Scottish High Court of Justiciary Decisons

At advising, on 18th March 1993:

LORD JUSTICE-CLERK (Ross)—This is an appeal at the instance of the Crown. The respondent is Andrew Harris. The respondent has been charged in the sheriff court at Glasgow on an indictment containing a charge which is stated in the alternative. The charge is in the following terms: [his Lordship narrated the charge as set out supra, and continued thereafter].

The respondent gave written notice that he intended to raise a matter relating to the relevancy of the alternative charge and a preliminary diet was held before the sheriff at Glasgow on 23rd September 1992. After holding a hearing, the sheriff sustained the preliminary plea to the relevancy stated on behalf of the respondent and dismissed the alternative charge as irrelevant. He did so having regard to Quinn v. Cunningham 1956 JC 22. The sheriff granted leave to appeal against his decision. The Crown have appealed against the decision of the sheriff in terms of sec. 76A of the Criminal Procedure (Scotland) Act 1975. The ground of the appeal is stated as follows:

"The sheriff erred in law in sustaining the plea to the relevancy of the alternative charge on the indictment on the grounds that the libel did not disclose a crime known to the law of Scotland."

When the appeal called before this court on 22nd October 1992, the Crown invited the court to remit the appeal to a quorum of five judges on the ground that Quinn v. Cunningham should be reconsidered. The court acceded to that request and the hearing before five judges has now taken place.

In opening the appeal, the Lord Advocate explained that the respondent was what is commonly called a bouncer or steward at a discotheque and as such was expected to exercise control over persons frequenting such an establishment; in particular, it had to be recognised that on occasions in the course of his duties a bouncer might find it necessary to seize and take hold of those frequenting the premises with a view to removing them therefrom. The sheriff had upheld the plea to relevancy upon the view that Quinn v. Cunningham laid down that reckless conduct was not a crime at common law unless it was libelled to be "to the danger of the lieges". That was not libelled in the alternative charge in this indictment and, accordingly, on the authority of Quinn v. Cunningham, the sheriff had sustained the plea to relevancy. The Lord Advocate submitted that it was not necessary in all cases to libel danger to the lieges; reckless conduct would be criminal if it was libelled either as being to the danger of the lieges or as having resulted in actual injury. He referred to a number of cases where charges had been held to be relevant on the basis that the reckless conduct in question had caused actual injury.

In H.M. Advocate v. McHaffie (1827) Syme, App. No. III a case of careless navigation of a ship was allowed to go to a jury where the accused was charged with "recklessly managing or directing a vessel or steam-packet, so as to cause it to run down, sink and destroy another boat or vessel, thereby seriously wounding and injuring the person of a man sailing in such boat or vessel".

In H.M. Advocate v. Lotto (1857) 2 Irv. 732 a railway signalman pled guilty to a charge of culpable violation of duty in consequence of which an accident happened and several persons were injured. In H.M. Advocate v. Young (1839) 2 Swin. 376 a plea to relevancy was taken of a charge which libelled:

"Culpable and reckless neglect of duty, by a workman, in the management or use of machinery, or mechanical apparatus, whereby lives are lost, or bodily injuries suffered, or the safety of the lieges put in danger."

The plea was taken upon the ground that it was not relevant to libel merely that the safety of the lieges was put in danger because, in order to constitute a crime, there must be a result produced or intended. The court recommended that the words "or the safety of the lieges put in danger" should be struck out of the indictment and that was done. This case is accordingly clear authority for the view that culpable and reckless conduct which causes actual injury is criminal. In H.M. Advocate v. Smith and McNeil (1842) 1 Broun 240 a charge of wickedly, recklessly and culpably discharging loaded firearms into an inhabited house to the imminent danger of the lives of the persons within the house was held to be a relevant charge. The Lord Justice-Clerk observed that to make a relevant charge of reckless conduct it was not necessary to show that there had been actual injury to a person. The Lord Advocate contended that these cases showed that reckless conduct resulting in actual injury would constitute a crime by the law of Scotland. The Lord Advocate also referred to Macdonald on the Criminal Law of Scotland (5th edn.), pp. 141–142. The view appears to be accepted that reckless conduct to the danger of the lieges is criminal and that such offences are "more heinous when injury results to the lieges". The learned editors add:

"In other cases, in order to make a relevant charge of danger to the lieges, it may be necessary to specify that injury resulted to some of them."

I agree with the Lord Advocate that these authorities support the proposition that reckless conduct which results in injury constitutes a crime under the law of Scotland. There was no dispute before this court regarding that and, indeed, senior counsel for the respondent expressly accepted that reckless conduct causing injury was a crime under our law. That being so, I see no need to embark on any detailed analysis of the theories which may be thought to justify the law being what I have held it to be, particularly when no detailed arguments were presented to us on that matter.

In Quinn v. Cunningham the accused was charged on a summary complaint with riding a pedal cycle in a reckless manner and causing it to collide with a pedestrian and injure both parties. The court held that as the conduct was not libelled as being "to the danger of the lieges" the complaint was irrelevant. In the course of delivering his opinion, at p. 24, the Lord Justice-General described the charge as consisting of two separate parts, "firstly riding a pedal cycle in a reckless manner, and secondly causing it to collide with someone whereby slight injuries resulted". For myself I would have thought that the proper way to read the charge was that it libelled riding a pedal cycle recklessly so that it collided with a pedestrian and injured him. However that may be, the Lord Justice-General went on to say, at p. 25:

"As the law stands, therefore, this complaint can only be relevant if it libels that degree of recklessness which constitutes the crime at common law, that is to say, a recklessness so high as to involve an indifference to the consequences for the public generally."

After citing a passage from the Lord Justice-General in McAllister v. Abercrombie 1907 S.C. (J.) 95, Lord Justice-General Clyde said:

"Judged by this standard the present complaint fails to satisfy what is required, for the words ‘to the danger of the lieges’, as an amplification of the recklessness, are not libelled in this complaint. It charges the appellant therefore with a degree of recklessness which does not constitute a crime."

It is thus clear that Lord Justice-General Clyde was holding that, in order to make a relevant charge of reckless conduct, it was necessary to libel that the conduct had been "to the danger of the lieges". He went on to say, at p. 25:

"Mere recklessness by a pedal cyclist followed by an injury to a foot passenger does not constitute a crime in Scotland, any more than mere recklessness in driving followed by a death would constitute culpable homicide."

He added:

"In the present case the injury to the foot passenger is in no way connected up with the recklessness, and it is not libelled as an element of that recklessness."

Lord Sorn had some doubt as to whether the charge did not disclose riding a bicycle recklessly to the danger of the lieges although the words "to the danger of the lieges" did not appear.

In my opinion, since there is ample authority for the view that reckless conduct causing injury is a crime by the law of Scotland, the case of Quinn v. Cunningham is an unsatisfactory decision. Insofar as it supports the proposition that it is not enough for the Crown to libel reckless conduct causing actual injury, I am of opinion that it was wrongly decided. Insofar as Quinn v. Cunningham supports the proposition that it is necessary in all cases to aver reckless conduct "to the danger of the lieges", I am also of opinion that it was wrongly decided. In my judgment there are two ways in which reckless conduct may become criminal. Reckless conduct to the danger of the lieges will constitute a crime in Scotland and so too will reckless conduct which has caused actual injury. Being satisfied that it was wrongly decided in these respects, I would move your Lordships to overrule Quinn v. Cunningham .

The relevancy of the charge was challenged upon another ground. Senior counsel for the respondent maintained that the respondent was being charged with the same crime in both the principal charge and the alternative. He appreciated that in the principal charge the respondent is said to have assaulted the complainer and seized hold of her and pushed her on the body and caused her to fall, whereas in the second charge he is libelled to have culpably, wilfully and recklessly seized hold of the complainer, pushed her on the body and caused her to fall. He submitted that both charges libelled assault and that it did not matter that the word "assault" did not appear in the alternative charge because it was not necessary in any indictment to specify by any nomen juris the crime which was charged, provided that the indictment set forth facts relevant and sufficient to constitute an indictable crime (sec. 44 of the Act of 1975). The alternative charge was a charge of assault. There was no need for the Crown to have included the words "wilfully" or "culpably and recklessly" as these words would be implied in a charge of this nature (sec. 48 of the Act of 1975). In both the principal charge and the alternative charge precisely the same conduct on the part of the respondent was averred. Senior counsel for the respondent further explained that the defence to both charges would be that the respondent had been carrying out his ordinary duties as a bouncer and lacked the mens rea necessary for assault.

The Lord Advocate accepted that the words "culpably" and "wilfully" added nothing to the alternative charge and were superfluous. He also accepted that if the respondent had merely been acting carelessly, that would not be sufficient to render his conduct criminal. He did submit, however, that the Crown was entitled to libel these alternative charges. If the Crown did not succeed in establishing that the appellant had the necessary mens rea for assault, they might still be able to show that he had been guilty of reckless conduct which had caused injury.

I have come to the conclusion that the argument of the Lord Advocate is to be preferred. I appreciate that both the principal charge and the alternative charge libel precisely the same conduct on the part of the respondent but, in my opinion, a different mens rea is required for each charge. As Sheriff Gordon points out in his Criminal Law (2nd edn.), para. 29–30:

"Assault is a crime of intent and cannot be committed recklessly or negligently."

"Evil intention being of the essence of assault, it differs from culpable homicide in so far as injuries happening from carelessness, however culpable, are not assaults" (Macdonald's Criminal Law of Scotland (5th edn.), p. 115).

The law draws a distinction between intent and recklessness (H.M. Advocate v. Phipps (1905) 4 Adam 616). Accordingly, I am satisfied that the charges truly are alternatives. It will be for the jury to determine whether the accused acted in the manner described in the indictment and if that is established then, although the accused was acting as a bouncer, the jury may conclude that when he seized hold of the complainer and pulled her, he had the intent necessary for assault; alternatively they may conclude that he lacked the intent necessary for assault but had displayed recklessness which caused her to fall and sustain injury. Of course, if the Crown fail to establish that the accused acted in the manner libelled or that he had the mens rea required for either of the alternative charges, they will acquit the accused. I would not anticipate that a sheriff would have any difficulty in giving a jury comprehensible directions in relation to this indictment. In my opinion a jury which has received proper directions should be well able to understand the difference between the alternative charges.

The sheriff sustained the preliminary plea and dismissed the alternative charge on the basis of Quinn v. Cunningham, which was of course biding upon him. As I have already indicated, in my opinion the alternative charge in this indictment is a relevant charge. I would accordingly move your Lordships to sustain this appeal, to reverse the decision of the sheriff dated 23rd September 1992 and to remit to the sheriff to proceed as accords.

LORD MURRAY —The issue raised in this Crown appeal is whether a charge of culpable, wilful and reckless conduct causing severe injury and permanent disfigurement, as an alternative to a charge of assault to severe injury and permanent disfigurement, constitutes a crime known to the law of Scotland. The Crown maintains that the alternative charge does relevantly libel a crime. The accused respondent contends that it does not. His plea to the relevancy of the alternative charge was sustained in the sheriff court. Against that decision the present note of appeal is taken by the Crown. This issue raises the question whether Quinn v. Cunningham 1956 JC 22 was correctly decided. A full bench was convened in light of the possibility that Quinn might require to be overruled.

In presenting the appeal the Lord Advocate referred to substantial authority prior to Quinn for the view that reckless conduct causing injury was a crime according to the law of Scotland. This was reflected in textbooks from Hume through Alison to Macdonald [Criminal Law of Scotland] (5th edn.) at pp. 141–142. Illustrative cases included H.M. Advocate v. McHaffie (1827) Syme, App. No. Ill; H.M. Advocate v. Latto (1857) 2 Irv. 732; H.M. Advocate v. Young (1839) 2 Swin. 376; and H.M. Advocate v. Smith and McNeil (1842) 1 Broun 240. These cases vouched the proposition that, to constitute a relevant charge of reckless conduct, it was sufficient to aver recklessness causing actual injury. The decision of the court in Quinn was a departure from this view. The doubt expressed by Lord Sorn was well founded. It was accepted that in Quinn the complaint did not libel recklessness "to the danger of the lieges". Lord Justice-General Clyde found this omission fatal because, as he says at p. 24, he regards the charge as consisting of two separate parts "firstly riding a pedal cycle in a reckless manner, and secondly causing it to collide with someone whereby slight injuries resulted". By this approach he does not allow for recklessness to be qualified by the attribute of causing actual injury. On the authorities an inference of danger to the public was to be drawn from actual injury caused. As Lord Sorn put it, "it might be argued that the statement of that fact was equivalent to making use of the nomen juris". Section 48 of the Criminal Justice (Scotland) Act 1975 provided that it was unnecessary to use qualifying words such as "wilfully" or "culpably and recklessly" in indicting for a crime. Section 44 of the Act rendered it unnecessary to specify a charge by any nomen juris,it being enough that the indictment sets forth facts relevant and sufficient to constitute an indictable crime. The case of Quinn should be overruled and the previous common law view affirmed.

Counsel for the respondent took his stand upon the position that the alternative charge properly construed did not disclose a crime or was simply a charge of assault. It was not necessary to use the actual word "assault", provided that the libel amounted in law to assault. In fact the narratives in the assault charge and in the alternative charge were identical, so that a conviction on the alternative charge would amount as a matter of law to a conviction for assault. Seizing and pushing to severe injury constituted assault, given that there was mens rea. Carelessness, negligence or even recklessness could not provide mens rea without an element of danger, express or implied.

In my opinion the court in Quinn were right to emphasise the 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. That quality of recklessness can be averred by the phrase "to the danger of the lieges" as the case of Quinn asserts. But that quality of recklessness may also be inferred from averments that the reckless conduct in fact caused substantial injury to another person. It is to be noted that the case of Quinn involved no more than a summary charge and it was averred that only slight injuries resulted. Further, the case involved what was in substance a minor road traffic offence. Those considerations incline me to the view that Quinn was rightly decided on its facts and the particular terms of the charge. But insofar as the case asserts that the phrase "to the danger of the lieges" or words to that effect are necessary for a relevant charge of reckless conduct, I beg to differ, on the basis of the line of authority on which the Lord Advocate relies.

I turn now to deal with the respondent's contention that no true alternative is libelled—just the same species factiinferring a crime which is in law assault, whatever it may be called. The words "seize" and "push", it was said, described modes of assault or attack upon the person. If the seizing or the pushing were done with criminal intent, it was assault. While this contention is persuasive it is, I think, fallacious. Not all seizing or pushing is done with intent to injure, which is the mens reanecessary for assault. Persons such as policemen, bus conductors or ambulancemen and others have from time to time to seize and push people, without any criminal intent, in the course of their employment. I do not think that a bouncer is in a different position. He may have to eject people from the premises for which he is responsible by manhandling them with reasonable force. No criminal intent can be imputed to that. Of course, even lawful handling of another may spill over readily into assault. However, if reasonable force is not exceeded, ejection may none the less be culpably reckless, I consider, if insisted upon in face of danger to the person being ejected or to that person's actual severe injury. In my view, the alternative libel amounts to this, even if it is not too obvious from the wording used in the charge.

For the foregoing reasons I agree with your Lordship in the chair that this appeal succeeds. I also agree that Quinn v. Cunningham should be overruled insofar as it asserts that an averment of danger to the lieges is required for a relevant charge of culpable recklessness.

LORD McCLUSKEY —The indictment in this case contains what appear to be two charges, expressed in the alternative. The first, which is a charge of common law assault, avers against the pannel that [his Lordship quoted the first charge, as set out supra, and continued thereafter].

It is thus in the ordinary form for such a charge: it avers a date, a place and a series of acts allegedly done by the pannel on the occasion specified. It also, by way of notice, alleges that the person on whom the acts were done suffered certain consequences, that is to say, she was caused to fall downstairs and on to the roadway where she was struck by a motor vehicle and severely injured and disfigured; such consequences constitute aggravations of the charge of assault.

Section 44 of the Criminal Procedure (Scotland) Act 1975 provides:

"It shall not be necessary in any indictment to specify by any nomen juris the crime which is charged, but it shall be sufficient that the indictment sets forth facts relevant and sufficient to constitute an indictable crime."

Despite that, but in accordance with the usual practice in assault cases on indictment, the charge which I have quoted does specify the nomen juris of the crime charged. But, even if it had not done so, the narrative of the facts there set forth would certainly have been understood as one setting forth facts relevant and sufficient to constitute an indictable crime. Any Scots criminal lawyer would have known from the narrative itself precisely what the crime was: it was common law assault (with aggravations). In our practice the Crown usually includes in the charge a nomen juris, but sometimes it does not. Thus, in a rape case, it is now usual to end the charge with the words "and you did rape her" (the older practice was to say "and you did ravish her", but "ravish" was simply a synonym for "rape"). Murder charges invariably contain the word "murder"—"and you did murder him". But a charge of which the nomen juris is "culpable homicide" does not use that precise term. It will commonly, though not invariably, contain the word "culpable" or "culpably" and will also use the word "kill", the associated noun of which is, of course, a synonym of "homicide". In some cases the crime itself is innominate: there is no nomen juris. An example may be found in Kerr v. Hill 1936 J.C. 71, where the charge was that the accused falsely represented to the police that he had seen a road accident between a pedal cyclist and an omnibus, thus causing the police to waste their time investigating an accident which had not occurred and also bringing the lieges under unjustified suspicion. In that context Lord Fleming said at p. 76, reflecting the provision now contained in sec. 44:

"The nomen juris of a charge is, however, immaterial."

Khaliq v. H.M. Advocate 1984 JC 23 is the best-known recent example of an innominate crime charged without a nomen juris. In that case the Lord Justice-General, Lord Emslie, quoted with approval the opinion of Lord Justice-General Clyde in McLaughlan v. Boyd 1934 J.C. 19 at p. 22:

"It would be a mistake to imagine that the criminal common law of Scotland countenances any precise and exact categorisation of the forms of conduct which amount to crime. It has been pointed out many times in this court that such is not the nature or quality of the criminal law of Scotland. I need only refer to the well-known passage in the opening of Baron Hume's institutional work, in which the broad definition of crime—a doleful or wilful offence against society in the matter of ‘violence, dishonesty, falsehood, indecency, or religion’—is laid down."

Lord Emslie then went on to notice the effect of sec. 44 (which is a re-enactment of a provision in the 1887 Act). However, for the most part, the modern practice is to specify a nomen juris in those cases which have a nomen juris and, I think almost invariably, in assault cases on indictment. This practice, however useful and common, may nonetheless disguise the fact that what matters is not the nomen juris but the averment of facts relevant and sufficient to constitute an indictable crime. If such facts are averred, the absence of the word "assault" will not matter, because the indictment will contain an indictable crime. If such facts are not averred, then the use of the word "assault" will not make the charge relevant. To put the matter shortly, therefore, the use of a label, a nomen juris, is an optional extra; the essential thing is to set forth facts relevant and sufficient to constitute an indictable crime. There can, in my opinion, be no doubt that the averment "you did assault" is not an averment of a fact of the kind that is mentioned in the final phrase in sec. 44; on the contrary, it is simply a specification of a nomen juris.

From that discussion of the first charge, I now turn to the so-called alternative charge. What it does is to set forth precisely the same averments of fact without, however, any specification of a nomen juris. What it also does, however, is to use a number of familiar adverbs, namely "culpably, wilfully and recklessly". As to these adverbs it may be remarked that, when this case was first indicted, the alternative charge did not contain the word "wilfully". Further, the Lord Advocate submitted to this court that the words "culpably" and "wilfully" added nothing at all to the charge and it would, he submitted, be a relevant charge if they were simply omitted. He also acknowledged that all these words, whether expressly included or not, were implied into the charge by virtue of sec. 48 which provides, inter alia:

"It shall not be necessary in any indictment to allege that any act of commission or omission therein charged was done or omitted to be done ‘willfully’ or … ‘culpably and recklessly’ … or to use any similar words or expressions qualifying any act charged, but such qualifying allegation shall be implied in every case."

The express inclusion in the alternative charge of these adverbs seems to me to risk obfuscating and confusing the issue because, in the context of the averments of fact, the word "wilfully" is quite contradictory of the word "recklessly" and the role of the word "culpably" is wholly obscure because it contradicts "wilfully" and is, in effect, no more than a milder version of "recklessly". However, the Lord Advocate submitted that what was really being averred was that the specified acts were recklessly done and that to do such acts recklessly, whether to the danger of the lieges or to the actual injury of one of them (as here), was to commit an indictable crime. He gave us examples of indictable crimes of this character. Senior counsel for the respondent conceded that certain kinds of reckless conduct causing injury or danger to the lieges would constitute an indictable crime. He gave us examples of indictable crimes of this character. This concession was, in my opinion, properly given and, like your Lordships, I am content to accept it and need not here reiterate the examination of the case-law on this matter by your Lordship in the chair and Lord Prosser. In certain circumstances reckless conduct which causes injury or endangers the lieges may well constitute an indictable crime. For that reason alone I have no difficulty in agreeing with your Lordships that the reasoning of the Lord Justice-General in Quinn v. Cunningham 1956 JC 22 is not supportable in the light of the full citation of authority which we were privileged to have.

But, and this I consider to be the essential point, what is averred in the alternative charge in the present case is a series of facts that do not constitute the crime of assault: otherwise the alternative charge would be a mere duplication of the first charge and the indictment would then be incompetent. So if it is not assault which is charged in the alternative, what is it? It is said to be—and it would have to be—something less than assault. The Lord Advocate acknowledged that it was not averred as a crime of negligence; he submitted, as I understood him, that the libel showed that it was a crime of intention. That being so, it appears to me that it might have been appropriate to use the word "wilfully" and omit the words "culpably" and "recklessly". However, we have to take the charge as we find it, with the Lord Advocate's acknowledgment that what was libelled was that the accused acted intentionally: the accused, in other words, intended to seize hold of Jane Breen; he intended to push her on the body. I do not see how it could be said that what is libelled does not involve intention. You cannot unintentionally "seize hold" of a person and unintentionally "push" her. That must be conduct which results from, and perhaps evidences, an intention. But if the accused intended to seize hold of Jane Breen and intended to push her on the body and did both these things, in that order, then that must be an assault, if the intent is found to have been evil. If it is not an assault, I do not know what it is. In the course of the debate the word "manhandle" was used in order to avoid begging the question at issue; but the charge does not talk about manhandling that was culpably excessive. It talks about wilful seizing and pushing. There is an obvious logical fallacy in using the term "manhandling" as a synonym for what is actually averred well in the words actually used in the indictment. A man who wilfully, intentionally seizes hold of a woman and pushes her on the body, thereby causing her to fall down a flight of stairs, is guilty of common law assault, provided he has the necessary evil intent, which is an essential ingredient in such a crime. (I have used the word "thereby" because the Lord Advocate in his submission said that that word fell to be implied before the word "cause".) Although evil intent is a necessary ingredient in the crime of assault, "evil intent" is not averred when the Crown charges an accused with assault. No doubt that is because the evil intent is treated, for the purposes of proof, not as a primary fact of which notice has to be given but as a secondary fact which falls to be proved by inference from the primary facts (principally the actings of the accused on the occasion in question).

I would have equal difficulty in understanding how one can "recklessly" seize hold of a person and push her on the body, thereby causing her to fall down a flight of stairs. That just does not seem to me to make sense. If I were the trial judge and I had to direct the jury as to what the alternative crime was, to tell them how they were to differentiate it from assault, and what state of mind it was necessary to prove on the second charge, I should not know how to begin. There was no reported case found in the careful researches of the Lord Advocate and counsel for the respondent in which a person who intended to seize another and manhandle that other by seizing, pushing and causing that other to fall, and who did these things, had ever been charged with any crime other than that of assault. I do not believe there is such a crime. It is of course not the function of this court nowadays to invent new crimes, nor indeed were we being avowedly invited to do so. This court can acknowledge, and characterise as criminal, conduct which is really a new way of committing an old crime. But it cannot be said that wilfully and recklessly seizing hold of a woman and pushing her on the body, causing her to fall down a flight of stairs, is a new way of committing an old crime. It is just an old, and all too common, way of committing an all too common crime, the crime of assault. It is always essential to give consideration before charging a jury as to the directions which are appropriate in relation to mens rea. On this indictment it would be necessary to explain to the jury what constituted mens rea in relation to the first charge bearing the nomen juris "assault". It would then be necessary to explain to the jury that, in relation to the second or alternative charge, they would reach that charge if, but only if, they had held that they could not infer the mens rea of assault. What then is the mens rea (not being that appropriate to the crime of assault) which turns the wilful seizing and pushing of the victim, thereby causing her to fall, into an innominate crime? Lord Prosser's discussion of the concepts of recklessness and danger, intent, gross negligence and the existence and foreseeability of possible harm to others—all of which the trial judge would have to consider explaining to the jury—serves to illustrate how unnecessarily sophisticated and remote from reality we are in danger of rendering the law when, in a matter of this kind, it should be simple and easy for juries to grasp.

I can well understand how in the past the court, applying the principles which Lord Clyde referred to in McLaughlan v. Boyd, discovered various innominate crimes, the common characteristic of which was that the conduct was reckless and unconscionable because it exposed the lieges to unacceptable dangers. Thus, as noted by Sheriff Gordon in his Criminal Law (2nd edn.) at para. 29–55, the court had recognised as indictable crimes such activities as the reckless discharge of firearms, the negligent driving of horses and railway engines, the negligent navigation of vessels, the negligent use of explosives and negligence in erecting buildings. But it appears to me that this series of extensions of the criminal calendar was necessary only when there was no known crime which fitted the facts. Where one has got an averment of wilful seizing of a person and pushing her on the body, thereby causing her to fall down a flight of stairs, there is absolutely no need to invent any innominate crime. The familiar crime of assault fits the bill perfectly. I should simply be repeating myself if I sought to take the matter any further. In my opinion, the alternative charge in the indictment is irrelevant on the ground that it does not disclose a crime known to the law of Scotland. In my opinion, there is no crime known to the law of Scotland consisting of wilfully seizing another human being, pushing her on the body and causing her to fall down a flight of stairs, except the crime of assault. As ex hypothesi the alternative charge does not contain a charge of assault, it cannot be relevant.

I appreciate that it is possible for a libel to contain averments of fact, proof of all of which would entitle the jury to convict of one crime or, alternatively, of another. The obvious example is a murder charge containing a narrative of violent assault. On such a libel the jury can return a verdict of murder or a verdict of culpable homicide, the difference between the two being warranted by the difference between the mens rea required for the respective crimes, or because some circumstance such as provocation warrants a reduction from murder to culpable homicide. But that is, I believe, a special case. Indeed, in that type of case there is never an alternative charge of culpable homicide set forth in the indictment (and based upon the same species facti). The trial judge none the less will direct the jury that, if the necessary mens rea for murder is not established, the alternative verdict of culpable homicide is open to them. I have never known it to be suggested, however, that on an assault charge, particularly one libelling wilful seizing and pushing, the judge should direct the jury that it is open to them to return a verdict not of assault but of wilful, culpable and reckless conduct to the danger of the lieges or to the actual injury of any of them. I can also readily envisage circumstances—quite distinct from those of common assault—in which culpable and reckless conduct involving physical manhandling of others could be charged as a crime. For example, if a person, whether acting out of high spirits or to escape the police or just for bravado, ran the wrong way down an upward-moving escalator, crowded with people, thus barging into people, he might be guilty of wilful, culpable and reckless conduct. But I doubt very much if that is how such conduct would be charged. It would obviously be charged as a breach of the peace. Similarly, in circumstances not amounting to assault, where a person is accused of manhandling the lieges in such a way as to put them in danger, he could certainly be charged with a breach of the peace. Accordingly, what the court is being asked to do is to sanction the inclusion in the indictment of a charge which is innominate, has no real precedent and, if it is a crime, is properly to be described either as an assault or a breach of the peace. I see no reason to lend my support to such a novel and unnecessary step.

We were informed that the accused was employed as a "bouncer" or steward in the premises at which the incident described in the indictment took place. In my view, the character of the accused's employment has no bearing whatsoever upon any matter of law that we have to decide at this stage. There is not one law for bouncers and another law for the rest. The common law in relation to conduct that might be characterised as constituting the crime of assault or of breach of the peace is the same for all persons, even though it is obvious that some, such as policemen, may well find themselves roughly manhandling persons whom they have to restrain in the course of their duty, without themselves being guilty of assault. The legal justification for not regarding as criminal their use of force in such circumstances would be the absence of the mens rea of assault. It may be that others, such as club stewards, might similarly receive the benefit of the doubt from the tribunal of fact if the evidence showed that their genuine and only aim was to preserve the peace and maintain good order at the place where they were employed. The evaluation of mens rea is a jury function to be exercised with common sense. None of this, however, has anything to do with the correct analysis of what this indictment properly means.

LORD MORISON —The terms of the indictment with which this appeal is concerned are set out in your Lordship's opinion. The first part alleges the crime of assault and no question as to its competency or relevancy arises. The second part is stated as an alternative to the charge of assault, but the respondent's actings which are libelled as constituting the alternative crime are the same as those which are alleged to have made him guilty of assault. The prosecutor has clearly intended to charge the respondent with having committed the acts libelled either with intention to injure the complainer, which is an assault, or, alternatively, with having committed the same acts recklessly whereby she was injured, which is not an assault.

The first question which therefore arises is whether the allegation in the alternative charge of reckless conduct causing injury constitutes a crime. This question is of general importance. If the allegation does constitute a crime, the further question arises whether that crime has been relevantly libelled in the present case as an alternative to the charge of assault. This question does not in my view raise any question of general importance. I do not understand any issues to have been raised in this appeal apart from the two questions to which I have referred.

In the sheriff court it was apparently submitted, as it was expressed by the sheriff, that "while it was an offence to engage in culpable and reckless conduct which endangered the lieges, it was not an offence culpably and recklessly to cause injury to a particular person".

This submission was primarily based on dicta in Quinn v. Cunningham 1956 JC 22 and it was in light of that decision that the case was heard by this court of five judges. But the submission was not advanced to this court, it being conceded on the respondent's behalf, that a libel containing an allegation of reckless conduct causing injury might constitute sufficient notice of a crime without specific reference to endangerment of the lieges. In view of this concession the question may be dealt with quite briefly.

I can think of no sensible reason why reckless conduct causing actual injury should to any lesser extent be capable of constituting a crime than the same conduct which merely endangers the lieges and I do not understand the case of Quinn to have decided the contrary. That case determined that a complaint libelling recklessness on the part of a pedal cyclist and that he caused the cycle to collide with someone, whereby slight injuries resulted, did not justify the inference that the alleged recklessness reached the high standard of culpability which was required to demonstrate what had been referred to in Paton v. H.M. Advocate 1936 JC 19 as "criminal indifference to consequences". I see no reason to doubt the soundness of that decision in light of the facts of the case, but there are passages in the opinion of the Lord Justice-General which go beyond it. These are to the effect that the words "to the danger of the lieges" are "required as an amplification of the recklessness" before any crime can be held to have been libelled.

I consider that these passages should be disapproved. The Lord Advocate cited ample authority to support the view that an allegation of resultant injury may be sufficient in itself to demonstrate the degree of recklessness required to constitute criminal conduct. It is unnecessary for me to repeat this citation of authority since its effect was not disputed. Thus I did not understand the respondent's counsel to submit that a jury would not be entitled to infer that the manner in which in the present case the complainer's injuries were said to have been sustained demonstrated a sufficient degree of recklessness to constitute "criminal indifference to consequences". In my opinion a jury would be so entitled and I see no difficulty in directing them on the matter.

Accepting as he did that an allegation of reckless conduct causing injury could constitute a crime, the only argument which, according to my understanding, the respondent's counsel put forward in the present case was that what was alleged in the alternative charge was not a true alternative to the first part of the libel, since both parts involved the same species facti on the part of the respondent and the same crime. This submission, as I understood it, entirely depended on the view that the alternative allegation that the respondent wilfully seized hold of the complainer and pushed her constituted the same crime, that of assault, which is contained in the principal charge.

I do not attach any significance to the word "wilfully". That word can imply reckless disregard for someone's safety as well as intention to injure that person and it provides no indication whether or not an assault has been alleged.

It was submitted that the deliberate acts of seizing and pushing the complainer were inconsistent with the allegation of recklessness. But the word "recklessly" is not used to indicate that these acts were other than deliberate, but rather to imply that the respondent performed them with culpable disregard of their consequences to the complainer. It is quite easy to envisage circumstances in which deliberate acts of seizing and pushing someone do not constitute an assault, although in the absence of any legitimate explanation they would be presumed to do so. The alternative charge assumes, contrary to the allegation in the principal charge, that such special circumstances existed, no doubt because the respondent was employed as a bouncer at a club and the legitimate performance of his duties in that capacity might have, in certain circumstances, involved him in deliberate acts of seizing and pushing so as to avoid some danger which he reasonably apprehended might occur. There is in my opinion nothing illogical in the allegation that he performed these acts recklessly and it is clearly possible to distinguish between the two alternatives as constituting two different crimes. The alternative charge is in my opinion relevantly libelled and I would accordingly allow the appeal and remit to the sheriff to proceed as accords.

LORD PROSSER —This is an appeal from the sheriff court in Glasgow. At a preliminary diet the sheriff upheld a plea to the relevancy of an alternative charge contained in the indictment.

The primary charge is to the effect that on 20th March 1991, at Tin Pan Alley, 39 Mitchell Street, Glasgow, the now respondent Andrew Harris assaulted one Jane Breen. What he is said to have done is:

"seize hold of her, push her on the body and cause her to fall down a flight of stairs and on to the roadway outside the said premises, as a result of which she was struck by motor vehicle registered number F594 CHS, then being driven in Mitchell Street … all to her severe injury and permanent disfigurement".

The alternative charge contains exactly the same factual narrative, but in place of the charge of assault, contains a charge that the respondent "culpably, wilfully and recklessly" did the same things.

The appeal has an odd procedural background, which I see no need to discuss. At the preliminary diet, for reasons which again I see no need to discuss, the sheriff proceeded upon the basis that, standing the decision in Quinn v. Cunningham 1956 JC 22, the alternative charge did not disclose a crime known to the law of Scotland. The present court has been convened in order that Quinn v. Cunningham may be reconsidered.

Both the decision in Quinn and the terms of the present indictment seem to me to be likely to cause confusion. I come to these matters later. But this case has been seen as raising a more general question and I deal with that first.

The submission for the Crown, that the alternative charge does indeed disclose a crime, rests upon this proposition: that reckless conduct causing injury to another is a crime at common law. Before the sheriff a contrary contention was apparently advanced to the effect that reckless conduct will only be a crime if it is to the danger of the lieges; and that a libel which fails to set forth that the allegedly reckless conduct was to the danger of the lieges will be irrelevant, notwithstanding that it may set forth that the conduct caused actual injury to another. Before this court senior counsel for the respondent accepted, as I understood him, that reckless conduct causing injury is indeed a crime. In my opinion he was plainly right to concede this and this court should affirm it.

I can see no basis in principle for holding that reckless conduct which actually causes injury is not a crime, while reckless conduct causing danger to others, but no injury, is a crime. It is not suggested that reckless conduct in itself, in the absence of either danger or injury to others, might be a crime. At the other extreme it is not in doubt that reckless conduct causing death is a crime. That being so, if the same conduct has caused injury rather than death, I should expect it in principle to be regarded as a crime. If anything, the doubtful case in principle would be that where no injury has resulted, although the safety of others has been put in danger. Furthermore, the various authorities cited to us by the Lord Advocate in the course of his submissions in my opinion demonstrate, convincingly if not always very clearly, the proposition that in our law reckless conduct which causes either danger or injury to others is a crime.

The case of H.M. Advocate v. McHaffie (1827) Syme, App. No. III, where one man had died and another had been seriously injured as a result of the same reckless conduct, shows both that such conduct causing such injury is a crime and that it is this result, rather than any danger, which in these circumstances completes the crime. H.M. Advocate v. Latto (1857) 2 Irv. 732 is another case of serious injury. The criminality of the conduct causing that injury was treated as analogous to the criminality of culpable homicide in non-assault cases. It was observed that "the criminal neglect was the same whether the persons here were killed or not". But it is also to be noted that the indictment, when dealing with the results which complete the crime, treats injury to the person and danger as alternatives. There is no suggestion in that case, any more than there had been in the earlier case of H.M. Advocate v. Young (1839) 2 Swin. 376, that where resulting injury is charged, danger must be so also. In H.M. Advocate v. Smith and McNeil (1842) 1 Broun 240 the sufficiency of danger as an element which makes reckless conduct criminal, even in the absence of injury, is clearly expressed. That was a case of the reckless discharge of firearms, but it is made clear, by the references to furious driving and reckless steering, that the "reckless conduct" element in the crime is not limited to any particular field of conduct. What is being said relates to reckless conduct of any kind and the sufficiency of danger, without injury, to complete the crime.

After a reference to this last-mentioned case and the example of reckless steering to the danger of passengers it is observed in Macdonald's Criminal Law, p. 142, that "Such offences are, of course, more heinous when injury results to the lieges." The passage continues as follows:

"But although acts of rashness such as those above described are punishable even where no accident follows, they are only held to be so because of their manifest wilfulness, and of the general danger caused by such wanton proceedings. In other cases, in order to make a relevant charge of danger to the lieges, it may be necessary to specify that injury resulted to some of them."

The first of these sentences seems to me to be a reasonably clear explanation of why, despite the absence of actual injury to anyone, the law none the less refuses to see the reckless conduct as a "bare" act with no consequences and treats it as having "caused" general danger. If danger is thus seen as a result of the conduct, the crime of causing such danger, like the crime of causing injury, falls quite naturally into the category of result-crimes. Moreover, while on first reading I did not really understand the second sentence which I have quoted, I have come to the conclusion that it is indeed consistent with the previous sentence and, indeed, with the line of authority to which I have referred. I do not think that it is being suggested that where, say, an individual has been injured, that specific injury is to be seen merely as evidence of danger to the lieges, with such danger constituting the essence of the crime. The sentence is, I think, dealing with a more limited class of cases, where some people have been injured, while others have merely been endangered. In such a situation the fact that some have actually been injured would go far towards establishing that the conduct which resulted in their injury constituted a danger to others nearby. And in some such cases it might be only the occurrence of such injury to some which would adequately demonstrate that the conduct involved danger to others. If, however, it is being suggested that, taking recklessness as established, there is only a completed crime if it has generally dangerous as well as specifically injurious consequences, then upon the basis of principle and the other authorities to which I have referred the sentence should in my opinion be disapproved.

I would add this in relation to those cases where there has been reckless conduct but no injury. It is important to make it clear that our common law does not treat as criminal conduct which, even though reckless, is truly to be regarded as having had no consequences. Where danger to others is the consequence which transforms the reckless conduct into a crime, it will be important to libel that and prove it. What complicates the matter, and has perhaps tended to confuse it, is this. Recklessness and danger are not unrelated concepts. I see no need here to embark upon a definition of recklessness: in relation to reckless conduct causing injury or danger it has in my opinion the same meaning as it has in relation to culpable homicide, where death has been caused by reckless conduct, and is not a crime of intent, with the death being caused by an assault. Whether one uses the word recklessness, or such descriptions as gross negligence, that is a familiar concept which I think is readily conveyed to and understood by juries. But it involves an assessment of duties owed to others, which in turn depend upon the foreseeability of harmful consequences. Analysis probably becomes unreal; but I think that one can say that 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 were foreseeably likely to cause injury to others, and which could correspondingly reasonably be called dangerous in relation to them. If that is so, then (i) the category of reckless conduct which is not to the danger of others will be empty or nearly so; (ii) it will make little or no difference whether one considers the recklessness of the conduct before the danger that it causes, or the danger before the recklessness, since the two are in practical terms interdependent; and (iii) even where the libel is to the effect that reckless conduct has caused injury, or indeed death, so that there is no need to libel danger as the result of the conduct, a judgment as to whether the conduct constituted a danger to others will in fact have to be made in this sense, that the existence and foreseeability of possible harm to others will be inherent in deciding whether the conduct can properly be described as reckless. I am not persuaded that there is any real difficulty in all this. But in cases where actual injury has resulted from the allegedly reckless conduct, I think the possibility of danger is relevant not as a result, but as an inherent element in recklessness itself.

I come to the present indictment. If reckless conduct causing injury is a crime, there is no need to libel danger, either to the person allegedly injured or to others. I did not understand counsel for the respondent to suggest that the alternative charge in the present indictment would be defective on that basis, if it were otherwise a relevant libel of reckless conduct causing injury. Moreover, although the alternative charge asserts that the respondent "culpably, wilfully and recklessly" did what he is alleged to have done, I did not understand counsel for the respondent to submit that the presence of the word "culpably" or the word "wilfully" rendered the alternative charge irrelevant, if in the absence of these words it would be a relevant charge of reckless conduct causing injury. I would, however, say that I have very considerable doubts as to whether the word "wilfully" should ever be coupled with the word "recklessly" in a libel where the essence of the crime is reckless conduct causing either danger or injury. The fact that certain of the acts included in the reckless conduct are in themselves conscious or intentional or deliberate acts is adequately expressed by referring to them as acts of the accused and does not make it necessary to describe the whole course of conduct as being "wilful" as well as "reckless". In my opinion, the word "wilful" should be reserved for crimes of intent. Moreover, in my opinion, the word "culpably", although it has a long history in such contexts, is superfluous and confusing in charges of this kind. Despite past usage, I should regard charges of this type as easier to explain and understand if the word "recklessly" were to be used without a run-up of other probably misleading terms. (In this connection, I would add that, in my opinion, in those cases where reckless conduct is not said to have caused injury and where a reference to danger is accordingly appropriate talk of danger to "the lieges" is unhelpful and undesirable: special legal terminology is often important, but danger to others can be referred to as danger to others, without obsolete terms which need explaining.)

Counsel's criticism of the alternative charge took a rather different form. It was emphasised that the whole factual narrative was identical in the primary charge and in the alternative. The only difference was that, in the primary charge, these acts were described as an assault, whereas, in the alternative charge (ignoring the words "culpably" and "wilfully"), they are described as "recklessly" done. Both charges were really the same. They were indeed not merely the same: the factual narrative was one of an attack on Miss Breen of the type which would constitute an assault. While the alternative version of the charge omitted the word "assault" and added the word "recklessly", that extra word would be implied by statute into the primary charge in any event and the presence of the word "assault" as a nomen juris was not essential. Reference was made to the Criminal Procedure (Scotland) Act 1975, secs. 44 and 48.

In my opinion, these criticisms are misconceived. The bare facts set forth in a libel may constitute one crime and no other. Even in such a case, proof of the crime will require not only proof of the essential facts libelled, but proof also of what need not be mentioned in the libel—the mens rea appropriate to that crime. In other cases the facts set out in the libel may be relevant and sufficient to constitute not one crime only, but any one of two or more crimes, the appropriate verdict depending on the full facts established in evidence and, in particular, the nature of any mens rea so established. Such alternative verdicts may be open within a single charge, based on a single narrative of fact. Indeed, in view of the terms of sec. 48 of the 1975 Act, I think that a verdict of reckless conduct causing injury would at least theoretically have been open to a jury if the present indictment had contained only the primary charge, since the reference to assault could be deleted and the implied reference to recklessness relied upon. But that possibility is probably theoretical rather than practical, since upon such a charge standing alone in an indictment the Crown would in most circumstances be regarded as having perilled its case upon proof of assault and the alternative of recklessness would not need to be put to the jury. In any event, if the Crown, at the time when the indictment is drafted, do not wish to peril their case upon proof of assault and wish to put before the jury the alternative possibility of reckless conduct causing injury, I am satisfied that the proper and fair course is to include that alternative expressly in the indictment, as has been done here.

If it were thought that there were alternative possibilities in relation to the basic narratives of fact, no doubt that might be reflected in the two alternative libels. That might have happened here, for example, if, for the purposes of the assault charge, the Crown had felt able to accuse the respondent of assaulting Miss Breen not merely by seizing her and pushing her (with the fall down the stairs as a consequence of the assault) but of an assault which included an intentional push down the stairs. It might be thought that a push of that kind could only be seen as an assault, with no room for regarding it as merely reckless conduct free of the mens rea of assault. In such a situation, if reckless conduct causing injury were to be brought in as an alternative, the factual narrative in the alternative charge would differ, being restricted to an accusation of pushing which caused the fall. But in a case such as the present I see no significance in the fact that the factual narrative is the same in both charges. The choice for the jury will not be a choice between two different basic accounts of matters. It will be a choice as to which of the two possible crimes, if either, they hold to have been proved, having considered the whole evidence and the differences between recklessness and the mens rea of assault.

I would add that if the alternative charge in this case stood as the only charge in an indictment, I should be very reluctant to hold that the terms of sec. 44 of the 1975 Act permitted the Crown to seek a conviction of assault. In any event, in a case such as this, where the Crown have explicitly separated the charge of assault from the alternative charge of reckless conduct causing injury, I am satisfied that upon a proper interpretation of the indictment as a whole, each of the alternative charges is to be read as limited to that crime with which it explicitly deals. In my opinion, these are genuine alternatives, properly libelled.

I should mention two perhaps separate aspects of the criticisms made of this indictment. First, I think that it was suggested that once one had allegations of seizing and pushing of this type, one had inevitably moved into the area of intentional attack amounting to assault, with no room, if the seizing and pushing were proved, for seeing them as simply reckless acts, devoid of the characteristics of an assault. Secondly, and perhaps correspondingly, I think it was suggested that the crime of reckless conduct causing injury could not really be constituted by acts such as seizing and pushing (which would more naturally be seen as the essence of assault) but was a crime which could only occur in circumstances where what was being done belonged to some category of action which generically required great care because of some obvious and general potential for serious damage to life and limb. On this view, reckless conduct causing injury could occur in relation to such things as the handling of explosives or fire, or the control of vessels at sea, or the driving of motor vehicles, but could not arise in relation to such ordinary daily actions as direct physical contact between people.

In my opinion, both of these criticisms are without foundation. Whether seizing and pushing amounts to an assault is a question of circumstances. For one person (and in particular a steward such as the respondent) to seize and push someone else could easily be an entirely innocent action, with such obvious aims as the protection of the person pushed from others who are out of control, making way for medical assistance or the like. Assault is not the only possibility and, in its absence, a want of care, possibly amounting to recklessness, remains on the cards. Nor is it true that one can only be reckless, in the required sense, in the "high-risk" situations suggested. In those situations, with their obviously high risks, it may be easier to establish recklessness, because of the high awareness of risk, and high standard of care to be expected in such circumstances. The nature of the activity will, generally speaking, make a finding of recklessness more likely than a finding of assault. Similarly, the simple and intentional nature of an act like pushing will in general make it easy to infer assault; and in almost all circumstances the very simplicity of the act and its limited potential for causing significant injury will make it absurd to suggest that it was reckless in the required sense. But these generalities do not create categories: just as the circumstances may demonstrate that a motor vehicle was driven not merely recklessly but as a weapon of assault, so also a push, even of relatively light force and with no element of assault in it, may be held to have been reckless, because of the particular circumstances and potential hazards at the particular place and time. The cases in which it will be appropriate to charge reckless conduct causing injury not on its own, but as an alternative to assault, are in my opinion likely to be very few; and the cases in which, after trial, both alternatives require consideration will, I think, be even fewer. But I see no basis in principle for the law laying down apriori areas of human activity from which either of these crimes is deemed to be excluded. Statutory offences are another matter; but I am satisfied that at common law these are ordinary jury issues.

I come to Quinn v. Cunningham . I am not sure that I can identify the ratio of that decision. The complaint opened with a charge that the accused did, at a time and place specified, "ride a pedal cycle in a reckless manner". If that had been all it said, and even if it had given a factual description of the recklessness with no indication that this caused either danger or injury, then I am satisfied that the complaint would disclose no crime. Even if it is possible to envisage conduct which is reckless in the required sense, without concomitant danger, danger or injury is part of the essence of the crime at common law. Moreover, the decision in Quinn is in my opinion plainly sound in identifying the degree of recklessness which is required at common law as being the degree identified in Paton v. H.M. Advocate 1936 JC 19, so that the creation of any offence, on the basis of a lesser or different degree of culpability would be a matter for Parliament and not the courts.

But I am left with two concerns. First, it seems to me that the Lord Justice-General has interpreted the word "reckless" contained in the complaint as meaning something different from the reckless disregard of consequences, or gross negligence, required by the Paton criterion. In my opinion, the word "reckless" should be read as an expression of that criterion and I do not fully understand why the complaint was read (if it was) as irrelevant in relation to the degree of culpability libelled. Secondly, however, the complaint did not stop after these opening words. It went on with the words "and did cause it to collide with and knock down Francis Conway … whereby both sustained slight injuries". The Lord Justice-General appears to treat this as a wholly separate matter and, on that basis, points out that this part of the complaint does not constitute a crime. I should have thought it clear that the complaint in that case (like the charges in this case) was concerned with a single matter, with the second part of the complaint specifying the mode of the recklessness and its consequences.

While the Lord Justice-General in Quinn did not read the allegation of injury as connected with the recklessness or an element in it, he deals with the submission that it was so connected. On that hypothesis, his concern is still that the appropriate degree of recklessness has not been libelled:

"Mere recklessness by a pedal cyclist followed by an injury to a foot passenger does not constitute a crime in Scotland, any more than mere recklessness by driving followed by a death would constitute culpable homicide."

And where dealing with matters more generally he treats crimes committed by reckless conduct as belonging in the same category as non-assault culpable homicide:

"The standard of culpability must be the same, whether its consequences are death or not"

(p. 25). While he emphasises the difference between "a reckless act which in fact happens to result in injury" and "a reckless disregard of the safety of the public which in fact does injure someone", I think that the essential distinction which he is there drawing is once more the difference between recklessness of the type required by Paton and "mere" recklessness of a lesser degree.

It is not clear to me why the inclusion of the words "to the danger of the lieges" in a libel should be read as raising the meaning of the word "reckless" from "mere" recklessness to "reckless disregard of consequences" of the type identified in Paton. In my opinion, since the common law in this area has no concern with lower or different degrees of recklessness, the word "reckless" in a libel is to be read as meaning recklessness of the appropriate degree, complete with all its implications as to the appreciation and disregard of consequences. If the meaning of the word "reckless" had been made plain, perhaps in other ways, to his satisfaction and if he had been persuaded that the causal link between the reckless conduct and injury had also been properly libelled, then I am not at all sure that the Lord Justice-General in Quinn would have seen any need to libel general danger as a result of the recklessness in addition to the actual resulting injury. I suspect that one comes back to the inherent role of danger in considering whether there has been a reckless disregard of possible consequences, and a confusion between the place of danger in that analysis, and the need for danger to others as a result of the reckless conduct in those cases where there is no actual resulting injury. In my opinion, the complaint in Quinn was relevant and, despite my doubts as to the precise ratio of the decision, I am satisfied that it should be overruled.

As regards the present case, I am satisfied that the alternative charge is to be treated as relevant, the only possible irrelevant element in it being, in my opinion, the use of the word "wilfully", which I think the Lord Advocate accepted should probably not be there and which was not treated by counsel for the respondent as destructive of the overall relevancy of the charge. I agree that the appeal should be sustained and the decision of the sheriff reversed.