Scottish High Court of Justiciary Decisons

LORD JUSTICE-GENERAL (Clyde).—This is an appeal by stated case brought by the Procurator-fiscal in a complaint in which he charged the respondent with maliciously shooting and killing a sheep. The Sheriff-substitute found the respondent "not guilty," and the question in the case is whether, on the facts found proved by the Sheriff-substitute, he was entitled to take that course.

The respondent is the proprietor of three fields adjoining certain hill grazings which were let to a Mr Anderson. These three fields were separated from the grazings by a dilapidated dry-stone mutual boundary wall. For some months sheep from Mr Anderson's grazings had strayed over this boundary and had consumed crops on the respondent's fields. There were frequent complaints by the respondent to Mr Anderson on this score, but neither of the parties did anything to remedy the situation.

The Sheriff-substitute found that the erection of a suitable fence could have been completed in a matter of hours, but the respondent never appears to have considered adopting so simple and obvious a remedy; and from the facts in the case he would seem to have regarded the erection of boundary fences round his property as exclusively the obligation of his adjoining neighbours. That, however, is not the end of the matter. In January 1956 there was a fall of snow which still further facilitated the passage of sheep across the boundary wall, and on 25th January 1956 the respondent telephoned to Mr Anderson's wife and told her to inform her husband that, in view of the continued invasion by the sheep on to the respondent's fields, the respondent proposed to shoot the sheep if the trespasses were allowed to continue after the following Saturday, 28th January. This message was given to Mr Anderson by his wife, but he did nothing about it. The Sheriff-substitute further found that on Saturday, 28th January 1956, the respondent went to his fields armed with a gun, found at least one of Mr Anderson's sheep leaving the turnip pit, and shot it in the head at close quarters, killing it virtually instantaneously. On these facts the Sheriff-substitute held the respondent"not guilty" of the charge in the complaint; the charge being that between 27th and 29th January 1956, in a field forming part of the farm lands occupied by him, the respondent did maliciously shoot and kill a sheep belonging to a third party. The Sheriff-substitute's ground for holding the respondent "not guilty" is stated by him in the following terms:—

"The presumption of malice which is essential and is normally inferred in such cases was adequately displaced by the respondent's explanation (which I accepted) that in the circumstances he genuinely misconceived his legal rights in the matter, and further that his desire to vindicate his own property for the future in the face of such persistent provocation was excusable."

I am quite unable to accept either of these grounds as justifying the Sheriff-substitute in finding the respondent not guilty. A misconception of legal rights, however gross, will never justify the substitution of the law of the jungle for rules of civilised behaviour or even of common sense. The Sheriff-substitute indeed appears to have misunderstood the nature of the facts which require to be proved to establish the crime charged in this case. No question of a presumption of malice is involved in this crime at all. Malicious mischief either involves a deliberate and wicked intent to injure, or it may equally be established by proof of a wilful disregard of or indifference to the rights of others (see the opinion of the Lord Justice-Clerk (Aitchison) in the case of Ward v. Robertson, at p. 36). I accept this statement of the law as sound. If, as in the case of Ward v. Robertson, it was not clear whether the appellant knew that by doing what he did he was doing or was likely to do damage, the Crown might fail; for the necessary wilfulness might not then be present. But in this case no such doubt could possibly arise. The respondent in this case acted deliberately. He knew what he was doing and he displayed in his actings a complete disregard of the rights of others. The mere fact that his criminal act was performed under a misconception of what legal remedies he might otherwise have had does not make it any the less criminal. So far, therefore, as concerns the first of the two grounds for his conclusion set out by the Sheriff-substitute, it appears to me quite unfounded in law.

As regards his second reason for finding the respondent "not guilty" (namely, that the respondent's desire to vindicate his own property for the future in the face of persistent provocation was excusable), I have found in the case no facts which would warrant any such conclusion. A desire to vindicate his own rights of property is all very well in its proper place, but, when that involves the deliberate destruction of the property and the invasion of the rights of others, it ceases, in my view, to be excusable.

We were referred to two other authorities on the question of malicious mischief. The first of these was Black v. Laing . But in that case, which was concerned with the destruction of a fence across an access to the appellants' garden, the Court held that the conviction should be quashed upon the ground that the appellants were on the whole justified in removing the fence, since the only access to their garden was through the gap where that fence had been erected. This case affords no analogy nor assistance in the circumstances before us to-day. The other case referred to was a case of Speid v. Whyte . It was concerned with a relatively trivial injury to part of the harness attached to a vehicle, and here again the Court held that the circumstances did not warrant the conviction. But the ground upon which that conclusion was reached was that there was not in that case, in view of the trivial nature of the injury done, that degree of recklessness and wilful destruction of property which is essential to the constitution of the crime of malicious mischief. The killing of the sheep in the present case affords just that link which was missing in Speid v. Whyte .

In the whole circumstances, accordingly, in my view, the question put to us in this case should be answered in the negative, and I so move your Lordships.

LORD CARMONT .—I agree. Something was said in the course of the hearing of the case touching the sensible way of dealing with a dispute between proprietors having adjoining property as to the keeping up of boundary fences. I would like to say, in justification, perhaps, of the Sheriff-substitute in regard to this matter, that he may have had his mind distracted by reference to the Act for Winter Herding, which was represented to him as imposing an obligation on the owner of stock to keep his stock in and not on another person to fence his ground against his neighbour's stock. The attitude of the Sheriff-substitute towards this case may have been somewhat tinged by his view as to the application of the Act, but it affords no justification for the course that he took in disposing of this case.

LORD SORN .—This case affords a good illustration of the saying that "good fences make good neighbours," because it has clearly demonstrated the contrary proposition that bad fences make bad neighbours. What was needed here was a proper fence, and it seems to me a lamentable thing that these two neighbours had not got together to put their mutual boundary into a proper state long before matters got to the pitch to which this case shows they had got. As to what the respective rights and duties of the neighbours were, so long as the fence remained in a dilapidated condition, I am not prepared to express a definite opinion, because it may be that there are considerations depending upon the old Act of Parliament to which Lord Carmont has referred, but I would be inclined to think that, so long as matters remained in that state, the duty lay upon each of the neighbours to keep his stock upon his own land. If that is so, there is no doubt that Mr Anderson failed in this duty and that the respondent had a genuine grievance. Some damage was done to his property and, beyond that, he had the exasperation of having to leave what he was doing from time to time to go and chase out the intruders. It must be remembered that this state of affairs had been going on for a long time and that the respondent's irritation had no doubt been mounting. I say this in order to show that I can understand the respondent's feelings and I can understand how it came about that he did a thing like this, but that is as far as I can go. I cannot condone what he did. It would never do if Courts were to countenance farmers taking the law into their own hands and destroying other people's animals in this sort of way. If the respondent found the situation intolerable, the proper thing for him to do was to invoke the assistance of the civil law in the ordinary way.

It follows from what I have said that I think the Sheriff-substitute plainly erred in refusing to convict. He seems to have held the view that he could acquit because the act of shooting the sheep was motivated not so much by maliciousness against Mr Anderson as by a desire to vindicate his own rights. But this is a consideration, as your Lordship in the chair has pointed out, which is not relevant. The respondent knew the sheep belonged to Mr Anderson (or rather to those people on whose behalf he was herding) and he shot it deliberately. In a case like this, that is all that is required to constitute the offence of malicious mischief.