In the Scottish Courts
| DOI | 10.1177/002201835001400306 |
| Published date | 01 July 1950 |
| Date | 01 July 1950 |
| Subject Matter | Article |
In the Scottish Courts
A TECHNICAL OFFENCE
McArthur v. Jack (1950,
S.L.T.
68)
Is
it
alegitimate consideration in
the
mind of a judge,
at
the
stage of verdict (as distinct from sentence)
that,
although
the
letter of
the
law has been broken,
the
offence
is of a technical character?
Maya
magistrate, having
heard evidence in support of a
statutory
charge, say, in
effect-"I
agree
that
the
facts proved show
that
the
accused has committed
the
acts penalised
by
the
statute:
but,
in
the
very special circumstances, Ipropose
not
to
convict:
he is
acquitted"?
Some encouragement for
the
view
that
such a course is justified is found in
the
dictum
of Lord Clyde in Bego v. Gardiner (1933, J.C. 23)
"If
I
thought
that
the
present case was one in which only a
technical offence
had
been committed, Ishould be prepared
to refuse to allow
the
conviction
to
stand
on
the
ground
that
the
prosecution was unwarranted".
The
contrary
view-that
technicality, although
it
may
affect sentence,
is no
defence-prevailed
in
the
case now reported.
Peter
McArthur, a P.S.V. driver, appealed to
the
High
Court of Justiciary against conviction, in Dunfermline
Police Court, of driving a'bus on a footway in contra-
vention of Section 381
(13)
of
the
Burgh Police (Scotland)
Act 1892, arguing
that
such a momentary encroachment
on
the
footway as had, in fact, occurred did
not
constitute
an
offence:
that
aperson could
not
be said to drive
"upon"
afootway unless he
had
encroached upon
it
to
an
extent
in
space
and
time which suggested
that
he
had
chosen
the
footway in preference to
the
road:
that,
in
any
event,
the
facts proved disclosed a purely technical offence:
and
that
if
the
appellant could show
that
he
had
reasonable cause
for encroaching upon
the
footway, he was entitled
to
be
acquitted.
For
support of these arguments appellant's
300
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