During these difficult and unprecedented times there have been various reports of people wilfully, maliciously and recklessly coughing and spitting on items on retail shelves in supermarkets. This legal blog has been released to clarify the legal aspects of such an offence.
The very act of coughing or spitting on items within retail stores means that the retail supermarket must destroy all of the affected items and clear the entire aisle of the products to which the customer came into contact with. There is also other associated costs, not just from the destruction of food items but also the deep cleaning of the entire supermarket which can be rather costly.
One recent and disgusting attack was carried out by a New Zealand man who filmed himself walking about a retail store coughing and spitting and then uploaded the video to his social media accounts which was copied before the individual concerned deleted the video.
These are NOT pranks, but are heinous acts and as such criminal offences that are deliberate attacks on the public at large and may endanger human life and must be dealt with robustly by the Crown Office and Procurator Fiscal Service and the Scottish Sheriff Courts.
The COFPFS has already released a statement in connection to this as can be seen below.
Statement from Crown Office and Procurator Fiscal Service
Any reported person who deliberately endangers life, or causes fear and alarm by pretending to do so, including by coughing on or spitting at someone, will be dealt with robustly by Scotland's prosecution service.
Scotland's prosecution service will take action to protect public safety at all times and has a range of responses available to tackle unacceptable criminal conduct that may arise during the coronavirus pandemic.
Coughing on or spitting at someone, depending on the circumstances, may be an assault or constitute the crime of culpable and reckless conduct. It is difficult to imagine a more compelling case for prosecution in the public interest.
COPFS is working closely with Police Scotland to ensure the continued effective investigation and prosecution. of crime, properly addressing criminal behaviour that threatens public safety and the safety of our emergency workers.
Friday 3rd of April 2020
There are a number of legal issues surrounding this type of offence. The offender may be attempting to spread an infectious disease which would be held as culpable and reckless conduct as reckless endangerment of the lieges (public) again, held under the common law of Scotland.
What is the law in relation to the destruction of property?
The crime of malicious mischief is that of destroying or damaging the property of another, or interfering with it to the detriment of the owner or lawful possessor. The criminal offence is held under the common law of Scotland and security operatives can arrest for this offence as can any member of the public as a citizens arrest.
The common law crime of malicious damage is the intentional or reckless destruction of or damage to the property of another.
Previous stated cases have held the following to be criminal acts of malicious mischief;
- destroying crops
- killing or injuring animals
- knocking down walls or fences
- wilful fire raising
- switching off electricity supply causing economic loss
The mens rea of the crime in the case of intentional damage consists in the knowledge that the destructive conduct complained of was carried out with complete disregard for, or indifference to, the property or possessory rights of another.
The case of Ward v Robertson, 1938 highlighted;
“It is not essential to the offence of malicious mischief that there should be a deliberate wicked intent to injure another in his property ... 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”.
Malice does not require proof of spite or of any other form of motive.
What is required in a charge of malicious mischief is a wilful intent to cause injury to the owner or possessor of the property. This injury may be either in the form of physical damage or in the form of patrimonial loss.
The component parts of this type of crime are very few. What is stated is that the property in question must have belonged to or been in the possession of another. That property must have been damaged intentionally or recklessly. There must have been knowledge, or facts from which knowledge can be inferred, that the conduct complained of would cause damage to a third party’s patrimonial rights in the property in question.
That’s the crime of intentionally or recklessly damaging or destroying another person’s property, without permission can take many forms. It can result in physical damage or economic loss.
It’s a crime of commission, not omission. The resulting damage must have been caused by a positive act on the accused’s part.
I can think of no better fit to the deliberate and malicious act of coughing upon or spitting on items that are for sale to the general public, especially during a global pandemic where thousands of live's have been lost to the Corona virus.
The criminal act can be intentional or reckless. Whether the accused’s intention was to cause damage or loss is something to be inferred or deduced from what’s proved to have been said or done. A reckless act involves conduct carried out with utter disregard of the consequences, when looked at objectively.
For the Crown to prove this charge, the court would have to be satisfied that:
- the accused acted in the way set out in the charge
- he did so intentionally or recklessly
- his actions caused loss or damage to property
- that property belonged to or was in the possession of another person.”
Defining the parameters of Malicious Mischief
Despite the general parameters of malicious mischief these are well understood. In its typical form it consists in intentional or reckless damage to, or destruction of, the corporeal property of another person. As such, malicious mischief is sufficiently broad to embrace the closely related statutory crime of "vandalism"—an offence which was introduced into the law by s.78 of the Criminal Justice (Scotland) Act 1980.
Malicious mischief is also broad enough to include fireraising, which could be regarded merely as an aggravated form of causing damage. However, the offence has existed as a distinct crime for centuries, and, even today there are arguments in favour of retaining a separate crime of fireraising, to mark it out as an especially dangerous form of criminal damage.
Prior to the decision of the High Court in HM Advocate v Wilson, 1984 S.L.T. 117, it was accepted that the crime of malicious mischief required damage to, or destruction of, corporeal property. That decision, however, challenged the traditional view of the law, and extended malicious mischief to include causing "patrimonial loss" to a third party by "interfering" with his or her property.
HM Advocate v Wilson 1984 S.L.T. 117
In the case of HM Advocate v Wilson the individual was charged with "wilfully, recklessly and maliciously" activating an emergency stop button on a generator at a power station, as a result of which electricity was stopped leading to economic loss and not physical damage. On appeal the High Court of Judiciary held that 'damage' included shutting off a power station thereby stopping power being produced caused economic loss and therefore was malicious mischief.
The corona virus pandemic is deadly and no one is under any assumptions as to how deadly it can be hence why a national lockdown has been ordered by the UK prime minister and the first minister of Scotland.