Massey v Lamb
| Jurisdiction | Scotland |
| Judgment Date | 17 July 1906 |
| Docket Number | No. 26. |
| Date | 17 July 1906 |
| Court | High Court of Justiciary |
Lord Justice-Clerk, Lord Kyllachy, LdStormonth-Darling.
Procedure—Adjournment—Right of accused to demand adjournment—Summary Procedure (Scotland) Act, 1864 (27 and 28 Vict. cap. 53), sec. 11.—
A person charged on a summary complaint, a copy of which had not been served on him, asked that the case should be adjourned. The Magistrate refused to grant an adjournment.
Held that under sec. 11 of the Summary Procedure (Scotland) Act, 1864, the refusal of the Magistrate to grant an adjournment was a fundamental error which rendered all the subsequent proceedings null.
Review—Suspension—Competency—Limitation of review under local Act—Fundamental Nullity—Summary Procedure (Scotland) Act, 1864 (27 and 28 Vict. cap. 53), sec. 11—Aberdeen Police and Water-Works Act, 1862 (25 and 26 Vict. cap. cciii.), secs. 515 and 516.—
The Aberdeen Police and Water-Works Act, 1862, secs. 515 and 516, prohibits review of any order or sentence of a magistrate by way of suspension, reduction, advocation, appeal, or otherwise, except by way of appeal to the next Circuit Court at Aberdeen, ‘on the ground of corruption, malice, or oppression on the part of the Magistrate, wilful deviations in point of form from the statutory enactments, incompetency, or defect of jurisdiction.’
Held that the refusal by one of the Magistrates of Aberdeen to grant an adjournment of the trial on a summary complaint under sec. 11 of the Summary Procedure (Scotland) Act, 1864, was a fundamental error, which vitiated all the subsequent proceedings; and therefore that a bill praying for suspension of a conviction under the complaint was competently presented to the High Court of Justiciary in Edinburgh, notwithstanding the provisions of the Aberdeen Police and Water-Works Act, 1862.
On 20th November 1905 Allan Massey, medical student, Devonshire Road, Aberdeen, was charged in the Police Court at Aberdeen on a complaint under the Aberdeen City Acts, 1862 to 1900, the Summary Jurisdiction (Scotland) Acts, 1864 and 1881, and the Criminal Procedure (Scotland) Act, 1887, at the instance of the Procurator-fiscal, setting forth that the accused ‘did on 10th November 1905, in Union Street, Aberdeen, throw missiles, and thereby break a pane of glass in the “destination” case of a tramway car, then being driven along Union Street aforesaid, by William Will, motorman, Hollybank Place, Aberdeen, and this he did to the obstruction and annoyance and danger of the residents and passengers, and contrary to the Aberdeen City Acts, 1862 to 1900, particularly the Aberdeen Police and Water-Works Act, 1862, section 134, as amended by section 147 of the Aberdeen Municipality Extension Act, 1871, whereby,’ &c.
Massey pleaded not guilty, but after evidence had been led he was (on 22d November) convicted and fined 40s., with the alternative of fourteen days' imprisonment.
He presented a bill of suspension, in which he stated, inter alia;—(Stat. 2) ‘No copy of the said complaint was served upon the complainer, but on the said 16th November 1905 there was served upon him a notice signed by a police-constable requiring him to appear personally in the Police Court on Monday, 20th November, to answer to the complaint at the instance of the Procurator-fiscal of Court against him. The notice further bore that in that complaint the complainer was charged with a contravention of section 134 of the Aberdeen Police and Water-Works Act, 1862, as amended by section 147 of the Aberdeen Municipality Extension Act, 1871 (throwing missiles and breaking glass in electric car), committed at Union Street, Aberdeen, on 10th November 1905. It was not stated in said notice that it was intended to proceed with the trial of the charge on Monday, 20th November, and when he received it the corn-plainer believed, and from the terms of the notice he was justified in believing, that he would merely be asked to plead to the complaint, and that thereafter an...
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