Fraser and Macdonald v Heatly
| Jurisdiction | Scotland |
| Judgment Date | 22 June 1966 |
| Docket Number | No. 5. |
| Date | 22 June 1966 |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-Clerk. Lord Strachan. Lord Walker.
Statutory Offences—Suspected person loitering with intent to commit felony—"Suspected person"—Vagrancy Act, 1824 (5 Geo. IV, cap. 83), sec. 4—Prevention of Crimes Act, 1871 (34 and 35 Vict. cap. 112), sec. 15—Penal Servitude Act, 1891 (54 and 55 Vict. cap. 69), sec. 7.
By sec. 4 of the Vagrancy Act, 1824, as amended and extended to Scotland by sec. 15 of the Prevention of Crimes Act, 1871, and further extended by sec. 7 of the Penal Servitude Act, 1891, it is provided, inter alia, that it shall be a punishable offence for a "suspected person or reputed thief" to loiter about or in a street with intent to commit felony.
Two persons were charged that being suspected persons they loitered about a street with intent to commit felony, and convicted. They were seen walking in the street, and stopped at a parked car. Up to that time their conduct gave rise to no suspicion. They tried the door handles of that car, which appeared to be locked. They carried out the same procedure with three other cars and then returned to the first car where they were intercepted by the police.
Held that the words "suspected person" applied only to a person who, apart from the particular occasion, had brought himself within the class of suspected persons by reason of his antecedent conduct, and that as the actings proved all occurred on one occasion the requirement of antecedent conduct was lacking; and convictions quashed.
Ledwith v. RobertsELR, [1937] 1 K. B. 232,followed.
Lain M'Gregor Fraser and Alexander Macdonald were charged in the Burgh Court of Edinburgh on a complaint at the instance of James Donaldson Heatly, City Prosecutor, which set forth:—"… you are charged at the instance of the complainer that on 4th December 1965, being suspected persons you did loiter about Grassmarket, Edinburgh, with intent to commit felony; contrary to section 4 of the Vagrancy Act, 1824, as amended by section 15 of the Prevention of Crimes Act, 1871."
The accused pleaded not guilty, and were tried on 12th January 1966, when they were found guilty as libelled. At the request of the accused, the magistrate stated a case for the opinion of the High Court of Justiciary.
The stated case set forth the following facts as admitted or proved:—"(1) That the two appellants were seen walking on the north side of the Grassmarket, Edinburgh, and they stopped at a car which was parked there. Both appellants were well dressed and their conduct up to this time gave rise to no suspicion. (2) That the appellant Fraser tried the door handle nearest the foot pavement and appellant Macdonald tried the door handle on the off-side or passenger side of the vehicle. The doors did not open and appeared to be locked. (3) That the appellants carried out the same procedure with other two cars parked nearby. The door handles of these cars were tried by the appellants in the same manner and order as the car referred to in the preceding paragraph. (4) That the appellants then moved along the street about 150 yards and approached another car. Again the same procedure was carried out by the appellants trying the door handles which appeared to be locked. (5) That they then retraced their steps and came back to the first vehicle where they were intercepted by the police officers and taken to the Central Police Station where they were cautioned and charged. The appellant Fraser replied “We did not mean to take anything from anybody.” The appellant Macdonald replied “We were waiting on the bus, which was due to leave at 11.30 p.m.We walked up the street for 50 yards and back down to the bus.” (6) That both appellants are single men residing with their respective parents. They are both in regular employment earning about £8 per week. Neither has any previous appearances in court. (7) That no report has been received of any vehicles being broken into in the area mentioned."
The questions of law for the opinion of the Court included:—"(2) Was I entitled on the facts proved or admitted to find the appellants...
To continue reading
Request your trial