Bryce v Gardiner
| Jurisdiction | Scotland |
| Judgment Date | 26 June 1951 |
| Date | 26 June 1951 |
| Docket Number | No. 24. |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Mackay. Lord Jamieson. Lord Patrick.
Summary procedure—Complaint—Reference to penalty and previous convictions—Implied reference to previous conviction—Specification in complaint of penally applicable to second conviction—Licensing (Scotland) Act, 1903 (3 Edw. VII, cap. 25), sec. 53—Criminal Justice (Scotland) Act, 1949 (12,13 and 14 Geo. VI, cap. 94), sec. 46 (1) and (2).
Review—Questions not raised in inferior CourtFailure to enter copy of notice of penalty and of previous conviction in minute of proceedings—Implied reference in complaint to previous convictions—Summary procedure—Criminal Justice (Scotland) Act, 1949 (12, 13 and 14 Geo. VI, cap. 94), sec. 46.
The Criminal Justice (Scotland) Act, 1949, by sec. 46, provides,inter alia, (subsec. (1)) that the provisions of the Summary Jurisdiction (Scotland) Act, 1908, requiring a statutory charge in a summary complaint to specify the enactment fixing the penalty or to set forth the penalty, shall cease to have effect; (subsec. (2)) that no previous conviction "shall be laid before the Judge in any proceedings on such complaint until the Judge is satisfied that the charge is proved"; (subsec. (3)) that, where a summary complaint includes a statutory charge, a notice specifying the section of the enactment which fixes the penalty and specifying the penalty shall be served on him with the complaint; (subsec. (4)) that, where the accused has been previously convicted of any offence forming an aggravation of any offence libelled in the complaint, a notice, setting forth his previous convictions and stating the intention of the prosecutor, in the event of the accused's being convicted, to place them before the Court, shall be served on the accused along with the complaint; and (subsec. (5)) that a copy of any notice served on an accused under the section shall be entered in the record or minutes of the proceedings.
Sec. 53 of the Licensing (Scotland) Act, 1903, provides that, if any person holding a certificate and having an excise licence for the sale of exciseable liquors, offends against any of the terms and conditions contained in the certificate, he shall be liable, inter alia,to a fine not exceeding £5 for the first offence, £10 for the second offence and £20 for the third offence.
A licence-holder was charged with a breach of the terms of her certificate and a contravention of sec. 53 of the 1903 Act, on a complaint which, after setting forth the facts of the charge, stated that she was thereby "liable to a penalty not exceeding ten pounds." Along with the complaint there was served upon her a notice referring to a previous conviction and specifying the penalty to which she was liable. No reference to the service of such notice, however, was made in the minutes of proceedings. At the trial no question was raised as to the form of complaint or the regularity of the proceedings, but such questions were raised on an appeal by way of stated case against her conviction.
Held (1) that the failure to enter in the minutes a copy of the statutory notice served on the accused, though irregular, did not make the proceedings funditus null, as no entry required to be made until after the Judge had decided to convict; but (2) that the reference in the complaint to the penalty involved an implicit reference to a previous conviction, which had thereby been laid, prematurely, before the Judge; and conviction quashed.
Mary Reid Watson Or Bryce was charged in the Police Court at Prestwick on a summary complaint at the instance of Robert MacMillan Gardiner, Burgh Procurator-fiscal, which set forth "that on Sunday, 19th November 1950, being the holder of a certificate granted to you in terms of the Licensing (Scotland) Act, 1903, in respect of the Royal Hotel, Main Street, Burgh of Prestwick, Ayrshire, you did on said date, being a Sunday, within a sitting-room of said hotel, by the hands of William M'Fedries, part-time barman, 13 Elba Street Lane, Ayr, an employee in said hotel, sell or supply to Thomas M'Whirter Macartney, cafe proprietor, 19 St Quivox Road, Prestwick, exciseable liquors, namely, gin, said person being neither a lodger in said hotel nor a traveller :Contrary to your certificate and to the Licensing (Scotland) Act, 1903, section 53, whereby you are liable to a penalty not exceeding ten pounds, with the expenses of conviction, to be ascertained upon conviction, and in default of payment thereof to imprisonment in terms of section 48 of the Summary Jurisdiction (Scotland) Act, 1908, and, in addition to such penalty, the Court may declare that the certificate granted to you shall be forfeited and shall become void and null."1
The accused had been previously convicted in respect of a contravention of section 4 (a) and section 21 (f) of the Licensing (Scotland) Act, 1921, and a notice referring to that previous conviction and of the prosecutor's intention to place it before the Court in the event of her being convicted had been served on her with the complaint in accordance with section 46 (4) of the Criminal Justice (Scotland) Act, 1949.
The accused pleaded not guilty, but, after evidence had been led, the magistrate found her guilty. At her request, he stated & case for appeal to the High Court of Justiciary. The stated case set forth the terms of the complaint and also disclosed that no copy of the notice served on the accused in accordance with section 46 (4) had been entered in the minutes of proceedings as required by section 46 (5). This report is not otherwise concerned with the case as stated by the magistrate.
The case was heard before the High Court of Judiciary, consisting of Lord Mackay, Lord Jamieson and Lord Patrick, on 25th and 29th May 1951.
At advising on 26th June 1951,—
LORD MACKAY .—Beyond a slight introductory sketch, the original point or points raised against this conviction of a breach of licensing certificate are not known to us, and have not yet been argued at all. But here is one instance of what seems in latter times to have become almost commonplace, that a point alleged to amount to a "fundamental nullity," and which was neither prepared nor taken as plea in the Court of first instance, is raised by counsel. Rather reluctantly, I confess. I bring myself to consider and decide upon this late submission, in preference to hearing out the real stated case. Nevertheless, I have
frequently said before, and I have here to affirm it again, that if an objection to the whole process is discovered—and that either by counsel or by the Court itself alone, as was illustrated by the very recent case of Hull v. H. M. AdvocateSC10—which being incurred or experienced is sufficiently unfair to the accused, to any accused in general, then the Court may be forced to hold the whole proceedings to be "funditus null," and may quash. Incidentally, I think these very words should not in applying this doctrine be rashly departed from :there is far too much tendency to step away into generalities like "fundamental," "goes to the essence" and the like. What is needed is a "nullity," and a nullity because the defect goes to the very root of justice and of the complaint itself.
So much being said, however, your Lordships were from early in the opening minded to...
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