Transco Plc V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Hamilton,Lord Osborne,Lord MacLean |
| Court | High Court of Justiciary |
| Date | 03 June 2003 |
| Docket Number | XC392/03 |
| Published date | 04 December 2003 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord MacLean Lord Osborne Lord Hamilton
| Appeal No: XC392/03 OPINION OF LORD MacLEAN in APPEAL under Section 74 of the Criminal Procedure (Scotland) Act 1995 by TRANSCO PLC Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Jones, Q.C., J. Lake; Simpson & Marwick
Respondent: Turnbull, Q.C., A.D., G. Balfour; Crown Agent
3 June 2003
[1]I agree with your Lordships that the present appeal should be allowed, and in particular I concur entirely in the reasoning of Lord Hamilton for that result.
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord MacLean Lord Osborne Lord Hamilton
| Appeal No: XC392/03 OPINION OF LORD OSBORNE in APPEAL under Section 74 of the Criminal Procedure (Scotland) Act 1995 by TRANSCO PLC Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Jones, Q.C., J. Lake; Simpson & Marwick
Respondent: Turnbull, Q.C., A.D., G. Balfour; Crown Agent
3 June 2003
Introduction
[2]The circumstances in which this appeal has been brought have been explained in paragraphs [27] to [34] of the Opinion of Lord Hamilton, which I gratefully adopt. During the course of the appeal hearing, elaborate and wide-ranging arguments were deployed in support of the positions of the parties, which have been of great assistance to the court. I consider that it is unnecessary for me to rehearse them here, since the nature of the submissions made may be inferred from what I have to say below about the issues which have arisen. What I intend to do in this opinion is to set forth my conclusions on the arguments addressed to us. For convenience, I shall do this under a number of headings. First, I shall deal with the nature of the crime of culpable homicide in Scots criminal law and, in particular, involuntary culpable homicide, the crime alleged in the first alternative charge. Secondly, I shall consider the nature of an incorporated company and the implications of that in the context. Thirdly, I shall consider the question of the commission of a common law crime by such a company, in particular, involuntary culpable homicide. Finally, I shall set out my conclusions on the appeal as a whole.
The nature of the crime of involuntary culpable homicide
[3]Recognising that involuntary culpable homicide is a crime under Scots common law, it is necessary, first of all, to consider the fundamental nature of a common law crime, particularly with regard to criminal intent. Baron Hume in his Commentaries on the Law of Scotland Respecting Crimes, Vol.1 at pps.21-22 deals generally with the matter of dole, or mens rea. He defines it as
"that corrupt and evil intention, which is essential (so the light of nature teaches, and so all authorities have said) to the guilt of any crime..... that the act must be attended with such circumstances, as indicate a corrupt and malignant disposition, a heart contemptuous of order, and regardless of social duty."
MacDonald in A Practical Treatise on the Criminal Law of Scotland, 5th ed., at p.1 states:
"The law holds a man to be punishable as a criminal whether his deed is in itself a completed crime, or is an attempt to commit crime. The deed must be overt and must be done with wicked intent.... The wicked intent is an inference to be drawn from the circumstances of the deed as well as from any explanations by the man."
In Duguid v Fraser 1942 J.C. 1, the court had to deal with the complications of emergency war legislation, in particular the Prices of Goods Act 1939, section 1. That occasion demanded consideration of what, if any, part mens rea had to play in offences created by such statutory provisions. Lord Justice-Clerk Cooper took the opportunity to make certain general observations on the part played by mens rea. At p.5 he said this:
"Our reports already contain many examples of cases in which it has been held that a malum prohibitum has been created by statutory enactment in such terms and under such circumstances as to impose an absolute obligation of such a kind as to entail this wider liability. In all such cases it has, I think, been the practice to insist that the Crown should show that the language, scope and intendment of the statute require that an exception should be admitted to the normal and salutary rule of our law that mens rea is an indispensable ingredient of a criminal or quasi-criminal act; and I venture to think that it would be a misfortune if the stringency of this requirement were relaxed."
More recently the important part played by mens rea in our criminal law was discussed in Ross v Her Majesty's Advocate 1991 J.C. 210. The court was there considering the significance of non-insane automatism. One again, the importance of mens rea was emphasised. Lord Justice-General Hope at p.213 said: "In principle it would seem that in all cases where a person lacks the evil intention which is essential to guilt of a crime he must be acquitted." He then quotes the passage already referred to from Hume. He then goes on:
"So if a person cannot form any intention at all because, for example, he is asleep or unconscious at the time, it would seem impossible to hold that he had mens rea and was guilty in the criminal sense of anything he did when he was in that state."
At p.228 Lord McCluskey said: "I know of no exceptions, other than statutory ones, to the rule that the Crown must prove mens rea beyond a reasonable doubt." In these circumstances, one might conclude that mens rea is indeed an essential ingredient of, in particular, the common law crime of culpable homicide.
[4]Moving on from general principles, I consider next how the crime of culpable homicide has been defined, with a view to identifying what is involved as regards mens rea in relation to involuntary culpable homicide. Perhaps the starting point may be what is said in Drury v Her Majesty's Advocate 2001 S.C.C.R. 583 at p.589, where Lord Justice-General Rodger said this of culpable homicide:
"As its name suggests, according to the current usage in our law (Burnett's Criminal Law, pps.26-27) the crime of culpable homicide covers the killing of human beings in all circumstances, short of murder, where the criminal law attaches a relevant measure of blame to the person who kills."
Plainly, the destruction of human life itself may be categorised as murder, or culpable homicide, or a justified and non-criminal act, depending upon the criminal intent which may or may not be involved. Writing of involuntary culpable homicide, MacDonald, op. cit., at p.100 says this:
"Third, culpable homicide may result from neglect of proper precautions, or of moderation in the doing of what is legal, or from general carelessness and neglect of duty. Here, also, the cases that have happened are out-numbered by those that may be supposed. They include every fatal accident which is not fortuitous, but results from some blameable conduct. The trend of legal development has been to draw a distinction between negligence which results in civil liability and negligence which results in criminal responsibility; and in the latter case to desiderate gross and wicked negligence or recklessness. The old rule that 'any blame is enough' is no longer valid.... With the prevalence of fast-travelling motor vehicles on the road, the tendency of the law in the case of fatal accidents is to hold the driver of the vehicle which inflicts the injury guilty of homicide, only if his conduct is notably and seriously negligent or displays utter disregard for the safety of others."
A case of the kind just referred to by MacDonald is Paton v His Majesty's Advocate 1936 J.C. 19, where there is to be found what has come to be regarded as a classic definition of involuntary culpable homicide. In dealing with an appeal against a conviction for culpable homicide arising out of the driving of a motor car, Lord Justice-Clerk Aitchison observed at p.22:
"The difficulty that the case presents is whether there was evidence that the appellant was guilty of criminal negligence in the sense in which we use that expression. At one time the rule of law was that any blame was sufficient, where death resulted, to justify a verdict of guilty of culpable homicide. Unfortunately, this law has to some extent been modified by decisions of the Court, and it is now necessary to show gross, or wicked, or criminal negligence, something amounting, or at any rate analogous, to a criminal indifference to consequences, before a jury can find culpable homicide proved."
With the greatest of respect to the author of this dictum, it appears to me that this definition involves certain difficulties. His Lordship refers to "criminal negligence" and "criminal indifference to consequences". The use of the adjective "criminal", in an endeavour to define what is in fact involved in a particular crime, involves circularity and is therefore unprofitable. Furthermore, the word "negligence" introduces a potential for confusion. I would believe that that word "negligence" may properly be used in two senses. The first is a reference to the English tort of negligence; the second is the more general English parlance, which connotes some degree of carelessness or neglect of duty in a non-legal context. It is not clear to me in which particular sense that word is used by Lord Justice-Clerk Aitchison. The remaining features of the definition "gross or wicked ... indifference to consequences" appear to me to be more helpful. In Quinn v Cunningham 1956 J.C. 22, the court considered a complaint of culpable and reckless conduct, not resulting in death, but the case contains certain observations by Lord Justice-General Clyde which seem to me to be of interest in the present context. At p.24 he said:
"So far as concerns road accidents in Scotland, it is an essential element in the constitution of a crime at common law that there should be either an intention to commit a wrong or an utter disregard of what the...
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