Hefferan v Wright
| Jurisdiction | Scotland |
| Judgment Date | 16 November 1910 |
| Docket Number | No. 5. |
| Date | 16 November 1910 |
| Court | High Court of Justiciary |
Lord Justice-Clerk, Lord Ardwall, Lord Dundas.
Statutory Offence—Betting—Complaint charging third offence—Competency of founding on analogous convictions under different statutes—Street Betting Act, 1906 (6 Edw. VII. cap. 43), section 1 (1)—Summary Jurisdiction (Scotland) Act, 1908 (8 Edw. VII. cap. 65), section 34 (7).
The Street Betting Act, 1906, section 1 (1), which prohibits betting in streets, imposes different penalties in the case of ‘a first offence,’‘a second offence,’‘a third or subsequent offence.’
The Summary Jurisdiction (Scotland) Act, 1908 (8 Edw. VII. cap. 65), section 34 (7), enacts:—‘Previous convictions of an offence under any statute or order may be libelled as aggravations in any subsequent charge for the same kind of offence or any analogous offence.’
Where a person was charged with ‘a third offence’ under the Street Betting Act, held that the only previous convictions which could be founded on in support of that charge were convictions of offences under the Street Betting Act, and that section 34 (7) of the Summary Jurisdiction Act of 1908 did not enable the prosecutor to found on convictions of analogous offences under other statutes.
Observed (per Lord Ardwall),—‘It appears to me that a distinction must be drawn between making use of a previous conviction as a mere aggravation of an offence in the ordinary sense of the term “aggravation,” and making use of it as a substantive part of a statutory offence.’
Thomas Hefferan, bookmaker, residing at Beech Grove, Carfin, was charged in the Police Court at Motherwell on a complaint at the instance of Alexander Law Wright, Burgh Prosecutor, which set forth ‘that on 13th August 1910, in Park Place and Russell Place, Park Street, in the burgh of Motherwell, being public places, you did loiter for the purpose of bookmaking and receiving bets, or agreeing to bet or wager, contrary to section 1 of the Street Betting Act, 1906: And such offence … is a third offence, you having been convicted in the Police Court of the burgh of Motherwell, as follows:—On 26th October 1905, of a contravention of section 51 of the Burgh Police (Scotland) Act, 1903, when you were sentenced to pay a penalty of Ten pounds, and failing payment, to imprisonment for a period of sixty days, and on 1st December 1909, of a contravention of the Street Betting Act, 1906, when you were sentenced to pay a fine of Fifteen pounds, and failing payment, to imprisonment for a period not exceeding sixty days, whereby you are now liable to a penalty not exceeding Thirty pounds, or to imprisonment with or without hard labour for a term not exceeding three months, without the option of a fine.’
The accused was found guilty as libelled, and sentenced to three months' imprisonment with hard labour without the option of a fine.
He brought a bill of suspension in which he stated, inter alia;—‘(3) The statutory offence, with which the complainer was charged under said complaint, is defined in section 1 (1) of said Street Betting Act, 1906. The said section then goes on to provide under subsections (a) (b) and (c) for certain and increasing penalties for a first offence, for a second offence, and for a third or subsequent offence. The first, second, and third offences there referred to are...
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