Scottish High Court of Justiciary Decisons

LORD JUSTICE-CLERK (Aitchison).—This case raises a short but not unimportant point. The appellant was tried and convicted in the Burgh Court at Hamilton on a summary complaint which charged him with the common law offence of malicious mischief. The question which is put to us in the case is whether, on the facts stated by the magistrate, he was entitled to find the appellant guilty of the charge libelled. The appellant was charged along with two other persons who were also convicted.

The evidence before the magistrate shows that, on the date libelled, the appellant with two companions walked across a field which was in the tenancy of a cattle dealer who was a grazing tenant. It is found that, in consequence of the appellant walking across the field, growing grass was trampled down and destroyed to an extent which rendered it useless or unsuitable for grazing purposes. Some criticism was directed to that finding, and it may seem an astounding finding, but it is there as a finding of fact and we must so take it. It appears also that the appellant in crossing the field was a trespasser. He was not there in the assertion of any right, whether of way, or of access, or of property, or of possession. He was admittedly a trespasser. The case accordingly stands in this position, that a trespass was clearly proved before the magistrate, as was also damage to the permanent grass which was growing in the field.

The question we have to consider is whether that is enough to justify a conviction of malicious mischief. I confess I have not found the question free from difficulty, but the conclusion to which I have come is that this conviction cannot stand. It is not essential to the offence of malicious mischief that there should be a deliberate wicked intent to injure another in his property. I am prepared to take the case upon the footing, although it may involve some departure from the law as laid down by Hume, that it is enough if the damage is done by a person who shows a deliberate disregard of, or even indifference to, the property or possessory rights of others. But the difficulty which arises in this case is in saying there was any fact from which the magistrate could draw an inference that the appellant acted with such indifference or disregard. If this had been a case of a person crossing over an ordinary growing crop, I should have taken the view that the magistrate was entitled to infer that the appellant must have had knowledge that what he was doing was something that was calculated to cause damage to the growing crop, and, if in fact damage resulted, and if the person accused was not there in virtue of any right or permission, then I think that would have been enough.

The whole difficulty here is to say that the appellant had knowledge, or should have had knowledge, that by crossing this field he was doing, or even was likely to do, any damage to the permanent grass with which the field was laid down. Upon that ground and that very limited ground I am in favour of allowing this appeal. If the magistrate had found in fact that the appellant knew he was doing something likely to cause damage, or had even found in fact that the appellant knew that other people doing the same thing were causing damage to this field, as may very well have been the case, I should have been against allowing the appeal. But, if the element of indifference is entirely absent, then it cannot be said that the appellant acted maliciously in what he did. I have great sympathy with a person in the position of this grazing tenant who finds his ground invaded by people who show no regard as to whether the ground is private or public, and it may be extremely hard if there is no remedy other than the civil remedy of interdict; but, however that may be, we are not justified in re-defining malicious mischief so as to eliminate from it the element of malice or what in law may be the equivalent of malice. I regret that the appeal must be allowed. Question 3 will be answered in the negative.

LORD MACKAY .—I concur. I propose to add a few perhaps disjointed remarks, but I think perhaps these few remarks will tend to clarify the position as we leave it. In the first place I feel that, in the case of a stroller or walker who is not said to have done anything more than walk across a patch of permanent grass, the law of malicious trespass and the law of malicious mischief should not be extended rashly. And without full inquiry we ought not to stretch the law of Scotland beyond what was laid down by Professor Rankine in his book as late as 1909. I shall read three passages. "As the law of Scotland never recognised the infliction of imprisonment for debt so it knows of no penalty for a simple act of trespass; but in the same way as a debtor was imprisoned, as a rebel, for allowing himself to be put to the horn, the trespasser may be severely dealt with, as in contempt of Court. He may indeed jeer at the time-honoured placard which threatens him with rigorous prosecution, as brutum fulmen." But then that is qualified in the subsequent passages, showing that it is not to be read too absolutely. I read this passage:

"If the trespass be accompanied with destruction of property—such as woods, fences, and the like—the common law of malicious mischief is comprehensive enough to reach, and adequate to punish, such offences without calling in the assistance of a series of old statutes which are practically in abeyance."

And then lastly, "But in cases of simple trespass the only remedy at law is the purely civil preventive process of interdict."

Now, it is quite clear that the learned Professor leaves room in a proper case for the rules as to malicious mischief to remedy what might in England be regarded as a defect, in that the criminal law does not make trespass a crime but only a civil wrong; and it is for that reason that we have to be careful in a case which seems to be very near the margin line between malicious damage and mere trespass.

Now that that is said, the elements which I find to be notably absent in the findings in the present case are these: (1) There is no assertion in any of the statements of fact of malice in the mind of the walker, of mens rea on his part, of an intention to do damage. That differentiates it very clearly from the most recent unreported case, which otherwise is a little difficult to distinguish, but where there was a definite finding that the person did the thing maliciously. Here I think the magistrate intends to leave it to us as if it should be an inference in law from the facts actually found by him, facts which he carefully states without the inclusion of any such phrase as wrongful intention, mens rea, or even the general word "maliciously." (2) There is an absence of any statement as to boundaries, fences, or the like as enclosing the plot of land in question, which is called rather significantly the "Cricket Green." If the walker here had been proved, as in one of the other cases cited to us, to have necessarily got there by breaking down a gate, and if he had made his exit from the field by climbing a boundary fence, that might have sufficed to have taken the matter into another category altogether. (3) There is no suggestion that any gesture or use of his feet or other part of his body was made by this walker otherwise than in the ordinary act of walking. If I had thought the magistrate meant that there was a deliberate attempt to trample down grass, as by going round and round in circles or deliberately taking a great many more steps than were necessary, it might have been different; we might have sustained the conviction. (4) There is no question here at all that the proprietor took any exception to this or other persons making a short cut home. After all, trespass is a matter with the owner. We are here dealing with an injured person complaining of the cumulative damage done him by many walkers, and he is merely a person having the right to graze his sheep upon what I must assume to be permanent pasture. It seems clear enough to common sense by many familiar examples that sheep successfully graze where the feet of passers-by are to be found concurrently. As to the assumption of grass laid down as permanent, although "crop" is a word used by the magistrate, he does not give us any facts to infer that it was a specially sown grass crop between two green or other crops. It seems to me to be a case of permanent grass—a view which is again corroborated by the name of the place, "Cricket Green."

These various absences are, in my opinion, notable, and, therefore, being left, as I think we are, to draw an inference from the proved facts as to whether malice in the sense of mens rea can legitimately be deduced as an inference in law, and ought to be so deduced, I think the only safe course is to say it cannot. I therefore agree with your Lordship. I desire to leave open the matter of the general questions debated before us, as to the general apprehension said to be common to the public that they may go through any permanent grass anywhere, if not appreciating any substantial damage, without offence to the law in its criminal aspect. There is room for further and fuller argument should a further case be brought.

I desire that my opinion should be understood as definitely proceeding on this footing, that to carry the view of malicious mischief, in the case of pure walking as a trespasser, the length to which we are asked to carry it would, firstly, be going beyond any case hitherto decided, and would, secondly, be leaving behind us many of the older cases and dicta of weight in which deliberate violence or the like was held to be a necessary element in the crime. There remains a difference in Scotland between the civil wrong to the proprietor or tenant of trespassing (even with damage), and the crime of doing that maliciously, with malicious intent; and I think that this case, though narrow, just falls on the wrong side, for the prosecution, of that distinction.

LORD PITMAN .—I concur. In my opinion no question of general importance as to the liability of trespassers, who in fact do damage through trespassing, to be prosecuted for malicious mischief arises in this case. The accused is charged with trampling down the grass and doing damage maliciously. There is no finding in fact that he trampled at all. The only finding against him is that he walked so many yards across a grass park where sheep happened to be grazing; that is all. When challenged for having done it, he and the two other men replied, "We did not think we were doing any harm." Now, if that is true, how can they possibly be prosecuted for doing damage maliciously? A person who thinks he is doing no harm cannot rightly be convicted of doing something maliciously. The two things are incompatible. And, when I look at the facts, I find nothing to show that that statement in answer to the charge is not an absolutely true statement. The mere fact that a man walks across a grass field, and in fact does some damage to the grass, is not sufficient in my opinion to warrant a conviction for malicious mischief.