Scottish High Court of Justiciary Decisons

At advising on 13th November 1980, the opinion of the Court was delivered by the Lord Justice-Clerk.

LORD JUSTICE-CLERK (Wheatley).—The facts are set out in the voluminous findings of fact to which we refer. Question 3 for the opinion of the Court relating to sentence was not argued.

Little need be said about the first question which is in these terms, viz:—

"On the facts found in findings (1) to (48), was I entitled to draw the inferences set forth in findings (49) and (50) ?"

Appellant's counsel accepted those two latter findings in fact with the exception of the last sentence which reads "In effect, he was holding the articles to ransom." His criticism was that this could mean that the appellant knew that he was not entitled to hold the articles and was guilty of unjustified extortion. That sentence is simply a summary of what has gone before in the findings and means no more than that.

The submission by appellant's counsel on the other question, which was whether the Sheriff was entitled to convict the appellant of theft, was limited in scope. He did not attack the legal ground which was the basis of the Sheriff's decision but maintained that the Sheriff was not entitled to convict the appellant on the facts found when tested against that legal principle. The Sheriff reviewed all the authorities at considerable length and in some detail. His final conclusion thereon was stated thus:—

"It was primarily upon the view that a clandestine taking, aimed at achieving a nefarious purpose, constitutes theft, even if the taker intends all along to return the thing taken when his purpose has been achieved, that I decided to convict Mr. Alistair Milne of theft as libelled."

In these circumstances it is unnecessary to repeat the authorities at length. All that is required is to see how far the findings justified the Sheriff's conclusion on the view of the law which he took.

Appellant's counsel made four submissions. They are all really interrelated. We propose to consider the first and second submissions together because they are, as counsel said, different ways of expressing the same point. The first submission was that on the facts found by the Sheriff there was no basis for finding that mens rea was present in this crime and the second was that there was no basis in the facts for finding that the taking and holding of the articles in question were "nefarious." Reliance was placed on Fraser v. Anderson (1899) 2 Adam 705 and 1 F. (J.) 60 where the majority of the court held, on the facts in that case, that there was no felonious intent. That case is clearly distinguishable on the facts. There the accused was in possession of the cattle which he had sold to another man and thought that he had a right to sell the cattle because the price had not reached him. In the present case the appellant took away articles which he knew belonged to Mr. MacPhail. His reason for doing so was, as the Sheriff said, that he was motivated "partly by anger against Mr. MacPhail, but principally by his anxiety lest he should not be allowed to complete the work at Biggar Cottage under the contract of 5 July 1978, by his desire to complete that work, and by his desire to obtain additional payment from Mr. MacPhail for the additional work that would have to be done in order to bring the work already done up to the standard desired by Mr. MacPhail. He was not prepared to do that additional work unless he received payment additional to the £13,000 he had already received, and he intended to retain the articles removed from Biggar Cottage on 19 December until he could force Mr. MacPhail to agree to have a personal meeting with him, instead of dealing with him through Mr. Barratt, and to get Mr. MacPhail at that personal meeting to agree to allow him to complete the work under the contract of 5 July 1978 and to make him a further payment for bringing the work already done up to the desired standard." It seems to us that the purpose was "nefarious." The appellant was trying to achieve something by a scheme which he must have known was unlawful. Whether "nefarious" means "criminal" in this context or unlawful does not matter for present purposes. The Sheriff was entitled to reach the view which he did on the findings.

The third submission was that there was nothing clandestine about the taking of the articles. Appellant's counsel appeared to suggest that something secret in the actual manner of taking was required before it could be said that it was "clandestine." This is to ignore the fact that the taking was secret so far as the owner of the articles was concerned and was without his authority. While this was done openly in one sense, the facts show that it was done secretly so far as the owner of the articles was concerned.

The fourth submission was that there was a conditional intention to return the articles and that elided the necessary criminal intent. This was said to be something different from the absence of mens rea, and some reliance was placed on a decision by Sheriff Macphail in Herron v. Best 1976 S.L.T. (Sh.Ct.) 80. We have some difficulty in understanding this submission when the Sheriff's view of the law was accepted and the argument was that the findings did not justify the application of that law to justify a conviction. We agree with the Sheriff's statement of the law to the effect that "in certain exceptional cases an intention to deprive temporarily will suffice" and disagree with Sheriff Macphail that "an intention to deprive permanently" is essential.

The first and second questions accordingly fall to be answered in the affirmative and the third question in the negative. The appeal is therefore dismissed.