17 December 1993
The cause called before the High Court of Justiciary, comprising the Lord Justice-General (Hope), Lord Allanbridge and Lord Cowie for a hearing on 3rd December 1993. Eo die, their Lordships made avizandum.
At advising, on 17th December 1993, the opinion of the court was delivered by the Lord Justice-General (Hope).
OPINION OF THE COURT—The appellant is James William Burnett Sutherland who went to trial in the High Court at Edinburgh on two charges of wilful fireraising with intent to defraud insurers. One of these charges, which was charge (2) on the indictment, was combined with a charge of culpable homicide. The other charge, which was of wilful fireraising only and was charge (1) on the indictment, was withdrawn at the end of the Crown case. The appellant's counsel then submitted that there was no case to answer on the second charge, including that of culpable homicide, but the submission was repelled by the trial judge. The appellant did not give evidence, and at the end of the trial he was found guilty of charge (2) under deletion of certain words from the part of it relating to the culpable homicide. He was sentenced to five years' imprisonment. He has appealed against his conviction on the ground of misdirections by the trial judge and also against sentence.
The property which was the subject of the fireraising charges was a house at 2 Pilton Drive North, Edinburgh, which the appellant had purchased for development. He never had sufficient funds to proceed with the development, and as the house was empty it was frequently vandalised. He had obtained a substantial loan to purchase the house from a bank and had originally insured the house in his own name. But by March 1992 the insurance had been taken over by the bank to cover the amount of their loan to the appellant. The first charge alleged that on 30th March 1992, with intent to defraud the insurers, and while acting with another man named Bernard Buckley, the appellant deposited tissue paper and a quantity of petrol in the house and wilfully set fire to it. Although the fire took effect the attempt to burn the house down was unsuccessful on that occasion. The appellant and Buckley returned to the house on 10th April 1992. As a result of the events of that night the appellant was charged with a second act of wilful fireraising and with the culpable homicide of Buckley, who died when the house was destroyed by an explosion
caused by the fire. These charges were libelled together in a single charge, which was in these terms: [their Lordships quoted the terms of charge (2) as set out supra and continued:]
There was evidence relating to the first charge that the appellant, who had not been in touch with Buckley for a number of years, obtained his telephone number from a mutual acquaintance. A woman named Joyce Strand who had been living with Buckley spoke to his having received a telephone call from the appellant on 22nd March 1992 and to his then having gone to meet the appellant. Two days later Buckley said to her that he might need her for an alibi, and on 28th March 1992 she was in his car and smelled petrol. She asked him what he was doing but he did not give any satisfactory reply. On 29th March 1992 Buckley received another telephone call from the appellant, and on 30th March 1992, which was the date of the fireraising libelled in the first charge, he was out in the evening. On his return he said to Joyce Strand that the appellant had had the cheek to lose the head at him because "it didn't work". She said that there was further contact between Buckley and the appellant the following week, and that on 10th April 1992 he left the house and never returned. According to her evidence, when he left the house after tea that evening he was carrying a black rubbish bag which appeared to have something rectangular inside it. His car was later found close to the house at 2 Pilton Drive North and the key to the car was in his pocket when his body was found beneath the rubble of the house after the explosion.
On 30th March 1992 neighbours reported a fire in the house at 2 Pilton Drive North. When the fire service arrived to extinguish the fire they found trails of toilet paper leading from one room to another and a strong smell of petrol. On 10th April 1992 during the evening there was an explosion at the house. The appellant was seen to emerge from it in a state of shock with his clothing on fire. He told neighbours who came to his assistance that his pal was still in the house. But when the police arrived he maintained to them that there was no one else in the house. He told the police next day when he was seen by them in the Royal Infirmary that he had gone to the house because he had received a phone call saying that his house was being vandalised. He said that as he was walking up the path he saw a threaded top from a plastic container which he picked up and put in his pocket. He was smoking a cigarette at the time. As he opened the front door, which was unlocked, and went into the vestibule there was an explosion by which he was thrown out of the house. He told the police that he did not know that Buckley was there, although there was clear evidence from people to whom he had spoken immediately after the explosion that he had asked them to get help for his pal who was inside. As a result of the explosion the first floor and roof of the house collapsed and it was some considerable time before Buckley's body was found under the ground floor. At the post-mortem examination it was ascertained that he had died as a result of hypoxia having been buried under the rubble. On the medical evidence it would have been too late to save him when the emergency services arrived, even if they had been told immediately that he was in the house. There was evidence from a fire safety expert that the mixture of air and vapour necessary to create the explosion could not have been ignited by a lit cigarette as the appellant had suggested.
There was clear circumstantial evidence to show that the fire had been started deliberately and that it was the fire which caused the explosion which resulted in
Buckley's death. Subsequent investigations showed that the fire had been started by igniting a substantial quantity of petrol, and one estimate was that at least four gallons would have been required. A pair of shoes belonging to the appellant was found in the front vestibule of the house, between the front door and an inside door leading to the hall. Buckley's body was found in a large front room, the entrance to which was from the hall on the left hand side. The appellant's clothing was found to be strongly contaminated with petrol. A cap was found in his pocket which would have fitted a five-gallon plastic container, and there was evidence that he had purchased such a container. The trial judge took the view that there was ample evidence to establish that the appellant and Buckley had gone to the house with the intention of setting fire to it by the use of petrol. It appeared to him, however, that there was no causal connection between any pretence on the part of the appellant that there was no one in the house and Buckley's death when he was trapped inside it. It was not established on the evidence whether it was Buckley or the appellant who ignited the petrol and started the fire.
In the light of this evidence the trial judge directed the jury to split charge (2) down into its constituent parts. He told them that, as it was alleged that the appellant had been acting with Bernard Buckley, it was necessary for them to consider whether these two men had a common criminal purpose in going to the house to set fire to it and burn it down. He pointed out that there was no evidence as to which of them had started the fire, and said that unless a common criminal purpose to set fire to the house was established they would be bound to find the appellant not guilty of the whole charge. He then dealt with the allegation that they set fire to the house with intent to defraud the insurers. He told the jury that this was a vital part of the charge of wilful fireraising, because the house was the appellant's property and he was entitled to do what he wished with it so long as he did not commit a crime. His action in seeking to demolish the house would only be criminal if his intention in doing so was to defraud the insurers by putting in a false claim. He reminded them that there was evidence that the appellant was in considerable financial difficulty, and he told them that it would be a false claim if a claim were to be put forward on the basis that the fire was caused by vandalism or something of that kind and not by the appellant himself deliberately. No criticism has been made in this appeal of any of the directions which the trial judge gave to the jury on these points. The appeal is directed principally to what he said about the latter part of the charge in which the appellant was accused of culpable homicide.
In the introduction to his directions on this matter the trial judge told the jury that what they had to look for was an unlawful act which gave rise to the death. This act must be either intentional, or if not intentional must at least be reckless or grossly careless, by acting in the face of obvious risks which were or should have been appreciated and guarded against or in circumstances which showed a complete disregard for any potential dangers that might exist. He then dealt with the three ways it appeared to him that the Crown were suggesting that what occurred in this case amounted to culpable homicide. The first was that the wilful act which was necessary for culpable homicide was the fireraising with intent to defraud insurers. He told them that that would not do in the circumstances of this case, because an intention to defraud the insurers was not an offence against the person and could not convert what would otherwise be a lawful act,
namely setting fire to one's own house, into an unlawful act resulting in someone's death. The second related to the passage libelled in the charge which was that the appellant pretended to members of the emergency services that there was no one in the house, the truth being as he well knew that Bernard Buckley was trapped in the house. On this point, however, the evidence did not support the allegation, and the trial judge directed the jury that they could not be satisfied beyond reasonable doubt that there was a causal link between the false pretence and the death. When the jury sought further directions from him as to what they should do with this part of the libel, he told them that they could leave it in if they were satisfied that the pretence was made but that they should delete it if they were not satisfied on the evidence that there was any such pretence. In the event the jury deleted this passage from the charge when they returned their verdict.
With that careful introduction the trial judge then told the jury that the only ground for culpable homicide which remained as a live issue in the case was that what was done here was an act of wicked recklessness. He said that a person was entitled to demolish his own property if he wished, but if this was done with a wicked disregard for the safety of other people it would be unlawful. He went on to say this:
"So the question in this case, ladies and gentlemen, becomes this: was the fireraising something which was done in the face of obvious risks which were or should have been appreciated and guarded against, or in circumstances which showed a complete disregard for any potential dangers which might result?"
He emphasised that this was the only test for culpable homicide in this case, and that if they were not satisfied that the fireraising was reckless as he had defined it they would require to find the appellant not guilty of culpable homicide.
The first ground of appeal relates to an earlier part of the charge where the trial judge commented on the fact that the appellant had not given evidence. He told the jury that he was perfectly entitled to take that course, and that it would be an entirely wrong approach for them to conclude that the appellant must have had something to hide, must therefore be guilty and should be convicted. He said that they must draw no adverse inference from the mere fact that he had elected not to give evidence. In the passage to which the ground of appeal relates he then said this:
"Having said that, however, if there is some evidence in the case which is crying out for an explanation and there is no explanation from the accused when he is the one person who could give an innocent explanation, then you may find it easier to draw a guilty inference from the fact or from that piece of evidence which you are considering."
This passage is said in the ground of appeal to amount to a misdirection giving rise to a miscarriage of justice because there were no exceptional circumstances in the evidence to justify such a comment by the trial judge.
Counsel for the appellant accepted that a trial judge is entitled to comment on the fact that an accused has not given evidence. But he said that this must be done with restraint and then only when there are special circumstances which make this necessary. In this passage the trial judge had gone far beyond what was legitimate, as the appellant's explanation for what happened was before the jury in the statements which he had made to the police. This was especially damaging in such a long charge which was necessarily taken up with explaining to the jury the ways in which the appellant could be found guilty. Where facts were not explained by
him, such as how his clothes came to be contaminated with petrol and why his shoes were found in the vestibule, they were not such as to cry out for an explanation by him as there was other evidence from which inferences could be drawn.
The question as to the circumstances in which such comments may be made by the presiding judge was said by Lord Justice-General Emslie in Stewart v. H.M. Advocate 1980 J.C. 103 at p. 109 to be a particularly delicate area. Any such comment must be carefully considered, lest a jury should receive the erroneous implication that they are entitled to treat the fact that the accused has not entered the witness box as a piece of evidence which supports the case made by the prosecution. But it is recognised in that and numerous other cases that, where there are facts relevant to the issue of guilt which in their entirety are within the knowledge of an accused alone, such comment is both competent and proper, provided always that it is made with restraint.
In this case there was a substantial body of evidence from which the inference could be drawn that the appellant and Buckley set fire to the house deliberately. Buckley's presence in the house at the time of the explosion, the finding of the appellant's shoes in the vestibule, the facts that he had a cap which would fit a five-gallon plastic container in his pocket, that his clothes were strongly contaminated with petrol and that it was established that the cause of the fire and explosion was the ignition of at least four gallons of petrol inside the house were all facts from which an inference of guilt could be drawn, and there was no one else except the appellant to explain them as there were no eyewitnesses as to what took place in the house. In our opinion the circumstances were sufficiently special to justify the direction which the trial judge gave to the jury that they might find it easier to draw a guilty inference in the absence of an explanation from the appellant. As to whether he exercised the necessary care and restraint when giving this direction, we note that it was contained in a single sentence and that it was preceded by directions in the clearest terms that the jury were not entitled to draw any adverse inference from the mere fact that the appellant had elected not to give evidence. We do not think that what the trial judge said in this passage went beyond what was appropriate and permissible. We reject this ground of appeal.
[Their Lordships then dealt with a ground of appeal with which this report is not concerned, rejected it and continued:]
The third ground of appeal is that the trial judge misdirected the jury by inviting them to apply the test of reckless disregard for the safety of others. It is said here that the proper test is whether the actings of the accused displayed gross and wicked recklessness. As the trial judge points out in his report, however, it is difficult to see where the distinction lies between "criminal indifference to consequences", which was the criterion applied in Paton v. H.M. Advocate 1936 JC 19, and "gross and wicked recklessness" on the other hand. And he tells us that the directions which he gave were in the context of criminal indifference to the consequences. Now these are all rather broad expressions, the meaning of which tends to merge one with the other. The direction which the trial judge gave was that the fireraising had to be done in the face of obvious risks which were or should have been guarded against or in circumstances which showed a complete disregard for any potential dangers which might result. In our opinion this was a sufficient direction to the jury that they must find the appellant guilty of criminal negligence before they could convict him of culpable homicide, and counsel for the appellant said that he would not quarrel with this approach if the
charge had been concerned with what had happened to third parties who had not caused or contributed in any way to their own death. He invited us to consider this ground together with ground (4), on the basis that they were interlinked and raised a point of general importance, namely whether an accused can ever be guilty of the culpable homicide of someone who was acting with him in concert in carrying out the criminal acts as a result of which he was killed.
Although we allowed counsel to develop this argument we have to say that it is not clearly focused in either of these two grounds of appeal and it is a point which does not appear to have been drawn at any time to the attention of the trial judge. Ground (3) is directed to the test which is appropriate for an allegation of criminal negligence. Ground (4) relates to a different point, namely that if the common purpose of the appellant and Buckley was lawful, the doctrine of concert cannot apply. The propositions which are at the heart of this argument are set out in this ground in these terms:
"Accordingly, criminal liability could not be brought home to the appellant in the absence of evidence of an act of gross negligence on his part. There was no evidence of any connection between the appellant as cause and the said explosion as effect."
The short answer to this point is provided by the trial judge, who states in his report that he accepts that there was insufficient evidence to show whether it was the appellant or Buckley who ignited the petrol. Accordingly, direct responsibility for the ignition could not be brought home to the appellant on the ground that it was his own act. He also accepts that the doctrine of concert has no bearing on the performance of a lawful act, as the whole basis of concert is that there must be a common criminal purpose. But if the joint purpose was to carry out an act which might otherwise have been lawful in an unlawful manner then in his view the doctrine of concert was applicable. Here again, so long as the word unlawful is understood to mean criminal, we see no reason to disagree with the approach taken by the trial judge. Counsel did not quarrel with it except in one respect which he developed under reference to the example which the trial judge gave of doing a lawful act in an unlawful manner, which was that of driving a car with wicked disregard for the safety of "other people".
Counsel's argument was that it was necessary, in order to understand how the charge could be brought home to the appellant, to consider what the common purpose was. Here there was evidence to show that the two men went to the house with the intention of setting fire to it. Leaving aside the intention to defraud insurers, which was irrelevant in the context of culpable homicide, there was thus far no unlawful act. It could only become unlawful if it was done in an unlawful way, that is in a way which amounted to wicked and gross negligence. The house was empty, unoccupied and unfurnished, and there was evidence that the most efficient way of setting fire to it was by the use of an accelerant, such as petrol. But the risk to themselves by attempting to set fire to the house in this way could not amount to criminal negligence unless it was likely to cause injury to third parties. Where the two men were acting together and the only reckless act was one by which one or other of them or both were injured, there was no criminal act of which either of them could be convicted. If one of them was to be found criminally responsible for the other's injury or for his death resulting from such injury, there must be some separate act attributed to him which lay outside the common criminal purpose. This was why, on the evidence, the pretence to the emergency services was crucial to the charge, because the pretence
that there was no one in the house was the only act which could be attributed to the appellant himself. If, however, the pretence was out of the way, as it clearly was on the evidence, Buckley's death could only be attributed to acts which were done either by him or by the appellant in the furtherance of their common purpose to set fire to the house.
This argument was presented by counsel with some skill, but it was not supported by any authority and we are satisfied that both in principle and on authority it is unsound. The correct approach is to examine the act or acts which resulted in Buckley's death and to consider whether or not they were criminal. On that point there is no difficulty in the light of what we have said so far in this opinion. It is not disputed that Buckley's death was caused by the fire and the explosion, and there was ample evidence to show that these were the result of acts of such a character that those who committed them were guilty of criminal negligence. The jury's verdict indicates that they accepted that the test which the trial judge gave to them on this point was established by the evidence. It must be taken to have been established that the appellant and Buckley were engaged on a common criminal purpose to set fire to the house, and that this was done in the face of obvious risks or with a complete disregard for any dangers which might result. This then was a death which was the result of reckless indifference to the consequences, and in the ordinary case a death which occurs in such circumstances, if not murder, is culpable homicide. Counsel for the appellant accepted that this would be the position if a third party had been fatally injured by the explosion. The question which must then be considered is whether it is a defence to the charge that the person who was killed was himself engaged in acts within the common criminal purpose which led to his death.
The only logical basis for such a defence appears to be that the deceased consented to what was being done because he took part in these acts. Since there was no evidence as to what part each of them played in the affair it may have been Buckley himself who caused the explosion. But, according to the rule which applies where acts are done in concert, the appellant must be held to be equally responsible with Buckley for anything that was done in the furtherance of the common criminal purpose. So he has no answer to a charge presented on this basis unless it be on the ground of the consent which is to be inferred from Buckley's participation in the plan to burn down the house. As for this point, however, Buckley's consent cannot turn a criminal act into something which is not criminal. The criminality of the act in this case must be judged from its potential for harm to the public, not its potential to injure those who committed it. It makes no difference to its criminality that, in the event, it was only those who participated in it who sustained injury.
This approach is consistent with what we have found in the authorities. In H.M. Advocate v. Rutherford 1947 J.C. 1 at pp. 5–6, Lord Justice-Clerk Cooper directed the jury that, if life was taken under circumstances which would otherwise infer guilt of murder, the crime did not cease to be murder merely because the victim consented to be murdered, or even urged the assailant to strike the fatal blow. The attitude of the victim, he said, was irrelevant. What matters is the intent of the assailant. And since it is intent, not motive, which determines whether the action is criminal, it is sufficient to show that the intent was of such a kind and quality as to be criminal. In Smart v. H.M. Advocate 1975 JC 30 the allegation was that the victim of an assault had consented to it because he
accepted his assailant's challenge to fight with him. In the opinion which was delivered in that case at p. 33 it was said:
"If there is an attack on the other person and it is done with evil intent that is, intent to injure and do bodily harm, then, in our view, the fact that the person attacked was willing to undergo the risk of that attack does not prevent it from being the crime of assault."
A distinction was drawn between sporting activities and other acts which were not criminal and those where there was evil intent to do harm. In the latter case, where evil intent is present, consent is elided and provides no defence.
There are comments in the English cases to the same effect, although the position there is complicated by differences of approach to various statutory charges and between various types of assault. In R. v. Coney (1882) 8 QBD 534, at p. 539, Cave J. said:
"The true view is, I think, that a blow struck in anger, or which is likely or is intended to do corporal hurt, is an assault, but that a blow struck in sport, and not likely, nor intended to cause bodily harm, is not an assault, and that, an assault being a breach of the peace and unlawful, the consent of the person struck is immaterial."
In R. v. Donovan  2 K.B. 498, at p. 507, Swift J. said:
"If an act is unlawful in the sense of being in itself a criminal act, it is plain that it cannot be rendered lawful because the person to whose detriment it is done consents to it. No person can license another to commit a crime. So far as the criminal law is concerned, therefore, where the act charged is in itself unlawful, it can never be necessary to prove absence of consent on the part of the person wronged in order to obtain the conviction of the wrongdoer."
These dicta were applied in R. v. Brown  1 AC 212 in which it was held that, where a group of sado-masochists had allegedly participated in assaults upon each other which caused actual bodily harm to them and the injuries were neither transient nor trifling, the question of consent was immaterial. Lord Jauncey of Tullichettle said at p. 245C that the inflicting of actual or more serious bodily harm was an unlawful activity to which consent was no answer. There is no discussion in these cases of the particular issue which arises here, where it is said that consent must be inferred from the fact that the deceased participated in the common criminal purpose. But the essential point remains that the consent of the participant does not alter the fact that the acts which were being done in pursuance of that common plan were in themselves criminal.
For these reasons we agree with the learned advocate-depute that it is not a defence to this charge for the appellant to say that Buckley was participating with him in the common criminal enterprise which caused his death. The fact that he was a willing participant in these acts which were in themselves criminal is irrelevant. The death which resulted from these acts was properly charged against the appellant as culpable homicide, although Buckley joined with him in the common plan which caused the explosion. We are satisfied that the approach which the trial judge invited the jury to take to this charge did not contain any misdirection, and we must reject these two remaining grounds of appeal.
We are not persuaded that a miscarriage of justice has occurred in this case, and the appeal against conviction is refused.
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