he set light to the car.  Mr Palfrey does not submit that the conviction on count 1 is unsafe.  We therefore quash count 2, refuse to substitute for it count 3, and dismiss the appeal as far as count 1 is concerned.  Submissions, Mr Palfrey, regarding sentence?  They are academic, but if you want to make them, do.
18.	MR PALFREY:  My Lord in relation to the sentence passed with regards to count 1, clearly the 1 year sentence, 12 months, was informed by the background of the offence.
19.	LORD JUSTICE HOOPER:  Yes, non‑molestation order, breach, he was not allowed to go there.
20.	MR PALFREY:  My Lord, equally looking at the offence itself, in the lower court the Crown did not take the view, neither did the magistrates committing the case, that the offence warranted more than 6 months. 
21.	LORD JUSTICE HOOPER:  It was the appellant himself who insisted on having a Crown Court trial, reading what the advocate states.
22.	MR PALFREY:  Certainly, regrettably that was the case.  In my submission with regards to the offence itself, when one looks at it with the removal of intent which would have been in the sentencing judge's mind.  The offence itself does not warrant 12 months' imprisonment, even when one takes into consideration the aggravating factors with regards to the breach of the non‑molestation order the defendant was sentenced separately.
23.	LORD JUSTICE HOOPER:  He got 28 days for that, as I remember.
24.	MR PALFREY:  Yes, my Lord.
25.	LORD JUSTICE HOOPER:  Is that right? 
26.	MR PALFREY:  Yes.
27.	LORD JUSTICE HOOPER:  All right, we will consider.  Anything else you want to say?
28.	MR PALFREY:  There is one further matter, the defendant received a 2‑year disqualification from driving, and disqualification indeed until the passing of an extended driving test.  With regards to the passing of the extended driving test, in my submission the defendant has spent a considerable amount of time in custody, he is a driver by profession, and with regards to rehabilitation. 
29.	MR JUSTICE DAVID CLARKE:  Well that is on a quite separate offence.
30.	LORD JUSTICE HOOPER:  It is driving with excess alcohol.
31.	MR PALFREY:  Yes, my Lord.
32.	LORD JUSTICE HOOPER:  That was for driving whilst disqualified, was it.
33.	MR PALFREY:  That is driving whilst unfit. 
34.	MR JUSTICE DAVID CLARKE:  Through drink or drugs.
35.	 MR JUSTICE:  Yes, that is right.  A summary offence of driving whilst unfit.
36.	MR PALFREY:  When one considers the sentencing guidelines for driving whilst unfit, certainly although a disqualification period of 2 years requiring the defendant to pass an extended driving test is well beyond the sentencing range one would expect.  In the particular circumstances of this case, where the defendant has spent such a long time in custody. 
37.	MR JUSTICE DAVID CLARKE:  Well, the disqualification will expire in October.
38.	LORD JUSTICE HOOPER:  And it is attached to the driving whilst unfit. 
39.	MR PALFREY:  Yes, my Lord.  The driving whilst unfit.
40.	LORD JUSTICE HOOPER:  I do not think you have the right to appeal this, although we will we will listen to you, because you have not put in an appeal notice on sentence for the summary offence.  We will not shut you out for that reason. 
41.	MR JUSTICE DAVID CLARKE:  There is no appeal against sentence at all in this case.
42.	MR PALFREY:  The reason I raise it is because when I look at the court register, I did not do the trial obviously, when I looked at the court register it seemed deliberately there was no verdict taken in relation to the driving whilst unfit.  I believe it is behind the handwritten indictment.
43.	LORD JUSTICE HOOPER:  Did he not plead guilty?
44.	MR PALFREY:  He pleaded guilty subsequently at the sentencing hearing for this matter.
45.	LORD JUSTICE HOOPER:  That is right.  So he pleaded guilty, sentenced, disqualified for 2 years and required to take an extended test, that is what you are challenging.
46.	MR PALFREY:  My Lord, in my submission he is a driver by profession, it will assist his rehabilitation, in all the circumstances, he is a person who has spent a considerable amount of time in custody when perhaps he ought not to.
47.	LORD JUSTICE HOOPER:  Thank you very much, we will retire quickly and consider those two submissions you have made.  

A short adjournment
 
48.	LORD JUSTICE HOOPER:  Miss Briscoe, we will not interfere with the sentence on count 1.  We are being asked to give a significant extension of time to remove the extended test requirement.  Do you wish to address us? 
49.	MISS BRISCOE:  My Lord, in the circumstances no.
50.	LORD JUSTICE HOOPER:  Thank you.  We will quash that, we do not see any reason for that.  We will not reduce the disqualification, but we will quash the requirement to take an extended test. 
51.	MR PALFREY:  My Lord, I apologise, one more matter.  In relation to the defendant's costs, the defendant's brother paid for an expert.
52.	LORD JUSTICE HOOPER:  You can have a defendant's costs order in relation to the proceedings in this court.  I have to say we have considerable concern about whether money should have been spent on an expert's report, and whether that was reasonable.  This is not coming out of the pocket of the CPS.
53.	MISS BRISCOE:  Tax payers, and we have an alliance government at the moment who are going to be making significant cost cuts in the next 12 months.  My Lord, can I just say that without wishing to be critical of a member of the bar, whether paid or independently, that this was a case in hindsight where perhaps more serious counsel should have been involved, part of the problem it seems me is that there was an escalation of inexperience and a lack of appreciation as to where the case was going.  It seems to me that had an experienced counsel been involved in this case, then it may not have got this far.
54.	LORD JUSTICE HOOPER:  No.
55.	MISS BRISCOE:  I am afraid.
56.	LORD JUSTICE HOOPER:  I can see that.
57.	MISS BRISCOE:  And one of the things ‑‑ I know my Lord cannot give guidance at this point, but one of the matters that does concern me is being up against an inexperienced counsel who does not expose that inexperience, because we assume we are up against someone of equal ‑‑ equality of arms. 
58.	MR PALFREY:  My Lord, may I just say something very briefly in relation to the expert's report?
59.	LORD JUSTICE HOOPER:  Yes.
60.	MR PALFREY:  Clearly you may be of the view that an expert is not necessary, and I am grateful for your indication you got the points very easily.  My concern was that this was a very serious offence, and indeed once I have instructed an expert the Crown did not review the case and concede the point.  They instructed their own expert.  It was effectively covering all the bases given the inadequacy of the representation which occurred in the lower court my feeling was that it needed to be covered from top to bottom, topped and tailed, so there could be no omission that would allow a potential injustice to continue.  So that was the purpose and the motivation.
61.	LORD JUSTICE HOOPER:  It is for the assessment officer to decide.  What we have to decide now is whether we are going to give some indication to him or her or just merely leave it, that is our task.

A short adjournment.   
 
62.	LORD JUSTICE HOOPER:  We make a defendant's cost order, however we ask that what we are about to say be drawn to the attention of the assessment officer.  It would be our provisional view that there should not have been an expert report in this case.  If the assessment officer were to reach another conclusion, and it is his decision and not ours, then we would invite him to look at the costs involved.  In any event, we would invite the assessment officer to look carefully at any amount of costs sought having regard to the contents of the judgment which we have delivered today, and a copy of which is to be provided to him, and of the exchange with counsel after the giving of judgment.  Thank you very much.