HIGH COURT OF JUSTICIARY
THE HONOURABLE LORD CAPLAN
in the Examination of Facts
HER MAJESTY'S ADVOCATE
Act: Drummond Young, Q.C., A.D., Heaney
Alt: Jackson, Q.C., J. M. Johnston (Cassells & Co., Glasgow)
15 October 1999
The accused (hereinafter referred to as S) appeared at the High Court Glasgow and was originally charged with murder. S was born in December 1985. A preliminary diet over which I presided was held at Glasgow High Court on 8 and 9 July 1999. The accused had presented a Minute claiming inter alia that because of mental impairment he was not fit to plead nor to stand trial. I heard evidence including that of psychiatrists and a psychologist. In my consequent opinion I held that the accused was unfit to plead in terms of section 54(1) of the Criminal Procedure (Scotland) Act 1995.
The reasons for my finding that S was unfit to plead were that in view of his degree of mental impairment he would have been unable to follow procedure at his trial and unable to instruct a defence. This is set out in detail in my said opinion. As a result of my finding, in terms of section 54(1) of the said Act, I discharged the trial diet which had been fixed in the case and ordered that an Examination of Facts be held. This was heard before me at Glasgow High Court on 22, 23 and 24 September 1999. In the indictment the charge against S had been reduced to culpable homicide and was in the following terms that:
"on 3 June 1998 at the wooded area at the rear of Laburnum Road, Viewpark, Uddingston, you did assault the deceased, aged 9 years, and knowing that there was petrol on his clothing did set fire to petrol near to him whereby he was set on fire and was so severely injured that on 18 June 1998 at the Royal Hospital for Sick Children, Yorkhill, Glasgow he died and you did kill him".
Evidence was led by the Advocate Depute and by senior counsel who represented the interest of S. I was also presented with a Statement of Uncontroverted Evidence and with a Joint Minute of Admissions entered into by the parties. This, inter alia, agreed that the evidence led before me at the preliminary diet should be treated as part of the evidence in the Examination of Facts.
Findings in Fact
Having considered the foregoing material I was satisfied beyond reasonable doubt that the following facts were proved (1) S was born on 16 December 1985. He has a twin brother; (2) S suffers from a mild learning disability and from mental impairment. He has an IQ of only 76 which is significantly below normal. He has extremely poor abstract reasoning skills (these and his verbal vocabulary being at the level of a child of 8). He cannot understand analogies nor hypothetical concepts. Because of his impairment if he does not understand something he simply stops attending and this may not always be obvious to onlookers. He can only retain and comprehend the meaning of short sentences. He has acquired some skill at giving the impression that he can cope better than his actual understanding merits. These problems are all attributable to his mental impairment; (3) in the late afternoon of 3 June 1998 S and a friend, the deceased, met two young girls in Viewpark, Uddingston and S showed them a lighter which he possessed. The deceased was at the time aged 9. Later, about 7.00pm, the twin brother of the accused, called at the home of Ann-Marie Lannigan at 52 Redwood Crescent, Viewpark, and shortly thereafter left with a 5 litre container which was about half full of petrol. The canister belonged to the mother of the twins, and the accused's twin had indicated that his mother wanted the canister returned to her and that he would attend to this; (4) about 7.10pm S and the deceased met his twin in Woodview, Viewpark. The three boys then made their way to the wooded area at the rear of Laburnum Road. They did this by way of the garden of 188 Laburnum Road which permits entry to the wooded area known locally as the Glen. The three boys arrived at the Glen about 7.15pm and proceeded to an ash path which runs parallel to the houses on Laburnum Road. The boys moved a short distance along the path to a point where a large bush screened them from the houses which overlooked the path. One purpose for going into the Glen was that the deceased wanted to sniff petrol; (5) having arrived behind the bush the canister was handed to the deceased who removed the cap and attempted to sniff the petrol. Having done this for a short period he fell down on his back on the path. Whether he did this because he had been affected by the petrol fumes or was merely pretending that he had sniffed petrol is not clear. In any event his activities caused some of the petrol to spill from the open canister over his clothing and also onto the path; (6) when the deceased was lying on the path S was three to four feet away from his head. A small pool of petrol had formed at the feet of S; (7) the twin approached close to the deceased to take the petrol canister from him. After he had done this S asked him to move away. This he did and just as he did so S with a lighter applied a flame to the small pool of petrol. He knew that petrol was inflammable. When he ignited the petrol it flashed quickly across the space between S and the deceased. This caused the deceased's clothing to blaze up. That clothing, of course, was soaked in petrol; (8) as the petrol was lit, S jumped up but some sparks from the burst of flame got onto his clothing; (9) both S and his twin took steps to try and extinguish the fire on the deceased's clothing but this was only achieved when a nearby adult, Gerard Kanuskas (who had heard screaming) intervened; (10) as a result of the said incident the deceased suffered severe burning injuries. At about 7.42pm an ambulance was called and about 7.50pm police were called to attend; (11) at about 8.20pm the deceased was admitted to Monklands District and General Hospital and then transferred to the Intensive Care Unit of the Royal Hospital for Sick Children, Yorkhill, Glasgow; (12) the burning injuries received by the deceased covered approximately 50% of his body. Despite receiving full supportive care and treatment on 18 June 1998 he died. The cause of death was septicaemia due to the severe burns he had received as a result of the said burning incident; (13) at the time of the incident the weather was warm and there was little or no wind; (14) petrol vapour from liquid petrol can spread some distance from its liquid source depending on the wind, temperature and atmospheric conditions. Such a spread would not require spilled petrol along the route of the flame to facilitate its passage although if a trail of petrol was present it could enhance the burning. The petrol ignited by S caused a burning flash to proceed very rapidly from the pool of petrol to the clothing of the deceased. This flash would have been caused by the presence of petrol vapour. S did not understand that petrol could move along a vapour trail.
I should begin by indicating that the evidence in this case was very thin and appraising it is not free from difficulty. A pivot of the Crown case was a statement which had been given to the police by S on the day following upon the incident. Because of the age of S when he gave his statement and his mental problems I had to consider this statement very carefully. The statement was taken by Detective Constable Murdoch, accompanied by three other police officers, at Motherwell Police Office on 4 June 1998. The interview began at 20.07 hours and lasted until 22.10 hours. S was accompanied by his aunt. The interview was recorded on tapes (Crown Labels 13 and 14) which were played to me and the terms of the interview are set out in a transcript (Crown Production No.10). S at his interview offered what purported to be a full account of what had occurred during the incident. In particular he stated that the deceased had wanted to sniff petrol and for that reason he, his twin, and the deceased had entered the Glen. The deceased appeared to be sniffing petrol and he fell down onto the path. He lay on his back. S assumed that the fall was a consequence of the petrol. In any event during the petrol sniffing (when the cap of the canister was off) when the deceased had fallen to the ground, petrol had spilled onto his clothing. S noticed that there was a small pool of petrol at his own feet and for some reason which he could not explain he decided to ignite this. Throughout his statement he maintained that he thought that the deceased was too far away to be affected by a fire lit at the pool. He insisted that the deceased was his friend and that he would not have wished to hurt him. S accepted that he had asked his brother to stand back before igniting the petrol. Just before S lit the petrol his twin brother had approached the deceased and taken the canister from him. Thereafter he threw the canister into the nearby vegetation. It was never explained precisely why this had been done.
The twin brother of S gave evidence and in broad terms supported the statement of S. There were some discrepancies in the evidence of the brothers in respect of matters of detail. His brother could not remember S having asked him to stand back. The other evidence in the case was of narrow compass (although this may largely be attributed to the scale of the Joint Minute). Detective Sergeant Murdoch (the police officer who had led the interview by S) gave formal evidence about the interview. He also gave evidence about Crown Production 18 which was a sketch of the locus indicating the supposed positions of the affected parties at the time of the incident. This showed S quite close to the head of the deceased whereas his brother was shown a little distance from his feet. A number of witnesses Douglas Byrne, Gerard Kanuskas, Lorna Kanuskas and Susan Robertson spoke to events immediately after the fire. They had all seen the deceased before the ambulance arrived and said that he complained to S and asked him "why he had done it". To Mr Kanuskas he kept on saying "it was [the accused] who done it. It wisna me." A further neighbour, Susan Robertson, claimed that when she had seen the deceased (who was there with his father) he had said "It was the accused who threw the petrol". However none of the other witnesses referred to a statement to the effect that the petrol had been thrown and the deceased's father was not called to give evidence. A senior fire inspector, Samuel Bunch, explained the volatility and inflammability of petrol and in particular he explained that it was petrol vapour which ignited rather than the liquid so that a trail of vapour could cause a flame to travel along it. He explained that it was very dangerous to produce a flame or spark in the vicinity of petrol. A forensic witness, Ann Ramage, also gave evidence about the inflammatory properties of petrol. Finally Dr David Coghill, a consultant psychiatrist, explained that he had examined S and whereas S would have appreciated that petrol was inflammable he would not have been able to understand the volatility of petrol nor, in particular, its capacity to cause a spread of fire through the vapour it emitted.
At the end of the Crown case senior counsel for S submitted that he should be acquitted because there was no case to answer. I repelled this submission. On the following day the defence indicated that they did not intend to lead any evidence.
Submissions for the Crown
The Advocate Depute submitted that the issue in the case was whether S had killed the deceased by way of an unlawful act. He asked me to find that S had been guilty of assault and that this assault had caused the death of the deceased. If S was guilty of assault it followed that the acts set out in the charge had been committed by S because clearly it was the fact that S ignited the petrol that caused the deceased to die. The Advocate Depute indicated that he was no longer contending that S had thrown petrol onto the deceased. By setting fire to the petrol so close to the deceased, S must have appreciated the risk and thus effectively assaulted the deceased. S was presumed to have intended what would be the normal consequences of his actings. He had told his brother to step back so that he knew that there was a risk that fire would spread to the deceased who had been closer to him than his brother was. Even if S had merely wanted to give the deceased a fright, as a jest, given the risk involved in lighting a petrol fire his conduct would have amounted to an assault. The statement which S had given to the police was carefully analysed by the Advocate Depute. In any event S would have committed an offence by way of culpable and reckless conduct causing death. I was referred to schedule 3, paragraph 3 of the Criminal Procedure (Scotland) Act 1995 which provides that the words "culpable and reckless" will be implied in a charge. The test for reckless conduct was said to be an objective one and not subjective. I was referred to Allan v Patterson 1980 J.C. 57 and to Gizzi v Tudhope 1983 S.L.T. 214. I was also referred to Mathieson v H M Advocate 1991 S.C.C.R. 196 which was a fire raising case and to the Lord Advocate's Reference No.1 of 1984, 1995 S.L.T. 248. The Advocate Depute accepted that in the case of a child the standard of culpable recklessness may be rather less than in the case of an adult. However the age that is critical is the actual age of an accused. On the question of the effect of age on recklessness I was also referred to Gane & Stoddart "A Casebook on Scottish Criminal Law (2nd Edition) p.284, McCall Smith and Sheldon, Scots Criminal Law (2nd Edition) p.144, Jones & Christie, Criminal Law (2nd Edition) pps.56 and 91, and the article by Professor Gane in the Stair Encyclopaedia Vol.7, para.159. I was further referred to Clark v H M Advocate 1968 J.C. 53 as authority for the proposition that special circumstances less than insanity, provocation, or diminished responsibility are only an occasion for mitigation rather than exoneration. Finally I was referred to the case of H M Advocate v Harris 1993 J.C. 150 for the test of recklessness in relation to culpable and reckless conduct causing injury.
Submissions for the defence
Mr Jackson, Q.C., argued that a fright caused in the course of children's play would not be an assault. In any event, in the present case, there was no evidence that S had intended to play a joke on the deceased or to give him a fright. The essence of assault is wicked intent. Moreover in indictments specifically containing the charge of killing by way of assault it is not possible on such an indictment to bring in conviction based on culpable and reckless conduct since the mens rea in that event will be quite different from the intention to harm required for assault. A competent charge must either relate to a crime where wicked intention is required or to a crime such as recklessness where intent to cause harm is not a requisite (The Lord Advocate's Reference No.1, 1994, 1995 S.L.T. 248). The age and capacity of a child must be a factor taken into account in ascribing recklessness to a person.
This case raises some difficult issues and my decision is based on less than ideal evidence. However since the Crown have to prove their case it is proper that S should be the beneficiary of this. I have given very careful consideration to the statement to the police given by S. For such an incapacitated youth the interview must have been long and confusing. Fortunately neither party has sought to attach criticism to the manner in which the police conducted the interview. I never saw S in the witness box (which is understandable for his capacity to give evidence in a court situation is in doubt). However, the taped interview which lasted two hours was played to me. The answers given by S rather surprised me by their coherence. It was not suggested by the experts who gave evidence at the preliminary diet that S would have special difficulty in remembering straightforward events. He was interviewed soon after the incident and for the most part his statement had an intrinsic consistency. He appeared to be understanding the questions put to him and he answered them with an apparent understanding of what he was being asked. There was no indication of any guile or contrivance in his answers to most of the questions. Moreover in its significant features his statement was consistent with what his brother said in evidence. Indeed I got the impression that his brother had more of a problem giving evidence than S had had giving his statement. Of course I was informed that the brother suffered from a degree of mental incapacity equivalent to that of S. It is perhaps not surprising that the brother suffered some difficulty in giving his evidence. He was speaking to events which had occurred more than a year ago whereas S gave his statement on the day following upon the incident. It was noticeable that when his brother gave his evidence he often made facial grimaces which suggested that he was finding it a struggle to answer the questions which had been put to him. Looking to the whole picture I think that on most matters I could accept the statement of S as giving a reasonably accurate account of what had happened. I have no reason to disbelieve him when he said that he never intended to set his friend on fire nor thought that the flame which he had applied to the pool of petrol would have spread to the deceased. Just why he set the petrol alight is not clear. He may not know himself why he did this. It may be that the boys were fooling about and he wanted to give the deceased a fright to get him to his feet. While that is a possibility it is speculative and there is no evidence from which that scenario could be concluded. Earlier that evening S had shown his lighter to two young girls. It may be that he was proud of his lighter and anxious to try it out. That also is speculative. Whatever he was up to it is not at all clear that he anticipated harming the deceased. When S was examined by the police they suggested to him that they had witnesses who had seen him throw petrol over the deceased. If such witnesses exist they were certainly never led in court. Mrs Robertson indicated that she had heard the injured boy blaming S for throwing petrol over him. However a number of other persons saw him about the time she was talking of and none of them spoke to him making such a complaint. There is no reason at all to believe that S threw petrol over the deceased and the Advocate Depute did not contest this.
It is critical to the crime of assault that there should be an intention to harm the victim. That intention in my view has not been established in this case and I would be unable to conclude that S assaulted the deceased.
However, the Advocate Depute asked me to find that S killed the deceased by his culpable and reckless conduct. It is clear from the case of H M Advocate v Harris that it is an offence under our common law to injure someone as a result of culpable and reckless conduct. It is equally clear that if culpable and reckless conduct causes a death this can constitute the crime of culpable homicide. I did not understand defence counsel to contest this. The Advocate Depute contended, in terms of Allan v Patterson and Gizzi v Tudhope, that recklessness has to be determined on an objective rather than a subjective basis. I think that as a generality that must be so. Recklessness must be established by viewing the conduct employed against some general standard. Variations in the level of responsibility that can be expected from an adult cannot be adjusted to allow for every variation of intellect and understanding in the general population. Nor is it necessary, to establish reckless conduct, that the danger to the victim should be foreseen by the accused. It suffices that the danger should be foreseeable in which case the accused is reckless if he does not take the trouble to see it and take account of it. In H M Advocate v Harris Lord Morison indicates (at p.162) that to have criminal recklessness there must be a high standard of culpability. He says no reason to doubt the test stated in Paton v H M Advocate 1936 J.C. 19 where the Lord Justice General had set out the test as "criminal indifference to consequences". At p.165 of the report Lord Prosser states:
"in deciding that some conduct has been reckless, one will always be at least very close to saying that it involved a failure to pay due regard to foreseeable consequences of that conduct, which was foreseeably likely to cause injury to others and which could correspondingly reasonably be called dangerous in relation to them."
In the same passage his Lordship observes
"The existence and foreseeability of possible harm to others will be inherent in deciding whether the conduct can properly be described as reckless."
Lord Murray, for his part, after having referred to the case of Quinn v Cunningham 1956 J.C. 22, observes (at p.155)
"In my opinion the court in Quinn was right to emphasise a high degree of culpability required to be averred and proved before reckless conduct as a crime at common law could be established. Carelessness, negligence or even recklessness in general are not enough. There must, I think, be conduct deliberately done in face of potential danger to another or others in complete disregard of the consequences for him or them."
The observations on the requisites of criminally reckless behaviour which I have quoted are recent pronouncements on the matter in a case where the incidents of the crime of causing injury by reckless and culpable conduct had to be specifically considered. (Harris was a five judge case, although Lord McCluskey dissented). What is common to the approaches of the judges I have quoted is the requirement of a high degree of culpability. Moreover the conduct complained of must present a danger to others which is foreseeable. In my view the objectivity to be applied in relation to recklessness arises from the fact that it is unnecessary for the Crown to prove that subjectively the accused did foresee the damages. In considering culpable and reckless conduct the accused has a responsibility to take account of what generally would be regarded as serious foreseeable danger and it would not be a defence to say that he acted without actually having foreseen that danger. Thus in Gizzi v Tudhope the accused were shooting at clay pigeons and struck the complainer with the pellets. They had not foreseen that the activity would cause danger to others, but that was held to be an insufficient excuse because, theirs was a dangerous activity, and they should have applied their minds to the risk to others.
Now petrol is well-known to be a highly inflammable substance and if S had been a normal adult there can be little doubt that he would be guilty of culpable homicide. To set alight petrol when another was only a few feet away, and was known to have petrol on his clothing, was undoubtedly creating a serious risk and the danger should certainly have been obvious to an adult who thought about it. However, S was not an adult. He was a 12 year old boy. The crime of reckless conduct requires not only recklessness but culpability and that element would certainly require a failure to take account of what generally would be regarded as a foreseeable risk. Mr Jackson contended (and the Advocate Depute went some way to agree with him) that in setting the test of the degree of responsibility to be expected from a child some allowance must be made for youth. In relation to a child I would agree that if a child of a certain age would not have the capacity or experience to foresee a certain danger then the standard of conduct expected of him may have to be reduced. Thus, for example, an 8 year old child possibly could not be expected to appreciate the risk of playing with electrical devices close to water. Certainly children can act recklessly (and it may be that they are even more prone to do so than adults) but their capacity to appreciate the dangers they are creating may not always be sufficient to attach criminality to their conduct. Mr Jackson indicated that in the present case, the standard expected of S should be that of an 8 year old boy. I do not consider that the fact that S had certain limitations of capability more appropriate to a younger child did itself merit reducing his responsibility to that of a substantially younger child. Prima facie he must be expected to carry the degree of responsibility which could be expected from a child of his actual age. He was 12 years old at the time of the incident. In my view then, at first sight he is in some difficulty, because one would expect a 12 year old child to be aware (if he applied his mind to it) that to set fire to petrol in close proximity to another child with petrol on his clothes would create a considerable danger.
However, there is a special feature of S's position. It is not that he failed to take account of a danger which should be foreseeable to a 12 year old boy. The position is that because of his mental incapacity, through no fault of his own, he may well not have been capable of foreseeing what a reasonably careful 12 year old would have been expected to know. In my view one can only apply the objective foreseeability of a danger, to a person who has the capacity to recognise that danger. If a person closes his mind to a danger through drink, mindlessness, indifference or other such factors then he must expect to shoulder blame in culpability. However, it is difficult to see how a person could be held culpable and criminal for not reacting to a danger he could never have foreseen.
In the present case it is clear that the puddle of petrol that S ignited must have come from the canister which the deceased was playing with. Whether he spilled petrol on the ground while walking with the canister or whether the petrol flowed on to his clothing when he fell, and then onto the ground may be neither here nor there. One must, however, conclude that the petrol which S ignited had come from the canister which the deceased held and spilt. What seems clear is that the flame advanced from the pool of petrol to the deceased with a rapid flash. Both S and his brother emphasised the rapidity of the flash and I can accept them on that point. Thus obviously, for some reason, at the time when S applied a flame to the petrol there was a trail of vapour from the puddle to the deceased.
There are some passages in the statement of S which caused me some difficulty. Thus the transcript (at p.41) shows that he said, having been asked if he said anything to the deceased, "Naw, it wis ah hink ah says something tae ma brother like A get oot the wae the noo and then ah just done that a wee bit fae it, put ma haun right ower it and lit it and jumped back". Then he was asked if he had said anything to the deceased and he replied "naw". When asked why, he replied "don't know". S said that the deceased was sitting up when the light was applied and when again asked (p.42) if he had said anything to him he replied "he [the brother] helped him up and ah says '......, get oot the road' and he, he just walked away a bit and then ah went up". He was then questioned by the police as to whether his brother was not further away from him than the deceased and he replied "Well, he was stauning right next tae him at first and then ah says [the brother's name] get oot the road and then he just moved away". When asked why he had asked his brother to get out of the road, he replied "cause he wis stauning right next tae him. Ah says '[the brother's name], get oot the road' and he moved away". When asked why he had not asked the deceased to get out of the way since he was the one in danger, he replied "ah don't know. I thought [the deceased] would have moved if [the brother] moved".
The Advocate Depute relied strongly on the passages in the transcript which I have just quoted. He claimed that they showed that S in fact well appreciated the danger of fire. He had also asked his brother to stand back without issuing any warning to the deceased who was closer to him.
If S had been a normal child the Advocate Depute's contentions could well have been conclusive. However, I have got to take account of the evidence of the psychiatrists and psychologist who had earlier examined S. It was said that he had difficulty in coping with abstract and hypothetical concepts. He had no capacity for understanding the particularly volatile properties of petrol. He also had a tendency to present himself as understanding more than he in fact did. Moreover he had a very long interview and on the matter of his warning to his brother he was being rather pressed by the questioner. I have decided that the few sections of the statement which I have quoted would in all the circumstances be an unsafe foundation on which to construct a finding of culpable homicide. It has to be noted that the transcript, and that includes the passages I have quoted, contains regular denials that S appreciated that the fire he was lighting could ever have spread to the deceased. As he repeatedly states he thought that the deceased was too far away to be burned by the fire. The passages he was pressed on about the deceased being closer to the danger than the brother of the accused was, may just be the sort of abstract and hypothetical concepts which could have confused S. In any event I am not satisfied that at the critical point of time the deceased was necessarily closer to S than the brother was. It would appear from some of the answers of S that his brother was standing close to the deceased before S issued his warning. We are only dealing with a matter of a few feet and the brother must have been close to the deceased to grab the canister from him. In doing this he may have been moving about. In any event the brother cannot remember being asked to move back. S certainly knew that a flame he lit would cause some risk to persons who were very close to it but, given his general lack of understanding, I have no reason to disbelieve him when he repeatedly states that he did not know that the deceased was threatened by his actions. In all the circumstances I cannot hold that the charge that is leveled against S has been established in fact. If I am not satisfied that S committed an assault nor that he was indifferent to the risk of danger to another which he should have appreciated, then it cannot be said that the facts constituting the charge in the indictment have been established.
In the circumstances Mr Jackson's argument that the indictment would not have covered a charge of culpable and reckless conduct is not necessary to my decision. On the other hand the point made by Mr Jackson is a competency point and technically a decision on it should precede my views on the facts and evidence. The position is that I consider that the charge is sufficient to embrace both assault and culpable recklessness. The foundation of Mr Jackson's argument would appear to be H M Advocate v Harris. The question in that case was somewhat technical. A charge in an indictment contained a charge of specific assault, and also contained a specific allegation of having caused injury by culpable, wilful and reckless conduct which was stated as an alternative. The facts set out in support of each part of the charge were essentially the same. The competency of the charge was objected to on two bases but only the second is relevant to the present case. This was to the effect that there had been a double charging of the same crime since the alternative part of the charge was also contained in the first alternative. Four out of the five judges held that the crimes set out were competently charged since assault is quite a separate crime from reckless conduct in respect of the different requirements for mens rea.
The present charge is that of culpable homicide (although that crime is not specified by name). It is also interesting that the charge grew out of a murder charge (the original phrase "murder him" having been changed to "kill him"). Perhaps because of the special gravity of crimes involving homicide the rules for charging these offences have acquired distinctive features. Thus murder includes two modes of committing the offence with distinctive qualities of mens rea. Of course Mr Jackson argued that both aspects of murder could require the intent to harm arising from any degree of assault. While this is so, the intention required for one or other of the two tests for murder can be said to be quite distinct. One requires deliberate intention to kill. The other requires something less, namely inferred wickedness derived from a reckless indifference to the victim's life. If the present charge had remained as a murder charge it would not have been necessary to make any specific reference in the charge to culpable homicide. Nevertheless, conviction for culpable homicide would have been available as an alternative to murder. Moreover in my experience many judges will, where murder is charged, charge the alternative of culpable homicide in all its aspects including involuntary culpable homicide caused by a sufficient degree of culpable recklessness. The question is whether the homicide set out in a charge has a culpable quality attributable to the accused. The concept of culpable homicide when it arises includes a variety of degrees and types of mens rea. Of course, in directing the jury on the application of the concept of culpable homicide to the particular facts in the case, the trial judge will rarely develop the question of culpability due to mere recklessness. That is because that problem will rarely arise in practice. However the overriding consideration in any case of homicide is whether or not the homicide has arisen from actions of the accused deemed in law to be culpable.
In H M Advocate v Harris Lord Prosser points out that in a charge of simple assault the possibility of bringing in a conviction for causing injury by reckless and culpable conduct, is technically available because the introduction of "culpably and recklessly" is achieved in the charge by way of statutory implication. However, Lord Prosser proceeds to declare that not to charge the crimes as specific alternatives is unfair (page 166). However, because of the difference in pleading practice where the allegation is that a homicide has been committed in circumstances which are culpable, I see no reason why different degrees of culpable homicide should not emerge from the one charge. It might be confusing rather than helpful to spell out a charge of culpable homicide due to recklessness as an alternative to culpable homicide by assault when the latter would not normally be specifically pleaded in the charge at all. If in the present charge the word "assault" were held not proved that would leave the charge standing in relation to culpable and reckless killing. One of the practical disadvantages arising from rolling separate crimes into one charge without individual specification of the charges is that it may be awkward if the court does not know which part of the charge forms the basis for a conviction. No such problem should arise in the present type of case because if the jury bring in a verdict under deletion of "assault" the judge would appreciate that the basis of the conviction was culpable and reckless conduct. Although assault and reckless conduct may be separate crimes, the latter may be regarded as a lesser crime, lacking as it does a requirement of a malevolent intention to harm. Thus, whatever the pleading practice in relation to assault or reckless conduct involving mere injury, the fact that a charge raises culpable homicide will alert an accused to the fact that the Crown may be relying on a wider range of possibilities. The fact that a charge of homicide should comprise all possibilities of culpability could even have important practical advantages. If one were to suppose a land owner out shooting who shoots a poacher dead, a charge of murder would probably follow. The accused may give evidence and say that he had tried to apprehend the poacher while carrying a loaded gun which accidentally went off. To grapple with someone while holding a loaded gun might well be culpable recklessness. It would be curious that in such a case the accused were to be acquitted because the Crown had failed to charge his account of events as an alternative. The Crown would have succeeded in proving what they set out to do, namely to show that the facts set out indicate that a homicide has been committed which is culpable. Therefore, although the matter is not wholly free from difficulty I should have held, had it been necessary, that causing death by culpable and reckless conduct was a potential aspect of the charge. In all the circumstances I am not satisfied that S committed any part of the charge levelled against him and I accordingly acquit him in terms of section 55(3) of the 1995 Act. I have a considerable sympathy for the grief and concern of the family of the unfortunate deceased, but the fact seems to be that he was a victim of a most unfortunate accident, albeit that it was brought about by the uninformed act of S.