Gallagher v H. M. Advocate
| Jurisdiction | Scotland |
| Judgment Date | 20 November 1936 |
| Docket Number | No. 5. |
| Date | 20 November 1936 |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-Clerk. Lord Pitman. Lord Wark.
Jurisdiction—High Court or Sheriff—Statutory offences—Coining—Offence punishable by penal servitude—Trial on indictment before Sheriff—Remit to High Court for sentence—Competency—Coinage Offences Act, 1936 (26 Geo. V and 1 Edw. VIII, cap. 16), sec. 9 (1)—Penal Servitude Act, 1891 (54 and 55 Vict. cap. 69), sec. 1 (2)—Criminal Procedure (Scotland) Act, 1921 (11 and 12 Geo. V, cap. 50) sec. 2.
Procedure—Sentence—Coining—Penal servitude or imprisonment—Coinage Offences Act, 1936 (26 Geo. V and 1 Edw. VIII, cap. 16), sec. 9 (1)—Penal Servitude Act, 1891 (54 and 55 Vict. cap. 69), sec. 1 (2).
The Coinage Offences Act, 1936, enacts, by sec. 9 (1), that every person who, without lawful authority, makes, mends or has in his possession coining implements "shall be guilty of felony and on conviction thereof liable to penal servitude for life or for any term not less than three years."
The Penal Servitude Act, 1891, by sec. 1 (2), confers upon a Court, which is "empowered or required" by any Act in force or any future Act to award penal servitude, discretionary power to award imprisonment for any term not exceeding two years, unless such future Act otherwise provides.
An accused, after conviction in the Sheriff Court upon an indictment charging him with an offence against sec. 9 (1) of the Coinage Offences Act, 1936, was remitted by the Sheriff to the High Court for sentence, in terms of sec. 2 of the Criminal Procedure (Scotland) Act, 1921, and sentenced by a circuit judge to three years' penal servitude.
In an appeal under the Criminal Appeal (Scotland) Act, 1926, against the conviction, the accused contended that, in view of the sentence appropriate to the offence charged, the proceedings in the Sheriff Court were fundamentally null.
Held (1) that, as a Sheriff could not pronounce a sentence of penal servitude, he could not competently try an indictment charging a statutory offence, such as the offence in question, for which, upon conviction, the Court was required to pronounce a sentence of penal servitude; (2) that the discretionary power to pronounce a sentence less than penal servitude conferred by the Act of 1891 did not apply to the Sheriff Court, but only to a Court which had power to award penal servitude; held further, (3) that the Sheriff had here no power to remit the accused to the High Court for sentence under sec. 2 of the Criminal Procedure (Scotland) Act, 1921, in respect that that statute applied only to cases in which the Sheriff might himself competently pronounce a sentence less than penal servitude, and not to cases where the Sheriff could not pronounce any sentence at all; and conviction and sentence quashed.
Opinions that, under sec 1 (2) of the Penal Servitude Act, 1891, a judge of the High Court had power to award imprisonment on a conviction under sec. 9 (1) of the Coinage Offences Act, 1936.
James Gallagher was charged in the Sheriff Court at Glasgow on an indictment at the instance of His Majesty's Advocate, which set forth that "you did, on 14th August 1936 in the house occupied by Alexander Allan, at 97 Kidston Street, Glasgow, and in the house occupied by you at 90 Caroline Street, Glasgow, without lawful authority or excuse, knowingly have in your possession three moulds, each of which was adapted and intended to make or impress the apparent resemblance of both sides, or parts of both sides, of a two shilling piece of current silver coin: Contrary to the Coinage Offences Act, 1936, section 9 (1)."
The panel was tried before Sheriff-substitute S. M'Donald and a jury on 21st and 22nd October 1936. On 22nd October the jury unanimously found the panel guilty as libelled. On the return of the verdict, and after the prosecutor had moved for sentence, the Sheriff-substitute, ex proprio motu, remitted the panel to the High Court for sentence in terms of section 2 of the Criminal Procedure (Scotland) Act, 1921. No objection was taken by the panel to the competency of the trial, or to any of the proceedings therein.
On the case being called in the Circuit Court at Glasgow on 27th October 1936, the Advocate-Depute moved for sentence, whereupon counsel for the panel submitted that no sentence could competently be pronounced, in respect that the proceedings in the Sheriff Court were fundamentally null, the Sheriff having no jurisdiction to try a charge under section 9 (1) of the Coinage Offences Act, 1936. The circuit judge (Lord Mackay) did not decide the point, but, in respect of the importance of the question raised by the objection, dealt with the case on the footing that his function in the remit was purely ministerial, and sentenced the panel to three years' penal servitude, leaving the question of the Sheriff's jurisdiction to be determined by the Criminal Appeal Court. With regard to the sentence, he expressed the opinion that he had no power to pronounce any sentence other than one of penal servitude.
The panel thereafter appealed, under the Criminal Appeal (Scotland) Act, 1926, to the High Court of Justiciary.
The grounds of appeal against the conviction were:—"(1) That the Sheriff and jury had no jurisdiction to try the indictment on which the appellant was convicted, in respect that the minimum sentence which could be imposed by the Court on conviction was, under section 9 (1) of the Coinage Offences Act, 1936, three years' penal servitude. (2) That, in view of a fundamental nullity in the proceedings in the Sheriff Court, it was incompetent for the High Court to impose any sentence on the appellant; and that, in any event, the sentence of three years' penal servitude was excessive."
The appeal was heard before the High Court of Justiciary on 12th November 1936.
At advising on 20th November 1936,—
LORD JUSTICE-CLERK (Aitchison).—The appellant was tried, and convicted by the verdict of an Assize, in the Sheriff Court at Glasgow on 22nd October 1936, under an indictment at the instance of the Lord Advocate which charged the appellant with knowingly having in his possession without lawful authority or excuse three moulds, each of which was adapted and intended to make or impress the apparent resemblance of both sides of a two shilling piece of current silver coin contrary to section 9 (1) of the Coinage Offences Act, 1936.7 On the return of the verdict, and after the prosecutor had moved for sentence, the Sheriff-substitute ex proprio motu remitted the appellant to the High Court of Justiciary for sentence in terms of section 2 of the Criminal Procedure (Scotland) Act, 1921.8 No objection was taken by the appellant to the competency of the remit, or to the competency of the trial or of any of the proceedings therein.
On the diet of the remit being called in the Circuit Court at Glasgow on 27th October 1936, the Advocate-depute moved for sentence, whereupon counsel for the appellant submitted that no sentence could competently be passed upon the appellant, in respect that the proceedings in the Sheriff Court were fundamentally null, the Sheriff having no jurisdiction to try a charge under section 9 (1) of the Coinage Offences Act, 1936.7 The circuit judge, Lord Mackay, did not decide the point, but, in...
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