Fire-raising is the wilful or reckless setting fire to the property of another.

“Wilful” or “Reckless”?

“Wilful” means “intentionally” or “deliberately”.

“Reckless” means something more than “careless” or “negligent”. As set out in Byrne v HMA (see below), “the property must have been set on fire due to an act of the accused displaying a reckless disregard as to what the result of his act would be”.

Technically, “wilful fire-raising” and “[culpable and] reckless fire-raising” are two separate crimes. In other words, if an accused is only charged with wilful fire-raising, and the Crown cannot prove that the fire was raised intentionally or deliberately, then they should be acquitted of the charge (and vice versa).

To avoid the problem above, it is open for the Crown to charge the accused with wilful fire-raising, and – in the alternative – culpable and reckless fire-raising. It would then be a matter for the jury as to which one they convict the accused of (if any).

Byrne v HMA [2000 J.C. 155]

  • “The crime of wilful fireraising may be committed in respect of any form of property. Before an accused can be convicted of wilful fireraising in respect of any particular item of property in the charge, the Crown must establish beyond reasonable doubt that he intended to set fire to that item of property. Where the jury are not so satisfied in respect of any of several items averred in the charge, they should delete it. The jury may infer the necessary intention from all the relevant circumstances, but there is no room for any doctrine of transferred intent. Nor can any form of recklessness be treated as equivalent to intent.”
  • The crime of culpable and reckless fireraising can also be committed in respect of any form of property. In that respect it is similar to wilful fireraising. The difference from wilful fireraising lies in the mens rea . Mere negligence is not enough: the property must have been set on fire due to an act of the accused displaying a reckless disregard as to what the result of his act would be.
  • “the distinction between the crimes remains important since the degree of blameworthiness will be relevant to penalty”
                      • Lord Coulsfield at p163-4

What about fires that spread beyond far beyond the original intention of the accused? It is rare that an accused person will deliberately or recklessly set fire to a block of flats, but far more common that (e.g.) they will deliberately set fire to a discarded mattress or wooden furniture in the common stairwell, which will then spread to the fixtures of the building itself, with significantly worse effect.

In cases like these, the accused ought only to be convicted of the aspects of the fire that they intentionally caused (or showed reckless disregard towards causing, depending on which type of fire-raising they are charged with).

So, in the example above, if the evidence could establish that the accused only deliberately / recklessly set fire to the mattress, but did not intend / did not have reckless disregard as to whether further property would subsequently catch fire, then they should only be convicted in respect of the mattress. Of course, the fact that the fire spread and caused further damage will invariably come out in evidence in any event, which may well have some degree of influence on any eventual sentence.

“setting fire”

It is enough for the property in question to be burnt to any degree, provided the fire has “taken effect”.

“property of another”

It is implicit in “property of another” that the setting fire is done without the property owner’s permission.

Setting fire to your own property could constitute a separate offence, depending on the circumstances, such as breach of the peace, a contravention of s56 of the Civic Government (Scotland) Act 1982, or the separate offence of “fire-raising with the intent to defraud insurers” (in other words, the classic “insurance job”).


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