APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
Appeal No: C741/97
HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
delivered by LORD COULSFIELD
HER MAJESTY'S ADVOCATE
Appellant: Shead; Lindsays
Respondent: Bell, Q.C., A.D.; Crown Agent
5 May 1999
The appellant was charged with wilful fireraising and was eventually convicted, by the verdict of a jury, on 29 August 1997 and, after reports had been obtained, was sentenced on 26 September 1997 to 12 months detention. He appealed against sentence only but when the appeal came before the court it emerged that there might be reason to question the conviction and leave to lodge grounds of appeal against conviction late was granted.
The original indictment alleged that the appellant did, on 26 May 1997, set fire to the premises at 133 Broughty Ferry Road, Dundee known as Carolina House occupied by Hillcrest Housing Association whereby the fire took effect on said premises and that he did this wilfully. After evidence had been led, the indictment was amended and the terms of the indictment which went before the jury were as follows:
"You Joseph Byrne did, on 26 May 1997 at the premises at 133 Broughty Ferry Road, Dundee...set fire to paper or similar material and a bed and mattress on the floor of said premises whereby the fire took effect on the said paper, bed and mattress and said floor and took effect on said premises whereby the said paper, bed, mattress, floor and premises were damaged and this you did wilfully".
In their verdict the jury deleted the references to the bed and mattress, so that the appellant was convicted of setting fire to paper or similar material on the floor of the premises, "whereby the fire took effect on said paper and said floor and took effect on said premises, whereby the said paper, floor and premises were damaged and that you did wilfully".
To understand the significance of the amendments made by the Crown and the jury it is necessary to have regard to the evidence. The sheriff's account of the evidence is brief, but the appellant's counsel and the advocate depute were able to supplement it in some respects. The premises in question were a large house in the neighbourhood of Broughty Ferry which was unoccupied and to which groups of boys had from time to time resorted. The appellant and four or five other boys went to the house on the occasion libelled, apparently to smoke. The appellant and another boy went to an upper floor in the premises while the remainder of the group stayed on the ground floor. On the upper floor, the appellant, as he admitted to the police shortly afterwards, obtained some crumpled paper, probably wallpaper, and set fire to that paper. The appellant's account, both in his statement to the police and in his evidence, was that he dropped the paper on the floor and that the other boy, Jones, then threw a mattress and the base of a bed on top of the burning paper. The mattress, according to the appellant, began to smoke and he and Jones ran out of the building. They found some of the other boys and indicated that there was a fire whereupon two of the other boys went to the room and saw the mattress flaring. One of those boys, we were informed, said that he threw an old wardrobe onto the burning mattress and that that in turn caught fire. The appellant lodged a special defence, incriminating Jones. In his evidence, Jones accepted that he had pushed a mattress onto the burning paper but said that he had done this in order to put the fire out. The advocate depute informed us that there was further evidence from the other three boys in the house who said that the appellant and Jones had gone upstairs and come back, Jones shouting that the appellant had set the building on fire, and that at least one of them described the appellant as laughing when he came down. The advocate depute also informed us that in the course of his statement to the police the appellant had said "I thought we'd hae a wee fire" as well as giving his account of the incriminee pushing the mattress onto the fire.
The sheriff observes that he found the jury's verdict somewhat curious, in so far as it deleted the reference to the bed and mattress and he also states that it was his own personal view that the appellant did not intend to set fire to the whole building but only the paper and probably the bedding and mattress, but he expresses the view that there was sufficient evidence on which the jury were entitled to convict the appellant of setting fire to the building. There is no ground of appeal relating to sufficiency of evidence so that that issue does not properly arise for us. We agree, however, with the sheriff in his view that there was a sufficient evidence.
When the sheriff came to direct the jury as to the crime of wilful fireraising, he said:
"The requirement for an offence of wilful fireraising is to deliberately set fire to the property of another, the property in this case refers to paper or similar material, the floor and bed and mattress, and the said premises as detailed in the narrative. And I would emphasise to you the word 'wilful'. A crime of wilful fireraising cannot be committed accidentally, carelessly or even recklessly, it can only be committed intentionally, that is deliberately. Therefore the Crown must establish firstly that the fire was set or kindled deliberately by the accused. So you have to decide how far, from the evidence you have heard, what the accused's intentions were and whether they extended up to and including the whole building or only the lesser items.
Now this intention can be implied from conduct which indicates an utter disregard of the likelihood of the fire spreading. In the present case it would appear that the defence accepts that the accused set fire to the paper, and possibly the flooring, that this was deliberate, but so far as the rest is concerned the defence do not accept that it came into the category of wilful. Accordingly, it may be or will be for you to decide whether you return a verdict in respect of the whole charge or you may if you do not consider that the accused's actings were wilful in respect of all of the items in the charge delete various items from the charge if you consider that the Crown has not proved the reckless intention so far as these are concerned. So that you are entitled to delete, for example, the building or bed or mattress or whatever, that is a matter for you at the end of the day".
Later, having referred to the evidence, the sheriff said:
"At the end of the day it comes down to you having to decide whether or not the accused is guilty either of the minimal charge of wilful fireraising in respect of the paper, secondly somewhere in between, having in the floor and the bed or mattress and/or mattress, as detailed in the narrative of the charge or the other extreme whether he is guilty of the whole charge, including the building. And I would remind you and emphasise to you what I said about the definition of wilful fireraising and the importance in it of the question of deliberate intention and its implications".
After retiring, the jury returned and asked for repetition of what they described as "the two meanings of wilful you gave us". The sheriff reminded them that the crime could only be committed intentionally and added:
"But what you have to decide is how far the intention went, whether the intention was confined to the first item set on fire or whether the intention went on to include the others, going as far as the whole building. Now this intention can be implied from the conduct of the accused person, which may indicate a total disregard of what the consequences are likely to be but if you take the view that he did not have the intention of what eventually happened then you cannot convict him of the whole".
The grounds of appeal against conviction were that the sheriff had given inadequate directions to the jury by failing to direct them that they had to consider whether the Crown had proved that the spreading of the fire to the building was a foreseeable and intended consequence of the appellant's initial deliberate act; that the jury's deletion of the words "bed and mattress" indicated that they had at least a reasonable doubt whether the appellant had set fire to the bed and mattress; and that given that doubt no reasonable jury could have found the appellant guilty of setting fire to the building. Reference was made to the decisions in Blane v. H.M. Advocate 1991 S.C.C.R. 576 and McKelvie v. H.M. Advocate 1997 S.L.T. 758 and, as the argument developed, it became apparent that the appeal touches on questions about the nature and standing in modern times of the crime of wilful fireraising which are not easy to answer.
The discussion of wilful fireraising in Hume (I.125) begins by stressing that the crime had always been regarded as one of a high degree and therefore as a capital crime and proceeds to narrate the various statutes which have dealt with wilful fireraising in Scotland. At p. 126 Hume discusses the requirement that the fire must "take effect" and, at 128, deals with the requirement that the fire must be raised wilfully. He says:
"The only other, but an indispensable quality of the act, is, that the fire be raised wilfully - with a purpose to destroy the thing to which it is applied. If it be kindled recklessly, or from misgovernance, as it is called in our old statute 1426 c 75 the consequence cannot well be deeper than a fine or short imprisonment, joined to the reparation of the damage, sustained by the private party".
Hume then discusses the method of proof of the wilful character of the fireraising and, at 131, says:
"It remains to enquire concerning the things or subjects on which the capital crime of fireraising may be committed. There can be no question with respect to those subjects, namely, houses, corn, coal-heughs, woods and underwoods, which are specially mentioned in the old statutes...And these, for obvious reasons, are certainly the possessions which most require to be defended from this sort of violence. Nor have I observed that any judgment has extended the construction of this crime any further, so as to punish with death for the burning of furze, heaths, mosses, stacks of fuel or in general any sort of moveable effects".
The crime described by Hume therefore was one of a special character, defined in a strict, and possibly in some respects arbitrary, fashion, in view of its status as a capital crime. The law did, however, also recognise the crime of culpable and reckless fireraising, which was not capital but subject to an arbitrary penalty. Both types of crime were considered by the court in Angus v. H.M. Advocate 1905 8 F. (J) 10. That was a case in which a person had been indicted on a charge of wilfully setting fire to a screw or stack of hay. The accused objected to the relevancy of the indictment on the ground that the crime of wilful fireraising was restricted to the specific forms of property, which did not include stacks of hay; it was held that the indictment set out a crime known to the law although not the specific crime "wilful fireraising". At p. 13, the Lord Justice General described the capital crime of wilful fireraising as it had been defined and then said:
"That being so, and the crime being of so serious a nature, and visited by the heaviest sentence known to the law, it is easy to see why care was taken that the subject-matter of the crime should not be unduly extended. And so it was that the crime, which would be charged in the major as 'wilful fireraising', could only be committed by setting fire to heritable property or to certain special forms of moveable property. But there was always another crime known to the law - an innominate crime and visited by an arbitrary penalty - which consisted in setting fire, or attempting to set fire, to anything. It is true that the epithet in that case was not 'wilful', the words used being 'culpably and recklessly'; but I think that this is of no moment, for I do not doubt that the element of wilfulness was always present, i.e., that no conviction could have followed if it were shown that the fireraising had been caused by mere accident, and in entire absence of set intention".
The Lord Justice General went on to say that in modern times the materiality of the distinction had been swept away, in view of the abolition of the death penalty for wilful fireraising, and that the indictment set out a charge known to the law. He continued:
"As I have already pointed out, it is no longer necessary to specify a major, so all we have to consider is whether the facts set forth in the indictment - that the accused set fire to a stack of hay; that the fire took effect; and that he did it wilfully - amount to a crime. I think that they do. It seems that in drawing this indictment the word 'wilfully' has been used instead of the words 'culpably and recklessly', and that is perhaps unfortunate, as it seems to have given rise to some confusion. But it would really be absurd to say that what would amount to a crime if it were done culpably and recklessly is not a crime if it is done wilfully. I therefore think that the facts set forth in this indictment amount to a relevant description of a crime, and a crime known to the law of Scotland".
Lord Adam and Lord McLaren agreed, Lord Adam observing:
"I do not know if in old days the offence hear charged would not have been libelled as having been done culpably and recklessly, but I am quite clear that as it stands it is a perfectly good charge of the innominate crime of fireraising. I do not know that wilful fireraising and culpable and reckless fireraising are quite the same, but I have no doubt that the setting fire to a stack of hay wilfully is in Scotland a crime, and that the crime has been relevantly libelled here".
In Blane, the appellant had set fire to some bedding with, according to himself, the intention of choking himself with the smoke. The sheriff directed the jury that it was not necessary for the Crown to prove that the fire was set directly to the premises provided that the burning of any part of the premises resulted from the act of the appellant deliberately setting fire to some article such as the bedding. It was held that that was a misdirection. There was then a problem as to how to dispose of the case, and the solution adopted by the court was to hold that it was clear that the appellant had deliberately set fire to the bedding, that that was a criminal act and that a verdict of wilfully setting fire to the bedding should be substituted. The ground on which the court proceeded, as appears from the opinion of the Lord Justice General (at pages 583 and 584) was that there had ceased to be any material distinction between wilful fireraising and culpable and reckless fireraising and that, since it was not necessary to specify a nomen juris under the modern procedure, it was sufficient that the actings specified in the indictment should amount to a crime. At p. 584, the Lord Justice General said:
"The terms 'culpably and recklessly' and 'wilfully' have different meanings since an action cannot be said to be wilful if it was not intentional or deliberate. But a wilful action can also be described as culpable and reckless, so these expressions are both apt to describe the essential nature of the criminal activity which occurred in this case when the appellant deliberate set fire to the quilt".
It is easy to see that the distinction between wilful fireraising, as defined by Hume, and other criminal fireraising was based on the fact that wilful fireraising was a capital crime and that the distinction is outmoded. However, the way in which the decisions in Angus and Blane are expressed is not without problems. Logically, it might have been sufficient for the decision in both cases simply to say that deliberately setting fire to moveable property counted as an innominate crime. On that approach, it might have been said that there were, in effect, three species of crime, namely (1) wilful fireraising committed intentionally in respect of property of the specified kinds; (2) deliberate setting of fire to property other than property in the specified classes; and (3) culpable and reckless fireraising. However in Angus the court clearly linked the crime in class (2) above with that in class (3): that is to say it appeared to treat deliberately setting fire to moveable property as a species of culpable and reckless fireraising. Lord Adam's opinion in Angus perhaps indicates some reservation as to whether that link need be made, but it is clearly made in the opinion of the Lord Justice General and is taken up in the opinion of the Lord Justice General in Blane. That has the somewhat curious consequence that it would appear to be possible for a jury dealing with an indictment alleging wilful fireraising to return a verdict of guilty in relation to the setting on fire of moveable objects, a verdict which then falls to be treated as if it were a verdict of guilty of culpable and reckless fireraising. There is an additional difficulty in that there is authority that actual intention must be proved in a charge of wilful fireraising and that even gross recklessness is not sufficient (H.M.A. v. Macbean (1847) Ark. 262, H.M.A. v. Smillie (1883) 5 Cooper 287). Presumably, however, the ordinary rule that a person's intention can be inferred from his action applies in a charge of wilful fireraising. In applying that rule, and in giving directions to a jury, care may be necessary to distinguish between apparent gross indifference to the consequences of an action as a ground for inferring that the actor intended those consequences, on the one hand, and as a ground for holding that the actor acted recklessly on the other, and the approach taken in Blane may not make it any easier to do so.
McKelvie was a case in which, according to the verdict, the accused had set fire to some clothing in a house and the fire had spread and taken effect on the house and adjoining property. The sheriff had directed the jury that if the accused had intentionally set fire to the clothing it was irrelevant that his intention was simply to burn the clothing and that if the fire was deliberately started and spread to take effect on heritable property, that was a case of wilful fireraising. It was held that that was a misdirection. What the court then did was to give effect to the motion which had been made to the court on behalf of the appellant by substituting for the jury's verdict of guilty of wilful fireraising a verdict of guilty of culpable and reckless fireraising. It may be that some further consideration should have been given to the question whether that was the appropriate way to dispose of the appeal, since the amendment made to the verdict involved either writing words into the indictment which were not there or treating culpable and reckless fireraising as a potential alternative verdict on an indictment alleging wilful fireraising, both of which would be difficult to justify technically, however much the outcome of the case may have appeared sensible. In any case, the decision in McKelvie does not assist in resolving any of the difficulties in the law, and the court in that case did suggest that it would be desirable that the law should be re-examined.
No review of the law has been put in hand to our knowledge. There have been relatively few reported decisions in regard to wilful fireraising, but fireraisings do occur from time to time, and can be matters of the utmost gravity. We have therefore come to the conclusion that it is unsatisfactory to have the law in its present state, and that this case should be remitted to a court of five judges to reconsider the authorities to which reference has been made.