McFadyean v Stewart
| Jurisdiction | Scotland |
| Judgment Date | 29 June 1951 |
| Date | 29 June 1951 |
| Docket Number | No. 27. |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-General. Lord Justice-Clerk. Lord Carmont. Lord Russell. Lord Keith.
Statutory Offences—Mines Regulation Acts—Complaint—Relevancy—Working of coal under moss—Failure to ascertain nature and thickness of moss and of intervening strata—"As accurately as possible"—"Sufficient"—"Otherwise"—General Regulations for Coal Mines, dated 30th July 1920 (S. R. & O. 1920, No. 1423), Reg. 29 (i).
The General Regulations for Coal Mines, dated 30th July 1920, provide by Reg. 29 (i) that, where coal is being worked under moss, the nature and thickness of the moss and of the strata lying between the moss and the workings "shall be ascertained as accurately as possible by boring at a sufficient number of points or otherwise."
Held by a Full Bench, distinguishingAllan v. Howman, 1918 J. C. 50, and Morrison v. Ross-Taylor, 1948 J. C. 74, that a complaint which set forth a charge of contravening Reg. 29 (i), with no further specification than by describing it in the words of the Regulation, was not so vague in expression as to warrant dismissal of the charge as irrelevant.
Alexander M'Nab Stewart And Others were charged in the Sheriff Court at Ayr on a complaint at the instance of William Kinnear M'Fadyean, Procurator-fiscal, with the consent1 of the Minister of Fuel and Power, which set forth "that you Alexander M'Nab Stewart, Alexander Gardner and John Bone, being sub-area production manager, sub-area planning engineer and agent of the New Cumnock group of mines respectively, in the Dunaskin sub-area of the Ayr and Dumfries area of the National Coal Board, and as such agents of Knockshinnoch Castle Colliery, in the Parish of New Cumnock, Ayrshire, a colliery in said sub-area owned by the said National Coal Board, and you, William Carlyle Halliday, being the manager of said Knockshinnoch
Castle Colliery, a mine to which the Coal Mines Act, 1911, and the General Regulations aftermentioned apply, did, between 25th August 1950 and 7th September 1950, both dates inclusive, in a part of the underground workings of said colliery, known as No. 5 Heading, where coal was being worked and roads driven under moss or other liquid matter (other than water), fail to ascertain as accurately as possible the nature and thickness both of the moss or other liquid matter and of the strata lying between it and said workings and roads by boring at a sufficient number of points or otherwise; Contrary to Regulation 29 (i) of the Coal Mines (General) Regulations, dated 30th July 1920, made under the provisions of said Coal Mines Act, as amended by the Ministry of Fuel and Power Act, 1945, whereby in terms of section 90 of said Coal Mines Act, you are each guilty of an offence, or alternatively,time and place above libelled, the seam of coal being worked or proposed to be worked being seven feet in depth and the thickness of the strata intervening as aforesaid having been found to be less than ten times the thickness of said coal seam, allow further work to be carried on below ground other than work necessary for the preservation of said mine without the consent of the Minister of Fuel and Power; Contrary to Regulation 29 (ii) of said General Regulations made under the provisions of said Coal Mines Act, as amended as aforesaid, whereby in terms of said section 90 of said Coal Mines Act, you are each guilty of an offence against said last-mentioned Act. …"2
The case came before the Sheriff-substitute (W. C. Reid) on 28th May...
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