H. M. Advocate v Burns
| Jurisdiction | Scotland |
| Judgment Date | 16 November 1966 |
| Docket Number | No. 4. |
| Date | 16 November 1966 |
| Court | High Court of Justiciary |
HIGH COURT (Full Bench).
Lord Justice-General. Lord Guthrie. Lord Migdale. Lord Cameron. Lord Fraser.
Statute—Construction—"Bank note"—Whether Scottish bank note included—Statutory Offences—Possession of forged bank notes—Bank Notes (Forgery) Act, 1805 (45 Geo. III, cap. 89), sec. 6.
Held, by a Full Bench, that the expression "bank notes" in sec. 6 of the Bank Notes (Forgery) Act, 1805, includes Scottish bank notes; and an objection to the relevancy of a charge of being, knowingly and without reasonable excuse, in possession of forged bank notes bearing to be notes of the Royal Bank of Scotland, contrary to sec. 6 of the Act, repelled.
H. M. Advocate v. Gray, 27th June 1814, reported in Hume on Crimes, vol. i, p. 148, note 4, followed.
H. M. Advocate v. Clunie, (1882) 4 Coup. 576, 9 R. (J.) 15, disapproved.
James Burns and James M'Bride were charged on an indictment at the instance of Her Majesty's Advocate which set forth that "you did, on 16th July 1966, in the Wee Man's public house at 359 Gallowgate, Glasgow, and elsewhere in Glasgow to the prosecutor unknown, knowingly and wittingly have in your possession and custody seventeen forged and counterfeited bank notes purporting to be £5 notes of the Royal Bank of Scotland, knowing the same to be forged and counterfeited, without lawful excuse; Contrary to the Bank Notes (Forgery) Act, 1805, section 6."1
At the pleading diet on 21st October 1966 the accused pled not guilty, but no objection was stated to the indictment. At the calling of the second diet before Lord Eraser at a sitting of the High Court in Glasgow on 9th November 1966 the accused were allowed to withdraw their pleas of not guilty and to state an objection to the competency and relevancy of the indictment on the ground that section 6 of the Bank Notes (Forgery) Act, 1805, did not apply to notes issued by Scottish banks. Lord Eraser certified the case for consideration by the High Court of Justiciary.
LORD FRASER'S Report.—The accused in this case are charged with being in possession of forged notes, bearing to be notes of the Royal Bank of Scotland, "contrary to section 6 of the Bank Notes (Forgery) Act, 1805."
At the trial diet counsel for the accused submitted that the proceedings were incompetent and that the libel was irrelevant, in respect that section 6 of the Act of 1805 applied only to notes issued by the Bank of England, and not to those issued by Scottish Banks. If that submission is correct, the charge would be a fundamental nullity and I accordingly allowed the objection to be raised, although normally it should have been raised at the pleading diet—Renton and Brown's Criminal Procedure, (3rd ed.) p. 95. The objection was supported by reference to Macdonald on Criminal Law, (5th ed.) p. 69, and to the case ofH. M. Advocate v. Clunie, (1882) 4 Coup. 576, 9 R.(J.) 15, where it was held by a Court of three judges (Lord Craighill dissenting) that the section does not apply to notes of the Royal Bank of Scotland.
The difficulty arises because the earlier case ofGray, 27th June 1814 (not reported, but referred to fairly fully in a footnote in Hume on Crimes, vol. i, pp. 148–9), was decided in exactly the opposite sense. Hume states that the decision was reached "by the narrowest majority," but he does not narrate how many judges formed the Court in Gray,
nor how many dissented. It appears from the reference toGray's case in Alison on Criminal Law, vol. i, p. 390, that Alison considered the decision in Gray to have been erroneous. Gray was referred to in argument inClunie and was evidently referred to (though not by name) in the dissenting opinion of Lord Craighill at p. 18. But it does not seem to have been considered in either of the two majority opinions, and it was not formally overruled.Having regard to that conflict of authority, I thought it proper to certify the present case for consideration by a larger Court. Apart from authority the question is, I think, purely one of interpreting section 6 of the statute. The argument for the Crown is, briefly, that section 6 is not...
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