We looked last year at the case of two teenagers who were convicted of the manslaughter of Sylwester Mendzelewski in Croydon.
It is interesting to have the full judgment –  EWCA Crim 351 – not least because it fills in the gaps that were missing in the news reports.
Appeal against Conviction
There was no real factual dispute at the trial. The two children went to a derelict building in Croydon where, unknown to them, four Polish men (including Mr Mendzelewski) had been squatting.
The two children (referred to in the judgment as JF, the boy, and NE, the girl). They set a fire to some scraps of paper on a duvet and left. One of their friends, AL, gave evidence that she had counselled against them starting a fire as there could be someone in their.
In interview, JF accepted that he knew that people slept there, but stated that as there were no lights in the area that people slept, he believed that nobody was present, and he would not have set the fire had he thought that someone might have been there. NE accepted seeing a tin of beans on a table, but denied hearing the warning from AL.
There were three counts on the indictment at trial – (1) Manslaughter, (2) Arson being reckless as to whether life was endangered, and (3) Arson. Count 3 was an alternative to Count 2. The jury convicted of Manslaughter and simple Arson, but acquitted of Arson being reckless as to whether life was endangered.
The appeal was based on the directions given by the Judge in relation to manslaughter. This is ‘unlawful act’ manslaughter which makes someone guilty of manslaughter if they commit an unlawful act that was objectively dangerous.
Here, the unlawful act was the arson of the building, not the paper and duvet. So, the prosecution had to prove –
(1) the defendants started the fire (this seems to have been accepted)
(2) that the two defendants were aware that there was a risk that the fire would spread to the building.
(3) they foresaw or contemplated that someone might be in the building
(4) a reasonable person (i.e. the jury) would have recognised that the person in the building might sustain some physical harm, however slight (whether or not the two actually foresaw any harm themselves).
In relation to Count 2 (arson being reckless to whether life is endangered), the jury were told that they could not convict unless (2) above and the child was aware of a risk that the fire would endanger the life of another.
Putting the conviction on Count 1 together with the acquittal on Count 2, the jury must have concluded that the two were aware of the risk of the fire spreading and that somebody might be in the building. However, whilst it would be an adult looking at the facts would have realised that there was a risk to anyone in the building, these two were not necessarily aware of that, and were not aware that anyones life would be put in danger.
The appeal was based on (4) above, with the argument being firstly that the Judge misdirected the jury on the basis of the law as it is and, secondly, that it is not right that someone is guilty of manslaughter unless they are actually aware of the risk to life, so a subjective test.
The Court went through sixty odd years of history of the law in this area, and concluded that the direction of the Judge was a correct one. This is correct.
The more interesting question is the second one. The Court concluded that the law was so embedded that it could only be changed by Parliament. This is a long-standing approach that the Courts take where a piece of law has been clear for many years (the cynic would add “unless it’s a piece of law they really don’t like“).
But whilst the Court are probably right to leave it to Parliament, there are good reasons why the law should be changed. A basic principle (see the discussion in G  UKHL 30 where the House of Lords finally overruled Caldwell recklessness and concluded that the test for recklessness should be subjective not objective) is that someone should not be criminalised without a guilty mind.
Here, the children may have had no intention or awareness that anyone would be harmed. In light of that, is it right that they are held criminally liable for the death of another?
The Court did say (para 31) that the verdicts of the jury meant “that the appellants must therefore have appreciated the risk of some harm to a person from the setting of the fire, but not harm to the extent of endangering life“. Whilst this may be correct, it is not clear that it necessarily follows from the verdicts. Just because they were aware the fire may spread and that people may have been in the building, does not mean that they would be aware that some harm was caused.
A second point is that the Court held that point (3) above was not needed. It is hard to see how that is correct, unless they are saying that this is also an objective test. Clearly someone cannot have an awareness that harm may be caused to someone by a fire in a building unless they are aware of the possibility of someone being in the building.
I am not sure if the appellants asked for a point of law to be certified to try to appeal to the Supreme Court. I hope so, as it would be interesting to see what they made of it. They would be in a position to change the test from an objective to a subjective one.
Appeal against Sentence
When reporting the sentence, we said “The sentence is probably a bit more that we would have expected. Also, it is unclear why they both got the same sentence – we would have expected the boy to have got less than they girl as she was two years older“.
And we were sort of right, but not in the right way. The Court concluded that the sentence was not, on the facts, manifestly excessive, but because of the age of NA (about to turn 18) and the progress that she had made, it was in everyones interest for here to have a 2 year Detention and Training Order, rather than a 3 year sentence, to allow her to remain in the facility that she is currently detained in.
Although we expressed surprise that there was the same sentence, the Judge concluded that they were equally culpable, a view that the Court of Appeal completely agreed with, and so reduced the sentence on JF to a 2 year DTO as well.