Mackenzie v McKillop
| Jurisdiction | Scotland |
| Judgment Date | 07 January 1938 |
| Docket Number | No. 13. |
| Date | 07 January 1938 |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-Clerk. Lord Mackay. Lord Pitman.
Review—Suspension—Power of High Court to amend conviction and sentence—Serious irregularities affecting title to prosecute, charges libelled, and terms of conviction and sentence—Plea of guilty by accused covering main offence charged—Summary Jurisdiction (Scotland) Act, 1908 (8 Edw. VII, cap. 65), sec. 75.
The Summary Jurisdiction (Scotland) Act, 1908, by sec. 75, enacts,inter alia, that no conviction or sentence shall be quashed except upon certain grounds including the ground of incompetency; but further provides that the High Court may amend any conviction or sentence, or may pronounce such other sentence, judgment or order as they shall judge expedient.
An accused, after pleading guilty through a law agent, was convicted and sentenced on a summary complaint of contravention of sec. 13 (1) of the Roads Act, 1920, by using his motor car without having obtained a licence, and of sec. 4 (3) (c) of the Roads Vehicles (Registration and Licensing) Regulations, 1924, by not exhibiting such licence on his car. Thereafter he brought a suspension of the conviction and sentence and maintained:—(1) that the statutory offences libelled were mutually exclusive; (2) that the instance of the complaint was bad, in respect that the prosecutor had no title to prosecute the second of the offences charged; (3) that, as regarded the second of the offences, the conclusion for an excise penalty was incompetent; (4) that the complaint incompetently set forth a liability for payment of the expenses of the prosecution; and (5) that, the accused having been sentenced to payment of expenses and failing payment to imprisonment, the sentence was incompetent, in respect that (a) imprisonment in default of payment of expenses was not libelled, and (b) an order for imprisonment in default of payment of expenses was incompetent.
Held that the manifest irregularities in the complaint, conviction and sentence amounted to incompetency; that, accordingly, it was within the power of the Court to quash the conviction and sentence; but that, as it was not disputed that there had been contravention of sec. 13 (1) of the Roads Act, 1920, which was the main offence charged, the power of the Court in regard to amendment of the conviction and sentence contained in sec. 75 of the Summary Jurisdiction (Scotland) Act, 1908, should be exercised.
The Court accordingly exercised that power by restricting the conviction and sentence.
Edward Montague Compton Mackenzie, residing at Suidheachan, Northbay, in the parish of Barra and county of Inverness, was charged on 14th April 1937 in the Sheriff Court at Lochmaddy on a complaint at the instance of John William M'Killop, County Clerk of the County Council of the County of Inverness and Taxation and Registration Officer for the said County. The complaint set forth:—"You are charged at the instance of the complainer that, on the second day of January, Nineteen hundred and thirty-seven, on the public road at Castlebay, in the said Parish and County and at a part of the said road opposite the Pier Store at Castlebay aforesaid, You did use or cause or permit to be used a 10 h.p. Austin saloon motor car, registered number S T 8701, a mechanically propelled vehicle of which you were the owner, without having a licence for the period then current in respect of the said vehicle in force and exhibited thereon, contrary to section 13 (1) of the Roads Act, 1920, and section 4 (3) (c) of the Roads Vehicles (Registration and Licensing) Regulations, 1924,1whereby you are liable to an excise penalty of twenty pounds or an excise penalty equal to three times the amount of the duty payable in respect of the said vehicle, whichever is the greater, and, in default of payment, to imprisonment, in terms of the Summary Jurisdiction (Scotland) Act, 1908, section 48, and you may be found liable in the expenses of the prosecution in terms of section 52 of the Summary Jurisdiction (Scotland) Act, 1908."
On 17th June 1937 another complaint in similar terms was served upon the accused in respect of offences committed on 2nd April 1937.
On 14th July the accused, who was represented by a law agent, pleaded guilty to both complaints. In respect of the plea of guilty to the first complaint the accused was convicted and sentenced by the Sheriff-substitute (Inglis) to a fine of £2, 1s. 3d., with £1, 13s. 6d. of expenses, and failing payment within 14 days, to 20 days' imprisonment. In respect of the second complaint he was sentenced to a fine of £4, 2s. 6d., with £1, 3s. 6d. of expenses, and, failing payment within 14 days, to 30 days' imprisonment. Thereafter the accused brought a bill of suspension. The suspender averred, inter alia:—"(6) The complainer respectfully submits, in the first place, that the said complaints areex facie et funditus null, in respect that they incompetently charge the complainer with liability to pay the expenses of the prosecution. The complainer also submits that it was incompetent for the Sheriff-substitute to make the said awards of expenses. The alleged warrant for dealing with expenses was the Summary Jurisdiction (Scotland) Act, 1908 (8 Edw. VII, cap. 65), section 52, which provides,inter alia, 'Expenses may be awarded to or against any private prosecutor, but shall not be awarded to or against any person prosecuting in the public interest, unless the statute or order under which proceedings may be taken directly or by implication
authorises such award, but the Court may direct the expenses incurred by any prosecutor, public or private, to be met in whole or in part out of any penalty imposed.' The respondent was prosecuting in the public interest. Neither the Act nor the Regulations under which the proceedings were taken directly or by implication authorised such awards. Esto the awards of expenses were incompetent, it was also incompetent to order imprisonment in the event of failure to pay expenses. (7) The complainer further submits that, in any event, it was incompetent for the Sheriff-substitute to order imprisonment in the event of the complainer's failure to pay the said expenses. The Act of 1908, by section 52, provides that, where expenses shall be awarded to the prosecutor, they “shall be recovered in the same manner as any penalty may be recovered,” and the Act also provides for the recovery of penalties. The complainer however submits that it nowhere provides for sentence of imprisonment in the event of expenses not being recovered. Further, the Sheriff-substitute, in ordering imprisonment in the event of the complainer's failure to pay expenses, went beyond the terms of the charges in the complaints. (8) The complainer further submits that it was, in any event, incompetent for the Sheriff-substitute to order payment of fine and expenses separately with one term of imprisonment as an alternative to both."The respondent lodged answers in which he admitted the terms of the conviction and sentence as above set forth, and averred, inter alia:—(Ans. 6) "Admitted that the respondent was prosecuting in the public interest. The said statutes and Regulations are referred to for their terms. Quoad ultra the complainer's contentions are denied." (Ans. 7) "The complainer's contentions are denied." (Ans. 8) "The complainer's contention is denied."
The suspender pleaded, inter alia:—"(1) The convictions and sentences complained of should be suspended, in respect that (1) The complaints were ex facie et funditus null. (2) It was incompetent for the Sheriff-substitute to make the said awards of expenses. (3) It was incompetent for the Sheriff-substitute to order imprisonment in the event of the complainer's failure to pay the said expenses. (4) It was incompetent for the Sheriff-substitute to order payment of fine and expenses separately with one term of imprisonment as an alternative to both."
The respondent pleaded, inter alia:—"(1) The complainer's averments being irrelevant and insufficient to support the prayer of the bill, the bill should be refused."
The case was heard before the High Court on 10th and 11th November 1937.
At advising on 7th January 1938,—
LORD JUSTICE-CLERK (Aitchison).—In the bill before us the suspender asks the Court to set aside a conviction and sentence which was pronounced against him in the Sheriff Court at Lochmaddy on 14th July 1937. The validity of a similar conviction and sentence is raised in the same bill and depends upon the same considerations. The conviction of the suspender was upon a plea of guilty tendered by him to a complaint purporting to proceed at the instance of "the County Clerk of the County Council of the County of Inverness and Taxation and Registration Officer for the said County." The complaint charged the suspender that, on 2nd January 1937 at a place specified, he did use or cause or permit to be used a motor car of which he was the owner without having a licence for the period then current in respect of the said vehicle in force and exhibited thereon, contrary to section 13 (1) of the Roads Act, 1920, and section 4 (3) of the Roads Vehicles (Registration and Licensing) Regulations, 1924, whereby he was liable to a certain excise penalty specified in the complaint, and, in default of payment, to imprisonment in terms of the Summary Jurisdiction (Scotland) Act, 1908, section 48; and the complaint concluded "and you may be found liable in the expenses of the prosecution in terms of section 52 of the Summary Jurisdiction (Scotland) Act, 1908." Upon this complaint the suspender was convicted, and was sentenced to a fine of £2, 1s. 3d. with £1, 13s. 6d. of expenses, and, failing payment within 14 days, to 20 days' imprisonment.
On the appeal being opened it at once became apparent that there were several serious irregularities affecting the complaint. In the first place, it is self-contradictory. Section 13 (1) of the Roads Act, 1920, makes it an...
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...HornSC, 1931 J. C. 42. 10 (1905) 8 F. (J.) 15. 11 3 Edw. VII, cap. 36. 1 Murray v. Macmillan, 1927 J. C. 14. 2 Mackenzie v. M'KillopSC, 1938 J. C. 91, perLord Justice-Clerk Aitchison at p. 3. Anderson v. HowmanSC, 1935 J. C. 17. 4 2 and 3 Geo. VI, cap. 118. 5 4 and 5 Geo. VI, cap. 31. 1 4 a......