Scottish Court of Session Decisions

On 13th September, 1837, James Stuart, as superintendent of police for the city of Edinburgh, and procurator-fiscal of the police-court for the public interest, brought a complaint directed to “the honourable the judge acting in the police-court for the city of Edinburgh, and liberties of the same,” against the pursuer, M'Caul, charging him with “breaking up the causeway or roadway opposite to Melbourne Place, and leaving the same in a dangerous state to the public, whereby the horse of Robert Anderson, coach-hirer, 116, Rose-street, on passing, fell down, and was considerably injured; also the spring of the coach drawn by said horse was broken, on the night of Monday the 11th September current;” and concluding that M'Caul “ought to be punished or such other judgment given as the case required.” This complaint having been duly executed, M'Caul appeared on the 14th before the judge of police, the duties of which office were, discharged by the defender, Millar, one of the magistrates of Edinburgh, and, two objections being stated to the jurisdiction, pleaded “not guilty.” “Witnesses having been examined, Mr Millar found the complaint proved, and sentenced and adjudged M'Caul “to pay a fine of 40s., and granted warrant to commit him to the police-office until he pays said sum, the period of confinement not to exceed ten days.” M'Caul was thereupon confined in one of the police cells, but after a short detention paid his fine and was liberated.

M'Caul then brought an action of reduction against the magistrate above-mentioned, the superintendent of police, and the clerk of the police-court, setting forth the procedure in regard to the complaint against him, and concluding, first, for reduction of the sentence, warrant of commitment, and other procedure, on the ground that the defenders had acted illegally, ultra vires, and in violation of the statutes regulating the police of the city, and in particular that by the latest of these, 7 Will. IV., c, 32, § 11, 15, 16, “the Sheriff of the county of Edinburgh is the sole judge of police in the cases specified in the foresaid clauses of the said statute; and the said Andrew Millar, not being Sheriff of the said county of Edinburgh, had no right or title to assume to himself the character of, or to act in the capacity of judge of police of the said city, liberties, and territory thereof foresaid, in the complaint before-mentioned, or to administer oaths to or examine witnesses, or to sentence and adjudge, pronounce decree, or grant warrant against the pursuer as aforesaid, to any extent or effect whatsoever. Nor had the said John Thomson, as clerk foresaid, any right or title to accept the said Andrew Millar's signature or name to the foresaid procedure as judge of police; neither had the said James Stuart any right to enforce a warrant so pronounced, nor had the said John Thomson any right or title to exact or receive payment of the fine so imposed on the pursuer.” And the sentence, &c. being so reduced, the pursuer farther concluded for repetition of the fine, and for a certain sum in name of damages and solatium for the injury sustained by him in consequence of the “foresaid illegal, oppressive, and ignominious proceedings.”

Against the action were pleaded, inter alia, the following preliminary defences:-

1st, That it is incompetent to review or set aside the sentence of a criminal court, following upon a criminal complaint, under a process of reduction in the civil court.

2d, That at common law, and under the various statutes regulating the police establishment of the city of Edinburgh, the only competent form of reviewing or setting aside sentences of the police court in matters criminal, is by suspension or advocation in the High Court of Justiciary, j

3d, That assuming a reduction of the sentence in question to be in competent in the civil court, the action quoad ultra must also be dismissed, in respect that the conclusions for repetition and damages are expressly dependent on the sentence being so reduced and annulled.

The Lord Ordinary pronounced the following interlocutor, with the note subjoined ^*:—“In respect, lmo, That it is instructed by the summons (p. 1), that the decree now sought to be reduced proceeded on a complaint presented by the defender, James Stuart, as superintendent of police, and procurator-fiscal of the police-court for the city of Edinburgh, &c.; 2do, That it is also admitted on the face of the summons, that this complaint was directed to ‘The Honourable the Judge acting in the Police Court for the City of Edinburgh and liberties of the same;’ 3tio, That it is proved by the summons (p. 1 and 2), that the said complaint under reduction was ‘brought against the pursuer for breaking up the causeway or roadway opposite to Melbourne Place, and leaving the same in a dangerous state to the public, whereby a horse in passing is said to have fallen down, and was considerably injured; also the spring of the coach drawn by said horse was broken,’ on the night of Monday the 11th September last, and concluding that the pursuer (then respondent), ‘ought to be punished, or such other judgment given as the case required;’ 4to, That it is admitted and set forth in the summons (p. 2), that the present pursuer (then respondent) pleaded not guilty to the said complaint; and that afterwards, the said Andrew Millar, defender, ‘pretending or assuming to himself the office of Judge of Police, found the complaint proved, and adjudged the pursuer to pay a fine of 40s. sterling;' and granted warrant to commit the pursuer to the police-office until he paid the said sum: Upon which sentence, it is added, that the pursuer • was immediately committed to custody, and imprisoned in the police-office cells, among the criminals or other delinquents for whose punishment these cells were provided:' Finds, that under these circumstances the proceedings now attempted to be brought under review, as set forth by the pursuer himself, constituted, both in form and in substance, a criminal process, conducted by a known and responsible prosecutor in criminalibus, and before a court possessing indisputably in sundry questions criminal jurisdiction, though alleged (under subsequent heads of the summons), to have assumed it erroneously in the present instance: Finds that the decree under reduction having been pronounced in a criminal process, in an inferior criminal court, by a party acting or assuming to himself the powers of the judge of the said court, was reviewable, both in point of form and on the merits, solely by the supreme criminal court, to which all inferior criminal magistrates are amenable: Therefore sustains the first and second preliminary defences. Farther, in respect the other conclusions of the summons for repetition of the fine, and for damages, are all consequent on the reduction of the sentence, and are not pursued separately or alternatively, sustains the third preliminary defence: And as these findings supeisede the necessity of considering the other preliminary pleas, dismisses the action, and decerns: Finds the defenders entitled to expenses.”

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* “ Note.—As the question raised here, though only of a preliminary nature, is of some importance in practice, and was the subject of a very full and anxious argument from the Bar, it may be proper to explain more fully the grounds on which the decision proceeds.

“Assuming the facts set forth in the summons to be true, the Lord Ordinary holds, that if the pursuer had chosen at the proper time to enter an appeal either on the form or competency of the proceedings, or on the merits of the prosecution, and to resist the execution of the sentence, the proper Court to apply for suspension or advocation was the High Court of Justiciary.

“This was a complaint for an act (obstructing the public streets, and leaving them without fence or protection), illegal and criminal, both by the Police acts and at common law. It was a prosecution by a public prosecutor before an inferior court, and the punishment inflicted was a fine (not to be given to the prosecutor individually as an informer), but to be applied to the public uses specified in the statute. Hence, it is apprehended that the proper Court to reverse or suspend the sentence of such a court, on whatever ground it might be challengeable, was the Supreme Criminal Court.

“The pursuer seemed to think that it was enough for him to aver, as he does in his summons, that Mr Millar, who acted as judge in the complaint libelled on, had no authority so to act—that the cognizance of this particular offence was given to the Sheriff alone—and, therefore, that there was an excess of power by the judge, which barred the defenders from proceeding on the Police statutes at all, and rendered their acts null and void. It is thought that this would be found a very narrow and unsound view of the Police statutes if it ever were necessary to go into the merits. The pursuer refers only to sections 11, 15, and 16 of the last Police act (7 Will. IV. cap. 32); but while the pursuer's construction of these enactments seems very hypercritical and questionable, there are other enactments in previous acts, giving the ordinary judge of Police cognizance of all obstructions on the public streets. See 2 Will. IV. cap. 87, sections 7, and 64–68. But esto, that a party on a prosecution by a procurator-fiscal is convicted of an ordinary offence before an inferior court, which is alleged to have had no jurisdiction over the prisoner, surely the plea of incompetency is one of the very pleas which ought to be stated to the Superior Criminal Court and not to the Civil Court. The Criminal Court must be presumed best qualified to judge whether any of their subordinate magistrates have exceeded their powers. If a regimental court-martial imposed a pecuniary fine on an officer or soldier, and it was alleged that the composition of the court was illegal, or their proceedings contrary to the mutiny act or articles of war, the proper course for redress would be, to appeal to the military superiors of the court-martial, and not to a civil tribunal.

“ Accordingly, in the Cases of Jobson, ¹ 28th November, 1828, and of Robertson and Bisset, ² 1st May, 1829, both Divisions of this Civil Court refused to entertain advocations of processes when held to be criminal in their nature and origin, though excess of power was alleged. The pursuer no doubt referred to the case of Brown against the Heritors of Kilberry, in which this Court reduced the decree of a Presbytery deposing a schoolmaster, on the ground of manifest and essential nullities in the proceedings; which judgment was affirmed in the House of Lords. But it is only necessary to peruse the speech of the noble and learned Lord who moved the afrirmsmre (3 Wilson and Shaw's Rep. p. 446–49), to perceive that one of the main grounds on which the House of Lords proceeded, was that, as all appeals from Presbyteries to the higher Church-courts in cases of schoolmasters, were taken away by the 43d of Geo. III.; therefore the Court of Session was truly the only Court who could give redress against the flagrant violation of the said act libelled on in the Kilberry case. The present case, however, is the converse of that referred to in every essential point. The jurisdiction of the Court of Justiciary in Police cases, is not only not taken away, but is referred to as subsisting in sundry enactments, and is in fact daily exercised, as the records of the Court show.

“But it was urged, that from the structure and terms of the Police acts, parties cited to Police Courts in cases similar to that libelled on, have often no remedy which can be available to them in the Criminal Court. For by 3d Geo. IV. cap. 78, sec. 130, it is provided that no stay of execution on police sentences, as to tines and penalties, shall be admitted to stop imprisonment ‘till the money he paid or consigned.’ And as the pursuer says, he was compelled to pay the tine immediately here to save longer imprisonment, he argued that he no longer had the remedies of suspension or advocation in the Criminal Court—these being inapplicable to sentences executed—while reduction is a process incompetent and unknown in the Court of Justiciary. To this two answers occur: (l.) The pursuer was not obliged to pay here to save imprisonment—he might have consigned the fine, or paid it under protest, and such payment would not have precluded him from pursuing either uu advocation or suspension; (2.) Though it is stated generally, that advocation or suspension are forms of remedy confined to decrees when unimplemented in civil cases, partly because the forms and diets of Civil Courts admit of reductions, it by no means follows that suspensions are of such limited application in Criminal Courts where reduction is not competent or consistent with their forms. In particular, where a punishment consists in a fine payable to a public officer, the sentence can scarcely ever be said to be finally executed, till the suspension, if brought, is disposed of. The payment of the fine to such an officer is just a species of consignation. Accordingly, the Criminal Court, in the case of fines, appears to be in use to ordain the fine to he restored when the sentence is reversed. This was the case in the late case of Anderson against the Superintendent of Police in Edinburgh, who got a judgment from the Court of Justiciary suspending a police sentence, and ordering his fine to be repaid. See Swinton's Rep. vol. i. p. 35.

“ Should the present case be brought under the review of the Court, the parties should print the various sections which they intend to found on in the different Police acts, for more convenient reference at the advisal.”

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¹ Ante, VII. 83.

² Ibid. 633.

M'Caul reclaimed, and, on the point of jurisdiction, referred to Lord President's opinion in Berry, Jan. 17, 1801), and to Hume, Ii. 72–74.