9 - Legal perspectives on arson

Summary

This chapter outlines the development of the law regarding arson in England and Wales, and discusses the application of the current legislation from the decision to prosecute through to sentence. It sets out statistics showing the conviction rate for offences of arson and sentences passed. It includes guidance to mental health professionals on the criminal court processes and their role in proceedings involving offenders with a mental disorder who have been charged with offences of arson.

Development of the law

Sir William Blackstone's Commentaries on the Laws of England records arson as ‘the malicious and wilful burning of a house or outhouse of another man’ (Blackstone, 1765–69). It was listed as a public wrong against property, but was considered an offence of ‘great malignity and more pernicious than theft’ because it threatened a man's right of habitation, not just his property. It could be more destructive than murder, because it frequently caused terror and injury that spread beyond the intended victim(s). The punishment was the death penalty without the benefit of clergy (i.e., it could not be commuted to a lesser sentence). ‘Malicious mischief or damage’, including damage by fire, to other property is recorded as an offence punishable by death, although transportation was an alternative. ‘Malicious’ meant a ‘spirit of wanton cruelty or black and diabolical revenge’.

The Malicious Damage Act (MDA) 1861 consolidated the existing law and set out various offences of ‘unlawfully and maliciously’ setting fire to property. The distinction between burning buildings (arson) and other property (malicious burning) was maintained. It introduced specific offences of setting fire to an occupied dwelling and of setting fire to any building with intent to injure or defraud any person. Penal servitude for life could be imposed following conviction for these offences and for setting fire to a church or railway station. Penal servitude of up to 14 years, imprisonment or whipping for males under the age of 16 were available on conviction for setting fire to other buildings, chattels or crops. ‘Maliciously’ meant a wrongful act done intentionally and without just cause or excuse or done recklessly with a result that the offender foresaw or ought to have foreseen.