Aldred v Miller
| Jurisdiction | Scotland |
| Judgment Date | 28 November 1924 |
| Docket Number | No. 16.,No. 4. |
| Date | 28 November 1924 |
| Court | High Court of Justiciary |
Lord Justice-Clerk, Lord Hunter, Ld. Anderson.
Burgh—Magistrates—Statutory power to make bye-laws—Public parks—Bye-law regulating right of public meeting—Validity—Negation or regulation of right—Statute—Desuetude—Glasgow Public Parks Act, 1878 (41 and 42 Vict. cap. lx.), sec. 37—Bye-laws for the management and regulation of the public parks made by the Corporation of Glasgow on 13th April 1916, No. 20.
Statute—Bye-law—Validity—Considerations weighing with Court in considering questions as to validity.
Glasgow Corporation are empowered, by the Glasgow Public Parks Act, 1878, sec. 37, to make bye-laws for the good government and regulation of the public parks of the City, and to impose a penalty for their breach, provided that the bye-laws are not repugnant to the law of Scotland. A bye-law provided that no person should take part in any meeting in any of the public parks, except with the written authority of the Corporation or of the superintendent of parks.
Held (1) that the bye-law in question was neither ultra vires nor repugnant to the law of Scotland, seeing that it did not abrogate the right of public meeting, but merely regulated its exercise; and (2) that the mere fact that the bye-law had for a time not been uniformly enforced did not render it ineffective or prevent its being enforced.
Observed by the Lord Justice-Clerk (1) that the Court would be slow to hold unreasonable a bye-law made by a public representative body, and (2) that a bye-law was not repugnant to the general law merely because it forbade the doing of something which might lawfully be done before, or required something to be done which there was no previous obligation to do.
Guy Aldred, 13 Burnbank Gardens, Glasgow, and Peter Colin Blair M'Intyre, John Quinn, and George Hepburn, all of Glasgow, were charged in the Police Court at Glasgow upon a complaint at the instance of James Stirling Miller, Procurator-fiscal, which set forth ‘that you, John Quinn, George Hepburn, and Guy Aldred, did on the 6th day of July 1924, and you, Peter Colin Blair M'Intyre, John Quinn, George Hepburn, and Guy Aldred, did on 13th July 1924 take part in a meeting or demonstration in Glasgow Green, at the Nelson Monument, Glasgow, said Glasgow Green being one of the parks of the City, and did from a platform at the base of said monument address members of the public without the written authority of the Corporation of the City of Glasgow, or the Superintendent of the Parks Department of the said Corporation, contrary to the bye-laws for the good government and regulation of the public parks, gardens, recreation grounds, open spaces, &c., belonging to or under the control of the said Corporation, made and enacted under the powers conferred upon them by the Glasgow Corporation Parks Acts, 1878 to 1915, particularly to the Glasgow Public Parks Act, 1878,* section 37 thereof, and the bye-laws made by the Corporation of the City of Glasgow on the 13th April, and confirmed by the Sheriff of Lanarkshire on the 20th June, both in the year 1916, and particularly bye-laws No. 20 and 32 thereof. Whereby you are each liable to a penalty. …’
The accused objected to the relevancy and competency of the complaint on the following grounds, which were set forth in the minutes of procedure:—‘(1) That no offence committed, as bye-laws libelled repugnant to law of Scotland. (2) That the bye-laws
libelled are ultra vires of the Corporation. (3) That the bye-laws libelled have not been observed by the parks committee, have not been consistently applied to meetings held in Glasgow Green, and are therefore not enforceable.’
The objections to the relevancy of the complaint having been repelled, the accused pleaded not guilty, and on 22nd August 1924 the Judge of Police found the accused Aldred and M'Intyre guilty as libelled and Quinn guilty quoad the charge relating to 6th July, and imposed a fine. The diet against Hepburn had previously been deserted pro loco et tempore. The accused Aldred obtained a stated case on appeal to the High Court of Justiciary.
The case stated, inter alia:—
The following facts were admitted or proved:—‘(1) That on 6th July 1924 the appellant and the said John Quinn, and on 13th July 1924 the appellant and the said Peter Colin Blair M'Intyre, did each take part in meetings held at the Nelson Monument in Glasgow Green, and did each address members of the public from a platform at the base of said monument. (2) That Glasgow Green is one of the public parks of the City of Glasgow. (3) That the written authority required by No. 20 of the said bye-laws for the holding of said meetings had not been obtained by or on behalf of the appellant or the other two accused for either of the said meetings, and that neither the appellant nor the said John Quinn or Peter Colin Blair M'Intyre had ever at any time made application for such authority. (4) That the said meetings were held under the auspices of the Scottish Workers' Republican Party, and that the written authority aforesaid was not obtained by or on behalf of the said party for either of the said meetings. (5) That boards containing a copy of the said bye-laws are erected in conspicuous parts of the said Glasgow Green, and that the copies of the said bye-laws placed thereon are legible.
‘At the close of the evidence I heard the Assistant Procurator-fiscal and also all the accused (including the appellant) on their own behalf. In the course of his address the appellant admitted having addressed the meetings as libelled, and said that he had done so deliberately in order to test the right of the Corporation of Glasgow to make the said bye-laws, which he contended interfered with the right of free speech in Glasgow Green.’
The case further stated:—‘At the conclusion of the hearing I adjourned the case till 22nd August 1924 for judgment, and on that date I found the appellant … guilty as libelled.’
The questions of law for the opinion of the Court were:—‘(1) Were the objections to relevancy and competency rightly repelled? (2) Was I entitled, on the facts found or admitted, to convict the appellant?’
The case was heard before the High Court on 21st November 1924.
Argued for the appellant;—The stated case failed to state facts which were before the Court below and which were necessary to enable the Court to decide whether the conviction should stand or not. Thus evidence had been led showing that the bye-laws had not been consistently enforced. Further, documentary evidence which had been produced was not noted in the minutes of procedure, and was ignored in the statement of the case. A report of a former Town-clerk of Glasgow and certain minutes of meeting of the Corporation had been produced. They showed that Glasgow Green was not in the position of an ordinary public park. Neither the report nor the minutes were noted in the record, and both were ignored in the stated case. The stated case, therefore, did not state the facts which had been proved,1 and the case should be remitted for a fuller statement. Statement 2 was not a finding in fact, but was a finding in law based upon proved facts. Glasgow Green was not a public park within the meaning of the Glasgow Municipal Acts,2 at least so far as the present case was concerned, but was in a special position. It was not a park acquired by the Corporation, but was a common green, dating from time immemorial, the rights of the citizens in which remained intact. Among those rights was the right to freedom of speech. The charge against the appellant was that of holding a meeting and speaking without a permit. The mere holding of a meeting was not an offence; it only became an offence if it led to disorder or breach of the peace, or if inflammatory language was used. None of those elements was present here. Consequently the charge against the appellant depended solely upon the want of the permit. The magistrates had no right at common law to prohibit free speech except under permit.3 An immemorial right of public speaking on Glasgow Green existed, and that had not been taken away by any of the Glasgow Acts. The bye-law was therefore repugnant to the general law, and, if so, it was invalid.4 Further, in administering the bye-law the Corporation must act fairly as between one man and another. They were not entitled to withhold a permit so as to dictate what should be said or who should speak, or to lay it down in advance that no one except a member of an organisation should obtain a permit. That simply meant forbidding a private individual to speak. The interpretation placed by the respondent on the bye-law, viz., that members of an organisation alone required a permit and private individuals did not, was not the interpretation placed on the bye-law by the Corporation. The appellant had in fact spoken as a private individual. The Corporation had not consistently enforced the bye-law. It was their duty to do so,5 and, if they did not do so, the bye-law lapsed, and could not now be enforced.6
Argued for the respondent;—Admittedly the bye-law had been infringed. Accordingly the only question in the case was, Was the bye-law valid? It was not open to the appellant to argue that Glasgow Green was not a public park, for it had been found in fact that it was a public park. If it was a public park, the Corporation had statutory power to regulate the use of it by bye-law.4 The bye-laws required the approval of the Sheriff, and the bye-law in question had been approved by him. All the objections now stated against the bye-law could have been stated before the Sheriff. The
bye-law itself was clearly designed to regulate, and in terms did regulate, the exercise of the right of free speech so that it could the more effectively be exercised. It did not in any way abrogate that right. M'Ara's case1 was not in point. It merely decided that the Magistrates of Edinburgh had no power by statute or common law to prohibit...
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