McCreadie v Thomson

JurisdictionScotland
Judgment Date13 July 1907
Date13 July 1907
Docket NumberNo. 176.
CourtCourt of Session
Court of Session
2d Division

Ld. Johnston, Lord Justice-Clerk, Lord Stormonth-Darling, Lord Low, Lord Ardwall.

No. 176.
M'Creadie
and
Thomson.

ReparationWrongous ImprisonmentLiability of JudgeMagistrate in Police CourtImprisonment suffered under sentence in excess of jurisdictionAdministration of Justice.

A person was charged in a Burgh Police Court on a complaint libelling a statutory police offence on conviction of which, as prescribed by the Act, and as stated in the complaint, the accused was liable to a penalty not exceeding 40s., or failing payment of the penalty to imprisonment not exceeding one month. The Magistrate who tried the complaint sentenced the accused to be imprisoned for fourteen days without the option of a fine, and she suffered imprisonment under this sentence for twelve days. She brought an action of damages against the Magistrate. The defender in defence maintained (1) that the action was incompetent,

and (2) that if the action was competent malice and want of probable cause ought to have been, and had not been, relevantly averred.

The Court repelled these pleas upon the grounds (1) that a Police Court Magistrate is liable in an action of damages to a person who has suffered imprisonment under a sentence pronounced by him in excess of his jurisdiction; and (2) that in such an action it is not necessary to aver malice or want of probable cause.

On 12th November 1906, Mrs Helen Folan otherwise Tolan or M'Creadie was brought before the Police Court of the burgh of Wishaw on a complaint, charging her with using indecent language to the annoyance of Robert M'Cullough, police-constable of said burgh, on duty, contrary to the Act 55 and 56 Vict. cap. 55, section 380 (10) whereby the accused is liable to a penalty not exceeding 40s., and by sections 487 and 501 of that Act she may be sentenced to imprisonment until the same is paid for a period not exceeding one month, and craving that she might be adjudged to suffer the penalties provided by the said Act.*

The complaint was heard before William Brown Thomson, writer, Wishaw, Provost and one of the Magistrates of the burgh of Wishaw. Mrs M'Creadie pleaded guilty. Thereupon Provost Thomson, without imposing any pecuniary penalty, sentenced her to be imprisoned for fourteen days, and granted warrant accordingly. In virtue of this sentence and warrant she was removed to the prison at Glasgow, where she remained in confinement until 24th November 1906, when she was liberated upon a bill of suspension and liberation, after suffering imprisonment for twelve days.

Thereafter Mrs M'Creadie brought an action against Provost Thomson in which she concluded for payment of 1000 as damages.

The pursuer, after setting forth the facts above narrated, averred:(Cond. 5) The said sentence was quite incompetent in terms of the 380th section of the Act 55 and 56 Vict. cap. 55, upon which the complaint was founded, and also in terms of the complaint itself, in which the penalty which might be imposed on conviction was clearly set forth. The sentence was also grossly oppressive. The pursuer believes and avers that John Burgess, the Clerk of Court, or one or

other of the Court officials, pointed out to the defender that the sentence was incompetent, but he declined to alter it. (Cond. 6) The said sentence was pronounced by the said William Brown Thomson maliciously and without any cause, or at all events without any reasonable and probable cause, to the oppression of, and in entire disregard of the rights and liberties of, the pursuer. The defender had not the slightest occasion or excuse for the sentence he pronounced: he was quite aware from the complaint before him that he had no power to pronounce it, and that the proper penalty for the offence was a pecuniary mulct. His action in pronouncing said sentence was one of wilful corruption, oppression, and culpable negligence, and the sum sued for is a moderate estimate of the damage the pursuer has suffered in consequence.

The defender explained (Ans. 5) that the said sentence was pronounced by the defender in the belief that the charge against the pursuer was one of breach of the peace at common law, on which a sentence of imprisonment without the option of a fine is competent, and (Ans. 6) that the defender had no knowledge whatever of the pursuer prior to her appearance before him in Court on 12th November 1906. The statement in answer 6 was not denied by the pursuer, and no suggestion of personal malice against her on the defender's part was made.

The defender pleaded, inter alia;(1) The action is incompetent, in respect no action lies against the defender in consequence of his actings as Magistrate sitting in the Police Court. (2) The pursuer's averments being irrelevant and insufficient to support the conclusion of the summons, the action should be dismissed. (5) The defender not having acted maliciously or corruptly in pronouncing the sentence complained of ought to be assoilzied.

It was conceded by the defender that the sentence pronounced by him could not be supported. It appeared that after the action was brought the conviction and sentence had been quashed by the High Court of Justiciary of consent.

On 19th March 1907 the Lord Ordinary (Johnston), after hearing parties on the adjustment of issues, pronounced this interlocutor:Repels the first and second pleas in law for the defender: Finds that the cause is not one suitable for trial by a jury, and therefore dispenses with the adjustment of issues, and allows the parties a proof of their averments, to proceed on a day to be afterwards fixed.*

The defender reclaimed, and argued;(1) No Judge was liable in an action of damages for acts done by him in his judicial capacity. His privilege was absolute. It was not confined to the case of words spoken by him, but extended to all judicial acts; and although formerly there was some doubt as to the absolute privilege of inferior Judges it was now decided that in this respect there was no difference between them and Supreme Court Judges.1 Lord Wynford's judgment in Allardice v. Robertson2 was now overruled,3 and the latter part of Lord Ivory's note to Ersk. Inst. i. 2, 32, was not consistent with the recent decisions. If the expression Courts of Record had any meaning or significance as regards the present question in Scotland, a Burgh Police Court was a Court of Record. It had

jurisdiction to fine and imprison, which was the distinguishing mark of a Court of Record.1 If there was any difference in the privilege of different kinds of Judges, a Magistrate sitting in a Burgh Police Court was in the same position as a Sheriff or a Baillie of a Royal Burgh,2 who were the King's Judges, and not in the position of a Justice of the Peace. The absence of an immunity clause in the Burgh Police (Scotland) Act, 1892, with regard to Burgh Police Court Magistrates, went to support this contention. The only immunity clause in that Act related solely to public prosecutors.3 (2) The Lord Ordinary's judgment proceeded upon the proposition that an inferior Judge was liable in damages if he acted in excess of his jurisdiction, and in consequence of his illegal act personal liberty was interfered with. The expression excess of jurisdiction was ambiguous. It might mean either that the Judge had done something which he had not jurisdiction to do under any circumstances, or it might mean merely that what he did in the particular case was incompetent. It was only excess of jurisdiction in the former sense that could possibly infer liability in damages. It might be that where a Judge (a) owing to the territorial or other general limits of his jurisdiction had no jurisdiction in any case to do what he did, and knew or ought to have known that he had no jurisdiction to do it, or (b) did not profess to act in the exercise of his jurisdiction, or (c) in the exercise of a ministerial power acted maliciously, he might be liable in damages. But he was not so liable where, sitting in Court trying an offence which he had jurisdiction to try, he pronounced a sentence resulting in imprisonment, which, although incompetent in the particular case, it was not beyond the general limits, territorial or otherwise, of his jurisdiction to pronounce. The sentence pronounced here was therefore not in excess of the defender's jurisdiction,4 and the Lord Ordinary's proposition consequently did not apply. (3) The cases cited by the Lord Ordinary and the pursuer were not consistent with the more recent decisions, and should not now be followed. But in any view they were distinguishable from the present. They either related to acts not properly judicial but ministerial in their nature, or to acts which the Judge had no jurisdiction to do in any case. Pollock5 was a decision of doubtful authority, but apart from that it related to an act which was ministerial and not judicial, and which the Magistrate had no jurisdiction to do in any case. The cases of Arbuckle6 and CarneUNK7 also related to ministerial acts. The case of HouldenUNK8 was a case of something done beyond the...

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18 cases
  • Re McC. (A Minor)
    • United Kingdom
    • House of Lords
    • 22 November 1984
    ...and the Irish Act of 1849 and later re-enacted in section 15 of the Northern Ireland Act of 1964 and section 45 of the Act of 1979. M'Creadie v. Thomson [1907] S.C. 1176, was the case of a lady who sued for damages for false imprisonment the magistrate in a Burgh Police Court who, having du......
  • David John Whitehouse Against Philip Gormley Qpm And Others
    • United Kingdom
    • Court of Session
    • 6 September 2018
    ...statements made in connection with their judicial duties has been explained as follows in the five judge decision in McCreadie v Thomson 1907 SC 1176 at 1182: “Upon the question of immunity of the judges of the Supreme Court there can be no doubt. The principle is clear and the decisions ar......
  • X Against Y And Others
    • United Kingdom
    • Court of Session
    • 2 March 2023
    ...office holder has been sued alone: eg Russell v Dickson 1997 SC 269; McPhee v Macfarlane’s Excrs 1933 SC 163; McCreadie v Thomson 1907 SC 1176. Where there has been any discussion of vicarious liability, it has either been conceded as inapplicable (Mazhar v Lord Chancellor [2020] 2 WLR 7 54......
  • Reclaiming Motions In The Causes (first) David John Whitehouse And (second) Paul John Clark Against (first) The Chief Constable, Police Scotland And (second) The Lord Advocate
    • United Kingdom
    • Court of Session
    • 30 October 2019
    ...to the Queen in Parliament, and now to the Scottish Parliament. The absolute immunity of judges had been explained in McCreadie v Thomson 1907 SC 1176 (at 1182). An analogy could be drawn with the position of the Lord Advocate, in contrast to a procurator fiscal who was exercising an inferi......
  • Request a trial to view additional results

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