Scottish High Court of Justiciary Decisons

The cause called before the High Court of Justiciary, comprising Lord Sutherland, Lord Johnston and Lord Dawson for a hearing on 23 July 1997. Eo die the opinion of the court was delivered by Lord Sutherland.

OPINION OF THE COURT—The appellant was charged on summary complaint with a contravention of the Criminal Law (Consolidation) (Scotland) Act 1995, sec 52(1), the relevancy of which is not challenged, and a further charge purporting to set out an offence of malicious mischief. The appellant tabled a plea to the relevancy of the second charge. The sheriff made certain deletions to the charge (which the Crown did not argue before this court should be restored) and thereafter held that the remainder constituted a relevant offence of malicious mischief. The terms of the charge, as they now remain, are as follows: ‘The Royal Bank of Scotland, having at their own expense, placed and operated a surveillance camera so as to show and record activity at the front of the building occupied by them in East Port, Dunfermline, for the purpose of enhancing the security of said building by deterring persons from acts of housebreaking, theft and vandalism at said building and making it possible to identify those who carry out such acts, you did on 7 December 1996 in said East Port, Dunfermline, maliciously move said camera with a pole or similar instrument so as to point said camera in such a direction that it did not show or record activity in the area which it had been set to cover whereby the running costs associated with said camera were wasted and said building was exposed to increased risk of housebreaking, theft and vandalism.’ The view taken by the sheriff was that the acts of the appellant resulted in detriment to the benefit which the bank had attempted to secure by having a surveillance camera. He considered that the bank suffered a financial loss in that the running costs of the camera were incurred without any benefit and also the bank was exposed to the unnecessary risk of vandalism or housebreaking being committed at its premises.

Counsel for the appellant before this court submitted that actual injury or harm, damage or patrimonial loss had to occur before mischief could be established. Neither wasted running costs nor the increased risk of housebreaking or theft or vandalism could constitute mischief. In HM Advocate v Wilson it was held that physical injury or damage was not necessary provided that there was an element of patrimonial loss. The accused in that case had activated an emergency stop button wilfully, recklessly and maliciously and brought a power station generator to a halt, causing a loss of production of electricity which had to be replaced at a cost of £147,000. Lord Justice-Clerk Wheatley, having set out Hume's definition of malicious mischief, said that the basic constituents involved in the crime of malicious mischief were that it had to be a deliberate and malicious act to damage another's property or to interfere with it to the detriment of the owner or lawful possessor. He went on to say: ‘It is clear from the words used in the libel that the Crown seek to establish that the act of the respondent founded upon was deliberate and malicious. The Crown further seek to prove that this act resulted in a generating turbine being brought to a halt for an extended period of time with a consequential loss of generated electricity. In terms of Hume's second ground supra this would be an interference with the employer's property and the wording of the libel is such as to be habile to carry the inference that the initial positive wilful, reckless and malicious act was intended to harm the employer by causing patrimonial injury…To interfere deliberately with the plant so as to sterilise its functioning with resultant financial loss such as is libelled here is in my view a clear case of interference with another's property which falls within Hume's classification of malicious mischief, and consists with the words in the phrase.’ Counsel therefore accepted that it is not necessary to prove physical damage but argued that there must at least be some material patrimonial loss before the crime of malicious mischief can be established. In the present case, as far as the running costs of the camera were concerned, these costs would have been expended anyway and there was no additional cost. What was lost, if anything, was the benefit to be obtained from the use of the camera. The same argument applied to the other part of the complaint which narrated that the bank lost the benefit of the security of the surveillance camera. That was not something which constituted patrimonial loss. It is clear from what the Lord Justice-Clerk said in Wilson that when he used the word detriment he was referring to patrimonial loss. The only other case involving detriment to an owner which was held to constitute malicious mischief, apart from Wilson, was an unreported case referred to in Alison, Criminal Law, ii, 451 (George Monro, July 17, 1831) where an accused was convicted of opening a barrel, thus allowing the contents to escape, causing loss to the owner of the contents. Accordingly it was submitted that loss of benefit was not the same as patrimonial loss and was insufficient to warrant the charge of malicious mischief.

In reply the Advocate-depute founded on the words of Lord Justice-Clerk Wheatley that to interfere with the property of another to the detriment of the owner would be sufficient. The word ‘detriment’ in his submission simply implied disadvantage. The bank in the present case had installed this camera for a particular purpose and incurred costs in the running of that security device. If the purpose was destroyed or interfered with then the running costs were wasted and thus became a patrimonial loss. He submitted that where outlay is incurred to maintain a benefit, if the benefit is destroyed then the continuing costs constitute patrimonial loss. Furthermore loss of protection from vandalism or theft is a serious matter. The camera was installed to protect the bank against the risk of serious crime and this risk could be quantified in financial terms. For these reasons he submitted that there was an ascertainable patrimonial loss in this case and that accordingly the charge was relevant.

In our opinion the Crown have not averred sufficient in this case to constitute a relevant charge of malicious mischief. What is required in such a charge is that there should be a wilful intent to cause injury to the owner or possessor of the property. This injury may be either in the form of physical damage or in the form of patrimonial loss. We do not consider that the matters referred to by the Advocate-depute properly constitute patrimonial loss. The running costs of the camera would have been incurred in any event, even if it had been pointing in the right direction, and accordingly what has been lost to the bank is such benefit as they might have obtained from the fact that the camera was pointing in the correct direction and possibly deterring vandals or thieves. The same can be said of the loss of security which they might have sustained through the absence of this camera performing its proper function. In our opinion to describe such loss of benefit as patrimonial loss extends the latter concept too far and is altogether too speculative. The bank on these averments suffered no financial loss whatsoever and therefore there is no patrimonial loss. We shall therefore allow the appeal and sustain the appellant's plea to the relevancy of the second charge on the complaint.