Khaliq v. Her Majesty’s Advocate

1984 S.C.C.R. 23 (1983)

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Nature of the Case

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Facts

Ds, two shopkeepers in Glasgow were arrested and charged, with supplying to children ‘glue-sniffing kits’ consisting of a quantity of petroleum-based glue in a plastic bag. Ds had been previously warned by the police to stop supplying the kits. Ds were accused of expressly in a wilful and reckless manner supplied to 18 named children and other unnamed children, all under 16 years of age, glue solvents for the purpose of their abuse by these children. It is alleged that Ds supplied the solvents in or together with containers for the purpose of that abuse, namely, for inhalation from within the containers of the vapors of the solvents. It is alleged that Ds did this with full knowledge of how the solvents would be used by the children. It is alleged that Ds knew that such abuse was or could be injurious to the health of the children and to the danger of their lives. Ds objected to the indictment claiming that there was no specific law that made such actions on their part criminal.

(Lord Avonside; Trial Judge) By the common law does every new crime, as it successively arises, become the object of punishment, provided it be in itself wrong, and hurtful to the persons or property of others? Yes. Ds claim the charges in the indictment do not set out a crime known to the law of Scotland. Ds claim that even if the crime was a new crime it could not be introduced by the decision of a single judge. 'Solvent abuse' is popularly seen as 'glue sniffing' and the results of that indulgence are within judicial knowledge and the knowledge of the interested public. It is not disputed that 'glue' is not listed as a dangerous substance or drug. Nor is it disputed that to possess 'glue' is permissible. It is not a criminal offence for a person who does so to 'misuse glue.' The Crown (P) must show that there are set out allegations involving the panels in criminal conduct over and beyond these limitations and that these allegations show a crime within the body of our recognized criminal common law. Ds contend that those who bought or otherwise obtained the substances described in the charge exercised their own choice in the use they made of these substances. They could have used them for their proper use or, if they so choose, could abuse their use. Hence there was no direct control as to use between D, the supplier, and the users. This case involves 18 children who bought glue in tins, tubes, crisp packets, and plastic bags. I cannot imagine that such sales were for the ordinary use of glue. Nor can I imagine that those who sold glue could be so naive to think that those transactions were for the ordinary use of the substance involved. Ds were alleged to have supplied the glue 'culpably, wilfully and recklessly…for the purpose of inhalation of the vapors of said solvents…well knowing that the children intended to inhale the vapors and this was dangerous to their health. The great strength of our common law in criminal matters is that it can be invoked to fill a need. It is not static. Over the centuries it has operated unless its jurisdiction is displaced by statute or by decision of the Courts. It did not weaken by time or history. It is alive today in dealing with the present age as it was in dealing with questions raised in the past. 'By the common law every new crime, as it successively arises, becomes the object of punishment, provided it be in itself wrong, and hurtful to the persons or property of others.' Without doubt the indictment sets out an offence. It would be strange if the common law cannot deal with a known danger and the culpability of those who supply for profit the solvents knowing that abuse and its attendant effects may, in extreme cases, result in the death of the user. Ds cannot sell or supply solvents well knowing that their young customers have no intention whatsoever of using the substances in an ordinary manner, but, packaged in strange containers as they are, will use the solvents as they might a drug, inhaling the vapors given off by the solvents to the danger of their health or, indeed, to their lives. This case is not concerned with a 'new' crime. It is concerned with the breach of existing common law relating to the use of poisonous, or at least injurious, substances to the danger of health and life. Ds appealed.