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PROCURATOR FISCAL, PETERHEAD AGAINST LYN ELRICK


Submitted: 17 May 2017

SHERIFFDOM OF GRAMPIAN, HIGHLAND AND ISLANDS AT PETERHEAD

 

[2017] SC PET 31

PHD/2016-1605

JUDGMENT (No 2)

 

OF SHERIFF PHILIP MANN

 

In the cause

 

PROCURATOR FISCAL, PETERHEAD

 

Pursuer

 

Against

 

LYN ELRICK

 

Defender

 

 

Peterhead,   May 2017

The Case

[1]        This is my verdict in the summary trial of Lyn Elrick over which I presided at Peterhead Sheriff Court and which concluded on 3 May 2017.  It involved a charge of vandalism in terms of section 52 of the Criminal Law (Consolidation) (Scotland) Act 1995.  The section provides:

“…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.”

 

[2]        It was agreed by joint minute that the accused had damaged a motor vehicle by repeatedly striking the windscreen with an unknown object, causing the windscreen to break.  It was agreed that, at one time, the vehicle had belonged jointly to the accused and her estranged partner but that, at the relevant time, it had been sold and belonged to a third party.  In an earlier opinion, PF Peterhead v Lyn Elrick [2017] SC PET 14, I concluded that, taking the crown case at its highest, the facts agreed by way of the joint minute were capable of yielding the inference that at the relevant time the accused believed her estranged partner to be the sole owner of the vehicle.  I concluded that that was sufficient for there to be a case for the accused to answer.  I went on to observe that, in any event, an honest but mistaken belief on the part of the accused that the vehicle was jointly owned by her and her estranged partner (which is what the accused apparently claimed to be the case) would not provide her with a reasonable excuse because it would still be an offence to wilfully damage property in which another person had an interest as joint owner along with the accused.

 

The Evidence for the Defence

[3]        On 3 May 2017 the accused gave evidence in her defence.  She called no other witnesses.  The accused described how the vehicle had been purchased in July 2016 with money provided jointly by her and her former partner.  She described that she drove the vehicle which was insured for that purpose.  The couple had split up and she had thereafter last seen her former partner drive the vehicle about 3 weeks before she damaged it.  She had not received any notification that the vehicle had been sold and as far as she was concerned the vehicle was still jointly owned by her and her former partner on the date when she had damaged it.  The accused advised that she had damaged the vehicle because her former partner had left her with a significant amount of debt and had refused to contribute towards it.  She now regretted damaging the vehicle.  Had she known that her former partner had sold it she would not have damaged it.  In cross examination the accused confirmed that only her former partner had driven the vehicle since the date of separation.  She agreed with a suggestion that she had damaged the car so that her former partner could not drive it.

 

Crown Submissions

[4]        Mr McAlister, for the crown, submitted that the accused had deliberately damaged the vehicle as a way of getting back at her former partner.  The vehicle had been used by him since he and the accused had separated.  The accused clearly knew that her former partner was a joint owner of the vehicle before it was sold to a third party.  The question was whether or not the accused had a reasonable excuse for damaging the vehicle.  The accused’s motivation had been to get back at her former partner.  There was no reasonable excuse even if the accused genuinely believed that she and her former partner were still joint owners of the vehicle as at the time when she, admittedly, wilfully damaged it.  In these circumstances the accused should be convicted.

 

Defence Submissions

[5]        Mr Ormiston urged me to accept that the accused held the genuine and honest, but mistaken, belief that the vehicle belonged jointly to her and her estranged partner when she damaged it.

[6]        As he was entitled to do notwithstanding the observations made by me when repelling his submission of no case to answer, Mr Ormiston renewed his submissions made at that stage.  He also expanded upon those submissions.

[7]        Mr Ormiston renewed his submission that a genuinely held belief by the accused that the vehicle belonged jointly to her and her estranged partner provided a reasonable excuse for her, admittedly wilful, action in damaging the vehicle.  This was because, had that belief proved to be correct, the accused would have damaged her own property.  Without reference to authority, Mr Ormiston submitted that an owner of property, whether a joint owner or an outright owner, was entitled to damage that property.  This, he said, was an incident of the law of property.  There was no criminal liability but, on the other hand, the other joint owner, in the case of jointly owned property, had a civil remedy by way of damages for the loss which he had sustained as a result of the accused’s actions.

[8]        Mr Ormiston suggested that if it were an offence to wilfully damage property which was jointly owned by the accused along with another party then a husband who, without the permission of his spouse, took it upon himself to hang a picture in the jointly owned matrimonial home or to demolish a garden shed within the grounds of such a home could be held to be guilty of the offence of vandalism.  He suggested that that would be absurd. 

[9]        The accused’s intention here was to damage property belonging jointly to her and her estranged partner.  There was no intention to damage the property of anyone else.  It so happened that the vehicle did, in fact, belong to someone else altogether but the doctrine of transferred intent did not apply (Blane v HMA 1991 SCCR 576 at page 583B).

[10]      For there to be a contravention of the statutory provision here it would need to be the case that that provision expressly outlawed damage to property of which the accused was only a joint owner.  It could be seen from the terms of section 1(1) of the English Criminal Damage Act 1971 combined with section 10(2) of that Act that this was what had been deemed necessary in England.  Section 1(1) of the Criminal Damage Act was the equivalent of section 52 of the Criminal Law (Consolidation) (Scotland) Act.  But, there was no equivalent of section 10(2) of the English Act to be found in the Scottish Act.  Section 10(2) of the English Act provides:

“Property shall be treated for the purposes of this Act as belonging to any person -

(a) having the custody or control of it;

(b) having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest); or

(c) having a charge on it.”

 

[11]      The phrase “having in it any proprietary right or interest” clearly included the right of a joint owner.  Since section 10(2) defined what property belonged to “a person” it necessarily referred to property of which the accused was a joint owner.  Therefore, in England, it had been specifically enacted that it was an offence in terms of section 1(1) of the 1976 Act for the accused to damage property of which he or she was a joint owner along with another person also having an interest as joint owner.  There was no such specific enactment in Scotland and therefore where, as here (on the hypothesis that the accused’s genuine belief was correct), the accused has damaged property of which she was the joint owner along with another person there could be no contravention of section 52.

[12]      Were it otherwise, there would be an issue of lack of specification of the charge.  This would amount to a breach of the accused’s rights under article 7 of the European Convention on Human Rights which protects a person from being held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.  This encompassed the principle that criminal laws have to be sufficiently clear and precise so as to enable individuals to ascertain which conduct constitutes a criminal offence and to foresee what the consequences of transgressions will be.  Mr Ormiston referred to the case of Smith v Donnelly 2001 SLT 1007 in which Article 7 had been discussed in the context of the common law charge of breach of the peace.

[13]      For all of these reasons, Mr Ormiston submitted that the accused could not be convicted of the charge.

 

The Verdict

[14]      Whilst Mr Ormiston presented his argument in an eloquent and temptingly attractive way I am unable to agree with his submissions, partly for the reasons that I expressed in PF Peterhead v Lyn Elrick which are echoed here as necessary.

[15]      Firstly, it is not the case that a joint owner of property can damage that property with impunity without the consent of the other joint owner.  This is acknowledged by Mr Ormiston when he confirms that the other joint owner has a civil remedy in damages.  There is no reason that I am aware of why the application of the criminal law should be precluded simply because of the availability of a civil remedy.

[16]      Secondly, the question whether a husband might be found guilty of vandalism for hanging a picture or demolishing a garden shed, as suggested by Mr Ormiston, would depend on the circumstances surrounding that behaviour.  For instance, reasonable excuse might be argued on the basis of inferred consent or on some other basis such as a desire to improve, rather than to detract from the value of, the property.  And, clearly, a common sense approach would need to be taken to such questions.  The circumstances of this particular case are very far removed from the kind of situations postulated by Mr Ormiston.

[17]      Thirdly, I do not accept Mr Ormiston’s interpretation of the rationale for the enactment of section 10(2) of the Criminal Damage Act 1971.  Section 10(2) sets out a definitive list of situations where property is to be treated for the purposes of that Act as belonging to a person.  Since it is a definitive list it was necessary to include property in which a person has any proprietary right or interest.  Otherwise such property would be excluded from the list.  Section 10(2)(b) does not distinguish between property belonging solely to a person and property in which a person has an interest only as joint owner and thus it refers to both.  There was no intention on the part of Parliament to innovate on the law of criminal damage so far as concerned property belonging solely to a person and there is no reason why it should be assumed that there was any intention to innovate on that law so far as concerned jointly owned property.  I am fortified in this view by referring to the Report of the Law Commission on Offences of Damage to Property (Law Com. No 29) dated 23 July 1970 which was the genesis of the Criminal Damage Act 1971.  Nowhere in that report can I find a reference to jointly owned property, far less any reference to the need to change the law to make it clear that, with the requisite mens rea, causing damage to property of which the offender is a joint owner would henceforth be a criminal offence.

]18]      In relation to jointly owned property, I take it that section 10(2)(b) of the 1971 Act was simply a reflection of the common law as it then stood, namely that in so far as a person was the joint owner of property the property was regarded as belonging to him.  I can see no basis upon which it could be said that the law of vandalism in Scotland should be any different from the law of criminal damage in England so far as it relates to jointly owned property.  I remarked in PF Peterhead v Lyn Elrick that 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.  This echoes the terms of section 10(2)(b) of the 1971 Act which is accepted by Mr Ormiston as permitting a finding of guilt in respect of damage to property of which the accused is merely a joint owner.

[19]      Fourthly, I do not consider that article 7 of the European Convention on Human Rights is engaged.  If, by virtue of being the joint owner of the vehicle, the accused is able to describe herself as the owner of it she must know that the other joint owner is equally able to describe himself as the owner of it.  There is nothing unclear in section 52 of the 1995 Act when it says that any person (which must, incidentally, include a person who is a joint owner of the property concerned) who, without reasonable excuse, wilfully or recklessly destroys or damages any property belonging to another (which must include property jointly owned by the accused and another person) shall be guilty of the offence of vandalism.

[20]      On the view that I have taken on the matter there is no need to consider the doctrine of transferred intent.

[21]      For all of the foregoing reasons, and although I accept that the accused genuinely but mistakenly believed that the vehicle in question still belonged to her and her estranged partner, I consider that the accused had no reasonable excuse when she, admittedly, wilfully damaged the vehicle.  Accordingly, she is guilty of the charge of vandalism.