Carr v Hm Advocate
| Jurisdiction | Scotland |
| Judgment Date | 13 May 1994 |
| Docket Number | No. 30. |
| Date | 13 May 1994 |
| Court | High Court of Justiciary |
JC
LJ-G Hope, Lords Cowie, Wylie.
Crime—Wilful fire-raising—Culpable and reckless fire-raising—Difference between wilful, culpable and reckless fire-raising—Whether pannel could be guilty of culpable and reckless fire-raising although intention absent—Whether mere carelessness sufficient—Whether intention could be inferred from pannel's conduct and circumstances of his act
The pannel was charged with wilful or alternatively culpable and reckless fireraising. The appellant had entered into a church hall in the early hours of the morning and, as he could not see very well, scrunched up some paper towels and lit them like a torch. The torch started to burn his hands, causing him to drop it. He then went to the toilet and, on his return, found curtains alight. Although he tried to do so, he was unable to extinguish the flames and left the building, which was ultimately destroyed by the fire. The sheriff (Webster) directed the jury that wilful fire-raising could not be committed accidentally, unintentionally, recklessly or negligently so that the pannel could only be convicted of it if it was proved that he meant to set fire to the building. Motive was irrelevant and intention could be inferred if the pannel was shown to have acted with a total indifference to the likely consequences of what he did, such that it could be inferred that he intended those consequences to occur. In respect of culpable and reckless fire-raising, the directions were that a high degree of recklessness was required and that an action was reckless if it fell far below the standard expected of a competent and careful person either in the face of obvious and material dangers which were or should have been observed, appreciated or guarded against or in circumstances which showed a complete disregard for any potential dangers which might result from the action. On being convicted of the first alternative, the pannel appealed to the High Court of Justiciary and contended that those directions were confusing to the jury and resulted in a miscarriage of justice.
Held (1) that the directions about what constituted culpable and reckless fire-raising were clear enough to enable the jury to understand the difference in principle between the alternative crimes for the pannel could be found guilty of culpable and reckless fire-raising although it had not been established that he intended to set fire to the building, but recklessness was needed, carelessness not being sufficient; (2) that the sheriff ought to have confined his definition of "reckless' to the question whether the pannel's actions showed a complete disregard for any dangers which might result from what he was doing and in particular of the fire taking effect upon the premises, the issue being whether the pannel had the necessarymens rea for the crime; (3) that, although the sheriff erred in stating that the actions had to be "highly reckless", as that introduced an unnecessary complication, referring to different degrees of recklessness, that misdirection was favourable to the pannel; and (4) that the sheriff had been correct to state that intention to set fire to the building could be inferred from the pannel's conduct and the circumstances of his act, and what the jury required to find was a basis for the inference that the pannel intended to set fire to the building; and appeal refused.
Allan v. PattersonSC 1980 J.C. 57 distinguished.
Alexander Dewar Carr was charged on an indictment at the instance of the Rt. Hon. The Lord Rodger of Earlsferry, Q.C., Her Majesty's Advocate, the libel of which set forth that: "[O]n 7th November 1992 [you did] break into the premises
known as the Parish Church Hall, Main Street, Polmont, and there set fire to paper or similar material whereby the fire took effect on the said premises and destroyed them and this you did wilfully; or alternatively time above libelled, break into said premises and there culpably and recklessly set fire to paper or similar material above libelled and said fire took effect on said premises and destroyed them."
The pannel pled not guilty. The cause then came to trial in the sheriffdom of Tayside Central and Fife at Kirkcaldy before the sheriff (Webster) and a jury. The jury found the pannel guilty of the first alternative and he was thereafter sentenced to 12 months' detention in a young offenders institution. A supervised release order in terms of sec. 212A of the Criminal Procedure (Scotland) Act 1975 was also imposed. The pannel then appealed to the High Court of Justiciary by way of note of appeal against conviction and sentence.
The cause called before the High Court of Justiciary, comprising the Lord Justice-General (Hope), Lord Cowie and Lord Wylie for a hearing on 27th April 1994. Eo die, their Lordships made avizandum.
At advising, on 13th May 1994, the opinion of the court was delivered by the Lord Justice-General (Hope).
Opinion of the Court—The appellant went to trial in the sheriff court at Falkirk on a charge of wilful fire-raising and an alternative charge of culpable and reckless fire-raising. The premises to...
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