In the Scottish Courts
| DOI | 10.1177/002201834801200105 |
| Published date | 01 January 1948 |
| Date | 01 January 1948 |
| Subject Matter | Article |
In the Scottish Courts
SALMON
pOACHING-FORFEITURE
OF
VEHICr.E
Simpson v. Fraser and others
SECTION 44 of
the
Summary
Jurisdiction (Scotland)
Act, 1908, empowers acourt of
summary
jurisdiction,
on a plea of guilty or on a finding of guilt,
to
order
the
forfeiture of
"anv
instruments or other articles" found in
possession of
an'
accused "used or calculated to be of use
in
the
commission of
the
offence". Until now,
there
has
been no authoritative interpretation of
the
scope of this
power.
In
the
early morning of
5th
June
last, three Aberdeen
men
were observed in
the
act of salmon poaching on ground
adjacent to
the
river Deveron,
at
apoint about forty miles
from
the
city. They were, some time later, intercepted
by
the
Police while in process of returning to Aberdeen by
motor-car.
In
the
car were found implements commonly
used
by
salmon poachers. The
car
was
the
property of one
of
the
men. A prosecution, laid under
the
Salmon Fisheries
(Scotland) Act, 1862, section 27, followed and, on
the
calling
of
the
case in
the
sheriff court
at
Banff, a plea of guilty was
tendered. Thereupon
the
prosecutor moved for for-
feiture
not
only of
the
implements
but
of
the
car.
In
the
absence of any express power of forfeiture in
the
Act he
relied upon
the
general power contained in section 44 of
the
Act of 1908. The sheriff, having considered
the
wording
of
the
section, ordered forfeiture of
the
implements
but
refused
to
order forfeiture of
the
car. The prosecutor
appealed.
Unanimously and without much difficulty,
the
judgesof
the
High Court of Justiciary affirmed
the
decision of
the
sheriff.
In
their
opinion,
the
import of
the
words used in
section 44 was
that
"there
must
be a direct
and
particular
connection between
the
use, actual or potential, of
the
article in question
and
the
commission of
the
offence".
72
To continue reading
Request your trial