Murphy v M'Donald
| Jurisdiction | Scotland |
| Judgment Date | 19 July 1898 |
| Docket Number | No. 28. |
| Date | 19 July 1898 |
| Court | High Court of Justiciary |
Lord Justice-General, Lord M'Laren, Lord Kinnear.
Sentence—Expenses—Award of expenses in excess of statutory limit—Suspension—Summary Jurisdiction (Scotland) Act, 1881 (44 and 45 Vict. cap. 33), sec. 33, subsec. a.—
A conviction on a complaint under the Summary Jurisdiction (Scotland) Act, 1881, adjudged the accused ‘to pay the sum of, £7 of penalty with the sum of £3, 3s. 8d. of expenses, and in default of immediate payment thereof’ adjudged the accused to be imprisoned for thirty days. The accused did not pay the penalty and the expenses, and accordingly he was imprisoned. He then brought a suspension on the ground that the amount of the expenses awarded against him being in excess of the limit of £3 required by the Summary Procedure (Scotland) Act, 1881, sec. 4, subsec. a, where the penalty did not exceed, £12, the imprisonment was illegal. The prosecutor pleaded that the conviction and sentence should be suspended only in so far as the expenses were in excess of the statutory limit.
The Court suspended the conviction and sentence, on the ground that the imprisonment was illegal.
On 12th May 1897 Frederick Murphy, Northcote Street, Hawick, was convicted in the Police Court at Hawick, on a complaint under the Summary Jurisdiction (Scotland) Acts, 1864 and 1881, and the Criminal Procedure (Scotland) Act, 1887, charging him with trafficking in exciseable liquors without a licence, contrary to section 17 of the Public-Houses Acts Amendment (Scotland) Act, 1862.
The conviction and sentence was in the following term:—‘The Magistrates, in respect of the evidence adduced, convict the said Frederick Murphy of the offence charged as libelled, and therefore adjudge the accused to forfeit and pay the sum of £7 of penalty, with the sum of £3, 3s. 8d. of expenses, and in default of immediate payment thereof, adjudge the said accused to be imprisoned in the prison of Hawick or Edinburgh for the period of six weeks from the date of his imprisonment, unless said sums be sooner paid; grant warrant to officers of Court to apprehend and convey the said accused to the said prison, and to the keeper thereof to receive and detain accused accordingly.’
Murphy did not pay the fine and the expenses, and accordingly he was imprisoned.
He brought a suspension in which, founding on section 4 (a) of the Summary Jurisdiction Act, 1881,* he pleaded;—(4) The expenses awarded against the complainer being in excess of the amount which the law allows, and he having been imprisoned for failure to pay these and the penalty imposed, suspension and liberation should be granted.
The respondent, the Procurator-fiscal, did not dispute that the amount of expenses awarded was in excess of the statutory amount to the extent of 3s. 8d., but he stated that immediately on complaint being made to him of the overcharge he intimated in writing to the agent for the complainer that he restricted the expenses claimed to £3; and pleaded, inter alia, the conviction should only be suspended so far as in excess of the statutory provisions.
On 18th May Lord Kincairney granted interim liberation.
The undernoted authorities were cited at the hearing.1
Lord Justice-General.—The operative sentence of which suspension is sought here is a sentence by which the complainer...
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