APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Wheatley Lord Mackay of Drumadoon Lady Cosgrove	[2009] HCJAC 43 Appeal No: XC194/08 OPINION OF THE COURT delivered by LORD WHEATLEY in NOTE OF APPEAL by SAMUEL PETTO Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Act: Kerrigan, QC, Mason; McClure Collins

Alt: Prentice, AD; Crown Agent

30 April 2009

[1] The appellant appeared in Glasgow High Court along with four others on 4 October 2004 on an indictment which contained five charges including two of murder. He pled guilty to culpable homicide on charge 1 and to murder on charge 3. The charges to which he pled were in the following terms:

"(1) On 14 March 2004, at Flat Ground Right, 308 Allison Street, Glasgow you Samuel Petto did assault Arthur Thomas Rawlinson, then residing there, and did repeatedly strike him on the body with a knife or similar instrument and did kill him;

you Samuel Petto did commit this offence while on bail, having been granted bail on 22 December 2003 at Glasgow Sheriff Court.

(3) On 15 March 2004 at 308 Allison Street, Glasgow you Walter Charles Sneddon Thomson, James Mullen, Steven Patrick Telford and Samuel Petto did, whilst acting along with another, pour petrol or similar accelerant throughout Flat Ground Right there, and set fire to set premises as a result of which an explosion occurred and fire took effect on said premises whereby the block of flats at 308 Allison Street, Glasgow was extensively damaged and the flames, smoke and gases arising from said explosion and fire entered the common close and stairwell of said block and the other flats within said block as a result of which Myra Donnachie, then residing there, received injuries from which she died on 16 March 2004 at Glasgow Royal Infirmary, Glasgow, and you did murder her."

[2] The Advocate depute then withdrew the remaining charges on the indictment. Before this Court, Mr Kerrigan, senior counsel for the appellant, indicated that he now wished to withdraw the plea of guilty tendered by his client to charge 3. He argued that the narrative of the charge did not describe the crime of murder as understood in the law of Scotland. The charge as set out was only apt to cover the offence of culpable homicide. The plea of guilty to murder should therefore be allowed to be withdrawn.

[3] Mr Kerrigan argued that the indictment lacked any averment that the appellant knew that there was anyone inside the block of flats at the time the offence was committed, and further that there was no allegation in the libel that the appellant had committed any assault. Accordingly, both the actus reus and mens rea necessary for the crime of murder were missing from the charge. As an illustration, counsel referred to the indictment in a current prosecution for murder in Aberdeen High Court, containing inter alia one charge of murder and two of attempted murder, where the method said to be used to achieve the murder or attempted murder of the three victims was described as an assault in terms, by way of setting fire to the house, in the knowledge that the victims were within. Those charges therefore contained reference to both assault and knowledge, which were missing from the present indictment. Averments of deliberate intent, together with knowledge that other people might be put in danger by the unlawful act of wilful fireraising, were necessary to establish the quality of gross recklessness, which was essential for any conviction of murder. In the absence of such averments, the charge could only properly be described as one of culpable homicide.

[4] In developing his submissions, Mr Kerrigan emphasised that the crime of wilful fireraising, as described in the indictment, with the consequences narrated, could not be sufficient to support a charge of murder, because there was no allegation that the appellant intended to injure anybody. While it was specifically accepted that the appellant in the present case must be deemed to have known that, having regard to the circumstances and in particular to the time of night, the remaining flats in the block would have been occupied at the material time, it was submitted that that knowledge by itself would not establish the quality of gross negligence necessary for murder; rather it was descriptive only of ordinary recklessness following an illegal act, which in the law of Scotland would result in a charge of culpable homicide. The absence of any reference to assault was enough to remove the offence charged from the true definition of the crime of murder. Reference was made to HM Advocate v Purcell [2007] HCJ 13. In conclusion, counsel submitted that by being advised to tender a plea of guilty to a charge of murder in terms which did not sufficiently support the legal definition of that crime, the appellant must have suffered a miscarriage of justice.

[5] In response, the Advocate depute submitted that in a case such as this, much depended on the particular circumstances. In the present case, they were extreme. The appellant had killed the deceased named in the first charge, and then, along with others, had hatched a plot to conceal the crime by leaving the body in the ground floor flat described in the third charge, and then setting that house on fire. The building was a four storey tenement block containing eight flats in all, and the only access to all of the flats was by the common close. The flats were obviously occupied and at the material time it would be expected that the residents would be at home for the evening. Three cans of petrol were obtained and the appellant and another poured a large amount of petrol throughout the flat and ignited it. This caused a large explosion, which in turn led to the collapse of the dividing wall between the flat and the close. The windows of the flat were blown out, and the fire spread rapidly. The residents within the block heard a massive explosion, felt the building shake, and saw a fireball outside the flat windows. When a number of fire engines arrived to fight the blaze, they found the fire to be intense, and the building filled with heavy smoke. The deceased, Myra Donnachie, was discovered unconscious in the hall of her flat, overcome by smoke. She subsequently died. In presenting this agreed information to the court, the Advocate depute said that wilful fireraising was a serious and potentially dangerous offence, and was an unlawful act amounting to serious violence at a time when the appellant was, or must have been, aware that the other residents in the building would be put at serious risk of harm as a result. The Advocate depute submitted that in the circumstances of this particular offence of wilful fireraising, which he said displayed what amounted to wicked recklessness, together with the knowledge that there were other residents in the flat, constituted, in the light of the subsequent death of the victim, the crime of murder.

[6] As a subsidiary submission, the Advocate depute argued that the appellant's contention that there was insufficient specification in the charge to which he had pled guilty was at this stage irrelevant. He referred to Angus v Speirs 2006 SCCR 603, at para. [9]. We agree that at this stage, when a plea of guilty has been tendered and accepted, that no useful purpose can be served by analysing the terms of the indictment. Had a challenge to the relevance or specification of the charge, such as taken by the appellant's counsel in this appeal, been made at the appropriate time prior to trial, no doubt any necessary and suitable adjustment of the libel could have been undertaken, or the charge dismissed. In our view, the appropriate question for this court at this time is to consider whether, on the admitted facts, the crime of murder as understood in the law of Scotland can be said to have been committed. If it was, then irrespective of what was said in the indictment, there can have been no miscarriage of justice. We accept, however, that the case of Angus v Speirs was concerned with a summary complaint, and that a more rigid requirement of the specification of an offence, even after a plea has been tendered, might be appropriate in a charge of murder.

[7] Both sides considered the history of the law applicable to the crime of murder in some detail, particularly when it has been in the past associated with the crime of wilful fireraising. Hume, in his Commentaries on the Law of Scotland Respecting Crimes (4^th Ed) (i.24); Burnett; Treatise on Various Branches of the Criminal Law of Scotland (p.6) and Allison on the Criminal Law of Scotland (p. 52) all cite as murder cases where death has resulted from wilful fireraising, usually where the accused had no knowledge that the buildings set on fire were occupied. McDonald: The Criminal Law of Scotland (5^th Ed.), has a brief statement to the same effect (at p.91). However, it is now clear that such cases, which often depended on the idea of constructive malice to provide the necessary ingredient of guilty intent, are no longer part of the law of Scotland, and reliance cannot now be placed on them (Gordon on Criminal Law (3^rd Ed) (at para. 23.32)). That the doctrine of constructive malice has been discarded was confirmed by Lord Eassie in Purcell v HM Advocate 2007 SCHJ 13 at para [15], subject to a possible surviving trace in the case of death caused in the course of an assault and robbery.

[8] We note, nevertheless that McDonald goes on (at p.91) to state:-

"When death results from the perpetration of any serious and dangerous crime, murder may have been committed, although the specific intent to kill be absent. This is so where the crime perpetrated involves either wilful intent to do grave personal injury, or the wilful use of dangerous means implying wicked disregard of consequences to life."

This may, somewhat obliquely, appear to be reflected by a passage in Gordon (para. 23.32):

"It is submitted that death caused by a fire-raiser cannot be murder unless the fire-raising displayed wicked recklessness. It may be that in view of the serious nature of fire-raising this case forms an exception to the suggested rule that murder also requires an intention to cause physical injury, but in the absence of any authority it cannot be asserted that this is so."

These two authors therefore seem to leave open the possibility that if someone dies as a result of an act of wilful fireraising, the crime of murder may have been committed. This may reflect a reluctance to accept that someone who deliberately sets fire to a house can not be convicted of murder under any circumstances.

[9] The facts in Purcell were at least in one important respect different from those in the present case. In Purcell the essence of the charge of murder brought against the accused was that he drove a car in a way that could properly be described as grossly reckless, with the result that he caused the death of a young pedestrian. However, it was specifically accepted by the Advocate depute in that case that the intention to cause injury was absent from the indictment, which did not contain any allegation that the accused had assaulted the victim by driving the car at him. In the course of the appeal, the Advocate depute also specifically confirmed that it was not contended by the Crown, either in terms of the indictment or in the evidence to be adduced at the trial, that the accused had any intention of cause injury to the victim, or to any other person. The arguments in the case were concerned with the nature of recklessness in a charge of dangerous driving, as opposed to being a necessary ingredient of criminal intent. However, discussion also focused on the question of whether a wilful act was necessary to found a charge of murder, and whether that wilful act had to be an assault. Counsel for the appellant argued in Purcell that a prerequisite for any charge of murder was an assault, or an act intended to cause injury to the deceased, or at the very least, intended to cause physical harm directly linked to the deceased. In reply, the Crown maintained that the commission of a wilful act was not necessary for the commission of the crime of murder. Where an accused demonstrated a willingness to run the risk of causing death or serious injury, or where the accused's conduct created an obvious and serious risk of death or serious injury, a verdict of murder could be returned. In these circumstances, the Advocate depute argued that the court could treat as murder cases where death was caused by dangerous means, implying wilful disregard of consequences to life (McDonald, p. 91). This was the equivalent, it was said, of reckless conduct presenting an obvious risk of death or serious injury, and it was not necessary for the accused to have committed any wilful act, such as an assault. The only qualification to this proposition was that the reckless or grossly negligent conduct had to be sufficiently serious as to amount to wicked disregard of, or recklessness as to, the consequences to life.

[10] In considering these competing submissions, the Court in Purcell referred first (at para [9]) to the definition of murder customarily given to juries as found in McDonald (at p. 89):-

"Murder is constituted by any wilful act causing the destruction of life, whether intended to kill, or displaying such wicked recklessness as to imply a disposition depraved enough to be regardless of the consequences."

It was observed that McDonald was referring to any "wilful act". The Court then went on to consider the degree of recklessness considered in the next paragraph in McDonald:-

"The amount of recklessness which may constitute murder varies with circumstances ... If in attempting or perpetrating another crime a person uses serious and reckless violence which may cause death, without considering what the results may be, he is guilty of murder if the violence results in death although he had no intention to kill."

The Court concluded that (at para. [9]):-

"While it is of course true that the traditional McDonald definition of murder refers to 'wicked recklessness', it is our view evident from that subsequent discussion that the author is considering recklessness in the context of the consequences of an assault or at least an act, such as deliberate poisoning, intended to cause personal injury (though such poisoning is almost certainly also an assault). Also, in the case of death ensuing in the course of the commission of another crime, what McDonald has in contemplation is the use of serious and reckless violence during that other criminal enterprise."

With those conclusions we respectfully agree. Later on, the court in Purcell (at paras [14] and [15]) dealt with the earlier authorities concerning death following an illegal act such as wilful fireraising, but that discussion was confined to situations where the doctrine of constructive malice might apply.

[11] At this point it is perhaps helpful to cite the views on wicked recklessness given in Gordon at para. 23.19:-

"The intention to commit an assault is, therefore, not in itself sufficient mens rea for murder: it is necessary to go further and find some additional quality in the accused's intent. This additional quality is called 'wicked recklessness', or 'depravity', or 'wicked disregard of consequences'." (The accepted modern statement of the law contained in the passages from McDonald cited above are then quoted.)

The passage continues :-

"Murder is the most heinous of all crimes, and cannot be present in the absence of wickedness and depravity. It has been submitted above that generally the necessary wickedness may be inferred where the killing was intentional. Where the killing was unintentional but caused by an assault, wickedness and depravity must be found in the nature of the assault, which must exhibit 'wicked recklessness'. Recklessness is therefore not so much a question of gross negligence as of wickedness. Wicked recklessness is recklessness so gross that it indicates a state of mind which falls to be treated as being as wicked and depraved as the state of mind of a deliberate killer."

[12] The first essential ingredient therefore in a charge of murder where the element of mens rea is based on recklessness (in the absence of a specific intention to kill), is some form of wilful action which was carried out with the intention of causing physical harm. (It will be remembered that it was on a consideration of this issue that the Court in Purcell concluded that the charge was not murder, because of the agreed position that the accused had not intended to injure anyone). In this respect, consideration first has to be given as to whether this wilful action should consist in, and be confined to, an assault, in the narrow sense of that word. Assault is commonly defined as any attack upon the person of another. As the Court pointed out in Purcell (para. [9]), the act of poisoning would probably be regarded as an assault for these purposes. We consider that the same could be said for the offence of wilful fireraising; assuming that it is known (as it was deemed to be in the present case) that other persons were liable to be affected by the conduct, then the act of wilfully setting fire to a house could in our view reasonably be deemed to be an assault on the other occupants of the house. It is certainly a wilful act. However, we accept that there is no authority to guide us on this matter.

[13] The second question is whether the wilful action has to be directed exclusively at the individual who is subsequently killed thereby. This matter was not fully discussed before us and again there is apparently no relevant authority. However, we are inclined to the view that all that is required is that the accused demonstrated a clear intention to do physical harm to someone, or displayed such gross recklessness as amounts to the same thing. That in our view would be sufficient and we do not consider that wilful intention or gross recklessness must necessarily be directed at the person who is killed as a result. A further question apparently unresolved is whether it is enough that the conduct complained of is directed at causing physical damage to property as opposed to physical injury to an individual. We are of the view, again in the absence of authority, that such conduct would not be sufficient to constitute the recklessness required for murder, as the necessary knowledge that someone might be injured as a result of the conduct would appear to be absent. Finally, we should comment on the suggestion made in McDonald (at p. 91) that when death results from the perpetration of any serious and dangerous crime, murder may have been committed, although the specific intent to kill be absent. This proposition (as noted elsewhere), is unvouched by any satisfactory authority and we would consider that it can only properly be applied when the wilful conduct can be described or classified as an assault, or conduct intended to cause physical harm, rather than as a serious or dangerous crime. In that respect we agree with the Opinion of the Court in Purcell (para 17).

[14] So far as the second necessary ingredient in a charge of murder where mens rea is based on recklessness is concerned, that of wicked disregard of the fatal consequences, we are content to adopt the definition of wicked recklessness found in Gordon (para. 23.19) as recklessness "so gross that it indicates a state of mind which falls to be treated as being as wicked and depraved as the state of mind of a deliberate killer."

[15] Having described the two component elements of a charge of murder where the deliberate intention to kill is absent, it only remains to consider whether the facts of the present case can be applied to that definition. The argument for the Crown is that the act of wilful fireraising can be an assault, particularly where, as here, it is carried out in such an extreme and violent fashion, and in circumstances where it was likely that others would suffer physical injury as a result. Further, because it is accepted that the appellant must have known that there were other residents in the building, and having regard to the extreme nature of the fire which was set, it would be open to a jury to conclude that the setting of such a fire could exhibit the degree of recklessness necessary for the crime of murder to be committed.

[16] Because in the present case the elements of intention to injure has been introduced (thus distinguishing the case from that of Purcell) and also because of the concession by the appellant's counsel that there were other people in the block of flats, who would be liable to be harmed by the wilful conduct, we are of the view that the present indictment might have been apt to support a charge of murder. However, we accept that this may be seen as an extension of the existing categories of murder, and that there is at present no authority for some of the propositions that we have indicated are necessary for the Crown argument to be successful.

In these circumstances we are of the view that all of these issues are sufficiently suitable and important for consideration by a larger court. We therefore remit this appeal to a procedural hearing to decide on further procedure.