Torrance & Son v Robertson. Crown Dairy v Robertson
| Jurisdiction | Scotland |
| Judgment Date | 20 June 1946 |
| Docket Number | No. 20. |
| Date | 20 June 1946 |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-General. Lord Carmont. Lord Russell.
Jurisdiction—Statutory Offences—Public Health—Dairies—Penalties recoverable summarily before Sheriff—Sheriff empowered to suspend dairyman's certificate of registration—Jurisdiction of stipendiary magistrate to entertain complaint—Milk and Dairies (Scotland) Act, 1914 (4 and 5 Geo. V, cap. 46), sets. 24 and 25—Stipendiary Magistrates Jurisdiction (Scotland) Act, 1897 (60 and 61 Vict. cap. 48), sees. 2 and 3.
Review—Suspension—Previous convictions—Acquiescence—Conviction under complaint libelling previous convictions—Question of jurisdiction affecting all convictions—Competency of suspending previous convictions.
The Milk and Dairies (Scotland) Act, 1914, by sec. 24 (1), prescribes pecuniary penalties for offences, and, by sec. 24 (2), enacts: "In addition to any pecuniary penalty imposed on any dairyman … the Sheriff may by summary order suspend his certificate of registration. … The dairyman shall be entitled to appeal against the order of the Sheriff to the Lord Ordinary on the Bills. …" Sec. 25 enacts: "Except as otherwise provided penalties imposed under this Act shall be recoverable summarily before the Sheriff having jurisdiction in the district in which the dairy is situated."
The Stipendiary Magistrates Jurisdiction (Scotland) Act, 1897, by sec. 3, enacts that within his district every stipendiary magistrate shall "have and possess, in addition to the jurisdiction conferred upon him by any Act now in force, the summary jurisdiction at present exercised by, or which may hereafter be conferred upon, any Sheriff." Sec. 2 defines "summary jurisdiction" as meaning "jurisdiction in the proceedings so far as the same are of a criminal nature enumerated and described in the third section of the Summary Procedure Act, 1864, and in all proceedings of a like nature which by any Act of Parliament are directed or authorised to be taken summarily or under the provisions of the aforesaid Summary Jurisdiction (Scotland) Acts."
A dairyman was convicted by a stipendiary magistrate on a complaint which set forth contraventions of the Act of 1914 and previous convictions of similar contraventions, also in the stipendiary magistrate's Court. A pecuniary penalty having been imposed, he brought a suspension on the ground that under the Act of 1914 the Sheriff had exclusive jurisdiction.
Held that the stipendiary magistrate had exercised a summary jurisdiction within the meaning of the definition in sec. 2 of the Act of 1897; and suspension refused.
Opinion per the Lord Justice-General (Lord Carmont and Lord Russell reserving their opinions) that the stipendiary magistrate would not have had jurisdiction to suspend the dairyman's certificate of registration.
Opinions reserved on the question whether it would have been competent to suspend the previous convictions if the Court had reached a different decision on the question of jurisdiction.
Robert Torrance & Son, Limited, were charged in the Stipendiary Magistrate's Police Court at Glasgow on a complaint at the instance of James Robertson, Burgh Procurator-Fiscal, which set forth three contraventions of "the Milk and Dairies (Scotland) Act, 1914, sections 2, 8 and 9 thereof, and the Dairy Bye-Laws made thereunder by the Local Authority of the City and Royal Burgh of Glasgow … particularly Numbers 40, 52 and 57 thereof." The complaint further set forth that they had previously been convicted in the same Court on 12th November 1943, 16th December 1943, 22nd February 1944, 3rd July 1944 and 30th August 1945 of other contraventions of the Dairy Bye-Laws. On 8th April 1946 the accused were convicted of two of the three contraventions and were fined three pounds for each.
Thereafter they presented a bill of suspension containing a statement of facts in which, after setting forth the terms of the complaint, they averred:—"(2) At the pleading diet objection was taken by the agent for the complainers to the competency of said complaint on the ground that, under the provisions of the Milk and Dairies (Scotland) Act, 1914, the Sheriff Court is given exclusive jurisdiction over offences against said Act or against any orders or bye-laws made thereunder, and that, accordingly, the Stipendiary Magistrate's Court had no jurisdiction to entertain said complaint. The stipendiary magistrate, having made avizandum, repelled said objection, delivering a written opinion, a copy of which is appended hereto. Thereafter the case proceeded to trial on 8th April 1946, when said magistrate found the complainers guilty of charges land 2 of the complaint and fined them three pounds on each of these charges. He found them not guilty of charge 3. (3) The said magistrate was wrong in repelling the objection to his jurisdiction. It was without his jurisdiction to entertain the complaint. Said convictions thereon and the relative sentences are, accordingly, ultra vires and illegal, and should be suspended as craved. For the same reason the five previous convictions and relative...
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