Silk v Middleton
| Jurisdiction | Scotland |
| Judgment Date | 16 February 1921 |
| Date | 16 February 1921 |
| Docket Number | No. 16. |
| Court | High Court of Justiciary |
Lord Justice-Clerk, Lord Dundas, Ld. Ormidale.
Review—Suspension—Competency—Exclusion of review in summary prosecutions—Conviction of contravening Licensing (Scotland) Act, 1903 (3 Edw. VII. cap. 25)—Review on ground of ‘incompetency’—Failure to note documentary evidence—Summary Jurisdiction (Scotland) Act, 1908 (8 Edw. VII. cap. 65), secs. 41 and 75.
Certain persons who had been convicted on a summary complaint of a contravention of the Licensing (Scotland) Act, 1903, brought a suspension of the conviction on the ground of incompetency, in respect that certain documents, produced at the trial, had not been noted on the record of the proceedings as required by section 41 of the Summary Jurisdiction (Scotland) Act, 1908.
The Court refused the suspension, holding that the omission to note the documents did not amount to ‘incompetency’ within the meaning of section 75 of the Summary Jurisdiction (Scotland) Act, 1908, and, accordingly, that the suspension was excluded by that section.
Edward John Silk, the president, and Thomas James Cartner, the secretary, of an unregistered club, known as the Invergordon Branch of the Royal Antediluvian Order of Buffaloes, were charged in the Justice of Peace Court, Dingwall, along with certain other members of the club, on a complaint at the instance of Walter Ross Taylor Middleton, Procurator-fiscal of Court. The complaint set forth:—‘You are charged at the instance of the complainer that on the 21st day of August 1920, in the hall adjoining Cheyne's Temperance Hotel, situated in High Street, Invergordon, being the premises of an unregistered club known as the Royal Antediluvian Order of Buffaloes where exciseable liquor was kept for supply or sale, you the said Edward John Silk were the president of said club; you the said Thomas James Cartner were the secretary of said club; and you [the other accused] were members of said club, in which said premises on said date John Campbell, sergeant of police, of the Ross and Cromarty Constabulary, found and seized exciseable liquors, videlicet Nineteen and one-half gallons or thereby of beer contained in three nine-gallon barrels, two of which were full and unopened and one of which contained one-half gallon of beer or thereby, and in pint and half-pint glasses supplied to members of the club for consumption at the time of seizure, together with the vessels in which the same were contained, which said exciseable liquors were kept for supply or sale on the said premises, contrary to the Licensing (Scotland) Act, 1903, section 83, subsection 2.’
The accused, who pleaded not guilty, were tried on 3rd September 1920, when evidence was led. The Court found the accused guilty as libelled and sentenced each of them to pay a fine of £1 and, in default of payment, to ten days' imprisonment. An application to the Court to state a case on appeal was subsequently made, but parties failed to adjust the terms of the case, and the application was withdrawn. Thereafter the accused brought a bill of suspension.
The suspenders averred, inter alia;—‘4. At the trial on 3rd September 1920 the following facts were proved:—(1) That the complainers are members of the Invergordon Branch of the Royal Antediluvian Order of Buffaloes, acting under dispensation or charter from the Grand Lodge of Surrey. Said order is a benefit society similar to the Order of Oddfellows or the Order of Gardeners. Said order has an orphanage fund and a widows' fund. The Invergordon Branch has also a general fund which is maintained by the subscriptions of its members; (2) that the Invergordon Branch is not registered as a club; (3) that meetings of said branch are held once a week, and usually on Saturday night; (4) that the meetings are usually held in a hall adjoining Cheyne's Temperance Hotel, High Street, Invergordon; that said hall does not belong to the Invergordon Branch, but is hired by the Invergordon Branch each night as required; (5) that on 21st August 1920 the police made a raid upon said hall, and found exciseable liquor in said hall as specified in the complaint, and that the complainers, or some of them, were sitting round a table with glasses of beer in front of them, and that said liquor and vessels containing the same were taken possession of by the police; and (6) that the said liquor was not paid for by the individual members of the order, but out of the general funds of the order, and that the liquor in the hall on said night had been paid for three weeks previously out of the lodge funds. 5. In the course of the trial there were produced in evidence two documents, viz., (1) a booklet relating to the orphanage and widows' funds of said order; and (2) a book of ceremonial to be observed in all lodges, including the Ben Wyvis Lodge, No. 20,100 of the Grand Surrey Banner, being the lodge of the...
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