Scottish High Court of Justiciary Decisons

At advising on 2nd December 1955,—

LORD JUSTICE-GENERAL (Clyde).—This stated case arises out of a complaint in unprecedented terms, charging the appellant that he did ride a pedal cycle in a reckless manner and did cause it to collide with and knock down Francis Conway, shipyard worker, Dundee, whereby both sustained slight injuries. The complaint was brought at common law in the Police Court in Blairgowrie. An objection to the relevancy of the complaint was taken at the conclusion of the evidence. The objection, as stated in the case, is to the effect that the cause should properly have been brought under the Road Traffic Acts, or with reference to the Highway Code. Although with some hesitation, I am prepared to treat this objection as meaning that the present complaint was not relevant at common law. The objection was repelled by the magistrate. On the evidence he convicted the appellant. The first question put to us is whether the magistrate was right in repelling the objection to the relevancy of the complaint.

It is quite true that the objection to relevancy was not taken at the proper time, and in the ordinary case this would be a conclusive bar to its subsequent consideration. But this well-recognised rule is subject to the exception that the High Court will consider an objection to the relevancy not taken at the proper time if it appears that the complaint cannot be read so as to libel a crime and is therefore fundamentally null—Trotter on Summary Criminal Jurisdiction, p. 324. It would be contrary to justice if this were not so, for, as Lord Mackenzie said in O'Malley v. Strathern, at p. 81, "This Court will not allow a conviction to stand for what is no crime under the law of Scotland." The question of relevancy in the present case raises an issue of fundamental nullity, and must therefore be dealt with by us.

The charge in question is brought in respect of an alleged offence at common law. It consists of two separate parts, firstly riding a pedal cycle in a reckless manner, and secondly causing it to collide with someone whereby slight injuries resulted. As regards the second part of the charge, although it may found a claim for civil damages, it clearly does not constitute a crime. As regards the first part of the charge, mere reckless riding or driving of a vehicle has never been treated in Scotland as a crime at common law.

The reason for this is not far to seek. So far as concerns road accidents in Scotland, it is an essential element in the constitution of a crime at common law that there should be either an intention to commit a wrong or an utter disregard of what the consequences of the act in question may be so far as the public are concerned. Culpable homicide is the typical example of the latter form of crime. The essence of culpable homicide is the degree of culpa which has in fact resulted in the death. Mere culpa plus a death resulting from it does not constitute culpable homicide. As the Lord Justice-Clerk said in Paton v. H. M. Advocate, at p. 22, "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." This represents the standard of culpability which must be established in such cases in order to constitute a crime at common law, based not upon intent, but upon reckless disregard of consequences. It is highly relevant to the present question, since in the text-books furious driving or riding at common law is treated as a subheading of the crime of culpable homicide—Alison's Criminal Law, vol. i, p. 121; Hume on Crimes, vol. i, p. 192. The standard of culpability must be the same, whether its consequences are death or not.

It was just because of the high degree of culpability required to be averred and proved in such cases before a crime at common law could be established that Parliament intervened to make mere reckless driving of a mechanically propelled vehicle a statutory offence. But this lesser statutory offence has never been made applicable to pedal cyclists. And, in my view, it would not be fair nor in accordance with the Scottish system of giving ample notice to accused persons if a charge of mere reckless riding of a pedal cycle were to be sanctioned at common law. Such a practice would sooner or later result in pedal cyclists being punished for that degree of reckless driving which constitutes an offence under statute on the part of drivers of mechanically propelled vehicles. Such a development is one for which Parliament can provide, but for which the Courts cannot.

As the law stands, therefore, this complaint can only be relevant if it libels that degree of recklessness which constitutes the crime at common law, that is to say, a recklessness so high as to involve an indifference to the consequences for the public generally. As the Lord Justice-General said in M'Allister v. Abercrombie, at p. 370, "I cannot find that it is part of the law of Scotland that to drive a vehicle culpably and recklessly is a crime, unless there is danger to the lieges." Accordingly the words "to the danger of the lieges" as a specification of the degree of recklessness in driving are to be found in the forms of complaint in the Second Schedule to the Summary Jurisdiction (Scotland) Act, 1954. In my opinion, without libelling that high degree of recklessness the complaint is not relevant, for it merely charges a lower degree of recklessness which is not a crime at common law. This Court has more than once observed the importance of adhering to the statutory form of charges, where they are applicable (see Coventry v. Douglas 1944 JC 13 ). As the Lord Justice-General said in that case (at p. 20):

"If there is any doubt that the act set forth in the charge comes within the description of a known crime, then the charge is bad. The question is also one of due notice to the accused, and, unless he is given distinct notice that he is charged with a crime according to our law, the indictment or complaint must fall, whatever be the effect of the proof that follows upon it, and however complete the proof of a crime may be."

Judged by this standard the present complaint fails to satisfy what is required, for the words "to the danger of the lieges," as an amplification of the recklessness, are not libelled in this complaint. It charges the appellant therefore with a degree of recklessness which does not constitute a crime.

It was maintained that this deficiency was made good in the present case by the second part of the charge. I cannot accept this contention. Mere recklessness by a pedal cyclist followed by an injury to a foot passenger does not constitute a crime in Scotland, any more than mere recklessness in driving followed by a death would constitute culpable homicide. To constitute a crime in either case the recklessness must be such as to involve a disregard of the safety of the public. There is all the difference in the world between a reckless act which in fact happens to result in injury, and a reckless disregard of the safety of the public which in fact does injure someone. The latter but not the former constitutes a crime at common law. In the present case the injury to the foot passenger is in no way connected up with the recklessness, and is not libelled as an element of that recklessness. To hold this complaint relevant would, in my view, introduce a novel and far reaching extension of our criminal law for which there is no precedent and no warrant in principle. In the circumstances, in my opinion, the first question should be answered in the negative.

LORD CARMONT .—I have had an opportunity of reading the opinion delivered by your Lordship in the chair and I am in entire agreement with it.

LORD SORN .—I think it must be recognised that to ride a bicycle recklessly to the danger of the lieges is a crime. The view expressed by your Lordship in the chair, as I understand it, does not negative that proposition, and I will only say that I entertain a doubt whether that is not, in effect, the charge which is made in the present case. The words "to the danger of the lieges" are certainly not used, but, when it is said that the respondent knocked someone down and injured him, it might be argued that the statement of that fact was equivalent to making use of the nomen juris.

I would just add that, even if we had held this to be a proper common law charge, it would have been a narrow question whether the facts proved entitled the magistrate to find that recklessness, or criminal negligence, had been established. Nowadays we draw a distinct line between criminal liability and civil liability, and a common law charge like the present one is not appropriate if there has been no more than simple negligence, or carelessness, or failure to ride with due care and attention. The Legislature has not seen fit to make the careless riding of bicycles a statutory offence, and the common law charge of riding recklessly to the danger of the lieges cannot be made use of to supply that omission.