[2017] SC PET 14





In the cause











In Reference to

Submission under Section 160 of the Criminal Procedure (Scotland) Act 1995





The Charge

[1]        Lyn Elrick is charged in this court that she vandalised a motor vehicle belonging to another in contravention of section 52(1) of the Criminal Law Consolidation (Scotland) Act 1995.

[2]        Section 52(1) of the Act is in the following terms:

“…any person who, without reasonable excuse, wilfully or recklessly destroys or damages any property belonging to another shall be guilty of the offence of vandalism.”


The Crown Case
[3]        The crown presented its case wholly by way of a joint minute of admissions.  In this document, it was agreed that in the early hours of 5 December 2016 the accused had damaged the motor vehicle concerned by repeatedly striking the windscreen with an unknown object, causing the windscreen to break.  On that date the vehicle belonged to parties who were unconnected to the accused.

[4]        The following facts were also agreed by way of the joint minute:

1.  That prior to 17 November 2016 the vehicle was jointly owned by the accused and her husband.

2.  That after the accused had damaged the vehicle and after she had entered her own motor vehicle she asked witnesses who were present not to call the police, explaining to the witnesses that the vehicle belonged to her ex-partner.

3.  That the accused made a reply to the police at the time of her detention and stated “Is it a crime to vandalise your own car?”


The Section 160 Submission
[5]        Mr Ormiston, agent for the accused, maintained that the inference from the agreed facts was that the accused was under the honest but mistaken belief that, as at the date libelled, she and her estranged husband were still the joint owners of the vehicle.  An honest but mistaken belief provided the basis for a defence to the charge (Jones and Christie Criminal Law Paragraph 8-49 at page 163).  A negative answer to the question posed by the accused at the time of her detention was, said Mr Ormiston, an accurate statement of the law.  If the accused honestly believed that she was damaging her own property, then that gave her an excuse for her actions.  It was for the crown to show that the excuse proffered by the accused was not a reasonable one (Gordon’s Criminal Law Third Edition Volume II paragraph 22.14 and the cases referred to at footnote 60).  There was nothing in the joint minute on the basis of which the crown could show that the excuse was not reasonable.  Accordingly, there was no case for the accused to answer.

[6]        I suggested to Mr Ormiston that, on the hypothesis that the accused held the belief for which he contended and that the belief was correct, the accused had damaged property belonging to another, albeit not exclusively.  His response was to assert that, in law, each joint owner has the right to the use of the property and to the fruits of the property to the fullest extent and even to the extent of damaging or destroying it.  That being the case, the accused could not be convicted of the offence of vandalising the vehicle because it was her property to the extent that she could do with it as she liked.  He said that it did not matter that there was another joint owner because that other joint owner had the remedy of damages under the civil law for any loss that he had sustained as a result of the accused’s actions.

The Crown’s Response

[7]        In a brief response, Mr McAlister, procurator fiscal depute, suggested that the proper inference to draw from the agreed facts was that the accused considered that the vehicle which she had damaged was, for all intents and purposes, her husband’s vehicle.  That that was the case was reinforced by the facts that the accused was estranged from her husband and that the accused had her own motor vehicle at the locus.  Mr McAlister also pointed to the accused’s assertion to witnesses who were present at the locus that the car belonged to her ex-partner.  Mr McAlister maintained that the accused was attempting to hide behind a technicality to escape conviction.


Discussion and Decision
[8]        Let us just assume, for the moment, that the only issue is whether or not the accused honestly but mistakenly believed that she was the owner of the vehicle to some extent.  That depends on an inference being drawn from the agreed facts.  For the submission of no case to answer to succeed, it would have to be the case that the only possible inference is that the accused did hold that belief.  But, taking the crown case at its highest for present purposes, the facts are capable of yielding another inference, namely that the accused believed her husband to be the sole owner of the vehicle.  That is enough for the submission of no case to answer to be repelled.

[9]        But, in any event, Mr Ormiston cannot be correct as to the legal consequences had the accused been the joint owner of the vehicle.  Whereas it may be correct to say that a person is entitled, with impunity, to damage or destroy property of which he or she is the sole owner it is not, in my view, true to say the same of jointly owned property.  By asserting that the other joint owner has a remedy in damages, Mr Ormiston acknowledged that it is a civil wrong for a joint owner to damage or destroy jointly owned property.  But, the availability of a remedy under the civil law does not exclude the application of the criminal law, as can be seen in the crimes of theft and assault to name just two.

[10]      All that is necessary, as regards ownership of the property concerned, for the offence of vandalism to be made out, is that the property belongs to another.  Returning to the earlier hypothesis, if the accused’s joint ownership of the vehicle permits of the description of the vehicle as being “owned by the accused” then the same must be true as regards the other joint owner.  That being the case, the vehicle can be said to have belonged to another, namely the accused’s estranged husband.  That is all that section 52(1) of the Act requires for the commission of the offence.

[11]      Again on the foregoing hypothesis, what the accused did by damaging the vehicle was to interfere with the property rights of her estranged husband to his patrimonial disadvantage.  In the case of Clarke v Syme 1957 JC 1 it was stated that the crime of malicious mischief may be established by proof of a wilful disregard of or indifference to the rights of others.  In my view, the same can be said of the offence of vandalism where, as in this case, the accused damages property of which she is only a joint owner.

[12]      It is true to say that the onus is on the crown to show that any excuse raised by the accused is not reasonable.  But all that the crown needs to do is to place the evidence before the court to allow the court to make its own assessment as to whether or not the excuse put forward by the accused is reasonable.  In my view, the task for the crown is no more onerous than that.  In the case of Murray v O’Brien 1994 SLT 1051, a case dealing with this offence in its incarnation under section 78(1) of the Criminal Justice (Scotland) Act 1980, it was said that “it was for the justice to determine on the facts whether the facts appeared to her to constitute a reasonable excuse.”  The same point was made in the case of MacDougall v Ho 1985 SCCR 199, a case cited by Mr Ormiston as being supportive of his submission given that the court had held that the justices were entitled to hold that the crown had not demonstrated that the excuse proffered by the accused was not a reasonable one.  In my view, the facts available at this point in the trial readily admit of a finding that the excuse put forward by the accused for damaging the vehicle is not a reasonable one.

[13]      At this stage of the case there is a sufficiency of evidence to show that the accused wilfully damaged the property of another without reasonable excuse and in these circumstances the submission of no case to answer falls to be repelled.