BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Scottish Court of Session Decisions |
||
|
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Cohen & van der Laan v. Hart [1902] ScotLR 39_322 (21 January 1902) URL: http://www.bailii.org/scot/cases/ScotCS/1902/39SLR0322.html Cite as: [1902] ScotLR 39_322, [1902] SLR 39_322 |
||
[New search] [Printable PDF version] [Help]
Page: 322↓
Sheriff-Substitute at Glasgow.
The Sale of Food and Drugs Act 1899, sec. 7, enacts—“(1) Every occupier of a manufactory of margarine or margarinecheese and every wholesale dealer in such substances shall keep a register showing the quantity and destination of each consignment of such substances sent out from his manufactory or place of business, and this register shall be open to the inspection of any officer of the Board of Agriculture.” … Subsec. (3)—“If any such occupier or dealer …( b) refuses to produce the register when required to do so by an officer of the Board of Agriculture, … he shall be liable” to a fine of £10.
Held that the power of inspection above quoted entitles the officer of the Board of Agriculture to make notes of the contents of the register, and that a dealer who produced his register to the
Page: 323↓
officer, but refused to permit him to take notes therefrom, was rightly convicted of a contravention of the Statute, section 7 (3) ( b).
Messrs Cohen & Van der Laan, wholesale margarine dealers, Glasgow, were charged in the Sheriff Court at Glasgow at the instance of James Neil Hart, Procurator-Fiscal of Court, on a complaint which set forth that the respondents, “being wholesale dealers in margarine, and having a place of business as such at 22 North Albion Street, Glasgow, did on 4th October 1901 in the said place of business refuse to produce to Mr Haygarth Brown, an officer of the Board of Agriculture, when required by him to do so, the register kept by them in terms of section 7 (1) of the Sale of Food and Drugs Act 1899, contrary to section 7 (3) ( b) of said Act, whereby the said Messrs Cohen & Van der Laan are liable on summary conviction for said offence—which is a first offence—to a fine not exceeding £10.” The Sheriff-Substitute ( Fyfe), after evidence had been led, convicted the respondents, and imposed a fine of 10s.
The respondents appealed to the Court of Session upon a stated case.
The case set forth the following facts as proved:—“(1) That the appellants are a firm having a place of business in Glasgow, where they carry on the trade of wholesale dealers in margarine; (2) That they kept there the register required by section 7 of the Food and Drugs Act 1899; (3) That on 4th October 1901 an officer of the Board of Agriculture called at the appellants' premises to inspect this register; (4) That Mr Isadore Cohen, a partner of the appellants' firm, who was in charge of the Glasgow warehouse, placed the register open before the officer; (5) That the officer began to make notes of the contents of the register; (6) That thereupon Mr Cohen removed the register and declined to allow the officer to make notes.”
The questions of law for the opinion of the Court were—“(1) Does the power of inspection conferred upon the officer by section 7 of the Food and Drugs Act 1899 entitle the officer to make notes of the contents of the register; (2) Is refusal to permit an officer so to make notes a contravention of the Statute, section 7 (3) ( b)?”
The respondents' counsel stated that they had an objection to the competency of the appeal upon the ground that it should have been brought in the High Court of Justiciary and not in the Court of Session, but that they did not propose to press this objection because they wished to obtain a decision upon the merits.
Argued for the appellants—The Sheriff was wrong in holding that the appellants were bound to allow the officer to make notes of the contents of the register. Such inquisitorial powers had been very strictly construed, and the appellants had a good ground of refusal, viz., that the register disclosed their whole business transactions. It might be otherwise in criminal cases, but this was a civil matter— Mutter v. Eastern and Midland Railway Co. (1888), 38 Ch D 92, per Lindley, L. J. In the Companies Clauses Act 1845, section 122, special power was given to take copies, but where such power was not expressed it should not be inferred.
Counsel for the respondent were not called upon.
We are here dealing with statutory provisions for enabling a public official to take such steps as may be necessary with a view to prosecution for contravention of the Act, or by inspection to deter those inclined to commit contraventions from doing so. That is a totally different thing from the right of private individuals to see wills or registers of shareholders in public companies. The purpose of the section of the Act is that the State may be informed with regard to that which is for the protection of the public.
When a public official comes, in virtue of powers conferred upon him by an Act of Parliament, and asks production of a register, that is in order that he may get from the register certain definite information. By looking over the register he may see that nothing requires to be noted, but if he thinks it necessary to note something in the register with a view to inquiry or prosecution I cannot see that there is any ground for holding that he is not entitled to take such a note. It is admitted that he may carry away such information as he likes to commit to his memory. Consider a case in which the purpose of taking a note is for a prosecution. The suggestion is that the official is to raise his prosecution on such information as he has carried in his memory, and proceed to show that his memory is right. Now, such a prosecution would be not unlikely to prove abortive, because the memory may easily make a mistake in figures or in names.
That an inspector under the Act may take a note for carrying out his statutory duty I have no doubt whatever. He is acting for a public department and under the confidentiality which is strictly observed in the public service. If anything was being done by him which was considered oppressive complaint might be made to his superiors.
Upon the general question, whether a prosecution may proceed against a party who has refused to allow an official to make notes from the register, I am of opinion that such a prosecution is competent on the footing that the party has failed to produce a register.
Page: 324↓
The Court dismissed the appeal and answered both the questions of law in the affirmative.
Counsel for the Appellants— Campbell, K.C.— T. B. Morison. Agents— Drummond & Reid, W.S.
Counsel for the Respondent— M'Clure, A.D.— A. O. M. Mackenzie, A.D. Agent— W. J. Dundas, C.S., Crown Agent.
