APPEAL COURT, HIGH COURT OF JUSTICIARY
Temporary Judge C.G.B. Nicholson, C.B.E., Q.C.
Appeal No: XJ 517/02
OPINION OF THE COURT
TEMPORARY JUDGE NICHOLSON
PROCURATOR FISCAL, KILMARNOCK
Appellant: Gilchrist; Balfour & Manson
Respondent: Mitchell, A.D.; Crown Agent
24 February 2004
Background This is an appeal by way of stated case at the instance of Robert McCue. On 3 September 2002, he appeared before the sheriff at Kilmarnock for trial on a complaint which libelled two charges, namely:
"(1) ... on 14 August 2002 at 21 Misk Knowes, Stevenston, you ... did force open a lockfast caravan and steal a bottle of Bacardi and a quantity of kitchen utensils and cutlery;
(2) ... on 14 August 2002 at 21 Misk Knowes, Stevenston, you ... did culpably and recklessly set fire to a caravan and the fire took effect thereon and did destroy said caravan."
Each of the foregoing charges was stated to have been aggravated by having been committed while the appellant was on bail. When the trial was called the appellant tendered a plea of guilty to charge 1 and a plea of not guilty to charge 2. Those pleas were refused by the respondent, no doubt because he wished to lead evidence in respect of charge 1 which would also be of relevance in respect of charge 2. At the close of the Crown case the appellant made a submission of no case to answer in respect of charge 2 only, but that submission was repelled by the sheriff. No evidence was led by or on behalf of the appellant, and the sheriff proceeded to find the appellant guilty of both charges. The appellant was sentenced to 6 months imprisonment on charge 1 (including 2 months for the bail aggravation) and 6 months imprisonment on charge 2 (including 3 months for the bail aggravation). Those sentences were backdated to 15 August 2002 which was the date when the appellant was first remanded in custody.  In the present appeal the ground of appeal is that the sheriff erred in law in repelling the defence submission of no case to answer in respect of charge 2. No appeal is taken against the conviction on charge 1, and there is no appeal against sentence.
The relevant findings in fact The main finding of particular significance in relation to charge 2 is finding in fact 8, which is in the following terms:
"In the early hours of the morning of 14 August 2002 the Appellant entered the caravan for the purpose of searching for and stealing alcohol. He stole alcohol, kitchen utensils and cutlery in a tray. Whilst searching the caravan the Appellant used a cigarette lighter. As he was leaving the caravan the lighter burst in his hand. It was lit. He dropped the lighter. It was defective in some way and did not extinguish when dropped. It caused the caravan to catch fire whereby it was destroyed. The Appellant admitted in interview that he had started the fire. The Appellant was aware he had started the fire but did nothing to extinguish the fire or to summon assistance to do so. He left the scene of the fire immediately. As a result of the Appellant's conduct the caravan and contents were destroyed by fire."
It appears that the appellant had been using the cigarette lighter for illumination while carrying out his search of the caravan. The relevant part of the interview referred to in finding in fact 8 is to be found in finding in fact 6, and it is in the following terms:
"Question How did the fire start?
Answer Me with the lighter, it wasn't intended it burst in my hand.
Question What happened?
Answer I dropped the lighter as I was coming out of the door.
Question Where did you go?
Answer Back into Sparra's".
"Sparra" is the nickname of a friend or acquaintance of the appellant who lives in a house close by the caravan. In relation to the above findings mention should also be made of a passage in the Stated Case (at p.3) where the sheriff refers to evidence given at the trial by the Kilwinning Fire Station Officer, Gerald Grant. The sheriff records that that witness expressed the view that there was no likelihood the fire had started accidentally, and that the mere dropping of a cigarette lighter would be unlikely to cause the fire since it could be expected to self extinguish. However, it appears that in cross-examination the witness accepted that it was possible that, if a lighter was defective or leaking, its flame might continue even after being dropped, and that such a circumstance could have caused the fire in the caravan. As can be seen in finding in fact 8 which we have quoted above the sheriff appears to have accepted the version of events spoken to by the appellant in his interview with the Police. We should add, however, that the findings in this case do not explain what is meant by the words "the lighter burst in his hand", nor do the findings say anything about whether the lighter in question was fuelled by gas or by petrol.
The sheriff's reasons for his decision In the stated case the sheriff narrates the arguments which were advanced in support of the submission of no case to answer. He notes that, under reference to certain authorities which we shall mention shortly, it was submitted that the passage in the appellant's interview which has been quoted above did not amount to an admission of culpable and reckless fire-raising. The admission, it was submitted, was exculpatory, and was at best an admission that the appellant accidentally dropped a lighter because it burst in his hand. This, it was submitted, was an accident and not fire-raising.  The sheriff rejected the foregoing submissions. He states (at p.6):
"I took the view that the Appellant's attempted distinction between the accidental dropping of the lit lighter and its actual immediate consequences could not be sustained in the light of the observations in [the authorities to which he was referred]. I accept that the explanation given by the Appellant in his interview qualifies his admission that he started the fire to the effect that 'it wasn't intended'. Thus it could not be wilful fire-raising."
The sheriff continues:
"... the act of the Appellant is not simply the unintentional dropping of a lit lighter but the complete disregard for the obvious consequences of doing nothing about it. He left the scene of the fire. I did not separate the act into two parts, the accidental dropping of the lighter and the immediate consequence of that starting the fire. I inferred that he started the fire at that point from his answer to the question in interview ... the act of the Appellant was dropping the lit lighter and leaving, thus demonstrating an utter disregard for the obvious consequence of the fire spreading - as it did."
Submissions for the parties Mr Gilchrist, for the appellant, began by drawing our attention to the relevant findings in fact, which we have already narrated above, and submitted that the essential question here is whether the sheriff was correct to conclude that for the appellant to have done nothing after the dropping of the lighter is sufficient to constitute culpable and reckless fire-raising. It is, he submitted, arguable that any culpability and recklessness commenced only at the stage when the appellant left the premises, with the consequence that the act which in fact initiated the fire cannot be so characterised.  Mr Gilchrist referred us to a number of authorities, beginning with one of those to which the sheriff was referred, namely Byrne v HMA 2000 SCCR 77. That was a decision by a Bench of five judges which was primarily concerned with the definition of wilful fire-raising, and with the distinction between that and culpable and reckless fire-raising. The Opinion of the Court was delivered by Lord Coulsfield, and Mr Gilchrist directed our attention in particular to a passage in the opinion (at p.92B) where (in relation to culpable and reckless fire-raising) it is stated:
"The difference from wilful fire raising 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.".
It seems clear that in the foregoing passage the Court was not directly considering circumstances of the kind which are to be found in the present case. However, Mr Gilchrist founded on the passage as indicating that the recklessness necessary for the crime of culpable and reckless fire-raising must be present at the time when the fire begins: subsequent recklessness will not be enough. The next case to which we were referred is HMA v Smillie (1883) 5 Couper 287. That was a case in which the accused was charged in the alternative with wilful fire-raising and culpable and reckless fire-raising. In the course of charging the jury Lord Young said (at p.291):
"If a man, while engaged in some illegal act, raises a fire, he is guilty of the crime of wicked, culpable, and reckless fire-raisings [sic], although he never intended or desired to raise the fire."
A little later (at p.292) Lord Young, having given directions relative to wilful fire-raising, says:
"If, on the other hand, you are of opinion that as a tipsy or even a sober man may sometimes do, he carelessly raised an accidental fire, then he is not necessarily a criminal. But if you think that he was in a state of excitement so great as not to care what happened, and raised this fire though without any deliberate intention to do so, he will be guilty of the crime of wicked, culpable, and reckless fire-raising."
Mr Gilchrist submitted that there was no support to be found elsewhere in the authorities for the proposition advanced in the first of the passages just quoted. However, he founded on what is said in the second passage as supporting his submission that a merely accidental act which starts a fire will not amount to culpable and reckless fire-raising even where the person concerned takes no steps thereafter to put the fire out or to seek assistance from others. Mr Gilchrist next referred to a passage in the 3rd edition of Gordon's Criminal Law (to which the sheriff had also been referred). In paragraph 22.29 of that work, the learned author deals with the topic of "constructive recklessness". He refers to what was said by Lord Young in Smillie in respect of fire-raising "while engaged in some illegal act", but goes on to observe that that dictum was obiter and that there is no other authority in support of it.  Reference was then made to HMA v Stewart and Walsh (1856) 2 Irvine 359. That was a case where the accused were charged with theft and with culpable and reckless fire-raising. The libel of the latter charge alleged that the accused did, culpably and recklessly, "allow" a lighted lamp or other light to come in contact with, and set fire to, whisky or other spirits (which were the subject of the theft). A plea was taken to the relevancy of the fire-raising charge, and in that connection the Lord Justice-General (McNeill) said (at p.364):
"In the present case, it is set forth that the panel culpably allowed a certain thing to be done or to happen. Now, what is the precise import and meaning of this phrase 'allowed'? Is it an act of the mind? Or is it that the panel did not prevent it? I am not sure as to the soundness of the principle which this involves. ... I should wish to have farther authority on this point. The principle, once admitted, may go a great way."
A little later (at p.365) the Lord Justice-General asked:
"Is it more illegal to burn when the man is stealing, than when he is not? This may be, but I should wish more authority on the point."
Mr Gilchrist founded on the latter passage as bringing into question what was said by Lord Young in Smillie, and he noted that the learned author in the paragraph in Gordon quoted above, after reference to this case, concludes the paragraph by saying:
"It is submitted, however, that the answer to the question [posed by Lord Justice-General McNeill] is in the negative, and that there is no room for constructive recklessness in fire-raising."
"The mere leaving a light in a situation of possible or even probable danger, is in my opinion not quite sufficient to constitute a criminal offence."
Lord Craighill concurred with that view "without difficulty". Mr Gilchrist, for his part, submitted that, if a deliberate act of leaving a light in a situation of danger is insufficient, then a fortiori an accidental act will be insufficient. He also drew attention to the fact that, although the accused in Martin had been engaged in theft at the material time, it was not suggested by either the prosecutor or the court that that could rescue what was otherwise held to be an irrelevant charge. Finally, Mr Gilchrist referred us to the English case of R. v Miller  2 AC 161 which is cited in a footnote at paragraph 3.34 of Gordon. In the paragraph that case is given as authority for the statement: "Where a person by his actings has created a situation of danger, he has a duty to do what he can to avert the danger he has created". It is to be noted, however, that the case of Miller was concerned with the interpretation of an English statutory provision which has no counterpart in Scots law. Mr Gilchrist submitted that, for that reason, the case does not support the conclusion set out in Gordon, and that it is not of assistance in determining the present appeal. We, for our part, are disposed to agree with that: and it is to be noted that the advocate depute did not seek to rely on Miller as supporting the sheriff's conclusion in the present case.  In summary, Mr Gilchrist invited us to concentrate on the actual act of what he called "ignition", and to ask ourselves whether the nature, and surrounding circumstances, of that act were ones which demonstrated the necessary qualities of culpability and recklessness, and therefore of mens rea, rather than, as the sheriff did, by looking at what the appellant did or did not do thereafter.  In response, the advocate depute began by considering Lord Young's dictum in Smillie to the effect that it may be culpable and reckless fire-raising if a person starts a fire "while engaged in some illegal act". Very fairly, in our opinion, the advocate depute indicated that he did not strenuously seek to uphold the sheriff's decision on that ground but that he made no formal concession on the matter. He was apparently unable to cite any authority which supported Lord Young's approach.  The advocate depute then referred us to the case of Carr v HMA 1994 SCCR 521. That was a case where the charge against the accused was one of wilful fire-raising or, alternatively, culpable and reckless fire-raising. The circumstances, as explained by the accused, were that, having broken into the premises in question, he could not see very well, so he went into the kitchen and found a roll of paper towels which he scrunched up and lit like a torch. Shortly thereafter the torch was burning his hands, so he dropped it and went to the toilet. When he came back he found that the curtains were up in flames. The accused was convicted of wilful fire-raising, and the ground of appeal was that the sheriff had misdirected the jury as to the essential elements of, on the one hand, wilful fire-raising and, on the other hand, culpable and reckless fire-raising. The appeal was refused but the Court took the view that the sheriff's directions in relation to culpable and reckless fire-raising were not entirely satisfactory though in fact, if anything, they favoured the accused.  The sheriff's directions on the matter of recklessness were largely founded on the explanation of that word given in the case of Allan v Patterson 1980 JC 57, which was a case involving reckless driving in the context of the Road Traffic Act. In criticising that approach the Court held that the Allan v Patterson definition may be appropriate where the accused is charged with doing something which is otherwise lawful but with doing it in a manner which can be described as reckless. In a case of fire-raising, however, what is in issue is whether the accused had the mens rea necessary for the commission of the crime. The Court continued (at p.526D-E):
"The distinction which has to be drawn is between actions which are careless, as fire raising which is merely negligent or accidental is not a crime, and actions which are reckless as that expression has been defined."
Decision We do not consider that Lord Young's observation in Smillie, which so far as we know has never been followed, and in particular was not followed in Stuart v Martin, and which is criticised in Gordon, is sufficient to vouchsafe the proposition that the crime of culpable and reckless fire-raising can be committed solely by reason of the fact that the starting of the fire occurred when the person concerned was "engaged in some illegal act". Consequently, the only question which we have to address is whether, given that the sheriff has found that the dropping of the lit lighter by the appellant was accidental, the crime of culpable and wilful fire-raising was nonetheless committed by reason of the fact that thereafter the appellant behaved irresponsibly and took no steps either to try to put out the fire himself or to summon appropriate assistance.  Although this question appears never to have been considered in any detail, the fact of the matter is that all the authorities to which we were referred, including Byrne v HMA, make it clear that what must be considered above all is the mens rea of the alleged offender. Moreover, that mens rea has always been determined by reference to the act of starting the fire and not by reference to something which took place thereafter. In the passage in Byrne which we quoted earlier, for instance, the Court said in respect of culpable and reckless fire-raising: "... 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." It is true, of course, that the Court in Byrne was not expressly considering circumstances of the kind which are present in this appeal, but there is little doubt that the Court intended its comments to be of general application. We consider that the passage which we have just quoted would have been phrased very differently had the Court intended to indicate that culpable and reckless fire-raising could arise in circumstances where there was no reckless mens rea at the time of starting the fire (as when it occurred accidentally) but there was some sort of recklessness, or even just irresponsibility, thereafter.  In this connection we consider that it is of some relevance to look at the manner in which the crime is actually libelled in the present case. As we have previously noted, the charge alleges that the appellant "culpably and recklessly set fire to a caravan and the fire took effect thereon". In our opinion, that form of charge quite properly sets out an allegation that culpability and recklessness were present at the stage when the fire was first raised, with the subsequent taking effect of the fire being, as was submitted by Mr Gilchrist, no more than narrative. It therefore appears to us that, in framing the charge in the way we have described, the prosecutor was offering to prove that the dropping of the lit lighter demonstrated, by itself, a degree of culpability and recklessness sufficient to establish the mens rea which was necessary for the crime charged. But, as we have seen, the sheriff himself has accepted that the dropping of the lighter was, by itself, accidental.  For all the above reasons we are of the opinion that fire-raising which is merely accidental does not demonstrate the necessary mens rea and is not a crime, and cannot become so on account of subsequent behaviour on the part of the person concerned. Were the position otherwise, the crime of fire-raising would in our opinion have boundaries productive of great uncertainty.  In reaching, for the foregoing reasons, the conclusion that the sheriff misdirected himself in his approach to this case we are not to be taken as condoning the appellant's actings, or more accurately inactivity, after the fire broke out. His failure to take any steps to try to have the fire put out before it destroyed the whole caravan was plainly reprehensible to a high degree, and it may be that there is a case for enacting a new crime, such as apparently exists in England, of culpably failing to take appropriate steps after a situation of danger to persons or property has arisen as a result of a person's actings. However, that is not a matter for this Court.  In the circumstances we shall answer the two questions in the stated case in the negative with the result that this appeal will be allowed.