Mitchell v Morrison
| Jurisdiction | Scotland |
| Judgment Date | 13 May 1908 |
| Date | 13 May 1908 |
| Docket Number | No. 16. |
| Court | High Court of Justiciary |
Lord Justice-Clerk, Lord Low, Lord Ardwall.
Review—Suspension—Exclusion of Suspension—Special Statutory Appeal—Public-House—Breach of Certificate—Third offence—Proof—Summary Procedure—Licensing (Scotland) Act, 1903 (3 Edw. VII. cap. 25), secs. 53, 91, 102, and 103.—
A publican who had been convicted of breach of certificate, ‘upon a complaint bearing that it was a third offence,’ brought a suspension upon the ground that after evidence for the prosecution and the defence had been led, the cases for the respective parties closed, and parties heard with regard to the particular breach alleged, and after the justices had found the accused guilty thereof, a witness was put in to prove two previous convictions against the accused, that this evidence was incompetently admitted, that no other evidence of the offence charged being a third offence had been led, and that such evidence should have been led, as this was a substantive part of the charge. Held that the procedure complained of amounted to nothing more at most than a ‘deviation in point of form from the statutory enactment,’ that consequently the only form of review competent was an appeal under sec. 102 of the Licensing (Scotland) Act, 1903, and that the suspension was incompetent.
Opinions that the procedure followed by the Justices was competent and proper.
James Mitchell, hotelkeeper, Delnashaugh Hotel, Ballindalloch, in the county of Banff, was charged in the Justice of Peace Court at Banff upon a complaint under the Summary Jurisdiction (Scotland) Acts, 1864 and 1881, and the Criminal Procedure (Scotland) Act, 1887, at the instance of James Morison, solicitor, Banff, Procurator-fiscal of Court, which set forth that the accused ‘who holds a certificate for the sale of exciseable liquors at his premises at Delnashaugh Hotel aforesaid, granted to him under the provisions of the Licensing (Scotland) Act, 1903, which, inter alia, provides that he shall not himself be in a state of intoxication on the premises, has contravened the terms and conditions of said certificate, in so far as upon Tuesday, the 3d day of September 1907, the said James Mitchell was in a state of intoxication on the said licensed premises occupied by him at Delnashaugh aforesaid, whereby, this being the third offence, he is liable to forfeit and pay a sum not exceeding £20, together with the expenses of conviction to be ascertained upon conviction, and in addition to said penalty the certificate granted to the said James Mitchell shall be declared to be forfeited, and to become void and null, all in terms of sections 53 and 91 of the said Licensing (Scotland) Act, 1903.’
There was no reference in the complaint to any particular previous convictions for breach of certificate against the accused.
The complaint was tried on 19th October 1907. The accused pleaded not guilty.
The Justices convicted the accused of the contravention charged, ‘and adjudged him to...
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