Scottish High Court of Justiciary Decisons

LORD AVONSIDE .—This is a preliminary diet following notice under section 76 (1) of the Criminal Procedure (Scotland) Act 1975, as amended. Put shortly, the minuters have given notice of objection to an indictment in which they are charged jointly with two alleged offences and that on grounds which will appear in what follows.

The first charge reads, omitting names [His Lordship quoted the terms of charge (1) and continued].

That charge is claimed to be bad on several grounds, the most important of which is that it "does not set out a crime known to the law of Scotland". Argument was presented to the effect that if the crime was a "new" crime, it could not be introduced into our criminal law by the decision of a single Judge. I accept that. It would be a matter for consideration by a quorum of the High Court. Further argument was presented in some detail as to whether or not the High Court had still the power to introduce a "new" crime. That, plainly, is no concern of mine.

At the outset I was referred by counsel for the first panel—and all that he said throughout the hearing was adopted by Mr Morton who appeared for the second accused—to publications dealing with "solvent abuse", to dictionary definitions of the word "solvent", and to the fact that while there had been attempts in Parliament to deal—if that be the word—with "solvent abuse" all that had been achieved was the Solvent Abuse (Scotland) Act 1983. That Act states that a child may be in need of compulsory measures of care within the provisions of the Social Work (Scotland) Act 1968 if "he has misused a volatile substance by deliberately inhaling, other than for medicinal purposes, that substance's vapour…". I would not brush aside that Act as wholly irrelevant. It does display concern about misuse of volatile substances and shows that there is a defined danger recognised by Parliament.

The initial general approach of counsel for the minuters was that "solvents" covered a wide range of substances and that a decision in favour of the Crown in this case could result in many anomalies. There were many types and kinds of "solvents" legitimately on the public market and open to anyone who wished to buy them. Equally there were many types of drugs which were available without prescription which could be used for wrong and dire purpose and so result in illness or, indeed, death. Cigarettes were dangerous, misused alcohol could lead to death and so on. All that may be so, but I reject argument in terrorem and place no faith in hypotheses of imagination. I am concerned only with the charge before me. Any other case which might arise would depend on the facts and circumstances pertaining to it.

The issue in this case is highly emotive. "Solvent abuse" is popularly seen as "glue sniffing" and the results of that indulgence are within judicial knowledge, and the knowledge of the interested public. However, I do not sit as a judge of morals and my task is confined to a judgment in law, and that alone, on the validity of the indictment before me. It is not disputed that "glue" is not listed as a dangerous substance or drug. Nor is it disputed that to possess "glue" is permissible. Further, in my opinion, it is not a criminal offence for a person who does so to "misuse glue", see for example Fisher v. Keane 1981 S.L.T. (Notes) 28. That being so, the Crown must show, in the first charge in the indictment, that there are set out allegations involving the panels in criminal conduct over and beyond these limitations, and that these allegations show a crime within the body of our recognised criminal common law.

The argument presented by counsel for the minuters can be focused in this way: if one looks at reported cases which may be relevant it will be seen that in each case there was direct contact between the person who administered a noxious substance, or abused the administration of a normally recognised subject, and did so act by way of guile or actings amounting to force or deceit, and his "victim"—I use that word in a broad sense; further, the most recent cases of Semple 1937 J.C. 41 and Finlayson1979 J.C. 33, displayed the same approach. For the sake of argument in this case I will accept the submission of counsel. The next step, however, is the vital one. It is submitted that the first charge is irrelevant because there was novus actus in that those who bought or otherwise obtained from the minuters the substances described in the charge exercised their own choice in the use they made of these substances. They could have used them for their proper use or, if they so chose, could abuse their use. Hence there was no direct control as to use between the supplier and the users.

In my opinion, there is no substance in this argument. In the first place it seems to me an affront to common sense. This case involves 18 children who are alleged to have bought glue within a period of time and been served with it, or at least another solvent, in a somewhat remarkable manner, in tins, tubes, crisp packets and plastic bags. I cannot imagine that such sales were for the ordinary use of glue. Nor can I imagine that those who sold glue could be so naive to think that those transactions were for the ordinary use of the substance involved. Many more questions could be put but it would be improper that these should be raised by me before trial.

In the second place the terms of the charge must be looked to. I have set these out already but think that the relevant words should be looked at again. Reading short, the accusation is that the supply of glue, or other solvent, was made "culpably, wilfully and recklessly…for the purpose of inhalation of the vapours of said solvents…well knowing that said children intended to use said solvents and said containers for the said purpose and that the inhalation by said children of the vapours of said solvents was or could be injurious to the health of said children and to the danger of their lives and in consequence of your said actions you did cause or procure the inhalation by said children of vapours from said quantities of solvents to the danger of their health and lives". Criticism was made of the terms of the charge and I would accept that another draftsman might have worded it differently. None the less fair notice is given of what the Crown intends to prove and, if there is failure of proof, then of course, the charge falls.

The real or at least the most important issue in this case lies in the assertion that in respect of the first charge of the indictment no crime has been libelled "which is known to the law of Scotland". In my opinion that assertion is unfounded.

In the first place I refer again to the terms of the charge. If I supply to another substances in full knowledge that that person will use said substances to the danger of his health and life I have, in my opinion, acted criminally. I put that broadly and am aware that different cases may attract different arguments.

The great strength of our common law in criminal matters is that it can be invoked to fill a need. It is not static. Over the centuries it has operated unless its jurisdiction is displaced by statute or by decision of the Courts. It did not weaken by time or history. It is alive today in dealing with the present age as it was in dealing with questions raised in the past.

Hume put it thus at p. 327 of Bell's edition of the first volume:

"Let us now attend to those offences against the person, which remain on the footing of the common law, and are punishable only with some inferior pain, at the discretion of the Court. These are various in kind and degree; and the law is provided with sundry corresponding terms for them, more or less comprehensive, and commonly employed in libels, such as assault, invasion, beating and bruising, blooding and wounding, stabbing, mutilation, demembration, and some others. But although the injury does not come under any of those terms of style, nor be such as can be announced in a single phrase, this circumstance in nowise affects the competency of a prosecution. Let the libel, in the majorproposition, give an intelligible account of it in terms at large; and, if it amount to a real injury, it shall be sustained to infer punishment, less or more, pro modo admissi; no matter how new or how strange the wrong. We have, besides, in our law, the general term of stellionate, borrowed from the Roman practice, which may be employed in such a case, along with the full description of the injury. This was used in the libel against James Campbell, which bore a charge of certain vile and shameful violations of the prosecutor's person."

Alison, Vol. 1 at p. 624 puts the matter thus:

"By the common law every new crime, as it successively arises, becomes the object of punishment, provided it be in itself wrong, and hurtful to the persons or property of others".

It was argued that these authorities were dealing only with what might be said to be "assaults". I do not so read them and, indeed, if "assault" were examined in detail it could well cover the assertion contained in the indictment.

In my opinion, the claim that the first charge sets out an offence which, it is said, is unknown to the "the law of Scotland" is without substance. The only novelty is that it libels the use and abuse of a solvent. It is only comparatively recently that the effect of such abuse has become known to the public. That knowledge is significant, but not decisive in approaching the question of the power of our common law in criminal matters. It would be strange if the common law cannot deal with a known danger and the culpability of those who supply for profit the solvents knowing that abuse and its attendant effects may, in extreme cases, result in the death of the user.

The common law has been overtaken in some instances by Parliament or the decisions of the Court, but that apart it can deal with offences which may have arisen in modern times. The only novelty in the present case is that it involves a supply to the public, and in particular, children and young people, of a substance which lends itself to abuse. If the vapour given off by that substance is inhaled the user can cause injury to himself, of his health and indeed life. This is precisely a situation with which the common law can deal, where the dangers of such a supply are well known.

Put in a positive way, if the minuters were right in their assertion that these activities did not constitute a crime in the law of Scotland they can sell or supply solvents well knowing that their young customers have no intention whatsoever of using the substances in an ordinary manner, but, packaged in strange containers as they are, will use the solvents as they might a drug, inhaling the vapours given off by the solvents to the danger of their health or, indeed, to their lives. It might seem that Parliament has found difficulty in dealing with that situation, but, if so, there is all the more reason for applying our common law in criminal matters. I stress what I have said above. This case is not concerned with a "new" crime. It is concerned with the breach of existing common law relating to the use of poisonous, or at least injurious, substances to the danger of health and life. The only novelty is that the abuse of glue, or other solvent, and the danger of such abuses has only been fully recognised fairly recently.

It was also argued that, if the first charge did contain an offence, then each incident created an offence by itself. Thus there should be separate charges dealing with the circumstances of each individual incident. In short, there should be 18 charges. In my opinion this will not do. The attendant difficulties speak for themselves and the Crown are well entitled to approach the case as one of a course of criminal conduct displayed by supplying a large number of children named in the charge and also "other children under the age of 16 years whose identities are to the Prosecutor unknown", with a potentially dangerous substance in the full knowledge of the effects of its use on those who were supplied. In my opinion the Lord Advocate was entitled to refer to the ages of the persons allegedly supplied. It is not a decisive matter but it is plainly relevant to the accusations contained in the first charge. One need not pursue the matter further. The panels have been given proper and clear notice of what is the case for the Crown. The objection is ill-founded.

It was also argued that the relevancy of the matters in the first charge was "wholly lacking in specification". All I can say is that I do not understand such a statement. The terms of that aspect of the indictment are clear. One is back, in effect, to the claim that each supply to each individual should be looked at separately, and I have already dealt with that.

Lastly it was argued that the Crown had taken an unwarranted latitude of time in these proceedings, a time from 1st February 1981 to 6th April 1983. This, I think, invokes a matter of judgment related to the offences charged. I cannot say that in the circumstances disclosed in the libel of this case the time interval was unacceptable. One has heard this argument on many occasions, but I cannot remember any case in which it was put to the full test, that is that because of lapse of time an indictment should be struck out. There may have been instances in the past but none were drawn to my attention.

It was claimed, as I understand it, that this question of lapse of time was very pertinent to the second charge of the indictment. In that charge it is set out that the accused were resetters taking various articles, knowing them to be dishonestly appropriated by theft, and applying their value, or the money which was offered in exchange, to supply with solvents some eight of the named young persons set out in the first charge. The argument appeared to be that in charges of reset there was involved the doctrine of "recent possession" of stolen goods, and hence the lapse of time lessened an attack of invoking that rule, if it be one. I cannot understand this. If it be the case that "recent possession" is involved the lapse of time would tend to favour the accused and, obviously, make the Crown case more difficult to prove.

It was also argued that this charge was lacking in specification in that there was no account of from whom the various articles were stolen, when they were dishonestly acquired and by whom. This point is answered by referring to Maguire, 5 Adam 539 and section 59 of the 1975 Act.

In my opinion the libel is relevant and proper and the panels should stand trial.

Both accused appealed. The appeal was heard by the High Court of Justiciary on 7th October 1983 and subsequent days. The arguments of the parties appear fully from the opinion of the Lord Justice-General.

At advising on 17th November 1983,—

LORD JUSTICE-GENERAL (Emslie).—The appellants have been indicted for trial upon two charges and these charges are that [His Lordship quoted the terms of the indictment and continued].

Objection was taken to the relevancy and specification of these charges. In relation to charge (1) the major proposition was that the facts libelled do not disclose a crime known to the law of Scotland, and it was contended that in any event the charge was bad for want of specification and fair notice in a number of important respects. So far as charge (2) is concerned the attack mounted upon it rested only upon the submission that it is badly drawn and fails to give fair notice of the case which the appellants may be required to meet.

After debate the trial judge, Lord Avonside, repelled the objections presented on behalf of the appellants, and sustained the relevancy of both charges, holding that the facts libelled in charge (1) did disclose a crime already known to our law, and that the whole other criticisms levelled against both charges were without substance. I have only to add, at this stage, that although in the course of the debate some attention was given to the question whether it was any longer within the power of the High Court to declare that certain conduct constitutes a new crime, i.e. one hitherto unknown to our law, the trial judge decided that he, at least, sitting alone, had no such power.

Against the decision of the trial judge the appellants have appealed to this Court and on the appellants' behalf counsel has contended that the trial judge erred in concluding that charge (1) libelled a crime known to our law and that charges (1) and (2) were not defective for any lack of essential specification or fair notice.

Before examining the important question posed by the contention for the appellants that charge (1) does not disclose any crime known to the law of Scotland, it is, I think, desirable to understand what are the essential features of the charge, (i) There is libelled expressly the culpable wilful and reckless supply to 18 named children and other unnamed children, all under 16 years of age, of solvents for the purpose of their abuse by these children, (ii) It is averred in particular that the solvents were supplied in or together with containers for the purpose of that abuse, namely, for inhalation from within the containers of the vapours of the solvents, (iii) The charge then proceeds to libel the state of knowledge of the appellants at the time of supply and the averments are that they well knew that the children intended to use the solvents and the containers for the purpose of abuse, and that the particular abuse was or could be injurious to the health of the children and to the danger of their lives. (iv) The concluding words of the charge are these:

"and in consequence of your said actions you did cause or procure the inhalation by said children of vapours from said quantities of solvents to the danger of their health and lives".

In other words, what the Crown offers to prove is that the children did abuse the solvents by inhaling them and that what the appellants did caused or procured that inhalation to the danger of the health and lives of the inhalers.

In introducing the appellants' primary objection to the relevancy of charge (1), Lord M'Cluskey reminded us quite correctly that Parliament has not yet subjected solvents to statutory control, fenced by criminal penalties. There are, further, no statutory provisions restricting the supply of solvents to children. Such provisions have, of course, been made in relation to, for example, alcohol and tobacco. He reminded us, too, that it has not yet been held that the deliberate abuse of solvents is a criminal offence. The only step taken by Parliament, so far, was taken in the Solvent Abuse (Scotland) Act 1983, which did not come into force until long after the end of the period with which the indictment is concerned. All that was done was to add an additional sub-paragraph to section 32 (2) of the Social Work (Scotland) Act 1968 in terms of which a child may be found to be in need of compulsory measures of care if "he has misused a volatile substance by deliberately inhaling, other than for medicinal purposes, that substance's vapours". In this state of the law it accordingly follows that what the children are alleged to have done, i.e. inhale the vapours of the solvents, was not a criminal offence, and that the supply of solvents to them was not a criminal offence either.

Against this background the submission, which I shall attempt to summarise fairly, was that there is no warrant in precedent or authority for the view that the supply of a potentially harmful substance, even in circumstances such as those libelled in charge (1), including the knowledge that it would be used or abused by the recipient to the danger of his health, Constitutes a crime recognised by the common law of Scotland. Had our common law treated such a supply as criminal one would have expected that some attempt might have been made to prosecute suppliers of drugs, well known to be dangerous to health, before such drugs were brought under statutory control. This is a supply case and not an administration case. The supply allegedly made endangered no one. The risk of injury could arise only if the person supplied performed a voluntary act after the substance had passed out of the control of the supplier. The abuse of the substance by the persons supplied is to be seen as remote for that reason, so far as the supplier's responsibility is concerned, and that abuse, if it occurs, is not itself a crime. It will be observed too, said Lord M'Cluskey, that none of the named children in the charge is said to have been under the age of criminal responsibility and it is not averred that any of them was ignorant of the dangers of inhalation which are said to have been known to the appellants. It cannot be presumed that they were so young as to be inevitably ignorant of the dangers of what they intended to do and did. While the administration of a noxious substance to another may well be a crime in certain circumstances, including the age and understanding of the alleged victim, or where the administration is against the will of that person, mere supply of a noxious substance to a person with which, if he chooses, he may injure himself without committing an offence, has never been held to be criminal by the common law of Scotland. The relevancy of charge (1) cannot be supported by recourse to the law which renders criminal reckless acts to the danger of the lieges in general. Under reference to Macdonald, Criminal Law (5th ed.), pp. 141 and 142, this chapter of the criminal law has no application to circumstances in which the alleged danger is only to persons with whom the actor is in a special relationship and, in particular, in which the alleged danger only arises as the result of the voluntary acts of such persons. The relevancy of the charge cannot be supported either, as the Crown seeks to support it, by recourse to the law relating to offences against the person discussed in Hume, Vol. 1 (3rd ed.), p. 327. That passage, properly understood, is concerned only with acts which inflict real injury to the person, of the nature of assaults, whatever their kind may be. The Crown case appears to be that what the appellants did caused real injury to the children mentioned in the charge, but that proposition cannot survive critical examination. This is not a case in which the appellants are said to have administered the noxious vapours to the children. Their only act was the act of supply which, at best for the Crown, merely provided for the children the occasion for the possible abuse of the solvents. It did not cause injury to anyone, and from the moment that each transaction was complete the solvents and the use to which they might be put passed out of the control of the appellants and into the sole control of the child supplied. The essential link between the supply and the inhalation is inevitably broken by the voluntary act of the child supplied, and it would not, accordingly, be open to the judges of fact to find that the supply caused the alleged injury. They could only do so if the sequence of events between the alleged cause and the alleged injury is unbroken, and the sequence in the narrative in charge (1) is plainly broken by the dependence of the libel upon the voluntary acts of the persons supplied, who must be assumed to be responsible for what they did. The trial judge's opinion, in which he inter alia cites the passage in Hume upon which the Crown relies, is plainly unsound, for the view upon which he sustained the relevancy of charge (1) was that mere supply of a substance to another in full acknowledge that that person will use it to the danger of his health and life is criminal. Not even the Crown submission went so far. Whatever the knowledge of the supplier and the intention of the customer, supply is not criminal where the intended use is not itself a crime.

As so often happens after full and well conducted debate the critical questions become readily identifiable. The first and perhaps the only critical question to be answered in this case is whether the Crown's primary submission in support of the relevancy of charge (1) is well founded. The Crown's position is that what is libelled here is not a new crime but merely a modern example of conduct which our law has for long regarded as criminal. Such conduct is described by Hume in the passage to which reference has already been made and consists in actions of any kind which cause or are a cause of real injury to the person. The Crown case is, in short, that the actions of the appellants, in the particular circumstances libelled, were a cause of real injury to the children referred to resulting from their inhalation of the intoxicating and dangerous fumes emitted by the solvents supplied to them for that specific purpose. The particular question for us to answer, accordingly, is whether in the particular circumstances libelled in charge (1) it would be open to the judges of fact to conclude that the supply by the appellants of solvents and containers for the intended purpose of abuse by the children, caused or procured the inhalation of their vapours which occurred, and was, accordingly, a cause of the injury which they suffered thereby.

"It would be a mistake", as the Lord Justice-General (Clyde) observed in the case of M'Laughlan v. Boyd 1934 J.C. 19 at p. 22, "to imagine that the criminal common law of Scotland countenances any precise and exact categorisation of the forms of conduct which amount to crime. It has been pointed out many times in this Court that such is not the nature or quality of the criminal law of Scotland. I need only refer to the well-known passage in the opening of Baron Hume's institutional work, in which the broad definition of crime—a doleful or wilful offence against society in the matter of ‘violence, dishonesty, falsehood, indecency, or religion’—is laid down". Section 44 of the Criminal Procedure (Scotland) Act 1975, repeating the language of the earlier statute of 1887, provides that it shall not be necessary in any indictment to specify by any nomen juris the crime which is charged, but it shall be sufficient that the indictment sets forth facts relevant and sufficient to constitute an indictable crime. No nomen juris is specified in charge (1) and it is accordingly to the facts set forth that one must look to see whether they are relevant and sufficient to constitute an indictable crime. It is of course not an objection to the relevancy of a charge alleged to be one of criminal conduct merely to say that it is without precise precedent in previous decisions. The categories of criminal conduct are never to this extent closed. "An old crime may certainly be committed in a new way; and a case, though never occurring before in its facts, may fall within the spirit of a previous decision, or within an established general principle." So said Lord Cockburn in his dissenting judgment in the case of Bernard Greenhuff (1838) 2 Swin. 236 at p. 274. In the case now before us it is to an established general principle that the Lord Advocate resorts in defence of the relevancy and sufficiency of the facts libelled to constitute an indictable crime, and that general principle is to be found in Hume, Vol. 1 (3rd ed.), p. 327, and, in particular, in the passage quoted by the trial judge in his opinion which I do not find it necessary to repeat. The general principle to be discovered from that passage is that within the category of conduct identified as criminal are acts, whatever their nature may be, which cause real injury to the person. Does this case, though never before occurring on its facts, fall within that general principle as the Lord Advocate contends? In my opinion it does, although the nature of the injury and the act alleged to be a cause of that injury may be new. Let me now try to explain why I am of this opinion.

There is ample authority for the view that the wilful and reckless administration of a dangerous substance to another causing injury or death, is a crime at common law in Scotland. Examples are to be found in cases such as H.M. Advocate v. Brown and Lawson (1842) 1 Broun 415; H.M. Advocate v. Jean Crawford (1847) Arkley 394. In these cases the victims were young children but it does not appear to me that the relevancy of the charges there made depended essentially on the age, state of knowledge, or attitude of the victim. In the passage in Alison, Criminal Law, Vol. 1, p. 629, dealing with this topic it is not suggested that the criminal character of the administration is affected by the absence of any pretence as to the nature of the substance administered, or by the knowledge of the victim of the properties of the substance administered. The case of H.M. Advocate v. Milne and Barry (1868) 1 Couper 28 throws further light upon the problem. In that case a charge libelling the wicked and felonious administration of jalap—a powerful purgative, dangerous when taken in quantity—to an adult to his injury, was held to be irrelevant because it was not said to have been administered with criminal intent. The point was that the jalap could have been administered for a good medical reason. Lord Cowan was of opinion that had the charge libelled that the jalap had been administered "wilfully and culpably" it might have amounted to a criminal charge, and it is to be noted that the charge did not libel any pretence nor that the jalap was administered without the knowledge and consent of the victim. Upon the matter of the consent of a victim to conduct causing injury to him, or his death, the law is perfectly clear. Consent on the part of the victim—even instigation by the victim—is of no importance at all. Clear authority is to be found for that proposition in the cases of H.M. Advocate v. Rutherford 1947 J.C. 1 (murder);Smart v. H.M. Advocate 1975 JC 30 (assault); and Finlayson v. H.M. Advocate 1979 J.C. 33 (culpable homicide by injection of a controlled drug causing death). In light of what I have said so far I have no doubt whatever that had charge (1) libelled that the appellants had, culpably, wilfully and recklessly, held the containers supplied to the noses of the children to enable them to inhale the vapours of the solvents to their injury, the relevancy of such a charge, bearing in mind the state of knowledge attributed to the appellants, would be beyond question. I go further and say that the relevancy of such a charge would not have been impaired had the alleged consenting victims of the alleged conduct of the accused been of full age. It is nothing to the point either that the victims might, without committing any criminal offences, have inflicted the same injury upon themselves, for the question is simply whether the accused has, by wilful and reckless conduct on his part, caused real injury to a third party.

As Lord M'Cluskey has repeatedly reminded us, however, this is not an administration case. What is libelled is culpable, wilful and reckless supply, and the injuries with which the charge is concerned were self-inflicted by the voluntary acts of the persons supplied, after the solvents and the containers had passed out of the immediate control of the appellants. I am not persuaded that these considerations are fatal to the relevancy of charge (1) in this case. Whether the supply was a cause of the injury is a matter of fact and in the particular circumstances averred it would, in my opinion, be open to the judges of fact to hold that the supply not merely of solvents, but of what the Press vividly describe as "glue-sniffing kits", was a cause of injury to the persons supplied who proceeded to employ them for the known, intended, and expected purpose, namely inhalation of the injurious vapours of the solvents from the containers. That the persons supplied were children is not, as I have already indicated, essential to the relevancy of the charge, but the age of such persons in a charge of this kind will be a circumstance which may be taken into account in deciding whether the supply complained of ought upon the evidence to be held to have been a cause of the injury suffered. Turning to the more important obstacles to relevancy founded upon on the appellants behalf, it is my opinion that the facts and circumstances libelled in charge (1) are such as to permit the judges of fact to conclude that there was no material distinction between what the appellants are said to have done, and direct administration of the noxious fumes. The supply of "glue-sniffing kits" was sought or invited for the particular purpose of abuse of the solvents. The purpose and the intention of the supply libelled was that the solvents should be abused, employing the means of abuse provided. The solvents were, it is averred, abused, and this could be regarded as the expected, intended and probable consequence of the supply. There are undoubtedly circumstances in which the distinction between supply and administration of a noxious substance will not be material, and I do not regard the distinction as material for the purpose of relevancy in the particular circumstances of this case. As the Lord Justice-Clerk (Aitchison) pointed out in the case of H.M. Advocate v. Semple 1937 J.C. 41 at p. 44:

"Of course supply by itself does not amount to a crime, but here it is coupled with use, and the distinction between supply and administration does not appear to me to be material in a case where the supply is closely related to the use by words of instigation or by some act of instigation on the part of the panel…".

In this case, upon the facts libelled, it would in my opinion be open to the judges of fact to conclude that the supply libelled was closely related to the use, even in the absence of words of instigation on the part of the suppliers. The purpose of the supply was no proper purpose and, it may appear, was obviously intended to be carried out. It was abuse of the solvents and, in the circumstances averred, no words or acts of instigation are necessary to demonstrate the close relationship of the supply and the abuse which occurred. I am fully satisfied, further, that it is not fatal to the relevancy of charge (1) that a voluntary act on the part of the recipients of the "glue-sniffing kits" was required to produce the injurious consequences which they are alleged to have suffered. The causal link is not, of necessity, broken by that circumstance. In a supply case the extent to which the supplier may have a locus poenitentiae, and the extent to which extraneous and intervening circumstances dictate or influence the actions of the recipient of the supply, are, of course, not unimportant considerations. The doctrine of the novus actus interveniens familiar in the field of delict or the law of contract, if it is to be relevant and exculpatory, must involve that the intervening actus is truly novus and ultraneous (see, for example, the speech of Lord Wright in The Oropesa [1943] P. 32 quoted in Finlayson v. H.M. Advocate cit. sup.). Where, as in the case of charge (1), there is no intervention of third party action, or of an unexpected event entirely external to the transaction between the parties directly concerned, there appears to be no ground upon which it can be successfully maintained, upon the basis of novus actus interveniens, that the inhalation of the noxious fumes of the solvents by the voluntary and deliberate acts of the recipients of the supply, is fatal to the relevancy of such a charge as is exemplified by charge (1) in this indictment. According to the facts and circumstances libelled in this charge, which is of a course of conduct over a long period, the actions of the recipients which it was known that they intended to carry out, were entirely to be expected, and were, indeed, the known specific purpose of the supply. The true question is whether the charge relevantly libels a causal connection between the alleged supply and the abuse and its consequences, that is to say, whether it would be permissible for the judges of fact to conclude that the supply provided not merely the occasion for the abuse of the solvents by the recipients, but was a cause of that abuse. To that question, for the reasons which I have endeavoured to explain, I give an affirmative answer.

What I have said so far is sufficient to enable us to sustain the relevancy of charge (1) as a charge which discloses a crime known to the law of Scotland. For that reason I consider that it is unnecessary to express a concluded view upon the further submission of the Lord Advocate that charge (1) as framed would entitle a jury, if they were unable to affirm that the conduct of the appellants caused or procured the inhalation of solvent vapours to the danger of health and lives, to return a verdict of guilty of the crime of wilful and reckless conduct to the danger of the lieges, as that crime is described in Macdonald, pp. 141–142. The basis of this submission was that if there were deleted from charge (1) the concluding averments beginning with the words "and in consequence of your said actions" the charge would still be a relevant charge of a crime known to the law of Scotland, in that the conduct complained of would fall within the category of crimes consisting in wilful and reckless conduct to the danger of the lieges. Although I do not intend to express a concluded opinion upon this submission I feel bound to say that I found great force in Lord M'Cluskey's contention that the facts libelled in the truncated version of charge (1) upon which the Lord Advocate's submission depended, are not apt to bring them within the principle of wilful and reckless conduct to the danger of the lieges as that principle has, until now, been understood. For my own part, had the question before us depended upon a decision upon this matter, I would have been inclined to answer it in the appellants' favour.

There remains for consideration the submission that charges (1) and (2) are defective for lack of essential specification and fair notice. That submission was presented mainly in the form of questions which, it was said, are not answered in these charges, and which ought to be answered if the appellants are to have fair notice of the case which they may be required to meet. Is the crime alleged a course of conduct or does charge (1), for example, represent a charge of 18 separate crimes, and an unspecified number of additional separate crimes? Is the crime, or are the crimes, complete at the moment of supply or only where injury has resulted from the conduct alleged? How is it to be established that the children, especially the unnamed children, intended to abuse the solvents? What was the precise age of each named child at the time of any supply to him or to her? Are the appellants to be faced with evidence tending to show that any of the unnamed children was under 8 years of age at relevant times? There is no objection to the overall latitude taken by the Crown in these charges but the appellants are entitled to fair notice of the date or dates on which each of the named children, at least, entered into the transactions with one or other or both of the appellants. The second-named appellant, in particular, it was said, was not always in the shop during business hours, and by the way in which the Crown has chosen to frame these two charges, the possibility of lodging a special defence of alibi is denied to him. So far as charge (2) is concerned it is not clear whether the charge is designed to show that in nine separate instances a particular crime of reset of particular articles occurred, or that there was a single occasion of reset involving receipt of stolen property from the group. This will present immense difficulties for the defence, and the difficulty of presenting a special defence of alibi has already been mentioned.

I am satisfied that, although the precise age of any of the alleged recipients of the supplies alleged in charge (1) is not essential to the relevancy of the charge, the charge as it is now framed is defective in that it does not give fair notice of the exact age of each child at any date within the period covered by the charge. The Lord Advocate accepts that this is so and has undertaken to amend the charge so as to disclose the date of birth of each named child. I am not satisfied however that the appellants are at a material disadvantage in that the charge does not treat the transactions between the appellants and each child separately. This could, of course, be done but the permissible latitude of time in each case would be one of three months, with the result that the appellants would be faced with a similar difficulty on the matter of a special defence of alibi. There is no difficulty in appreciating that this charge is one of a course of conduct within the period libelled, and a "course of conduct" must be understood to mean a succession of criminal acts. A charge in the form of charge (1) is not without precedent where the course of conduct involves fairly young persons over a long period (cf. H.M. Advocate v. A.E. 1937 J.C. 96). The impossibility of lodging a special defence of alibi is recognised, but because of the form of the charge there could be no sound objection on the part of the Crown, if the evidence defined with reasonable precision the dates and times of any of the transactions with any child, to the leading of evidence on behalf of either of the accused that he was not then present in the shop and perhaps that he was then in another particular place. The question of when each of the alleged crimes is complete has already been answered, and the time is when real injury was caused by the act of inhalation on the part of the recipients of the supply. So far as charge (2) is concerned the charge would have been a relevant charge of reset of the articles listed if there had been no mention of the persons from whom the stolen goods were allegedly received (Criminal Procedure (Scotland) Act 1975, sec. 59). Very considerable latitude of time is permissible in a charge of reset where the substance of the charge is that there was reset on a number of occasions of stolen goods consisting in toto of a list of specified items (cf. H.M. Advocate v. Macdonald (1888) 1 White 593). In my opinion fair notice is given of the substance of the charge to which the appellants must answer, and the additional specification of the names of the persons from whom they allegedly received stolen goods within the list libelled, and the circumstances in which it is alleged that they did so, cannot be said to be to the disadvantage of the appellants.

Upon the whole matter I am of opinion that the appeals fail and that they should be refused.

LORD CAMERON .—I have had the advantage of considering the opinion of your Lordship, with which I entirely concur and to which there is nothing I can usefully add.

LORD DUNPARK .—I agree that both appeals should be refused for the reasons given by your Lordship in the Chair.