APPEAL COURT, HIGH COURT OF JUSTICIARY
Appeal No: 1705/98
OPINION OF THE COURT
delivered by LORD MILLIGAN
PROCURATOR FISCAL, Airdrie
Appellant: Scott; Balfour & Manson
Respondent: Doherty, Q.C., A.D.; Crown Agent
15 June 1999
On 20 May 1998, at Motherwell District Court, the appellant was convicted of a charge that
"on 4 June 1997 at the field known as Canal Field in Manse Road, Bargeddie, near Gartcosh Road...(he)...did while acting along with others to the Complainer unknown, culpably and recklessly chase 9 bullocks, cause said bullocks to escape from a field onto the Airdrie to Helensburgh railway line adjacent to said field, proceed along the railway line and thereafter on to Edinburgh Road, Baillieston, and did cause danger to persons using the said railway line and Edinburgh Road, Baillieston".
The appellant was admonished by the magistrate. The appellant appealed against his conviction on a number of grounds but Ms. Scott, for the appellant, advanced two submissions on his behalf at the hearing of the appeal. The first submission was that there was insufficient evidence to entitle the magistrate to hold that the appellant participated in cornering and causing the bullocks to go onto the railway line. The second submission was that on the evidence as to the conduct of the appellant there was insufficient to entitle the magistrate to find the necessary standard of recklessness to render the appellant's conduct criminal, the assessment of recklessness involving an assessment of the foreseeability of potential harm to the lieges. No questions are posed in the stated case but it was agreed that the appropriate questions for answer were, "(1) Did I err in finding sufficient evidence to convict the appellant at the close of the Crown case?; and (2) On the facts stated was I entitled to convict the appellant?".
The bullocks concerned belonged to a Mr. Tinto, who did not witness chasing of the bullocks in the field but who gave evidence identifying the appellant as being someone brought to his farm following apprehension by one of two of Mr.Tinto's employees who had seen bullocks being chased in the field. These two employees were Mr. Divers and Mr. Barr, both of whom gave evidence. They had been in a vehicle together when they saw the bullocks being chased and Mr. Divers pursued the chasers of the bullocks in the field while Mr. Barr drove the vehicle to a point where he anticipated that he would cut them off on leaving the field. The only other Crown witness was Police Constable Bell who gave evidence as to statements made by the appellant following apprehension. No defence evidence was led following rejection of the defence submission that there was no case to answer at the end of the Crown case.
With respect to her first submission, Ms. Scott accepted that Mr. Divers had given evidence to the effect that the appellant was one of a group of persons who chased the bullocks in the field and cornered them at a part of the field adjoining the railway line, thereby causing the bullocks to go over the fence onto the railway line, resulting in the danger charged. The question was whether evidence had been led which entitled the magistrate to hold that this evidence was corroborated and, in particular, that there was sufficient evidence that the appellant was one of a group which caused the bullocks to be cornered and to jump over the fence onto the railway line. Finding-in-fact 9 to that effect was essential for conviction of the appellant. The magistrate had made findings that,
"17. At approximately 10.35 p.m. the appellant was cautioned at common law by police officers and was asked a number of questions, the answers to which were noted in one of the officer's notebooks.
18. In the course of this exchange, the appellant's replies indicated an acceptance of having been involved in chasing the bullocks in the field and thereafter through a fence and to the railway. His reply to being subsequently cautioned and charged indicated a similar acceptance of involvement in the activities as detailed in the charge as put to him".
Ms. Scott said that, while there had been no challenge hitherto to these findings, her information now was that they did not properly reflect what P.C. Bell's evidence had actually been. In particular, what the appellant had actually said involved acceptance of chasing bullocks in the field and of a causal link between chasing of the bullocks and the bullocks actually going onto the railway but not acceptance that the appellant himself was involved in causing the bullocks actually to go over the fence. She asked for a remit to the magistrate to clarify the evidential position about this. The advocate depute opposed a remit. He accepted the accuracy of Ms. Scott's information as to what P.C. Bell had heard the appellant saying in answer to the constable's questioning about the chasing but said that what was stated by the appellant, taken along with the evidence as to the circumstances of the chasing, was not inconsistent with the magistrate's finding-in-fact 18 and there were no grounds for maintaining that he was not entitled to make that finding, which had been unchallenged hitherto. We agreed with the advocate depute's submissions and refused Ms. Scott's application for a remit on that matter. It was clear that Ms. Scott's first submission was heavily dependent on the proposition that the magistrate was not entitled to make finding-in-fact 18. In reply to that first submission, the advocate depute submitted that the evidence of Mr. Divers, taken along with what the appellant had said, as reflected in finding-in-fact 18, and the evidence surrounding the appellant's apprehension provided ample evidence to entitle the magistrate to conclude that the appellant was indeed one of a group who not only chased bullocks in the field but cornered them in a part of the field adjacent to the railway line and caused the bullocks to go over the fence onto the railway line. We agree with the advocate depute's submission on this first point.
In advancing her second submission, Ms. Scott said that it was clear that a high standard of recklessness was required in order to substantiate a charge of culpable and reckless conduct. In this connection, she referred to the case of Quinn v. Cunningham 1956 JC 22. That case related to the riding of a pedal cycle in an allegedly reckless manner. The Lord Justice General (at page 24) said,
"So far as concerns road accidents in Scotland, it is an essential element in the constitution of a crime at common law that there should be either an intention to commit a wrong or an utter disregard of what the consequences of the act in question may be so far as the public are concerned. Culpable homicide is the typical example of the latter form of crime".
A need for such a high standard of recklessness was affirmed in the five judge case of H.M. Advocate v. Harris 1993 SCCR 559. It was clear from that case that what was required was an assessment of duties owed to others, which in turn depends upon the foreseeability of harmful consequences (in particular Lord Prosser at page 574). As the advocate depute, in responding to Ms. Scott's second submission, accepted Ms. Scott's formulation of the requisite standard of recklessness which the Crown required to prove, there was no dispute in the present case as to the correct legal test to be applied in a charge of this nature. The advocate depute did refer to the additional case of Cameron v. Maguire 1999 JC 63 and 1999 SCCR 44 as indicating the need for recklessness so high as to involve an indifference to the consequences for the public generally. Ms. Scott submitted that upon the evidence before the magistrate he was not entitled as a matter of law to hold that the requisite recklessness had been proved in the circumstances of the present case. Here, what the appellant had done was what Ms. Scott described as "a stupid thing to do". It did not involve gross negligence and, in particular, the utter recklessness requisite for proof of the charge against him. It was not obvious that the bullocks were going to jump the fence. There was no evidence of deliberation to get the bullocks to go over the fence. Could it really be said that there was a manifest danger here? In reply to this second submission, the advocate depute, after agreeing with Ms. Scott's formulation of the test to be applied, submitted that it had not been shown that the magistrate had gone plainly wrong in his assessment of the degree of recklessness involved in the present circumstances. Furthermore, it was open to the magistrate to conclude that the requisite standard had been satisfied in the circumstances of the present case. The potential for serious injury was very great indeed. There was some prospect of the conduct involved resulting in a catastrophe. It was open to the magistrate to conclude that the potential danger was obvious. If there was a material prospect of escape by the bullocks, as the magistrate was entitled to hold that there was, then the foreseeability of danger to the lieges was obvious.
In our opinion, the advocate depute is correct in his submission in answer to the second submission for the appellant also. In the circumstances of the present case, the strength of the Crown case appears to lie more in the foreseeability of danger once the bullocks negotiated the fence onto the railway line, in particular if, as happened, they thereafter found their way to public roads, but in our opinion it was also open to the magistrate to conclude as he did on the evidence before him, reflected in his findings-in-fact, that what happened as a result of the conduct of the group, including the appellant, in the field was sufficiently foreseeable to entitle the magistrate to hold that the utter recklessness required was proved. As it happens, it appears from finding-in-fact 21 in the present case that considerable difficulty was experienced in rounding up the escaped bullocks. It appears that they were traced to various points on the A80 road, including residential and commercial areas and areas open to traffic, thereby causing danger to persons using the A80 Edinburgh road at Baillieston as well as the railway line itself. Eventually, the bullocks were brought under control at the Memorial Park and directed back to one of Mr. Tinto's fields. While this was so, and this tends to illustrate the potential effects of conduct such as that of the appellant and the other members of the group concerned, the case does not turn, of course, on what actually happened but upon whether the requisite utter recklessness was proved so far as the conduct of the appellant was concerned when involved in chasing the bullocks in the field. It is clear that the magistrate did not misdirect himself in any way in his approach to the proper question in issue in the case. On the whole matter, we answer the first question now posed in the negative and the second question in the affirmative and refuse the appeal.