Khaliq v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 17 November 1983 |
| Neutral Citation | 1983 SCCR 483 |
| Docket Number | No. 4. |
| Date | 17 November 1983 |
| Court | High Court of Justiciary |
JC
L.J.-G. Emslie, Lords Cameron, Dunpark.
Crime—Causing real injury to another—Supply of solvents and containers to children for purpose of inhalation of vapours—Knowledge of children's purpose and of the danger to their health and lives—Whether voluntary act of inhalation by children novus actus interveniens—Criminal Procedure (Scotland) Act 1975 (cap. 21), sec. 441.
Procedure—Indictment—Specification—Fair notice—Supply of solvents to children—Notice of ages of children—Latitude of time—Course of conduct—Reset—Naming of persons from whom goods received—Criminal Procedure (Scotland) Act 1975 (cap. 21), sec. 592.
Two shopkeepers were charged with (1) supplying solvents in, or together with, various containers to named children under the age of 16, for the purpose of inhalation of the vapours of the solvents by the children to the danger of their health and lives, and (2) resetting various articles from some of the children in exchange for supplying them with solvents. The relevancy and specification of the indictment were challenged on the grounds that the first charge did not set out a crime known to the law of Scotland, and that both charges were lacking in essential specification.
Held (1) that if conduct fell within an existing category of conduct which was criminal then it was itself criminal although no exact precedent had occurred.
Hume 1.327, approved; Dicta of Lord Cockburn in Bernard Greenhuff (1838) 2 Swin. 236 at 274 and of L.J.-G. Clyde inM'Laughlan v. BoydSC1934 J.C. 19 at 22applied.
(2) That the wilful administration of a dangerous substance was clearly criminal regardless of consent and the distinction between administration and supply was not material to the present charge given the purpose of the supply and other circumstances libelled.
(3) That the voluntary inhalation by the victim was not an extraneous event necessary to be a novus actus interveniens and it was a matter of fact for the jury to decide whether the supply was a cause of the injury of the victim.
(4) That the first charge was defective in that it did not give fair notice of the exact age of each child at any date within the period covered by the charge. [The Lord Advocate undertook to amend the charge so as to disclose the date of birth of each named child.]
(5) That, with regard to the second charge, very considerable latitude of time was permissible where the substance of the charge was that there was a course of conduct by reset on a number of occasions of stolen goods consisting in toto of a list of specified items and fair notice of the substance of the charge had been given; and appealsrefused.
Observed (1) that the ages of the children were not essential to the relevancy of the first charge.
(2) That because of the difficulties of lodging a special defence of alibi there could be no objection after evidence for the Crown of precise dates and times of the transactions to evidence in support of that defence.
Doubted whether the first charge would be relevant without a finding that the supply had caused the injury.
Raja Abdul Khaliq and Raja Ibrar Ahmed were charged on indictment that "on various occasions between 1st February 1981 and 6th April 1983…at the shop premises occupied by you at 83 Saltmarket, Glasgow, you did (1) culpably, wilfully and recklessly supply to [18 named children of ages from eight to 15] and to other children under the age of 16 years…quantities of solvents, and in particular Evostik glue, in or together with containers, such as tins, tubes, crisp packets and plastic bags, for the purpose of inhalation of the vapours of said solvents from within said containers, well knowing that said children intended to use said solvents and said containers for the said purpose and that the inhalation by said children of the vapours of said solvents was or could be injurious to the health of said children and to the danger of their lives and in consequence of your said actions you did cause or procure the inhalation by said children of vapours from said quantities of solvents to the danger of their health and lives; (2) reset from the said [nine of the named children] in exchange for supplying them as aforesaid with quantities of solvents, and in particular with Evostik glue, and/or money with which to purchase from you such quantities of solvents, 6 bicycles, 2 boxes of biscuits, table tennis bats and net, an electric fan heater, a radio cassette player, a clock, a watch, a pair of denim jeans, 2 transistor radios, 7 necklaces, 12 lighters, a retractible knife, a mouth organ and a number of keyrings, the same having been dishonestly appropriated by theft."
Both accused preliminary defences as to relevancy and specification. At a preliminary diet, after hearing argument, the presiding judge (Lord Avonside) held the libel "relevant and proper". He delivered the following opinion:
LORD AVONSIDE.—This is a preliminary diet following notice under section 76 (1) of the Criminal Procedure (Scotland) Act 1975, as amended. Put shortly, the minuters have given notice of objection to an indictment in which they are charged jointly with two alleged offences and that on grounds which will appear in what follows.
The first charge reads, omitting names [His Lordship quoted the terms of charge (1) and continued].
That charge is claimed to be bad on several grounds, the most important of which is that it "does not set out a crime known to the law of Scotland". Argument was presented to the effect that if the crime was a "new" crime, it could not be introduced into our criminal law by the decision of a single Judge. I accept that. It would be a matter for consideration by a quorum of the High Court. Further argument was presented in some detail as to whether or not the High Court had still the power to introduce a "new" crime. That, plainly, is no concern of mine.
At the outset I was referred by counsel for the first panel—and all that he said throughout the hearing was adopted by Mr Morton who appeared for the second accused—to publications dealing with "solvent abuse", to dictionary definitions of the word "solvent", and to the fact that while there had been attempts in Parliament to deal—if that be the word—with "solvent abuse" all that had been achieved was the Solvent Abuse (Scotland) Act 1983. That Act states that a child may be in need of compulsory measures of care within the provisions of the Social Work (Scotland) Act 1968 if "he has misused a volatile substance by deliberately inhaling, other than for medicinal purposes, that substance's vapour…". I would not brush aside that Act as wholly irrelevant. It does display concern about misuse of volatile substances and shows that there is a defined danger recognised by Parliament.
The initial general approach of counsel for the minuters was that "solvents" covered a wide range of substances and that a decision in favour of the Crown in this case could result in many anomalies. There were many types and kinds of "solvents" legitimately on the public market and open to anyone who wished to buy them. Equally there were many types of drugs which were available without prescription which could be used for wrong and dire purpose and so result in illness or, indeed, death. Cigarettes were dangerous, misused alcohol could lead to death and so on. All that may be so, but I reject argument in terrorem and place no faith in hypotheses of imagination. I am concerned only with the charge before me. Any other case which might arise would depend on the facts and circumstances pertaining to it.
The issue in this case is highly emotive. "Solvent abuse" is popularly seen as "glue sniffing" and the results of that indulgence are within judicial knowledge, and the knowledge of the interested public. However, I do not sit as a judge of morals and my task is confined to a judgment in law, and that alone, on the validity of the indictment before me. It is not disputed that "glue" is not listed as a dangerous substance or drug. Nor is it disputed that to possess "glue" is permissible. Further, in my opinion, it is not a criminal offence for a person who does so to "misuse glue", see for example Fisher v. Keane 1981 S.L.T. (Notes) 28. That being so, the Crown must show, in the first charge in the indictment, that there are set out allegations involving the panels in criminal conduct over and beyond these limitations, and that these allegations show a crime within the body of our recognised criminal common law.
The argument presented by counsel for the minuters can be focused in this way: if one looks at reported cases which may be relevant it will be seen that in each case there was direct contact between the person who administered a noxious substance, or abused the administration of a normally recognised subject, and did so act by way of guile or actings amounting to force or deceit, and his "victim"—I use that word in a broad sense; further, the most recent cases ofSempleSC 1937 J.C. 41 and FinlaysonSC1979 J.C. 33, displayed the same approach. For the sake of argument in this case I will accept the submission of counsel. The next step, however, is the vital one. It is submitted that the first charge is irrelevant because there was novus actus in that those who bought or otherwise obtained from the minuters the substances described in the charge exercised their own choice in the use they made of these substances. They could have used them for their proper use or, if they so chose, could abuse their use. Hence there was no direct control as to use between the supplier and the users.
In my opinion, there is no substance in this argument. In the first place it seems to me an affront to common sense. This case involves 18 children who are alleged to have bought glue within a period of time and been served with it, or at least another solvent, in a somewhat remarkable manner, in tins, tubes, crisp packets and plastic bags. I cannot...
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