Aitkenhead v Cuthbert
| Jurisdiction | Scotland |
| Judgment Date | 19 October 1961 |
| Docket Number | No. 4. |
| Date | 19 October 1961 |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-General. Lord Carmont. Lord Guthrie.
Procedure—Review—Complaint—Competency of charge—Objection to competency not stated in Court below—Appeal against sentence only—Power of High Court to quash conviction—Summary Jurisdiction (Scotland) Act, 1954 (2 and 3 Eliz. II, cap. 48), sec. 73 (2).
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Sec. 73 (2) of the Summary Jurisdiction (Scotland) Act, 1954, enacts that, subject to certain savings, "no conviction, sentence, judgment, order of court, or other proceeding whatsoever shall be quashed except on the ground of incompetency, or corruption, or malice, or oppression, or unless the High Court shall be of opinion that the accused has been misled as to the true nature of the charge against him or been prejudiced in his defence on the merits, and that a miscarriage of justice has resulted thereby: Provided that the High Court may amend any conviction, sentence, judgment, order of court, or other proceeding, or may pronounce such other sentence, judgment, or order as they shall judge expedient."
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Two accused pleaded guilty to three charges under a Fisheries Act. The Sheriff-substitute convicted each accused, and imposed fines, on each charge, and ordered forfeiture of the fish and fishing gear found in their possession. The accused appealed by stated case to the High Court of Justiciary against sentence, the only question for the opinion of the Court being "were the fines imposed oppressive?" During the hearing of the appeal, an objection was raised, for the first time, to the competency of one of the charges. It was conceded by the respondent that the charge was incompetent, in that it charged an offence which did not exist.
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Held that, the charge and the convictions thereon being fundamentally null, the Court could quash the convictions, although the matter had not been raised in the Court below nor in the stated case; and convictions on that charge quashed.
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Observed, by Lord Guthrie, that, where there had been a conviction on an incompetent charge, the High Court, in addition to its powers under sec. 73 (2), could exercise the inherent power which it possessed at common law to prevent injustice.
William Aitkenhead and William Alexander Chisholm were charged in the Sheriff Court at Fort William on a complaint at the instance of William Johnston Cuthbert, Procurator-fiscal, Fort William, which set forth that "(1) on 16th July 1961, at the Bull Run Pool, on the river Lochy at Moy in the Parish of Kilmallie and County of Inverness, you did while acting together, without legal right and without written permission from a person having such right, fish for and take salmon: Contrary to the Salmon and Freshwater Fisheries (Protection) (Scotland) Act, 1951, sections 1 and 3; (2) Date and place both last above libelled you were found in possession of one salmon, two fishing...
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Advocate v McDonald
...invalid citation was not fundamentally null in that the requirements of citation could be waived by the accused. Aitkenhead v. CuthbertSC 1962 J.C. 12, Law and Nicol v. H.M. Advocate 1973 S.L.T. (Notes) 14distinguished. (2) That the introduction of preliminary diets by the Criminal Procedur......
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MARTIN ROBERTSON v K FRAME (Procurator Fiscal, Aberdeen)
...dismissed. Lochridge v Miller 2002 SLT 906 approved. Cases referred to: Advocate (HM) v Fraser (1852) 1 Irv 1 Aitkenhead v CuthbertSC 1962 JC 12; 1962 SLT 18; 1961 SLT (Notes) 77 Armia Ltd v Daejan Developments LtdSC 1979 SC (HL) 56; 1979 SLT 147 Cassidy v Friel 1995 SLT 391 Duncan v Ramsay......
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Margaret Catherine Jones+jane Tallents+gaynor Barret+frank Jane Carberry+john Park V. Procurator Fiscal, Helensburgh
...appeal court quashing the conviction (Rodgers v. Howman 1918 J.C. 88; McDonald's Limited v. Adair 1944 J.C. 119; and Aikenhead v. Cuthbert 1962 J.C. 12). In this connection the recent decision of the court in Cochrane v. H.M. Advocate 2002 S.C.C.R. 1051, which was apparently uninformed of t......
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...was whether the complainer was convicted of a charge which was incompetent (Coventry v. Douglas 1944 J.C. 13, Aitkenhead v. Cuthbert 1962 J.C.12 and Jones v. Carnegie 2004 S.C.C.R. 361 at para. 43), including where, ex facie of the proceedings, the statutory order on which the complaint was......