Galletly v Laird. McGown v Robertson
| Jurisdiction | Scotland |
| Judgment Date | 17 December 1952 |
| Docket Number | No. 4. |
| Date | 17 December 1952 |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-General. Lord Carmont. Lord Russell.
Statutory Offences—Police Acts—Trafficking in indecent or obscene publications—Complaint—Relevancy—No specification of alleged indecencies or obscenities—Evidence—Admissibility—Defence evidence regarding circulation of similar publications—Opinion evidence regarding character of publications—Conviction—Competency—"Indecent or obscene"—Whether a general conviction on alternative charges—Burgh Police (Scotland) Act, 1892 (55 and 56 Vict. cap. 55), sec. 380 (3)—Glasgow Corporation Order Confirmation Act, 1914 (4 and 5 Geo. V, cap. clxxviii), sec. 21.
The Burgh Police (Scotland) Act, 1892, by sec. 380 (3), penalises traffic in "indecent or obscene" publications. The Glasgow Corporation Order Confirmation Act, 1914, sec. 21, contains provisions which are substantially to the same effect.
The complainer in a bill of suspension arising out of his conviction on a charge of contravening sec. 380 (3) of the Act of 1892, sought to have his conviction suspended on the grounds, inter alia, (1) that the magistrate had disallowed evidence intended to show that books of a similar character to those specified in the complaint were freely in circulation and available in the public library and that such books were considered decent by responsible members of the community, and (2) that, in the absence of a finding as to whether the books were "obscene" or "indecent," the complainer had been convicted of both of two alternative charges. The appellants in a stated case, which was considered along with the bill of suspension, attacked their conviction of a contravention of sec. 21 of the local Act of 1914 on the ground, inter alia, that no specification was given in the complaint of pages or passages alleged to be indecent or obscene, and that the complaint was accordingly irrelevant.
Held (1) that the magistrate's duty was to examine the publications libelled in the complaint and decide for himself whether or not they were indecent or obscene, and that, accordingly, he had rightly disallowed evidence intended to elicit the views of other persons on this matter or as to the nature of other books in circulation and said to be similar in character to those libelled; (2) that the words "indecent or obscene" did not indicate alternative offences but were employed to convey a single idea, and that therefore the complainer had not been convicted of both of two alternative charges; and (3) that, while there might be cases where it was necessary to specify the offending passages, this was not necessary where the offensive nature of the publications was evident from their titles and illustrations.
Statutory Offences—Trafficking in indecent or obscene publications—Penalties—Whether Court empowered to order destruction of offending books—Summary Jurisdiction (Scotland) Act, 1908 (8 Edw. VII, cap. 65), sec. 44.
The Summary Jurisdiction (Scotland) Act, 1908, enacts:— Sec. 44. "Where the accused is convicted of any offence … the Court shall have power to order the forfeiture of any instruments or other articles found in his possession used or calculated to be of use in the commission of the offence, and also to order said instruments or other articles to be destroyed or otherwise disposed of."
Held that the Court had power to order the destruction of indecent or obscene books exhibited to view in contravention of sec. 380 (3) of the Burgh Police (Scotland) Act, 1892.
Summary Procedure—Conduct of trial—Record of proceedings—Failure to note objections—Summary Jurisdiction (Scotland) Act, 1908 (8 Edw. VII, cap. 65), secs. 41 and 75.
The Summary Jurisdiction (Scotland) Act, 1908, enacts by sec. 41 that "in the event of any objections being stated … to the competency or admissibility of evidence, such objections shall, if either party desires it, be noted in the record."
The complainer in a bill of suspension sought to have his conviction suspended on the ground, inter alia, that objections to evidence had not been noted in the record, although their noting had been requested by the defence.
Held, applying sec. 75 of the Act of 1908, that non-compliance with sec. 41 did not automatically result in the quashing of a conviction, and that the appropriate course in the circumstances was to direct the attention of the Lord Advocate to the case and request him to take such action as might be open to him to prevent the repetition of such acts of negligence.
Galletly v. Laird
William Stewart Galletly, bookseller, was charged in the Police Court at Paisley on a complaint at the instance of Thomas Dunlop Laird, Burgh Prosecutor, which set forth that "on 2nd November 1951, within your premises used as a bookseller's shop at 1 Walker Street, Paisley, you did exhibit to view the books enumerated in the schedule hereto attached which are indecent or obscene, contrary to the Burgh Police (Scotland) Act, 1892, section 380 (3).1"
On 12th June 1952 the magistrate convicted the accused in respect of thirteen of the books enumerated in the schedule to the complaint and ordered their destruction. Thereafter the accused appealed against conviction by way of a bill of suspension, to which the Burgh Prosecutor lodged answers.
The complainer averred, inter alia:—"(3) The principal witness for the respondent was Inspector Alexander M'Kinstray of the Paisley Burgh Police. This witness testified that on a visit to the complainer's shop he had taken possession of 313 books and 37 magazines and that in his opinion 13 of the books referred
to in the charge were “morally unfit to be read” and “obscene.” On completion of Inspector M'Kinstray's evidence-in-chief, the complainer's solicitor sought to cross-examine the inspector regarding other books, not referred to in the charge, which freely and openly circulated in the Burgh of Paisley to the knowledge of the police, and some of which were available to the public in the Paisley Public Library. The object of this line of cross-examination was to endeavour to show that the allegedly obscene passages in the books referred to in the charge were couched in very similar terms to those in other books which were regarded as decent, fit for circulation and available without restriction to the public in the Paisley Public Library, and that the said allegedly obscene books were neither indecent nor obscene but conformed to existing standards of decency. The Burgh Prosecutor objected to this line of cross-examination on the ground that it was “irrelevant.” The magistrate did not allow the said solicitor's question to be put to the witness. Instead of allowing the questions subject to competency and relevancy, he upheld the objections of the Burgh Prosecutor and prohibited the complainer's solicitor from pursuing the said line of cross-examination. The magistrate was, at the time, a member of the committee of the Paisley Public Library. (4) Prior to the said Inspector M'Kinstray entering the witness-box, there was called as a witness for the prosecution a Sergeant Stoddart of the Paisley Burgh Police. This witness, in his evidence-in-chief, stated that he had read some of the books referred to in the charge and that in his opinion they were obscene. The complainer's solicitor in cross-examination asked the witness what he meant by the term obscene. This line of cross-examination was objected to by the Burgh Prosecutor on the ground that it was irrelevant. The magistrate sustained the objection and refused to permit the complainer's solicitor to cross-examine on this line. (5) In the course of the trial the complainer's solicitor produced a number of books, three of which were in the Paisley Public Library, and attempted to cross-examine prosecution witnesses and examine defence witnesses as to whether or not these books were obscene. The Burgh Prosecutor objected to such cross-examination and examination as being irrelevant, and on each occasion the magistrate sustained the objection and refused to permit the complainer's solicitor to cross-examine and to examine on this line. (6) After the conclusion of the case for the...To continue reading
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