In the Scottish Courts
| DOI | 10.1177/002201835101500106 |
| Date | 01 January 1951 |
| Published date | 01 January 1951 |
| Subject Matter | Article |
Inthe Scottish Courts
DECISIONS
ON
PROCEDURE
(1) Specification
of
Penalty
Craig v.
Adair
(1950
S.L.
T. 274)
INthis Bill of Suspension,
the
sole point
taken
was
that,
inacomplaint charging acontravention of section 11
of
the
Road
Traffic Act, 1930,
the
prosecutor contented
himself
with
libelling
the
offence
and
the
pecuniary penalty
("whereby
you
are liable to a
penalty
not
exceeding £50
or to imprisonment for a
term
not
exceeding four months")
but
omitted to set forth
the
court's power to order dis-
qualification under s. 6(1) of
the
Act. After hearing
evidence on a plea of
not
guilty,
the
sheriff before whom
the
case was called imposed a fine
and
also suspended
the
accused's driving licence for a period of three months. The
Bill craved suspension of
that
part
of
the
sentence which
related to disqualification.
In
support of
the
Bill,
it
was argued
that
disqualifi-
cation
was
a
penalty
and, as such, should have been
set
out
in
the
complaint. (Summary Jurisdiction (Scotland) Act,
1908, sections 18
and
19
and
Schedule C). Failure to give
notice of this
"penalty",
counsel submitted, amounted
to
"oppression" as
that
term
is understood in
the
law of
Scotland.
The
Bill was refused. "There
can
be little
doubt",
said
the
Lord Justice-Clerk (with whom Lord Jamieson
and
Lord
Russell concurred),
"that
disqualification operates
as a
penalty
in
the
sense
that
it
deprives
the
guilty person
of something
and
in
that
way
may
turn
out
to be a punish-
ment.
But
that
such
may
be
an
incidental result of
disqualification does
not
make disqualification a
"penalty"
in
the
sense of
the
1908 Act. Under
that
Act a
penalty
is
something imposed on a convicted individual which affects
his pocket or his person.
It
is a different
matter
where,
as in
the
Road Traffic Act, provision is made in
the
interests
86
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