20 December 1935
|H. M. Advocate|
There is evidence in the case that the appellant was driving his car at a fairly high speed, and there is also evidence in the case that there was, perhaps, a want of care. The difficulty that the case presents is whether there was evidence that the appellant was guilty of criminal negligence in the sense in which we use that expression. At one time the rule of law was that any blame was sufficient, where death resulted, to justify a verdict of guilty of culpable homicide. Unfortunately, this law has to some extent been modified by decisions of the Court, and it is now necessary to show gross, or wicked, or criminal negligence, something amounting, or at any rate analogous, to a criminal indifference to consequences, before a jury can find culpable homicide proved. It may be that the law on this matter has got to be reconsidered.
After carefully considering the evidence in this case I have come to the conclusion that, if I had had to decide the case, I would have hesitated, upon the evidence, before returning a verdict of guilty of culpable homicide. Of course if that was all, I would be in favour of allowing the verdict to stand, because the question whether the negligence was criminal negligence was obviously a question for the jury, and, in this class of case, I think we must exercise very great caution before we interfere with a jury's verdict. But then the matter does not end there, because, when the learned Sheriff-substitute came to direct the jury, he first of all directed them that, under the indictment as framed, it was open to them, if they were not prepared to find the appellant guilty of culpable homicide, to find that he was guilty of a contravention of section 11 of the Road Traffic Act, 1930. That was a direction favourable to the appellant, and the jury retired to consider their verdict. Thereafter the learned Sheriff-substitute changed his mind, and had the jury brought back into Court, when he withdrew his former direction, and directed them that it was not open under the indictment to find the appellant guilty of an offence under section 11 of the Act. That was a direction unfavourable to the appellant, and I take it that it proceeded on the ground that the statutory offence was not libelled, as such, in the indictment; but the net result was that an unfavourable direction was substituted for a favourable direction when the jury were in the middle of their deliberations. It is true, as the learned Solicitor-General has pointed out, that the jury intimated that they did not wish to retire and consider the matter further. That may be, but I have a feeling that what occurred was not satisfactory in a criminal trial, and that, if the learned Sheriff had not brought the jury back at the time he did but had left them with the direction he had first given them, it may very well be that the jury would have found the appellant guilty under section 11, instead of finding him guilty of culpable homicide in terms of the indictment.
Under section 3 (2) of the Criminal Appeal (Scotland) Act, 1926, we have power to substitute one verdict for another. The subsection is in these terms: [His Lordship then read the terms of the subsection, and proceeded]—Now, I have no doubt that the jury, on the verdict which they returned, must have been satisfied of facts which proved the appellant guilty under section 11. I think one may say that with reasonable certainty. It has not been maintained to us that it is incompetent to substitute a verdict of guilty of the statutory offence for the verdict the jury returned. Accordingly, and in view of the special circumstances of the case, I move your Lordships that we set aside the verdict of guilty of culpable homicide and substitute for it a verdict of guilty under section 11 of the Road Traffic Act, 1930. I think that that will meet the substantial justice of the case. That, of course, is a less serious offence than the offence of which the accused was found guilty, and it is necessary that we should consider the sentence. The appellant has driven a motor car without mishap for 15 years. Upon the evidence I think there was a very large element of mischance in the accident that occurred, notwithstanding the grave consequences which the accident had, resulting as it did in a man's death. I think, in the special circumstances, we should substitute for the sentence imposed a fine of £50. I so move your Lordships.
That being the view which I take of the law of the case, I am not able to concur in the course which your Lordship suggests ought to be followed and with which I understand Lord Anderson agrees. But, on the assumption that the case had been one for the application of the provisions of section 3 (2), I should not have differed so far as the sentence is concerned.
This case, however, seems to me to be a special case calling for special treatment. Our judgment—the judgment which your Lordship has proposed—supports to some extent the views of the jury, because we proceed upon the footing that the driving was to some extent reckless. I think, however,—agreeing with your Lordship on this point also—that there was an element of mischance in the case, which played a part in the unfortunate result and which warrants us in reducing the verdict of culpable homicide and substituting the conviction and sentence which your Lordship has proposed.
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