APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
Appeal No: C741/97
OPINION OF THE COURT
delivered by LORD COULSFIELD
APPEAL AGAINST CONVICTION and SENTENCE
HER MAJESTY'S ADVOCATE
Appellant: Dorrian, Q.C., Stirling; Lindsays
Respondent: Lord Advocate (Lord Hardie, Q.C.); Crown Agent
18 October 1999
The circumstances of this case and the history of the proceedings are set out in the opinion of the Court of three judges issued on 5 May 1999 and it is not necessary to repeat them. We merely recall that the terms of the indictment which went before the jury were:
"You JOSEPH BYRNE did, on 26 May 1997, at the premises at 133 Broughty Ferry Road, Dundee, known as Carolina House, owned by Hillcrest Housing Association, 4 South Ward 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."
As is explained in the opinion, the case was remitted to a court of five judges in order to allow some apparent difficulties and inconsistencies in the authorities relating to the crime of wilful fireraising and, in particular, some observations in the cases of Angus v. H.M. Advocate (1905) 8 F. (J.) 10 and Blane v. H.M. Advocate 1991 S.C.C.R. 576 to be reconsidered. When the case was heard before five judges on 18 October 1999, Miss Dorrian, Q.C., who appeared for the appellant, and the Lord Advocate analysed the earlier authorities in detail in order to show how the crime of wilful fireraising was understood prior to the decision in Angus supra and to compare that understanding with the observations in Angus and in Blane. In the result, there was little or no difference between the conclusions which Miss Dorrian and the Lord Advocate drew from the authorities. It was also, in the end, not disputed that, if the law was correctly understood, there had been a misdirection in the present case and accordingly that the conviction should be quashed.
In these circumstances, it is not necessary to examine all the earlier authorities in great detail. It is, however, necessary to look closely at Hume's explanation of the crime. His treatment is found in chapter 4 of volume 1 which is headed "Of wilful fireraising and malicious mischief". Early in that chapter (at page 122) Hume says:
"It may be affirmed generally, with respect to every act of great and wilful damage done to the property of another, and whether done from malice, or misapprehension of right, that it is cognisable with us as a crime at common law; if it is done, as ordinarily happens, with circumstances of tumult and disorder, and of contempt and indignity to the owner."
Hume then treats of crimes of invasion of property and casting down of houses and other similar matters and comes to deal with wilful fireraising at page 125. He explains that wilful fireraising has always been treated as a crime of very high degree and refers to the statutes which made wilful fireraising in relation to certain types of property capital. At page 128 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".
After some further discussion of the intent necessary to constitute the crime Hume returns to the question of the subjects in relation to which the crime of wilful fireraising is capital and says (at page 131):
"It remains to inquire concerning the things or subjects, on which the capital crime of fire-raising may be committed. There can be no question with respect to those subjects, namely, houses, corn, coal-heughs, woods and under-woods, which are specially mentioned in the old statutes, 1525, 1526, 1540, 1592, and that of the 1st of George I. c.48. 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 farther, so as to punish with death for the burning of furze, heaths, mosses, stacks of fuel, or in general any sort of moveable effects. Whatever may be true as to other modes of charge, it does not therefore seem to be capital as a fire-raising that a mob, after rifling a house, collect the effects and burn them in the street; or even that within the house, they burn the owner's title-deeds, bank-notes and bonds, or other goods, however valuable, gathered into a heap in the fire-place, or upon the hearth."
Later again, at page 135, after some further discussion of the subjects on which the capital crime may be committed and of the position where a person sets fire to his own property, Hume says:
"Thus much may suffice as to the capital crime of fire-raising, which can only be committed upon property of certain sorts. But our view of this part of the law will be incomplete, unless we attend also to the following particulars.
1. To destroy by fire any of the other sorts of property, moveable or
immoveable, is always a heinous crime and punishable in every instance, at common law, with the highest arbitrary pains."
If we put aside what has been said in later authorities and look only at what Hume said, it seems to us to be abundantly clear that he recognised a crime of wilful fireraising in relation to certain subjects, which was capital under statute, and a crime of wilful fireraising in relation to any other subjects which was a heinous crime punishable with the highest arbitrary penalty. Equally, it is clear that Hume also recognised that kindling a fire, "recklessly or from misgovernance" was a crime punishable by a lesser penalty of a short period of imprisonment or a fine. Statements of the law to exactly the same effect are found in Alison. In chapter 16 of volume I, he explains, at page 429, the capital crime of wilful fireraising; at page 442 he explains that "the wilful burning...of any sort of moveables, though not by law capital, is an indictable offence, punishable" with arbitrary penalties. At page 433 he says that, if fire is kindled recklessly or from misgovernment, "the crime is not wilful fireraising, but an inferior delinquence, punishable by fine or imprisonment." Burnett in his Treatise begins (at page 213) by examining the statutory offence relating to the burning of houses etc. but adds (at page 215) that the malicious destruction by burning or setting fire to moveable property may infer a high punishment. It may be added that both Hume (1.128) and Alison (1.442) indicate no distinction between the intention which has to be proved in the case of wilful fireraising as a capital crime and that which requires to be proved in relation to wilful fireraising as a crime punishable by an arbitrary penalty.
Section 56 of the Criminal Procedure (Scotland) Act 1887 abolished capital punishment for wilful fireraising, among other crimes, and the need for a distinction based upon the existence of a capital penalty therefore ceased. In addition, section 5 of the 1887 Act provided that it was not necessary in any indictment to specify the crime charged by any nomen juris but that it should be sufficient that the indictment set out facts relevant and sufficient to constitute an indictable crime. Further, section 8 made it unnecessary to include words such as "wilfully" or "knowingly" in an indictment. Nevertheless, the distinction between wilful fireraising and culpable and reckless fireraising was recognised in the examples of indictments given in Schedule A to the 1887 Act. The relevant form of indictment is in the following terms:
"...you did set fire to a warehouse occupied by Peter Cranston in Holly Lane, Greenock, and the fire took effect on said warehouse and this you did wilfully (or culpably and recklessly)...".
The effect of the 1887 Act was discussed by a Full Bench in H.M. Advocate v. Swan (1882) 2 White 137. The charge in that case was a charge of fraud but in the course of his opinion Lord Justice Clerk Macdonald referred to charges of fireraising. He said:
"But the Act by its clauses and the illustrations in the schedule indicates that in the ordinary case the statement by the prosecutor is to be limited practically to acts done. The only cases in which anything further is required, are, first, those in which the acts done must be followed by special consequences in order to constitute the crime charged; and second, those cases in which the nature of the crime may vary according to the state of mind of the perpetrator being either a directly malicious state, or one culpable in a minor degree only. An instance of the first is the case of crime by bodily violence. The consequence in a case of violent assault might be death or injury. It is necessary in such a case to state whether death or only injury resulted. An instance of the second class of cases is the crime of fire-raising, where there may be a criminal intent or only a culpable fault. The prisoner, therefore, in cases of fire-raising, is entitled to have information whether his offence is alleged to have been done by him 'wilfully' or only 'culpably and recklessly'. With the exception of these two classes of cases, I know of no class of crimes in reference to which it is necessary under this statute and its schedule to do more than to state the acts which are alleged to have been done."
As was noted in the previous opinion, the later case of Angus was one in which a person had been indicted on a charge of wilfully setting fire to a stack of hay. It was objected that the indictment was irrelevant because the crime of wilful fireraising was restricted to specific forms of property which did not include stacks of hay. The argument for the panel included reference to Schedule A to the 1887 Act and to the alternatives of wilful and culpable and reckless fireraising and it was submitted, as the argument is recorded, that the alternatives set forth in the Schedule embodied the distinction known to the old law; that a charge of setting fire wilfully was applicable only to the crime formerly known as "wilful fireraising"; and that that form of charge was therefore not relevant to a case of setting fire to stacks of hay. The argument for the Crown is recorded as follows:
"It was always a crime in Scotland to set fire wilfully to any kind of property, and though setting fire to certain special kinds of property was a special crime, visited with capital punishment, and known by the nomen juris of 'wilful fire-raising', that punishment was now abolished, and the distinction between the two crimes no longer obtained. The words of the charge here sufficiently described a crime well known to the law of Scotland."
That statement of the position by the Crown appears to be precisely in accordance with the law as laid down in the authorities to which we have referred. In his opinion, the Lord Justice General (Dunedin) referred to the statutes which had made wilful fireraising a capital crime and continued (at page 13):
"And so it was that the crime, which would be charged in the major as 'wilful fire-raising,' 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 shewn that the fire-raising had been caused by mere accident and in entire absence of set intention".
The Lord Justice General then referred to the abolition of capital punishment for fireraising and the abolition of the requirement to specify a nomen juris, and indicated that he would be reluctant to quash a conviction for a serious matter such as setting fire to anything deliberately on a technicality and continued (at page 13):
"The crime charged is the crime of setting on fire wilfully - a very serious crime, and one which deserves a heavy punishment - and I should have been reluctant to have quashed a conviction for such a crime on a technical point based on a mere matter of form. But I do not think we are driven to such a course. 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."
So far, the opinion of the Lord Justice General could be taken as being in accordance with the law as explained by Hume. The reference to the wording of an indictment for the innominate crime, in the earlier passage quoted, was not correct, but that error might not, in itself, have given rise to much confusion. However, the Lord Justice General continued:
"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 said (at page 14) he was quite clear that
"as it stands it is a perfectly good charge of the innominate crime of fire-raising. I do not know that wilful fire-raising and culpable and reckless fire-raising are quite the same, but I have no doubt that the setting fire to a stack of hay wilfully is in Scotland a crime..."
Lord McLaren said (at page 14):
"The difficulty which seems to have arisen in this case largely disappears when we consider that the malicious setting fire to a stack of hay has always been treated as an offence punishable in this Court or by the Sheriff, although it did not come within the technical category of wilful fire-raising. Under our present code of procedure it is not necessary to specify the category of crime with which the accused is charged. It suffices that the description of the acts alleged to be done amounts to the statement of a crime. I agree with your Lordships that we have in this complaint a relevant description of the crime of maliciously setting fire to moveable property."
It appears that the Lord Justice General accepted the argument for the panel to the extent of regarding the crime of wilfully setting fire to moveable property as properly falling under the alternative form of charge ("culpably and recklessly") set out in the Schedule to the 1887 Act, rather than as falling under wilful fireraising. On the other hand, the opinions of the other two members of the court can be seen simply as an application of the law as previously explained by Hume and the other authorities to the facts of the particular case. There can, in any event, be no doubt that the actual decision in Angus was correct and in accordance with the law as explained by Hume.
The observations of the Lord Justice General in relation to what might be comprised in "culpable and reckless fireraising" were neither necessary to the decision nor in accordance with the law as it had previously been stated. They have, however, become a source of confusion in subsequent cases and are the ultimate source of the muddled account of the law to be found in the fifth (but not any earlier) edition of Macdonald's Criminal Law, pages 79-82, especially at page 81. It does not appear that in any of the decisions which have followed Angus has the court had the benefit of the full analysis of the law before Angus which has been provided to us in the present case. The result has been that attempts to explain the observations of Lord Justice General Dunedin have not resolved the difficulty and may, indeed, have made the position more obscure. In the light of the full discussion of the authorities which we have heard, we are satisfied that the observations of the Lord Justice General were incorrect and should not now be followed.
As was mentioned in the previous opinion, Blane was a case in which the accused was charged with wilful fireraising in that he set fire to bedding in his room in a hostel and the fire took effect on the premises. The sheriff directed the jury that the Crown did not require to prove that the accused had set fire directly to the premises provided that the burning of any part of the premises resulted from the act of the accused in deliberately setting fire to some article, such as the bedding. It was held that that was a misdirection. We shall return to the reasons for that view. It was, however, clear on the evidence that the accused had set fire to the quilt deliberately and, as the Lord Justice General (Hope) observed at page 583, since that was a wilful act on his part in regard to something which was not his own property, he was guilty of a criminal act. That view, as so far set out, was in accordance with the law as it was before the decision in Angus. However, the court clearly felt constrained by the observations of Lord Dunedin in Angus. The Lord Justice General in Blane, therefore, referred to the observations in Angus and to section 44 of the Criminal Procedure (Scotland) Act 1975 (which replaced section 5 of the 1887 Act) and went on to say:
"In these circumstances, I do not think that we need be troubled by the distinction which has continued, for what seems to me to be no very good reason, to exist between culpable and reckless fireraising and wilful fireraising as separate species of crime. The terms 'culpably and recklessly' and 'wilfully' have separate 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 deliberately set fire to the quilt."
In our view, once the proper state of the law before the decision in Angus is appreciated, these observations, like the observations in Angus, can be seen to be unnecessary to the decision and as really conflating two distinct crimes. It is only necessary to add that the same confusion was carried forward into the decision in McKelvie v. H.M. Advocate 1997 S.L.T. 758, with the result that the court in that case erred by substituting a verdict of guilty of culpable and reckless fireraising for one of guilty of wilful fireraising, a course which was not open because culpable and reckless fireraising is not an implied alternative to a charge of wilful fireraising. See section 64(6) of, and Schedule 3 to, the 1995 Act.
As we have observed earlier, the authorities are clear to the effect that, to establish wilful fireraising, it is necessary for the Crown to prove an actual intention on the part of the accused to set fire to the subjects which are libelled as the subject of fireraising in the charge. We have also noted that there is nothing in the earlier authorities to suggest that there is, or was, any distinction in this respect between the crime of wilful fireraising in relation to the specified subjects, the capital crime, and that of wilful fireraising in relation to any other subjects. One of the features of fireraising as a crime, however, is that it is notoriously difficult to predict what the spread of a fire will be once it has been kindled. It may be as a consequence of that characteristic of fire that some of the statements about fireraising in the earlier authorities are capable of being interpreted as involving the application of some doctrine of "transferred intent": that is to say, as suggesting that if the Crown prove that an accused person deliberately set fire to something and that the fire then spread to other subjects, then this may be sufficient to make him guilty of wilful fireraising in relation to all the subjects. That was the view on which the sheriff directed the jury in the case of Blane. However, the court in Blane discussed the relevant passages in the authorities fully and came to the conclusion that there was no room for a doctrine of transferred intent. The Lord Justice General said, at page 581:
"Since wilful fire-raising is a common law crime it requires mens rea, and this must extend to all the material circumstances of the offence. There may be room for argument as to whether the mens rea in the case of this crime is confined to intention, so that the actus reus extends only to the intended consequences of the acts of the accused, or whether it may consist also of recklessness. I prefer Gordon's view that the crime of wilful fire-raising can be committed only intentionally, since this is in accordance with the ordinary meaning of the word 'wilful'. Hume volume i, p. 128 states that it is an indispensable quality of the act that the fire be raised wilfully, 'with a purpose to destroy the thing to which it is applied'".
We respectfully agree with those observations. The Lord Justice General then cited George Macbean (1847) Ark. 262 at page 263 in which Lord Justice Clerk Hope said that for a person to commit wilful fireraising he must designedly and in cold blood set fire to the subjects "well knowing what he was about, and intending to do so" and continued (at pages 581-582):
"Of course, proof of intention may present difficulties, especially in regard to the consequences of the initial deliberate act. But since the matter must be approached objectively I think that it is open to inference, where the accused is shown to have acted with a reckless disregard for the likely consequences of what he does, that he intended those consequences to occur. Lord Kincraig's charge in H.M. Advocate v. Boyd, to which Gordon refers in paragraph 22-26, note 72, makes this point in terms which I think we can and should approve:
'Charge (2) sets forth the crime of wilful fire-raising, and that crime consists in setting fire to certain property including a house wilfully, that is to say not accidentally or carelessly - deliberately; and if the fire is applied deliberately to any of the contents of the house which will be likely to spread and set fire to the house itself, the crime is wilful fire-raising. Thus here if the house was burned down because fire was deliberately applied to any of its contents - for example, the bedclothes - and if that act would have, as a likely consequence, the burning of the house, and did indeed lead to the burning of the house, the crime is wilful fire-raising. In short, if fire is applied so as to manifest an intention that it shall spread to the house and it does so spread the crime is complete, and the intention to set fire to the house will be implied from such conduct as indicates utter disregard of the likelihood of the fire spreading'.
The last sentence of this passage makes the essential point that the mental element which is required is the intention to set fire to the property described in the charge. It is the absence of any direction to the jury to consider the likely consequences of the appellant's action in setting fire to the quilt, and whether these displayed at least an utter indifference to the likelihood that the fire would spread to other articles in his room and to the building itself if he sets fire to it, that gives rise to the defect in this case."
In our respectful view Lord Kincraig's charge in Boyd in fact embodied a misdirection and the passage in the opinion of the court in Blane approving that misdirection must be overruled. As we have explained, if the Crown are to secure a conviction of wilful fireraising in respect of any subjects, they must satisfy the jury that the accused actually intended to set fire to those subjects. In this, as in any other area of the law, proof of intention will usually depend on the jury being able to draw the necessary inference from all the circumstances, including the accused's conduct. If the evidence would not permit the jury to infer that the accused had intended to set fire to the subjects in question, then the judge must sustain a no case to answer submission. But in other cases the evidence may be capable of one of three constructions: either that the accused intended to set fire to the subjects or that he was reckless, showing an utter disregard for the likelihood of the fire spreading to the subjects, or that he was simply careless. It is for the jury to determine, as a matter of fact, which inference they draw. If they conclude that the accused actually intended to set fire to the subjects, then they will convict him of wilful fireraising. If they find that the accused was merely careless, then obviously they will acquit him. If, however, the jury conclude that he was reckless, showing an utter disregard for the likelihood of the fire spreading to the subjects, then in that situation also they must acquit him of the charge of wilful fireraising in respect of those subjects. They could, of course, convict him of a charge of culpable and reckless fireraising in respect of the subjects, if the Crown had expressly libelled such an alternative.
The misdirection by Lord Kincraig in Boyd lay in his telling the jury that the necessary intention to set fire to the subjects could be implied from conduct indicating an utter disregard of the likelihood of the fire spreading to the subjects in question. It may be that his Lordship had in mind the familiar position in murder where the jury can convict if they are satisfied either that the accused intended to kill the victim or that he displayed a wicked recklessness as to whether the victim lived or died. The crime of murder, however, can be committed by someone having one of two states of mind, either the intention to kill or wicked recklessness. The crime of wilful fireraising is different: the only mens rea is intention. Before they can convict, the jury must therefore be satisfied that the accused actually intended to set fire to the subjects. If all that they infer from the evidence is that the accused was reckless, even if to a very high degree, that does not entitle them to convict him of wilful fireraising. They can do so only if they go further and infer from the evidence that the accused was not merely reckless but actually intended to set fire to the subjects. In directing a jury it is therefore vital for a judge to keep the concepts of intention and recklessness distinct.
Unfortunately in his charge to the jury in this case the sheriff did not keep the concepts distinct. It is obvious indeed that he was led into confusion by trying to follow the guidance provided by Boyd and Blane. At one point he directed the jury that the crime could "only be committed intentionally, that is deliberately" but shortly afterwards he said that the accused's intention could "be implied from conduct which indicates an utter disregard of the likelihood of the fire spreading". Later still, he spoke of the jury considering the accused's conduct for its implication, "if you consider the accused's conduct to have shown an utter disregard of the likelihood of the fire starting, or spreading rather". Perhaps most clearly, in certain supplementary directions he spoke of the intention being "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 Lord Advocate acknowledged that these directions were confusing and erroneous. He therefore did not seek to support the conviction.
We recapitulate our conclusions on the law.
There are two distinct crimes of fireraising: wilful fireraising and culpable and reckless fireraising.
The crime of wilful fireraising may be committed in respect of any form of property. Before an accused can be convicted of wilful fireraising in respect of any particular item of property in the charge, the Crown must establish beyond reasonable doubt that he intended to set fire to that item of property. Where the jury are not so satisfied in respect of any of several items averred in the charge, they should delete it. The jury may infer the necessary intention from all the relevant circumstances, but there is no room for any doctrine of transferred intent. Nor can any form of recklessness be treated as equivalent to intent.
The crime of culpable and reckless fireraising can also be committed in respect of any form of property. In that respect it is similar to wilful fireraising. The difference from wilful fireraising lies in the mens rea. Mere negligence is not enough: the property must have been set on fire due to an act of the accused displaying a reckless disregard as to what the result of his act would be.
Contrary to what has sometimes been suggested, the distinction between the crimes remains important since the degree of blameworthiness will be relevant to penalty. A charge of wilful fireraising does not contain an implied alternative charge of culpable and reckless fireraising. So, where the only charge is one of wilful fireraising, the judge may not direct the jury that they can return a verdict of culpable and reckless fireraising. Nor may this court substitute a verdict of culpable and reckless fireraising in an appeal against a conviction of wilful fireraising.
On the other hand it is open to the Crown to aver wilful fireraising and, in the alternative, culpable and reckless fireraising. On an indictment so framed, it will, of course, be open to the jury either to convict of wilful fireraising or to convict of culpable and reckless fireraising. We note that the alternatives were averred in short compass in the minor premise in the indictments in Macbean and H.M. Advocate v. Smillie (1883) 5 Coup. 521. In neither case do the trial judges seem to have had undue difficulty in charging the jury. Of course, there may be cases in which an accused deliberately sets fire to paper, rubbish or discarded property of no value, but the fire spreads and burns down premises and their contents. In such cases, the lighting of the paper or rubbish may really only be the source of the fire which constitutes the substance of the charge. In such cases, care may be required in framing the indictment to avoid the unwelcome complexity which might arise if the indictment were so framed that, for instance, a jury might have to convict the accused of wilful fireraising in respect of the rubbish but of the alternative of culpable and reckless fireraising in respect of the premises and contents. The Lord Advocate indicated that, in the light of our decision, Crown counsel would reflect on how indictments might be framed in future.
For these reasons, in view of the misdirection which we have identified, we allow the appeal and quash the conviction.