Mackintosh v Lord Advocate
| Jurisdiction | England & Wales |
| Judgment Date | 23 March 1876 |
| Docket Number | No. 6. |
| Date | 23 March 1876 |
| Court | House of Lords |
Ld. Chancellor (Cairns), Ld. Chelmsford, Ld. Hatherley, Ld. O'Hagan.
AppealCompetencyJusticiary Court.
Held that no appeal is competent from judgments of the Court of Justiciary to the House of Lords.
(In the Court of Justiciary May 20, 1872, 2 Couper, p. 236, 44 Scot. Jur. p. 418; and Nov. 4, 1872, 2 Couper, p. 367, and 45 Scot. Jur. p. 51.)
An appeal was offered to be presented to the House of Lords by Angus Mackintosh of Holme against two judgments of the High Court of Justiciary in Scotland, dated 20th May and 4th November 1872, in the circumstances stated in the opinion of the Lord Chancellor.
The Lord Advocate presented a petition praying that the appeal should not be received.1
After hearing one counsel on each side the following judgment was pronounced:
Lord Chancellor.My Lords, this question of the competency of the appeal has been argued with great care and diligence at your Lordships' bar, and everything that could be said on behalf of the appellant has been said by his learned counsel, Mr Hemming, but I think your Lordships will have no hesitation in holding that this appeal is not competent.
The appeal is brought under these circumstances:In 1872 the appellant, Mr Mackintosh, applied to the then Lord Advocate for what is termed his concourse, or his assent, to a bill which Mr Mackintosh was in the course of presenting to the Court of Justiciary for criminal letters against one Dr Thomas Graham Weir, a physician in Edinburgh, charging him with having in 1852 (twenty-four years ago) entered into a conspiracy for the purpose of obtaining the detention of Mr Mackintosh as a lunatic in Saughton Hall Lunatic Asylum, near Edinburgh, well knowing that the petitioner was not insane. The Lord Advocate, the public prosecutor of Scotland, not thinking fit himself to prosecute in the case, in the exercise of his discretion refused his concourse or concurrence
to the bill which Mr Mackintosh wished to present to the Court of Justiciary, and thereupon Mr Mackintosh called the Lord Advocate before the Court of Justiciary for the purpose of obtaining an order obliging the Lord Advocate to give his consent. The Court of Justiciary, upon the first occasion, and upon a second occasion when the same request was repeated, pronounced two interlocutors, refusing the application, that is to say, declining to force the Lord Advocate to give his concurrence. Upon that an appeal is brought to your Lordships' House. It is an appeal of a very special kind, for it is an appeal against the Lord Advocate. The appellant is Mr Mackintosh; the respondent is not any person with whom Mr Mackintosh wishes to litigate any question, but is the Lord Advocate. It is not, therefore, an appeal in the sense of an appeal between ordinary litigants; it is an appeal against one who is himself a public officer, raising the question of the exercise of his discretion.
That being the nature of the appeal, the Lord Advocate presented a petition to your Lordships' House praying that the appeal might be refused as incompetent. That petition, in the ordinary course, was referred to the appeal committee, and the appeal committee desired that the question of competency should be argued before your Lordships' bar before the case went further, and accordingly it has been argued on that point to-day.
My Lords, the broad question which has been argued at your Lordships' bar is this,whether an appeal lies to this House from an order or sentence of the Court of Justiciary, the criminal Court in Scotland; and to that I will immediately address myself. But I am anxious, at the outset, to guard myself from being misunderstood upon this subject, and I wish to say that, so far as my opinion is concerned, if it were the case that an appeal lay from the Court of Justiciary to this House, which, for reasons I will afterwards give, I do not think it does, still I should be of opinion that, having regard to the nature of the application, and to the question which is raised in this particular case, the case is one in which no appeal would lie. I only wish to say that at the outset, and not to base any decision upon it, because it was said on the part of the appellant that that was not a question which he came here to-day prepared to argue. I only, therefore, make the observation as I pass, lest it should be supposed that that question had escaped your Lordships' attention.
But now, my Lords, I come to the larger question, the question which has been argued,how far an appeal lies, or whether it lies at all, from the Court of Justiciary. The answer to that question appears to me to lie in a very narrow compass. Your Lordships have asked for all the information which could be given as to what the precedents were before the Act of Union with Scotland for any appeal from the Court of Justiciary; and, going back as far as any precedent can usefully be searched for, and considering everything that can be adduced, I think your Lordships will agree with me in saying that there has been no precedent whatever adduced of any appeal maintained before the Union from the Court of Justiciary to the Parliament of Scotland. It may be quite true that during the whole of that time it was not the habit to have appeals from other Courts to the Parliament of Scotland. But certainly, even during the time when appeals, or what were called protestations for remeid of law, which in substance were quite the same as appeals, were brought to the Parliament of Scotland from the other Scotch tribunals,in those times there is no instance of any appeal from the Court of Justiciary.
I apprehend, looking to the state of Scotland at that time, and to the occupations of the Court of Justiciary, if it had occurred to any person that an appeal would lie, the chance of an appeal certainly would have been taken.
The Act of Union provides by the 19th article, with regard to the Court of Justiciary and the other Courts, upon...
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