Scottish High Court of Justiciary Decisons

LORD JUSTICE-GENERAL (Clyde).—In this case the appellant was found guilty by a jury in the High Court in Perth of assaulting four persons on an estate in Inverness-shire, and wilfully discharging several bullets from a loaded rifle at them to the danger of their lives and thus attempting to murder them. No less than five shots were fired at intervals throughout the operation, and they struck the walls, windows or the door of the study where the four persons had barricaded themselves. At least two of the shots penetrated into the room, and one of them resulted in one of the occupants of the room being slightly grazed by the bullet or by something which ricochetted off the walls as a result of the bullet. The weapon employed was a .303 rifle with a high velocity bullet, fired from close range into the study, where the appellant knew the four persons had retreated for what safety they could secure. The whole incident apparently arose out of a violent quarrel which had taken place between the appellant and his mistress, who was one of the four persons in question.

The ground upon which the present appeal against conviction is taken is that under our law, so it is contended, a jury cannot find the appellant guilty of attempted murder unless they are satisfied beyond reasonable doubt that the appellant discharged the firearm at any of the persons named with the deliberate intention to kill. A direction to this effect was asked from the trial judge, who refused to give it, and the question is whether he was correct in so refusing. In my opinion he was.

The crimes of murder and attempted murder are common law crimes in Scotland and I do not find it helpful to seek to draw analogies from alien systems of law where the rules may for various reasons be different. This issue must be determined by the rules applicable to Scots law. In our law murder is constituted by any wilful act causing the destruction of life. (Macdonald on the Criminal Law of Scotland, (5th ed.) p. 89.) The mens rea which is essential to the establishment of such a common law crime may be established by satisfactory evidence of a deliberate intention to kill or by satisfactory evidence of such wicked recklessness as to imply a disposition depraved enough to be regardless of consequences. (See Macdonald in the same passage.) The reason for this alternative being allowed in our law is that in many cases it may not be possible to prove what was in the accused's mind at the time, but the degree of recklessness in his actings, as proved by what he did, may be sufficient to establish proof of the wilful act on his part which caused the loss of life.

In my opinion attempted murder is just the same as murder in the eyes of our law, but for the one vital distinction, that the killing has not been brought off and the victim of the attack has escaped with his life. But there must be in each case the same mens rea, and that mens rea in each case can be proved by evidence of a deliberate intention to kill or by such recklessness as to show that the accused was regardless of the consequences of his act, whatever they may have been. I can find no justification in principle or in authority for the view so persuasively put forward by Mr Cowie that the mens reain the case where life is actually taken can be established by evidence of a reckless disregard of the consequences of the act on the part of the accused, but that mens rea cannot be proved in that way where the charge is attempted murder. In the latter case chance or good fortune has resulted in a life being spared, but the wilful intent behind the act is just the same as if a life had in fact been forfeited.

I am confirmed in this conclusion by Alison's Criminal Law, vol. i, p. 163, where the learned author, dealing with the crime of attempted murder, states:

"In judging of the intention of an accused who has committed an aggravated assault, the same rules are to be followed as in judging of the intent in actual murder, viz. that a ruthless intent, and an obvious indifference as to the sufferer, whether he live or die, is to be held as equivalent to an actual attempt to inflict death."

No case was quoted to us which is binding on us in this Court which indicates that the legal position is other than I have stated, and it would, in my view, be illogical if that were the situation. On the whole matter, therefore, in my opinion, the attack on the direction by the judge in his charge has failed and the directions which he gave on this matter were proper and correct.

[His Lordship then dealt with the sentence, with which this report is not concerned.]

LORD GUTHRIE .—The main ground of this application for leave to appeal against conviction is set forth in the first reason. The other reasons which were not abandoned at the hearing were subsidiary, and really dependent on the success of the first.

The first part of the first reason is that the trial judge misdirected the jury in respect that he equiparated the mens rea necessary for attempted murder with that necessary for murder. As it is stated, I have difficulty in understanding that submission. Mens rea, or dole, in our criminal law is the wicked and felonious intention which impels the criminal to commit a crime. It is a state of mind which results in a criminal act, and I fail to see how there can be a distinction between the wickedness resulting in murder, and the wickedness resulting in an attempt to murder. Hume in his book on Crimes, vol. i, p. 21, describes dole 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."

During the argument, however, it appeared that the complaint of the applicant was against that part of the charge of the trial judge in which he dealt with the intention which is necessary to constitute an attempt to murder. The trial judge stated that "in our law the crime of murder is committed when the person who brings about the death of another acted deliberately with intent to kill, or acted with intent to do bodily harm, or, and this is the third leg, acted with utter and wicked recklessness as to the consequences of his act upon his victim." It was not disputed that this is a correct statement of the law in relation to murder if the word "grievous" is inserted before "bodily harm". But it was submitted for the applicant that in a case of attempted murder a jury is not entitled to infer intent to murder from "utter and wicked recklessness as to the consequences of his act upon his victim". Therefore, it was argued, the Crown can only succeed in an indictment of attempted murder if it proves deliberate intent to kill or to inflict grievous bodily harm. This contention is expressed in the second part of the first reason. Counsel for the applicant accordingly maintained that the trial judge erred when he directed the jury in these terms:

"… the law holds it to be murder if a man dies as a result of another acting with utter and wicked recklessness, and that because the very nature of the attack, the utter and wickedly reckless attack, displays a criminal intention. If such an act does not result in death, none the less the criminal intention has been displayed and is of a quality and nature which results in its properly being described as an attempt to murder."

In my opinion this direction is soundly based in principle and is supported by authority. An attempt to murder is an occurrence, a fact, which can be proved by any competent evidence sufficient to establish it beyond the reasonable doubt of a jury. The intention involved in the attempt cannot, as the trial judge pointed out, be proved by an examination of the mind of the accused. The existence of the intention is a matter of the inference to be drawn from the accused's words, or acts, or both. The inference is easy when the accused has threatened his victim, or has stated his intention to third parties. Again, even in the absence of such statements, the intention may be deduced from the conduct of the accused. Admittedly this deduction will properly be drawn if he has been seen to aim a deadly blow at his victim. Thus it becomes a matter for the jury to decide whether the actions of the accused satisfy them that he intended to murder the victim. A reckless act may well be such as to lead to that inference. For example, as was suggested by your Lordship in the debate, a jury would be entitled to hold intention to murder proved if a criminal recklessly sprayed a courtroom with machine-gun bullets, even if all their Lordships fortunately escaped injury, and it was not proved that the criminal aimed at any one or more of them. As it is put in Macdonald on Crimes, (5th ed.) p. 108, the act manifests the intention. I refer also to Alison on Criminal Law, vol. i, p. 163, where he said:

"In judging of the intention of an accused who has committed an aggravated assault, the same rules are to be followed as in judging of the intent in actual murder, viz. that a ruthless intent, and an obvious indifference as to the sufferer, whether he live or die, is to be held as equivalent to an actual attempt to inflict death."

I think that that is a correct statement of the law of Scotland, and that it fully supports the charge as given by the trial judge.

The view of the trial judge is, in my opinion, in accordance with the fundamental rule of our criminal law that dole may be presumed from the perpetration of the wicked act. The evaluation of the act and the inference to be drawn from it are essentially matters for the jury. I agree with your Lordship that the applicant's attack on the charge of the trial judge fails, and that the application for leave to appeal against conviction should be refused.

[His Lordship then dealt with the sentence, with which this report is not concerned.]

LORD CAMERON .—I agree that this application fails. In my opinion those portions of the presiding judge's charge which were submitted to attack by Mr Cowie correctly stated what our law requires to establish the crime of attempt to murder. There are necessarily three elements in murder as defined in our law, (first) proof of death resulting from certain acts, (second) that these acts should be the wilful acts of the accused, and (third) proof of the necessary criminal intent. This intent can be established in the law of Scotland either by proof of deliberate intention to cause death, or by inference from the nature and quality of the acts themselves, as displaying, in the classic words of Macdonald, "such wicked recklessness as to imply a disposition depraved enough to be regardless of consequences". Such reckless conduct, intentionally perpetrated, is in law the equivalent of a deliberate intent to kill and adequate legal proof of the requisite mens rea to constitute that form of homicide which is in law murder.

Where death does not follow from such an act, or acts, Mr Cowie conceded that, where a deliberate intention to kill is established, that was enough to constitute the crime of attempt to murder. This would necessarily be so whether injury was sustained by the party against whom the attempt was made or not. It was contended, however, that the mere commission of acts directed towards another or others which did not result in death or injury, but were wilful acts of such reckless character that, if death had resulted, the necessary criminal intent sufficient to constitute the crime of murder would be established, did not fall within the category of criminal conduct defined as attempt to murder. This contention, however, appears to me to seek to base a distinction in quality of the crime committed upon a difference in fact which is fortuitous and, in my opinion, irrelevant. It was not suggested by Mr Cowie that such actings would not constitute a crime, but it was maintained that they would do no more than constitute the crime of assault, possibly to the danger of life. I am not able to accept that contention. It seems to me that on principle the quality of the mens rea in a case of attempt to commit the crime of murder is not affected by the consequences of the acts constituting the criminal conduct if the mens rea necessary to constitute the completed act can be established either by proof of deliberate intent to kill or by the nature of the acts themselves. It would seem both to be logical and to consist with common sense that if the intent to commit the crime of murder can be established in two ways, both should be equally available in proof of the requisite intent of an attempt to commit that crime. After all, the subsumption of a charge of attempting to commit a crime must be that the criminal acts constituting the crime were perpetrated with the intent to commit the complete crime, an intent which was frustrated by circumstances outside or beyond the perpetrator's deliberate control. Therefore it would seem that the quality of the intent is the same in both cases and consequently in principle the proof of intent in both should be the same. This view of the matter would appear to get support from our most recent text writers of authority. Both in Macdonald, (5th ed.) p. 108, and in Anderson, (2nd ed.) p. 155, it is made plain that the necessary intent can be inferred from the acts of the accused. As Lord Anderson put it in dealing with the crime of attempt to murder, "the intent to murder is held to be proved when the injury done shows utter recklessness as to the life of the victim …" This appears to me necessarily to be so, and to be applicable even where by the accident of events no injury has followed upon the acts, because the quality of the criminal intent remains the same, whatever the consequences. The statements of the law contained in Macdonald and Anderson to which I have referred stand without contradiction or doubt cast upon their accuracy in any decided case, nor is there anything in Hume which is inconsistent with them (see, for example, Hume on Crimes, vol. i, pp. 179, 256) and they are entirely in accord with the passage from Alison which your Lordship in the chair has quoted. I therefore think that this attack on the accuracy of the direction given by the presiding judge fails.

On the other matters raised by this application I agree with your Lordships and have nothing to add.