Scottish High Court of Justiciary Decisons

The cause called before the High Court of Justiciary, comprising the Lord Justice-General (Hope), Lord Allanbridge and Lord Cowie for a hearing on 6th January 1994. Eo die, their Lordships made avizandum.

At advising, on 14th January 1994, the opinion of the court was delivered by the Lord Justice-General (Hope).

OPINION OF THE COURT—The respondent was indicted in the sheriff court at Aberdeen on two charges. A minute of notice was lodged on his behalf in which it was submitted that the first charge was irrelevant because it disclosed no crime known to the law of Scotland. The sheriff heard argument on this matter at a preliminary diet, at the conclusion of which he upheld the respondent's submission and, on the motion of the prosecutor, granted leave to appeal. The prosecutor has now appealed to this court on the ground that the sheriff erred in law in sustaining the plea to the relevancy of this charge.

Charge (1) on this indictment is in these terms: [their Lordships quoted the terms of the charge as set out supra and continued:] Put shortly, the allegation is that the respondent broke into the house with intent to assault and rape the complainer. The respondent's contention is that the nomen juris "breaking into premises with intent to assault and rape" discloses no crime known to the law of Scotland and that as libelled the charge is irrelevant.

Before the sheriff much of the argument was directed to the question whether the libel disclosed a relevant charge of hamesucken. The procurator fiscal depute sought to rely solely on that argument. He submitted that it was not necessary in a charge of hamesucken for the libel to disclose that there had been an assault. But the Solicitor General informed us that he did not wish to support that argument, and we think that the sheriff was right to reject it. The point is of academic interest only, as hamesucken is no longer charged as a specific crime. It was always regarded as necessary, however, for there to be a relevant charge of hamesucken that there should have been an assault. The housebreaking was libelled as having been committed with the intention of seeking out and assaulting the person in his own house, but the person had also to have been assaulted there. As Macdonald on The Criminal Law of Scotland (5th edn.), puts it, at p. 118, hamesucken consisted in a violent assault upon a person in his own dwelling, the dwelling having been entered for that purpose. It was a capital offence at common law, but the practice now is to treat such an assault as aggravated by the housebreaking.

The argument which was developed before us by the Solicitor General was that for a person to break into someone's house with intent to commit a crime there is itself a crime. He did not suggest that it was a crime for a person merely to enter someone else's premises, or that it was criminal for a person to form an intention to commit a crime. His point was that the putting together of these two things, by breaking into or entering the premises with the intention of committing a crime there, was sufficient for the activity as a whole to be treated as criminal. Where the intention was present the housebreaking was part of the criminal activity.

He pointed out that it has long been recognised that it is a crime for a person to break into a house with intent to steal. He referred us to two examples taken from the volumes of indictments kept in the Crown Office of persons being charged with housebreaking with intent to commit fireraising. Margaret Morrison and others [H.M. Advocate v. Margaret Morrison and Others, unreported, Glasgow High Court, 1913] were charged with breaking into a dwelling-house in Glasgow on 23rd July 1913, conveying or causing to be conveyed there a quantity of firelighters and other materials, and placing them against a wooden door with intent to set fire to them and burn the house. Frances Gordon [H.M. Advocate v. Frances Gordon, unreported, Glasgow High Court, 1914]

was charged with breaking into a house in Rutherglen on 2nd or 3rd April 1914, conveying or causing to be conveyed there several packets of firelighters and other combustible materials, and depositing them or causing them to be deposited in the boot room of the house with intent to set fire to and burn the house. There is no record of there having been any challenge to the relevancy of these indictments, and the accused in each case were convicted as libelled. He referred also to Khaliq v. H.M. Advocate 1984 JC 23, at pp. 31–32 where Lord Justice-General Emslie said:

"It is of course not an objection to the relevancy of a charge alleged to be one of criminal conduct merely to say that it is without precise precedent in previous decisions. The categories of criminal conduct are never to this extent closed. ‘An old crime may certainly be committed in a new way; and a case, though never occurring before in its facts, may fall within the spirit of a previous decision, or within an established general principle.’ So said Lord Cockburn in his dissenting judgment in the case of Bernard Greenhuff (1838) 2 Swin. 236 at p. 274. In the case now before us it is to an established general principle that the Lord Advocate resorts in defence of the relevancy and sufficiency of the facts libelled to constitute an indictable crime, and that general principle is to be found in Hume on Crimes, i, 327 (3rd edn.) and, in particular, in the passage quoted by the trial judge in his opinion which I do not find it necessary to repeat. The general principle to be discovered from that passage is that within the category of conduct identified as criminal are acts, whatever their nature may be, which cause real injury to the person."

In the present case no injury to the person is alleged, but the Solicitor General submitted that the general principle was that it was a crime for someone to break into someone else's property with the intention to commit a crime there, and that on that general principle we should affirm the relevancy of the charge.

The Solicitor General indicated that he would be willing, if it was necessary for a nomen juris to be supplied, to amend the charge to one of breach of the peace. The sheriff was advised by the respondent's counsel that he would have no objection if the procurator fiscal were to seek leave to amend the charge to one of breach of the peace, but the procurator fiscal depute declined to amend the charge to this effect. As to whether this amendment would cure the difficulty, the sheriff tells us that he can recall from his own experience a similar case in the early 1980s in Glasgow where an accused was indicted on a similar charge as one of breach of the peace. The Solicitor General said that he also recalled this case as he was involved in it as counsel. His recollection was that the charge libelled a breach of the peace by breaking into the house with the intention of committing a rape there, and that the accused was sentenced to ten years' imprisonment.

Counsel submitted that the charge ought to have been libelled as breach of the peace, and he again said that he would offer no objection if the Crown were to move for the charge to be amended. But he also submitted that the last words of the charge, which state that what was done in the house was done "all with intent to assault and rape said [J.M.]" were irrelevant to a charge of breach of the peace. This was, he said, simply an expression of the respondent's motive in doing what he did, and motive was irrelevant. He referred to Ralston v. H.M. Advocate 1989 S.L.T. 474, where at p. 476B–E, the Lord Justice-Clerk (Ross) said:

"Whether or not any particular acts amount to a breach of the peace is a question of fact depending on the particular circumstances of the case. Since it

is a question of fact, it was for the jury to determine that matter. Whatever the appellant's motives may have been, it was for the jury to decide on the evidence whether his actings amounted to a breach of the peace. … No doubt the appellant was maintaining that all he did was by way of protest regarding the conditions under which he was held on remand, but whatever his reason was for taking the action which he did, the question for the jury was whether his conduct amounted to disorderly conduct or conduct calculated to cause alarm or annoyance, and thus constituted a breach of the peace."

On the issue as to whether the act of breaking into a house with intent to commit a crime there was itself criminal, he submitted that this proposition was not supported by any authority. He accepted that housebreaking with intent to steal had been declared in 1810 to be a crime by the court: Hume, i, 102; Macdonald, pp. 24 and 50. But he submitted that this was not decided upon any principle but was simply a declaration of an ad hoc crime. He said that the two fireraising cases were distinguishable because the acts were said to have been carried out in the house preparatory to committing the crime of fireraising there, and the libel was in effect one of attempted fireraising.

We do not think that it can be asserted as a general proposition that it is a crime for someone to do something which is not in itself a crime with the intention to commit a crime. Unless what is done is itself a crime known to the law of Scotland, the libel will fall short of what is required to make the charge relevant. The general principle upon which the relevancy of any charge must be determined is that only a completed crime or an attempted crime can be regarded as criminal. It is not a crime for a person to enter another man's house. If damage is done to the property that may be regarded as criminal, but the act of entering the house is not in itself a crime. Nor is it a crime for a person to form the intention of committing a crime. His action only becomes criminal when something is done by him with a view to committing it, in which event, if his action is interrupted at that stage, it may be regarded as an attempt to commit the crime which he intended to commit. The crime of housebreaking with intent to steal may be regarded as an exception to this principle. In H.M. Advocate v. McQueen and Baillie (1810) Hume, i, 102 it was held that a charge of breaking into a house or shop with intent to steal was a relevant charge. But as Gordon on Criminal Law (2nd edn.) para. 6–08 points out, this is an example of the common law creation of a preventive crime to fill the gap created by the fact that at that time attempted theft was not indictable. There is no longer a need to fill that gap, as an attempt to commit any crime is itself criminal: see Criminal Procedure (Scotland) Act 1887, sec. 61, re-enacted as sec. 63 of the Criminal Procedure (Scotland) Act 1975. If new preventive crimes are needed, this is best left to the legislature, as Lord Justice-Clerk Aitchison indicated in H.M. Advocate v. Semple 1937 J.C. 41, at p. 46. The question in that case was whether acts done with intent to procure an abortion of a woman who was not pregnant could be regarded as criminal.

As counsel for the respondent pointed out, with regard to the two charges of housebreaking with intent to commit fireraising, acts done with the intention to commit a crime may reach the stage when the crime of an attempt to commit a crime is being committed. We were not referred to any discussion of this matter in the authorities, and it may be open to question how far the accused must go in pursuance of his intention before he can be found guilty of an attempted crime.

On one view the crime of attempted fireraising is not committed until the stage is reached of setting light to the materials which have been introduced to create the fire. That stage was not said to have been reached in either of these two cases, and it may be that it was for this reason that they were not charged as acts of attempted fireraising. But the acts libelled, which included the introduction of the combustible materials and placing them into position with a view to setting light to them, could be seen as having been done in order to give effect to the intention and not just to prepare for it. On that view, by breaking into the premises and doing these things there, the accused were attempting to commit the crime which they were said to have intended to commit, although the final stage of setting light to the material had not yet been reached.

In Coventry v. Douglas 1944 J.C. 13 the accused was charged with inserting her hand into a money box with intent to steal therefrom. An objection that this libelled an intention to steal merely, which was not a crime, was rejected on the ground that, although not in the statutory form, the charge set forth all matters which required to be proved in order to establish the charge of attempted theft. Lord Justice-General Normand said this at p. 20:

"The mere presence of a person in a particular place may be only preparatory to the execution of the criminal intent, and not in itself an overt criminal act. But the insertion of the hand into a till or money receptacle is a further step which crosses the line separating preparation from perpetration, and it is an overt act although it never attains its purpose or goes beyond an attempt. The line of demarcation between preparation and perpetration cannot be defined in any general proposition, but here, I think, there is no doubt that the act described by the words used in the charge is clearly on the wrong side of the line. These words describe, not merely the act of one preparing to execute the intent, but an act in execution of the intent."

That case provides a simple example of an act done with the intent to commit a crime which amounted to an attempt to commit it. If such an act is to be treated as an attempt to commit the crime however, the proper course is for it to be libelled as such under the proper nomen juris so as to make it clear that what is described in it is being charged as a crime known to the law of Scotland.

Since the fireraising cases are capable of being explained in this way, that is as examples of attempted fireraising, we do not think that they can with safety be relied upon as authority that housebreaking with intent to commit a crime other than theft is itself a crime. We note that Gordon at para. 15–59 states that there is no authority for treating housebreaking with intent to commit any crime other than theft as itself a substantive crime, and we are not aware of any authority to that effect. If the charge is to be held relevant therefore it cannot be on the ground submitted by the Solicitor General as his primary argument. He did not ask us to regard this as a case of attempted rape or offer to amend the charge to this effect. We can express no opinion one way or the other therefore as to whether the acts libelled in this charge, according to which the respondent entered the house and did various things there all with intent to assault and rape the complainer in the house, constituted an attempt to commit the crime of assault and rape.

The question then is whether the acts libelled, together with the averments about the respondent's intention, can be regarded as a breach of the peace. There is no dispute that what the respondent is said to have done, by breaking into the

flat and doing the various things which he is said to have done there, constituted a breach of the peace. Counsel has all along conceded this point and the Solicitor General agreed with him, so no further examination of it is required. But counsel said that the averment that all this was done with intent to assault and rape the complainer should be deleted, as this went to motive only and was not relevant to the charge if libelled as a breach of the peace. In our opinion this submission is well founded. The statutory forms for a complaint of breach of the peace in Pt. II of the Summary Jurisdiction (Scotland) Act 1954 refer only to the actings of the accused and not to his intention to commit other acts or to the intention with which he committed such acts as he did commit. As the Lord Justice-Clerk pointed out in Ralston at p. 476B–C, the question is whether the accused's conduct was such as to amount to a breach of the peace, whatever his intention may have been in conducting himself in that way. In other words, the effect of his conduct must be judged by what he did or by what he said, not by reference to his state of mind or his intention or to things that he has not yet done. The concluding words of this charge refer to acts which the respondent had not yet committed but was intending to commit. But acts not yet committed cannot be held to form part of the disorderly conduct or be expected to alarm or upset the lieges. In our opinion these words have no place in a charge of breach of the peace, and if the charge is to be amended to one of breach of the peace they will require to be deleted from it as a condition of the amendment.

The Solicitor General indicated that he would be content to amend the terms of charge (1) to reflect the practice appropriate to a charge of breach of the peace if he were to fail on his primary argument. If the charge is amended to this effect, as indicated in this opinion, it will become relevant and it may proceed to trial. The appropriate place for the prosecutor to tender this amendment is in the sheriff court, so in order to give him this opportunity we shall allow this appeal by recalling the order pronounced by the sheriff on 12th November 1993 and direct the sheriff to proceed as accords.