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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Angus v. Jeffray [1909] ScotLR 388 (27 January 1909) URL: http://www.bailii.org/scot/cases/ScotCS/1909/46SLR0388.html Cite as: [1909] ScotLR 388, [1909] SLR 388 |
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Page: 388↓
[Dean of Guild Court, Dunblane.
(With
On a complaint purporting to proceed under the Burgh Police (Scotland) Acts 1892 to 1903, a builder was charged before a Dean of Guild with a contravention of section 41 (1) (c) of the Burgh Police (Scotland) Act 1903 by deviating in the construction of a road from the plan authorised by the Dean of Guild Court. No record was made up, nor was any note of the evidence recorded. The builder was convicted and sentenced to pay a penalty. He appealed to the Court of Session. In a Court of Seven Judges ( dub. Lord Pearson) held that the appeal was competent, and that the conviction should be set aside on the ground that the complaint and proceedings following thereon being in the form appropriate to criminal procedure were incompetent in the Dean of Guild Court, the jurisdiction of that Court being of a civil character.
The Act of Sederunt of 12th November 1825, relative to the forms of process in civil causes in Royal Burghs, enacts—Part III, Chap. 1, sec. 1—“Actions in the Dean of Guild Courts of Royal Burghs may proceed in the ordinary form of petition or complaint, answers, and replies.…”
The Burgh Police (Scotland) Act 1892 (55 and 56 Vict. cap. 55), sec. 209, enacts—“Every proceeding before the Dean of Guild Court shall be subject to the following rules and regulations. It shall commence by an application in writing or in print, or partly in writing and partly in print; and, except where otherwise specially directed, the subsequent steps may be in writing or viva voce, as shall be ordered by the Court. In all other respects the proceedings before
Page: 389↓
the Dean of Guild Court shall be such as apply to the proceedings before the Dean of Guild Court in Royal Burghs in Scotland; and the judgments shall be subject to review as the judgments of such Dean of Guild are subject to review.” The Burgh Police (Scotland) Act 1903 (3 Edw. VII, cap. 33), sec. 37, enacts—“Without prejudice to the use of any other competent form, the proceedings before the Dean of Guild Court may be in a similar form to those in civil processes in the Sheriff Court.…”
Sec. 41—“Every person who, contrary to the provisions of the Burgh Police Acts—( a) shall lay out or form, or begin to lay out or form, any street or part thereof, or erect or begin to erect any house or building … without having obtained warrant therefor from the Town Council or the Dean of Guild Court as the case may be; or … ( c) in carrying out any of the operations aforesaid shall deviate from the plans sanctioned by the Town Council or the Dean of Guild Court, as the case may be, or contravene or fail to comply with any conditions contained in the warrant or other authority sanctioning the same, shall be liable to a penalty not exceeding fifty pounds.”
William Macduff Jeffray, Burgh Prosecutor of the Burgh of Dunblane, presented a complaint in the Dean of Guild Court there against Charles Angus, builder.
The complaint, which purported toproceed under the Burgh Police (Scotland) Acts 1892 to 1903, set forth that Angus had constructed a road to be used as a new street within the Burgh of Dunblane otherwise than in conformity with a warrant (and plan signed as relative thereto) which he had obtained from the Dean of Guild on 13th June 1905, without having obtained warrant for any deviation therefrom from the said Dean of Guild or from the Burgh Surveyor, contrary to the Burgh Police (Scotland) Act 1903, section 41, sub-section (1) ( c), whereby he was liable to a penalty not exceeding £50, besides being bound, if and in so far as required, to alter the said road in such a way as he should be directed so as to make it in conformity with the warrant and plan sanctioned by the Dean of Guild Court.
The prayer of the complaint was to grant warrant to cite Angus to appear to answer to the complaint, and thereafter to convict him of the offence, and to adjudge him to suffer the penalties provided by the Act, and to require him to alter the road. [The crave for the alteration of the road was subsequently withdrawn.]
On 30th March 1908 the Dean of Guild granted warrant to cite Angus “to appear personally” to answer the complaint on 14th April, and on that day Angus, having appeared, when called upon to plead, pleaded “not guilty.” No record was made up, but minutes of procedure were noted. The appellant was ordained to appear personally at an adjourned diet on 5th May 1908, and on that day evidence was led, but no note of the evidence was recorded; and thereafter the Dean of Guild
pronounced this interlocutor or conviction—“The Dean of Guild, in respect of the evidence adduced, convicts the said Charles Angus of the contravention charged, and therefore adjudges him to forfeit and pay the sum of eight pounds sterling of penalty, and grants warrant to officers of Court to arrest all debts and sums of money owing to the said Charles Angus; and on default of payment within seven days to poind his goods and effects, and sell the same at the expiration of not less than forty-eight hours after such poinding, without further notice or warrant.”
The respondent appealed to the Second Division of the Court of Session, maintaining that the procedure adopted was incompetent. The case was heard on June 13th 1908, but was continued in order that further information might be obtained as to the practice obtaining in burghs in Scotland in the recovery of Dean of Guild penalties. The case was again heard on 24th October 1908, when the Second Division directed that it should be argued before Seven Judges.
At the hearing before the Judges of the Second Division, with Lord M'Laren, Lord Kinnear, and Lord Pearson, argued for the appellant—(1) The proceedings in the Court below by complaint with minutes of procedure were radically incompetent and should be set aside. The procedure adopted was of an entirely criminal character. The writ was a “complaint”; the appellant was twice called upon to “plead”; and he was after evidence “convicted.” Proceedings ought to have been by petition and answers with a record, as the jurisdiction of the Dean of Guild Court was of purely civil character—A.S. 12th November 1825, Part III, Chap. I, section I; Burgh Police (Scotland) Act 1892 (55 and 56 Vict. cap. 55), sec. 209; Burgh Police (Scotland) Act 1903 (3 Edw. VII, cap. 33), sec. 37; Fraser v. Downie, June 4, 1901, 3 F. 881, 38 S.L.R. 639. The case of Lang v. Allan & Mann, February 3, 1869, 7 Macph. 473, 6 S.L.R. 301, could not be considered authoritative in view of Fraser v. Downie ( cit. sup.) The Dean of Guild, who was usually appointed because he was a builder, was not a magistrate— Fraser v. Downie, cit. sup.—and consequently the Summary Prosecutions Appeals (Scotland) Act 1875 (38 and 39 Vict. cap. 62) was not available to the appellant—see sections 2 and 3. The appellant had a right of appeal unless his right was taken away by Act of Parliament, which was not the case. If, however, the procedure adopted in this case was proper the appellant would be precluded from appealing, even if the evidence had been recorded, as no record had been made up—see Glasgow Police Act 1866 (29 and 30 Vict. cap. cclxxiii,), section 277, and Walker v. Lang, June 13, 1891, 18 R. 928, 28 S.L.R. 720. (2) The proceedings were also incompetent because there was no minute or statement of the sederunt. The conviction was signed only by the Dean of Guild. It did not even appear on the conviction whether he was present at the sederunt. He might have signed the conviction subsequently.
Page: 390↓
If criminal procedure was adopted, then there should have been a sederunt as is required in criminal cases—see Burgh Police (Scotland) Act 1892 (55 and 56 Vict. cap. 55), section 504; also Simpson v. Reid, March 20, 1902, 4 F. (J.) 62, 39 S.L.R. 512. Argued for the respondent (complainer)—(1) The appeal was incompetent and should be dismissed. There was no radical incompetency in the procedure adopted. The appellant could not found merely on irregularities, but must say there were no competent proceedings. No objection was taken in the Court below. The procedure was purely a matter of form, and the practice varied in different burghs. It was open to a Dean of Guild Court to adopt any form it liked—Burgh Police (Scotland) Act 1892 ( sup. cit.), section 209. The form used here was that given at page 144 of Forms in Summary Procedure, a collection of forms made by the procurators-fiscal—see also Campbell Irons' Law and Practice of the Dean of Guild Court, at page 549. The Burgh Police Act of 1892 ( cit. sup.), section 205, provided that the burgh prosecutor should be “the prosecutor” in the Dean of Guild Court. Accordingly the respondent, who had been appointed burgh prosecutor, was entitled to “prosecute” in the Dean of Guild Court. That showed that criminal procedure was contemplated. No doubt it was settled in Fraser v. Downie ( cit. sup.), that the jurisdiction of the Dean of Guild was of a civil character, but he had the right of inflicting fines for disregard of his orders. It was admitted that there was a right of appeal if the proper steps had been taken, but there could be no inquiry into the facts of this judgment, because there was no record. That was the appellant's own fault, for he could have made a motion to have a record made up, and if that had been refused there would have been an appeal on the refusal— Walker v. Lang ( cit. sup.). There was, therefore, no possibility of injustice had the appellant taken the appropriate steps for getting an appeal on the facts. The appellant was just in the same position as if the case had been tried in the Sheriff Court. The Sheriff Courts Act 1907 (7 Edw. VII, cap. 51), section 8, provided that in a summary cause where the evidence had not been recorded the findings of the Sheriff in law only should be subject to review. (2) As to the want of a sederunt, it was not necessary in civil proceedings to show what judges were present. Under the Burgh Police (Scotland) Act 1903 (3 Edw. VII, cap. 33), sec. 38, a town council could prescribe the quorum necessary for the Dean of Guild Court. TheTown Council of Dunblane had fixed the quorum at one. It was quite plain that the Dean of Guild was present, as there was an adjournment and he signed the interlocutor. Moreover, he signed the conviction, and it must be taken that the man who signed it was present. Further, it was a moot point whether anyone but the Dean of Guild could give judgment— Wright v. Thomson, December 16, 1904, 7 F. (J.) 18, 42 S.L.R. 205.
At advising—
In considering this question it is necessary to go back and to take account of what the general law of the land is with regard to the right of the citizen to have review of the judgments of inferior courts by the Supreme Court of the country. Now I think it cannot be disputed that the Supreme Court is open to every citizen who complains of wrong done in an inferior court. The party called upon to resist an appeal in the Supreme Court can exclude the appeal only if he can show that by statutory enactment the power of review of the Supreme Court is excluded. There are of course many classes of proceedings the decisions in which have been declared to be final and not subject to review, but this not by implication. It must be by exclusion.
If, then, review is to be excluded of decisions given by the Dean of Guild of a burgh, the party maintaining the exclusion must be able to found upon some definite enactment of exclusion, express or implied, which shall make the Dean's decision final when he, as in this case, imposes a penalty to be exacted by poinding and sale of a citizen's goods.
It is quite certain that appeal from a Dean of Guild's deliverances has been matter of common practice in this Court, the proceedings being taken in the ordinary forms used in the inferior civil court, and the evidence being recorded and considered by the Court just as in an ordinary civil action. It has been ascertained by inquiry that in many of the principal burghs of Scotland it is the practice to use these ordinary civil forms. Such forms are therefore competent in that court.
But it is said that there is an official appointed in the Dean of Guild Court under the Burgh Police Act who is called in the
Page: 391↓
The matters with which a Dean of Guild has to do are not primarily in the nature of offences at all, either criminal or quasi-criminal. The citizen has to invoke his authority to do certain acts on his own property, the object being to protect others from encroachments or things being done in a way contrary to authorised municipal regulation. He is not a magistrate and has no magisterial powers. His jurisdiction is not for the Keeping of the King's Peace by the prevention and punishment of crime, or acts declared to be criminal or quasicriminal. His powers are powers of regulation and control only, and of enforcing his powers by pecuniary fine where his orders are disobeyed. But in every respect he has to deal with matters which are in their essence civil and having nothing of association with criminal matters. I see that in this case, on an adjournment, the Dean of Guild ordained the party to appear personally at the adjourned diet. Unless he did this under some special clause of an Act of Parliament of which I am not aware, I do not think he had any right to order personal attendance. He certainly could not enforce it. I know of no law which requires a party in a Dean of Guild case to appear personally before the Court.
All this being so, I am unable to hold that, whatever may be the powers conferred on magistrates in summary prosecutions, and whatever may be the rules limiting appeals applicable to such prosecutions, they are to be held to apply to Dean of Guild proceedings. Even although certain forms may be permissible in instituting cases for convenience of procedure in a summary manner, that will not imply that where evidence is taken those who conduct the proceedings can oust the jurisdiction of this Court to review those proceedings by not making any record of it, if the cause is one to which the ordinary right of the citizen to appeal applies.
That a case in the Dean of Guild Court was open to review in the ordinary way before any of the recent burgh police statutes were passed is certain. That Court was just in the position of all courts, that a record must be kept to be reviewed by the Supreme Court, unless the keeping of a record was made unnecessary and review excluded by express enactment. I find nothing in any of the clauses of the statutes to which we were referred that could justify the Court in holding that a Dean of Guild could make his decision in a case final upon the merits by failing to record the evidence upon which he proceeded. Such a thing cannot be justified by bringing proceedings in criminal form, which is quite inappropriate. The Dean of Guild's jurisdiction is primarily to give orders in civil matters ad factum prœstandum, and therefore not the least akin to such matters as can be made ground of criminal prosecution. The power to inflict penalties for breach of orders issued by him in no way implies that the subject-matter of his jurisdiction is criminal and not civil. It cannot be both, and I have no doubt that the category into which it falls is civil and not criminal, and that proceedings taken which are in the forms appropriate to criminal procedure are not competent, and that the rules applicable to criminal court procedure do not apply.
I therefore hold that the appellant is entitled to have the proceedings in this case set aside.
Now, if there is to be an appeal on the merits at all, the proceedings in the local court ought to fulfil two requirements. First, they ought to include in some form a statement and answers; and secondly, if evidence is led, there ought to be a record of the evidence. And I do not doubt that if the appellant here could show either that he had tendered answers which were refused, or that a motion to record the evidence was disregarded, he ought to succeed in his appeal. But he made no such application. The only objection which he took was to the want of specification of the particular date when the alleged contravention took place; and, that objection being repelled, he pleaded not guilty, and evidence was led at an adjourned diet.
I quite agree that there is something anomalous in grafting this procedure upon a complaint which is in form adapted to criminal process; and I also agree that it is high time this branch of procedure were taken in hand and regulated. My doubt is whether the proper way of doing that is not by Act of Sederunt, in the exercise of the administrative powers of the Court. The Act of Sederunt of 12th November 1825 (Part 3), regarding the Dean of Guild Court, supplies no forms; but while it enacts that actions in the Dean of Guild
Page: 392↓
Guild Court cases. I accordingly think that the appeal is competent; and I go further and say that in my opinion the Court of Session is the only competent court of appeal from judgments of the Dean of Guild Court.
It is true that if the only question raised had been one on the merits of the conviction, this appeal might have necessarily been dismissed for want of any notes of evidence. This happened in the case of Johnstone v. Gardner, July 12, 1907 (unreported), which is printed in the appendix for the respondent. In that case I may observe that no question of competency was raised. But in the present case the question of competency is raised, and it was maintained for the appellant that the whole proceedings in the Dean of Guild Court were irregular and incompetent, on the ground that the complaint and subsequent proceedings were in the form appropriate to criminal proceedings, and therefore incompetent in a court of civil jurisdiction. I am of opinion that this objection to the competency is well founded.
In the case of Fraser v. Downie it was clearly laid down that the Dean of Guild Court was a Court of civil jurisdiction, and it was there held that section 187 of the. Burgh Police (Scotland) Act 1892, and section 28 of the Summary Procedure Act 1864, were inapplicable to that court. This being so, it appears to me to be incompetent to adopt the forms appropriate to criminal procedure in the Dean of Guild Court, and, so far as I know, there is no authority for such forms being adopted. The Act of Sederunt of 12th November 1825, Part iii, cap. 1, section 1, prescribes as the proper forms for Dean of Guild Courts the ordinary forms of petitions and answers, and directs the same rules to be observed as in the preparation of the summons, defences, and replies “in ordinary actions in the town or burgh court.” Section 209 of the Burgh Police (Scotland) Act 1892 provides that “Every proceeding before the Dean of Guild Court … shall commence by an application in writing or in print, or partly in writing and partly in print, and, except where otherwise specially directed, the subsequent steps may be in writing or viva voce as shall be ordered by the court. In all other respects the proceedings before the Dean of Guild Court shall be such as apply to the proceedings before the Dean of Guild Court in royal burghs in Scotland, and the judgments of the court shall be subject to review as the judgments of such Dean of Guild are subject to review.” Now it does not admit of doubt that at the date of the passing of the Police Act 1892 the forms of process in the Dean of Guild Courts in Royal Burghs were forms appropriate to civil proceedings, and that the judgments of that court were subject to the review of the Court of Session alone and not of the High Court of Justiciary.
I may further observe that the regular practice in Dean of Guild Courts in Scotland was that where thought necessary by the Dean of Guild a record was made up upon the original petition in the same way as in the ordinary Sheriff Court.
Page: 393↓
It appears that of late years a practice has grown up in some Dean of Guild Courts of framing the initial writ in certain Dean of Guild Court proceedings in the form of a criminal complaint either in the forms contained in the Burgh Police Acts or the Summary Jurisdiction Acts. In my opinion this practice is incompetent, in respect that it involves the use of writs and forms only appropriate to courts of criminal jurisdiction in a court of civil jurisdiction. I may also point out that this practice is objectionable on other grounds. It may be used, and has been used, as a means of attempting to deprive the members of the public who are called before the Dean of Guild Court under such proceedings of their right of appeal by pleading against them the provisions of the Burgh Police and Summary Procedure Acts. In the next place, it is highly inconvenient to introduce the forms appropriate to criminal courts into a court of purely civil jurisdiction. The present is a very good example of that inconvenience, because in the petition in this case, before it was amended, there was not only a crave for conviction of an offence and imposition of penalties, but a crave asking the Dean of Guild to require the respondent to alter a road. Nothing could show more clearly the impropriety of adopting the form of a criminal complaint in a Dean of Guild Court proceeding. Accordingly, I hope that it will be understood that in future, proceedings in the Dean of Guild Court must commence with a petition in similar form to those used in civil proceedings in the Sheriff Court either before or after the passing of the recent Sheriff Court Act. If the Dean of Guild thinks that it is right that a record should be made up, he will order that to be done; if he thinks (as usually happens) that there is no necessity for a record being made up, it would still be open to any of the parties to the proceedings to move the Dean of Guild to have a record made up, and an opinion was expressed in Walker v. Lang ( 18 R. 928) that the Dean of Guild would not be entitled to refuse such motion. Subsequent proceedings would be similar to civil proceedings in the ordinary Sheriff Court.
I am accordingly of opinion that in the present case we should sustain the appeal, find that the complaint and subsequent proceedings were incompetent, recall the interlocutor or conviction of 5th May 1908, and dismiss the whole proceedings, with expenses, against the petitioner.
Page: 394↓
The Court pronounced this interlocutor—
“In conformity with the opinions of the Seven Judges, sustain the appeal, and recal the said interlocutor appealed against, as also the conviction of 5th May last and the interlocutors of 14th April 1908, and remit the cause to the said Dean of Guild to dismiss the complaint as incompetent, and decern,”&c.
Counsel for the Complainer (Respondent)— Clyde, K.C.— Munro. Agents— Sibbald & Mackenzie, W.S.
Counsel for the Respondent (Appellant)— G. Watt, K.C.— Mercer. Agents— J. & A. Hastie, Solicitors.
