Cora Foundation+the Board Of Managers Of St Mary's Kenmure V. East Dunbartonshire Council+east Dunbartonshire Council
| Jurisdiction | Scotland |
| Judge | Lord Philip,Lady Smith,Lady Dorrian |
| Judgment Date | 27 May 2014 |
| Neutral Citation | [2014] CSIH 46 |
| Published date | 27 May 2014 |
| Docket Number | A29/11 |
| Court | Court of Session |
| Date | 27 May 2014 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| [2014] CSIH 46 | |
| Lady Smith Lady Dorrian Lord Philip | A29/11 and A30/11 OPINION OF THE COURT delivered by LADY SMITH in the Reclaiming Motions by CORA FOUNDATION Pursuers and Respondents; against EAST DUNBARTONSHIRE COUNCIL Defenders and Reclaimers: and THE BOARD OF MANAGERS OF ST MARY'S KENMURE Pursuers and Respondents; against EAST DUNBARTONSHIRE COUNCIL Defenders and Reclaimers; _______________ |
Act: Lake QC, A Jones, solicitor advocate; bto
Alt: Thomson QC, Balfour; Simpson and Marwick27 May 2014
Introduction
[1] Both these actions concern riot damage. The pursuers offer to prove the following averments:
"Between approximately 20:00 hours on Saturday 29th and the morning of Sunday 30th March 2008 a riot occurred within the Premises. About twelve persons accommodated within the secure unit became disruptive and refused to obey requests from St Mary's staff (the Unit Staff). The persons began to behave in a violent manner. They shouted and threw things at the Unit Staff. One member of the Unit Staff was slashed on the face. These inmates damaged the Premises and items within. They tore down the football park and lit fires on the pitch. They smashed windows in the Premises and attempted to release persons who were within the Unit. They ripped out wiring and broke electronic key fob systems. They threw computers and computing equipment about. They started fires within the buildings. The Unit Staff were unable to contain the persons and required to withdraw for their own safety. The persons engaged in these acts acted with a common criminal purpose to cause damage to the Unit and intimidate or harm the Unit Staff. Police were called. Further police skilled in riot control were required to attend. The police brought the riot under control. Persons engaged in the disturbance were subsequently convicted on charges of mobbing and rioting."
"Premises" is a reference to St Mary's School Kenmure ("the school") which is a secure residential facility. The pursuers, who are respondents in the reclaiming motions, are the Cora Foundation ("Cora") who own the premises and the school's board of managers ("the Board"). They seek to recover their losses from the defenders ("the Council"), who are the local authority in whose area the school is situated. The Lord Ordinary, after having heard debate on the procedure roll, allowed parties a proof before answer in both actions. The Council say that the actions are irrelevant and should have been dismissed; they have, accordingly, reclaimed (appealed).
[2] The respondents' claims are based on section 10 of the Riotous Assemblies (Scotland) Act 1822 which, they say, confers on them an entitlement to be paid compensation by the Council for the riot damage caused to the school buildings and to fixtures, furniture and goods within the buildings. The original and current terms of section 10 of the 1822 Act and its legislative history are set out below.
Liability for Riots: the Legislative History
[3] For three hundred years, persons whose heritable property is damaged by rioters have been entitled to recover their losses from the community. For about two hundred years, such persons have also been entitled to recover from the community in respect of loss of or damage caused by rioters to moveable property within their premises. Although counsel for the reclaimer also referred us to earlier, English, legislation which, in certain circumstances, rendered the local population liable for losses arising from robberies, particularly for the purpose of protecting trade with visiting merchants[1], we do not find them to be of assistance and propose, rather, to begin our considerations by referring to the relevant provisions of the Riot Act 1714 ("the 1714 Act").
[4] It was common ground that the 1714 Act was passed at a time of considerable political unrest. George I, the first Hanoverian monarch, had become king in August that year amidst considerable opposition, from the Jacobite cause, to his accession. Hence the preamble:
"I Whereas of late many rebellious Riots and Tumults have been in divers Parts of the Kingdom, to the Disturbance of the Publick Peace, and the endangering of His Majesty's Person and Government, and the same are yet continued and fomented By persons disaffected to his Majesty, presuming so to do, for that the Punishments provided by the Laws now in being are not adequate to such heinous Offences; and by such Rioters his Majesty and his Administration have been most maliciously and falsely traduced, with an Intent to raise Divisions and to alienate the Affections of the People from his Majesty:"
Section one then made further provision as follows:
"That if any persons to the Number of twelve or more, being unlawfully, riotously and tumultuously assembled together, to the Disturbance of the Publick Peace, ...and being required or commanded by any one or more Justice or Justices of the Peace, or the Sheriff of the County, or his Under-Sheriff, or by the Mayor, Bailiff or Bailiffs, or other Head- officer, or Justice of the Peace of any City or Town-corporate, where such Assembly shall be, by Proclamation to be made in the King's name, in the Form hereafter directed, to disperse themselves, and peaceably to depart to their Habitations, or to their lawful Business, shall, to the number of twelve or more (notwithstanding such Proclamation made) unlawfully, riotously and tumultuously remain or continue together, by the Space of one Hour after such Command or Request made by Proclamation, that then such continuing together to the Number of twelve or more, after such Command or Request made by Proclamation, shall be adjudged Felony without benefit of Clergy and the Offenders therein shall be adjudged Felons, and shall suffer Death as in the case of Felony with Benefit of Clergy."
The phrase "unlawful, riotous and tumultuous assembly" was transposed, intact, into subsequent legislation including the current section 10 of the 1822 Act.
[5] The reading of the Proclamation was not dependent on the assembly of persons having done any damage to property or person. Nor did it depend on the assembly of persons being in a public place. There only required to be twelve or more persons assembled in an assembly of such nature that it could be described as unlawful, riotous and tumultuous and was, in some manner, to the disturbance of the public peace. As to the latter, there need not, we consider, have been actual disturbance to the public peace; the purpose of the Proclamation was, clearly, to try to prevent public disturbance; it follows that it must have been sufficient if there was a real risk of disturbance to the public peace without such disturbance taking place.
[6] It also follows that, giving an ordinary reading to the terms of section 1, such an assembly within private premises could, potentially, have amounted to a relevant riot. It would have done so if, for instance, the noise emanating was such as to disturb the public peace. Likewise, we consider, again giving an ordinary meaning to the words used, such an assembly within private premises would have been covered if their activities could be seen or otherwise discovered by the public and were activities likely to cause alarm. Other examples are not difficult to envisage; it would depend on the facts of the individual case. However, if the words are given their ordinary meaning, we see no reason why a riot would have been excluded purely because it occurred in a private place.
[7] Section four provided:
"IV....That if any Persons unlawfully, riotously and tumultuously assembled together, to the Disturbance of the publick Peace, shall unlawfully, and with Force demolish or pull down, or begin to demolish or pull down any Church or Chapel, or any Building for religious Worship certified and registered.....or any Dwelling -house, barn, Stable, or other Out-house, that then every such demolishing, or pulling down, or beginning to demolish, or pull down, shall be adjudged Felony without Benefit of Clergy, and the Offenders therein shall be adjudged Felons, and shall suffer Death as in the case of Felony without Benefit of Clergy.", and
section nine provided:
"IX.......all Prosecutions for repairing the Damages of any Church or Chapel or any Building for religious Worship, or any Dwelling -house, Barn, Stable or Out-house, which shall be demolished or pulled down in whole or in part, within Scotland , by any Persons unlawfully, riotously and tumultuously assembled, shall and may be recovered by summar Action, at the Instance of the Party aggrieved, his or her Heirs, or Executors, against the County Stewartry, City or Borough respectively, where such Disorders shall happen, the Magistrates being summoned in the ordinary form, and the several Counties and Stewartries called by edictal Citation at the Market-crofts of the Head-borough of such County or Stewartry respectively, and that in general, without mentioning their Names and Designations."
[8] Plainly, a relevant assembly could move from its initial gathering place. It could, for instance, begin in a private dwelling house, barn, stable or outhouse then progress to the public streets and attempt to pull down a church. The rioters would then have faced the death penalty, irrespective of whether or not there had been a section 1 proclamation and the owners of the church would have been entitled to look to the relevant magistrates or the County Stewartry for compensation. Equally, however, we consider that, on an ordinary reading of the words of section 9, if a relevant assembly of rioters had remained within, say, a private barn and partly pulled it down, the owner would have been entitled to be compensated in the same way.
[9] As to what was required for an assembly, on an ordinary reading of the words used, the relevant "assembly" was not limited to those persons who were from the local...
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