Docherty v Brown
| Jurisdiction | Scotland |
| Judgment Date | 20 December 1995 |
| Date | 20 December 1995 |
| Docket Number | No 9 |
| Court | High Court of Justiciary |
Full Bench
LJ-G Hope, LJ-C Ross, Lord Sutherland, Lord Cameron of Lochbroom and Lord Johnston
Crime—Misuse of drugs—Possession of drugs with intent to supply to others—Attempted crime—Drugs not controlled drugs, but pannel believing that they were—Whether charge relevant—Misuse of Drugs Act 1971 (cap 38), secs 5(3) and 191
The pannel was charged on a summary complaint with possession of drugs which he believed to contain, but which did not in fact contain, a controlled drug with intent to supply that controlled drug to others, contrary to sec 5(3) of the Misuse of Drugs Act 1971. The pannel objected to the relevancy of the charge on the ground that it did not disclose a crime under the law of Scotland as a criminal attempt could not be made where the commission of the completed crime was impossible. The sheriff repelled the objection and granted leave to appeal. The pannel appealed to the High Court of Justiciary.
Held (by a court of five judges) (1) that if it was impossible to commit a completed crime, it did not follow that the pannel could carry out no acts amounting to perpetration or which were acts approximate to the crime being attempted; and, accordingly, (2) that for a relevant charge of an attempt to commit a crime, it had to be averred that the pannel had the necessary mens rea, and that he had done some positive act towards executing his purpose, being something amounting to perpetration rather than preparation; and (3) that if what was libelled was an attempt to commit a crime which was impossible to achieve, impossibility was irrelevant except where the pannel was aware that what he was trying to do was impossible, in which case there could be no attempted crime; and appeal refused.
HM Advocate v Anderson 1928 JC 1 overruled.
Lamont v StrathernSC 1933 JC 33 (dicta of Lord Sands) and HM Advocate v SempleSC1937 JC p 41(dicta of Lord Justice-Clerk Aitchison) disapproved.
Opinion reserved (per Lord Cameron of Lochbroom), where a crime could be committed only if the person was within a class of persons, such as licensees, as to whether it was relevant to libel an attempt to commit such a crime by someone who merely believed himself to be within that class.
James Docherty was charged at the instance of Douglas A Brown, procurator fiscal, Ayr on a summary complaint, the libel of which set forth, inter alia, that: “(1) On 5 November 1994 in Glasgow, at the premises known as Hanger 13 in Panvilion Road, Ayr, or elsewhere in Scotland you did take possession of 20 tablets which you believed to contain, but which did not in fact contain, a controlled drug, namely, methylenedioxymethylamphetamine, a class A drug specified in Pt I of Sched 2 to the aftermentioned Act, with intent to supply said controlled drug to another or others and you did thus attempt to have said controlled drug in your possession with intent to supply it to another or others in contravention of sec 4(1) of the said Act: contrary to the Misuse of Drugs Act 1971, secs 5(3) and 19.”
The pannel objected to the relevancy of the charge on the ground that it failed to disclose a crime known to the law of Scotland.
The cause called before the sheriff (C W McFarlane, QC) who, at advising, repelled the objection.
The pannel thereafter appealed, with the leave of the sheriff, to the High Court of Justiciary.
Cases referred to:
Advocate (HM) v Anderson 1928 JC 1
Advocate (HM) v ForbesSC 1994 JC 71
Advocate (HM) v SempleSC 1937 JC 41
Anderton v RyanELR [1985] AC 560
Britten v Alpogut [1987] VR 929
Burns v AllanUNK 1987 SCCR 449
Coventry v DouglasSC 1944 JC 13
DPP v NockELR [1978] AC 979
Heywood v Reid 1996 SLT 378
Lamont v StrathernSC 1933 JC 33
Maxwell v HM AdvocateSC 1980 JC 40
Mieras v ReesUNK [1975] Crim LR 224
R v ScofieldUNK (1784) Cald Mag Cas 397
R v ShivpuriELR [1987] AC 1;
R v Smith (Roger)ELR [1975] AC 476
R v Willoughby [1980] 1 NZLR 66
Strachan v HM Advocate 1995 SLT 178
Textbooks etc referred to:
Alison, Criminal Law, i, 163–175
Bell, Supplemental Notes to Hume, pp 2–3
Gill, Impossibility in Criminal Attempts 1965 JR 136
Gordon, Criminal Law (2nd edn), paras 6–49, 6–51 (p 196) and 6–54
Hume on Crimes (3rd edn), i, 26–30, i, 70
Williams, The Lords and Impossible Attempts or Quis Custodiet Ipsos Custodes (1986) CLJ 33
The cause called before the High Court of Justiciary, on 30 June 1995, when their Lordships remitted it to be heard by a quorum of five Lords Commissioners of Justiciary.
The cause thereafter called before the High Court of Justiciary, comprising the Lord Justice-General (Hope), the Lord Justice-Clerk (Ross), Lord Sutherland, Lord Cameron of Lochbroom and Lord Johnston for a hearing on 16 November 1995. Eo die their Lordships made avizandum.
At advising, on 20 December 1995—
LORD JUSTICE-GENERAL (Hope)—This case was remitted to a court of five judges for the reasons which were set out in the court's opinion of 30 June 1995. The appellant's contention was that charge 1 was irrelevant because it was plain from the narrative of that charge that, as the tablets of which he took possession did not in fact contain a controlled drug, it was not possible for him by possessing them to have attempted to have a controlled drug in his possession with intention to supply it to another or others contrary to sec 5(3) of the Misuse of Drugs Act 1971. Section 19 of that Act, to which reference is made in the charge, provides that it is an offence for a person to attempt to commit an offence under any other provision of the Act. But it was submitted that, because the offence, which depended upon his being in possession of the controlled drug, could not have been committed by the appellant as the tablets which were in his possession did not in fact contain the controlled drug, he could not on those facts be guilty of an attempt to commit that offence.
Had it not been for the present state of the Scottish authorities on this matter, the point would, I think, have been relatively easy to resolve. The appellant's argument fails to appreciate the distinction between a completed crime and an attempt. For a completed crime there must be that state of mind which amounts to mens rea, and an act which constitutes a crime must have been committed. If the commission of that act is impossible, or for some other reason it is not achieved, no completed crime will have been committed. But that does not mean that nothing has happened which may be regarded as criminal. A person who has mens rea and acts in some way in order to bring about what he has intended may be guilty of an attempt to commit that crime. The reason why the attempt fails is not important. It makes no difference whether this was because the accused was acting under a mistake or was interrupted or desisted before the crime was completed. What matters is that the intention to commit the crime was brought forward to the stage of perpetration by the doing of some act to bring the intention into effect.
In the present case the appellant is said to have taken possession of tablets which he believed to contain the controlled drug with intention to supply it to another. His intention was, on this narrative, to commit the offence which is described in sec 5(3) of the Act. He carried that intention into effect by taking possession of the tablets. His intention failed because the tablets did not in fact contain the controlled drug. So he did not in fact commit the offence. But he can nevertheless be found guilty of attempting to commit it.
I do not think that the difference between a completed crime and an attempt has been adequately explored in the authorities. Hume'sCommentaries on the Law of Scotland Respecting Crimes, (3rd edn) i, 27, puts the matter correctly when he says that, even when no harm ensues on the attempt, still the law rightly takes cognisance of it: "if there has been an inchoate act of execution of the meditated deed; if the man hath done that act, or a part of that act, by which he meant and expected to perpetrate his crime, and which, if not providentially interrupted or defeated, would have done so".
But some confusion has arisen in the application of that principle to the situation where the facts were such that the meditated deed was impossible to commit. There is no difficulty about the decision inLamont v Strathern, as the fact that there was nothing to steal in the other man's pocket did not prevent the accused being held to have been guilty of an attempt to steal. The problem is created by HM Advocate v Anderson, where Lord Anderson held a charge of attempted abortion to be irrelevant because it was not set forth in the charge that the woman was pregnant, and by the approval which was given to that decision in HM Advocate v Semple. The charge which was under consideration inSemple appears to have been framed in the light of Lord Sands' observation in Lamont at p 37; that it would be a relevant charge that the accused, in the belief that a woman was pregnant, penetrated her person with intent to cause her to abort. The charge in Semple was not libelled as an attempted abortion. But it was made clear in the opinions in that case that, had it been so libelled, it would have been irrelevant because the woman was not stated to be pregnant.
In my opinion Anderson was wrongly decided and the observations in Semple which supported that decision were erroneous. The fact that the woman was not pregnant would, of course, mean that it would not have been possible to commit the crime of abortion. But it was not necessary to state that she was pregnant for there to be a relevant charge of attempting to cause her to abort. All that was needed was proof of the intention to commit the crime and the carrying out of acts which took the matter beyond the stage of mere intention to the stage of perpetration.
I appreciate that difficult questions can arise where, for some absurd reason, the completed...
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