Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 198
A29/11 A30/11	OPINION OF MORAG WISE, Q.C, Sitting as a Temporary Judge in the cause BOARD OF MANAGERS OF ST MARY'S KENMURE Pursuers; against EAST DUNBARTONSHIRE COUNCIL Defenders: And CORA FOUNDATION Pursuers; against EAST DUNBARTONSHIRE COUNCIL Defenders: ________________

Pursuer: Lake, QC, A Jones, solicitor advocate; bto

Defender: Thomson, QC, Balfour; Simpson & Marwick

27 December 2012

Introduction

[1] These two cases, which arise out of the same incident and in which I heard a lengthy procedure roll discussion, raise the question of whether section 10 of the Riotous Assemblies (Scotland) Act 1822 ("the 1822 Act") provides a remedy to the operators and/ or the heritable proprietors of a secure unit residential facility. Cora Foundation are the heritable proprietors of such a secure unit, St Mary's Secure Unit, Bishopbriggs ("the premises"). The Board of Managers of St Mary's Kenmore are the operators of the premises. An incident described by the pursuers in both actions as a riot occurred at the said unit on the evening of Saturday 29^th and the morning of Sunday 30 March 2008. The pursuers in both actions claim to have suffered loss and damage as a result of the said incident. The defenders in both actions seek to have them dismissed on the basis that the action is irrelevant. In the Board of Managers case there is a secondary position that even if the action is relevant, the second conclusion is incompetent and should be dismissed. I heard a lengthy procedure roll discussion on these matters. I have decided that the first conclusion of each action is relevant for enquiry but that the second conclusion and associated averments in the Board of Managers case, which make a claim for loss of revenue, is not a relevant claim arising under the 1822 Act and should be deleted. The arguments presented to me were very detailed. Given the potential importance of the matter I will first summarise those submissions, at least insofar as pertinent to the decision I have made. I will then give my reasons for that decision.

[2] Section 10 of the 1822 Act, as amended, provides;-

10. Provision for recovering damages sustained in Scotland.

In every case where any damage or injury shall be done to any church, chapel, or building for religious worship, or to any house, shop, or other building whatsoever, or any fixtures attached thereto, or any furniture, goods, or commodities therein, by the act or acts of any unlawful, riotous, or tumultuous assembly of persons, or by the act or acts of any person or persons engaged in or making part of such unlawful, riotous, or tumultuous assembly, the party injured or damnified thereby shall be entitled to recover full compensation for the loss or injury, by summary action against the council (being a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994) within whose area the loss or injury shall have been sustained; which action shall and may be brought before any competent court in Scotland.

The Defenders' arguments

[3] Junior counsel for the defenders tendered a note of his submissions that ran to 116 pages. I will summarise only the main points made. In a comprehensive and well presented oral argument, Mr Balfour emphasised that there are two important features of the provision. First, the person entitled to recover compensation is "the party injured or damnified". Secondly, the provision concerns damage by the acts of any "unlawful, riotous or tumultuous assembly of persons". The argument centred on the appropriate interpretation of these terms. It was contended that, properly construed, the words "unlawful, tumultuous or riotous assembly" were not apt to describe a disturbance involving persons detained in a secure unit residential facility. Further the group was not an "assembly" within the meaning of section 10, nor were they acting "riotously" within the meaning of section 10. In any event, the term "party injured" in section 10 does not cover either owners or operators of such a facility. The legislation is not apt to include the party who has the care, custody and control of the very people who are causing the disturbance. In urging a purposive approach to the interpretation of the provision, Counsel made the following nine propositions;-

(1) The task of the court is to ascertain and give effect to the true meaning of what Parliament has said in the provision to be construed.

(2) The modern understanding of this task is to give effect to Parliament's purpose.

(3) This purposive approach to statutory interpretation requires the provision to be read in the context of the statute as a whole, and the historical social and factual context of the situation which led to its enactment.

(4) It is necessary to have regard to the state of affairs existing, and known by Parliament to be existing, at the time. It is a fair presumption that Parliament's policy or intention is directed to that state of affairs.

(5) In order to ascertain the intention of Parliament the court must look at all the admissible surrounding circumstances. This includes not only other provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which the statute was intended to remedy.

(6) Courts will be reluctant to extend the application of a provision to a new state of affairs or a fresh set of facts where the subject matter is different in kind or dimension from that for which the legislation was passed.

(7) The starting point in the purposive approach is that language is to be taken to bear its ordinary meaning in the general context of the statute.

(8) A purposive approach may lead to a strained construction, beyond the literal meaning of the words or what they would mean in ordinary usage. It is perfectly proper to adopt such a strained construction if that is necessary in order to give effect to the purpose of the provision.

(9) The court ought not to interpret the legislation in a manner which is manifestly absurd or unreasonable. It should avoid a construction that produces an absurd result.

Reference was made to a number of authorities in support of those propositions. In particular, reliance was placed on the speech of Lord Bingham in R (on the application of Quintavalle) v Human Fertilisation and Embryology Authority [2003] 2 AC 687 at 695, the guidance given by Lord Wilberforce in his dissenting opinion in Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800 at 822 and the speech of Lord Steyn in the same case. Particular emphasis was placed on the following passage from the speech of Lord Bingham of Cornhill in R v Secretary of State for the Environment, Transport and the Regions, ex parte Spath Holme Limited [2001] 2 AC 349 at 386;-

"The task of the court is to ascertain the intention of Parliament; you cannot look at a section, still less a subsection, in isolation, to ascertain that intention; you must look at all the admissible surrounding circumstances before starting to construe the Act. The principle was stated by Lord Simonds in Attorney General v Prince Ernest Augustus of Hanover [1957] AC 436, 461:

'For words, and particularly general words, cannot be read in isolation: their colour and content are derived from their context. So it is that I conceive it to be my right and duty to examine every word of a statute in its context, and I use "context" in its widest sense, which I have already indicated as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which I can, by those other legitimate means, discern the statute was intended to remedy'."

Junior counsel relied on this and other passages to argue that, while the appropriate starting point is that language is to be taken to bear its ordinary meaning in the general context of the statute, the courts may employ other recognised aids. Those may be internal to the statute, using other provisions to shed light of the meaning of the words under consideration or they may be external to the statute, such as its background setting and its legislative history, reports of Commissions and legislative antecedents. It was accepted that courts should approach the use of external aids with circumspection. Such aids cannot be used to displace meanings which are otherwise clear and unambiguous and not productive of absurdity - Fothergill v Monarch Airlines Ltd [1981] AC 251, per Lord Diplock at 279-280.

[4] In support of the proposition that it may be perfectly proper to adopt even a strained construction to enable the object and purpose of legislation to be fulfilled, Counsel relied on the dicta of Lord Clyde to that effect in Clarke v General Accident Fire and Life Assurance Corporation Plc [1998] 1WLR 1647. For the proposition that the court ought not to interpret the legislation in a manner which is manifestly absurd or unreasonable reference was made to R (on the application of Edison First Power Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 4 All ER 209 and Bennion on Statutory Interpretation (5^th edition) at page 969.

[5] Turning to the legislation itself, it was noted that although the short title, the Riotous Assemblies (Scotland) Act 1822, may imply otherwise, sections 1 to 9 of the Act originally related to England but were repealed in 1827. The recital to the 1822 Act makes specific reference to the Statute of Hue and Cry and to the Riot Act of 1714. As originally enacted, the 1822 Act provided for compensation actionable against the Town Clerk of the City or Burgh within which the loss or injury was sustained, or against the Clerk of Supply of the County of Stewartry in which such loss was sustained outside a county or burgh. In 1973 there was a change from liability falling on the city, burgh, county or stewartry, to it falling on the local council. The Local Government (Scotland) Act 1973, ("the 1973 Act") Sch 27 Pt. II, para 2, effected that amendment, with a subsequent amendment to reflect local government re organisation being made by the Local Government etc. (Scotland) Act 1994 Sch.13 para 1. The 1973 Act also repealed sections 11 to 14 of the 1822 Act. Section 11 had provided that any award under section 10 was to be satisfied by the occupiers of the city, burgh, county or stewartry, as the case may be, in proportions related to the value of the property occupied by them.

[6] Mr Balfour made detailed submissions about the historical development of liability for riotous assembly. In summary, the position stated was as follows. No action at common law against the magistrates of a burgh for damages in respect of injury to the property of an individual citizen caused by a riotous assembly within the burgh - Lord Wark in Capaldi v Greenock Magistrates 1941 SC 310 at 322 (referring to Campbell v Magistrates of Banff M 2504). The theme of the statutory development was from the outset the whole community paying in respect of antisocial behaviour. The earliest statute was the Statute of Winchester of 1285, legislation of the Westminster Parliament long before the Union. A subsequent provision was made and then the legislation known as the Statute of Hue and Cry, later referred to in the preamble to the 1822 Act, was enacted. In common law, a hue and cry was a process by which bystanders were summoned to assist in the apprehension of a criminal who had been witnessed in the act of committing a crime. The statutory antecedents of the Riot Act 1714 and later the 1822 Act were based on growing concerns regarding criminal activity and sought to place responsibility for a victim's losses on those in the community who have failed to prevent the crime or apprehend the offender. The liability imposed was expressed as a penalty. The conduct of those who failed to take up the hue and cry was described as "Negligence, Fault or Defect". Thus the underlying purpose related to crime prevention and avoiding disaffection by spreading liability for any losses amongst all those who had failed to prevent it or apprehend the offender. An incentive was placed on the community to take action as there was no penalty imposed if the populace caught the criminal. The Riot Act 1714 made unlawful, riotous and tumultuous assemble a felony punishable by death (section 1) and provided (in section 2) the form of proclamation colloquially referred to as "reading the Riot Act". In essence this provision allowed those to whom the proclamation was read to return to their homes and places of business to avoid a riotous assembly ensuing. Thus the sort of assembly envisaged by the Act was the voluntary joining together of people from the community, as opposed to those detained in a prison or secure unit. Section 9 of the 1714 Act provided that liability for repairing buildings partially or wholly demolished or pulled down by an unlawful, riotous or tumultuous assembly lay against the county, stewartry, city or burgh in which the disorder had occurred. It was clear from Hume's Commentaries on Crime (Vol 1, p434) that the 1714 Act had been introduced at a time of political unrest, but remained in force to deal with assemblies that disturbed the public peace. The provisions of the 1714 Act were also discussed in Capaldi v Greenock Magistrates 1941 SC 310. It was apparent that its purpose was to make the community liable for the claim of the person suffering loss and, by inference, to avoid disaffection by spreading the cost of repair or replacement amongst all those in the area. Blame or fault in failing to prevent the riotous acts became less relevant over time. In Ratcliffe v Eden (1776) 2 Cowp 486 Lord Mansfield (at 488) expressed the view that the 1714 Act provided an inducement to the inhabitants of an area to suppress riots in their area. The application of the provision of the Riot Act was extended on three occasions to cover additional types of premises and also to include fixtures and contents. The relevant provisions were in the Malicious Damage Act 1812, the Malicious Damage (Scotland) Act 1816 and the Seditious Meetings Act 1817. The full title of the 1812 Act made clear that it was the ordinary citizen ("the owners" of the properties destroyed) that were to be protected. The context of the 1817 Act was to restrict large public meetings designed for airing grievances. The Acts of 1812, 1816 and 1817 were not repealed when the 1822 Act was passed. The antecedents to the 1822 Act were all designed to eradicate activities that fell short of treason but which were nonetheless dangerous to the public peace. The emphasis was on addressing the mischief of a voluntary assembly of persons that became riotous to the disturbance of that public peace. The mob comes from among the populous, is formed voluntarily and cause damage to innocent members of the same population. These considerations do not apply to a disturbance within a secure residential unit.

[7] After the 1822 Act was passed the legislative paths in England and Scotland diverged. In the late 19^th century, responsibility for payment of the damage caused by riotous assembly was placed on the police. In Scotland the Burgh Police (Scotland) Act 1892 (section 341) required the Commissioners of the burgh to relieve the county authorities of any liability for damages caused by mobs, thus preserving the principle that the community pays. That provision remained in force until repealed by the 1973 Act, which also repealed the Riot Act and the various provisions extending its scope. Section 22 of the 1822 Act was left as the sole provision affecting Scotland. In England, the law developed by separate new statutes culminating in the Riot (Damages) Act 1886 which remains in force there. Sections 2-4 of that Act provide that any claim for damage to property by persons riotously and tumultuously assembled must be made against the police authority, in contrast with the Scottish position. Mr Balfour submitted that it could be inferred that this was indicative of a purpose in England being to place liability on those with actual, rather than notional, responsibility. Further, also in contrast to the Scottish position, in fixing the amount of compensation, regard is to be had to the conduct of the person making the claim, including any precautions taken by him. It is also noteworthy that the compensation awarded is a sum which appears "just".

[8] A number of cases decided under the current English provision were referred to. These included Pitchers v Surrey County Council [1923] KB 57, where the plaintiff sustained damage to his private property during a disturbance involving soldiers from a military camp. The defendants' argument that the disturbance was not within the police district because it took place on a military camp was rejected. Counsel submitted that the case was very different from that advanced in the present cases as it turned on a geographical question of whether the disturbance took place within such an area that the defendant police authority was liable. A second argument that the disturbance was not a riot because it involved soldiers in a camp was also rejected by the court. Atkin LJ expressed the view that if damage was done in barracks, which is Crown property, the Crown might in those circumstances recover from the police authority, although the dictum to that effect was obiter and the plaintiff in Pitcher was a private individual. The possibility of the Crown being in the position of innocent bystander was not explored. Counsel submitted that the case of Pitcher did not assist the present pursuers. In J W Dwyer Ltd v Metropolitan Police Receiver [1967] 2 QB 970 Lyell J expressed the view (at 980) that the right to compensation (for damage to property caused by a riotous assembly) from public funds was given because public authority had failed to protect the public who were menaced by a threat which was or ought to have been obvious to the forces of law. The decision in that case was approved and adopted by the Court of Appeal in Edmonds Ltd v East Sussex Police Authority CA 6 July 1988, The Times,15 July 1988. In Bedfordshire Police Authority v Constable [2009] 2 All ER (Comm) 200, the issue was whether a police authority's obligation under the 1886 Act to compensate property owners for damage to their property caused by a riot was covered by the public liability section of an insurance policy. In refusing the insurer's appeal against a decision that the police authority was covered, the Court of Appeal referred to the nature of the liability, Longmore LJ stating that the strict liability was imposed by the statute on the police rather than the community at large due to the responsibility of the police for preserving law and order. It reflected that they were (notionally at least) in breach of that responsibility.

[9] Counsel submitted that the following four conclusions could be drawn on the purpose behind the provision of the 1822 Act from the historical and legislative material;-

(i) The compensation provisions of the 1822 Act were part of a package of measures intended to preserve the public peace. The mischief being addressed was members of a community voluntarily forming together in ways that were threatening to the state and to the other members of the community.

(ii) The mechanism chosen to effect the compensatory purpose was to spread the cost of riots among the rate-payers, and so relieve those whose property was damaged from the burden that they would otherwise have had to bear.

(iii) The protection was afforded to the ordinary citizen; the innocent bystander whose property was damaged in the disorder.

(iv) The rationale for burdening the rate-payers was initially partly because the damage done was regarded, notionally at least, as having resulted from their failure to prevent it. This rationale remains in relation to the English provisions, but is now of less relevance in relation to the Scottish provisions where those liable under the Act have no responsibility for law and order. The rationale for burdening rate-payers is also partly because the mob had come from the community and the rate-payers were held in surety to one another. The legislation also avoided disaffection by spreading the cost between the entire community rather than burdening any individual disproportionately.

[10] Mr Balfour spent some time on the most recent English first instance decision on the interpretation of the 1886 Act, Yarls' Wood Immigration Limited v Bedfordshire Police Authority [2009] 1 All ER 886. The case involved an immigration detention centre where those awaiting a decision on leave to enter the UK, or a decision on removal from the UK, were held. A disturbance broke out at Yarls' Wood. There was no argument about whether the incident ought properly to be classed as a riotous assembly. The issue was whether the plaintiffs were qualifying persons under the 1886 Act. It was the first case brought in respect of damage or destruction to property during a riot at an institution such as detention centre where attendance is not voluntary. Counsel sought to distinguish the circumstances of Yarls' Wood from the present cases in that the claimants in that case had a public law responsibility for order and security within the centre but that was said not to remove the powers and duties of the Bedfordshire Police Force to maintain law and order in the centre. In the present cases a party or parties with control or partial control is seeking recovery from a party with no control representing a population with no control. At first instance in Yarls' Wood Beatson J accepted the general ongoing nature of the police force's responsibility in such a situation, albeit that they had a discretion not to enter the centre unless requested to do so by the claimants. Difficulties or even practical impossibilities on the part of the police to quell a disturbance did not preclude a claim under the Act. However, he concluded that Parliament did not intend to include a person or persons or entity with public law duties for order within a building containing detained persons within the scope of the 1886 Act. An interpretation that entitled a party to claim compensation for a riot arising within that party's own sphere of duty could not reasonably be attributed to the legislature. Beatson J's decision was successfully appealed. The decision of the Court of Appeal Yarls' Wood Immigration Ltd and others v Bedfordshire Police Authority [2012] QB 698 was to the effect that the operators powers were constrained and that that the police have always been recognised as having a special responsibility to prevent and suppress riot. Liability in terms of the 1886 Act was a strict one. The rationale remained that of encouraging the inhabitants (now the police force) of the locality, but including the party injured himself, to assist in the preservation of the peace by sharing the burden both of keeping the peace and of the misfortune of loss or injury. Claimants could not be excluded as qualifying persons under the Act in the balance of strong linguistic pointers, especially as it could not be said that no duty was owed by the claimants to the police. Mr Balfour submitted that the absence of responsibility to prevent riots on the part of the council in the present cases and the absence of duty owed to the pursuers illustrated how different the two sets of circumstances were. Perhaps more significantly, it was submitted that it the "proviso" in section 2(1) was central to the Court of Appeal's decision. There was no need to interpret the Act as excluding a claimant on account of its responsibility for law and order as that factor can, under the English provision, be taken into account when the conduct proviso is applied. Counsel submitted that the conclusion of the Court of Appeal was reached on the basis of provisions which have no application in the present cases. The particular emphasis placed on the proviso of section 2(1) as curing any tension that would otherwise be created by giving the words "any person" their ordinary meaning were sufficient illustration of that. The Court of Appeal considered there was no need to adopt a strained construction of the words" any person" and that may be correct in the context of the English provision. It did not make a purposive interpretation erroneous in the Scottish context. It was submitted that the purpose of the English provision for claims by ordinary citizens to be made against those with responsibility for order was not contradicted by the Court of Appeal's decision. The relevance of the extent of control exercised by the claimant over those causing the disturbance was dealt with in the Court of Appeal by reference to the proviso. In the absence of such a proviso, the control exercised by the claimant remained important in construing the Scottish legislation. It was an important factor that Rix LJ (at para 55) expressly suggested in Yarls' Wood that the position might be different if the defendant owed no duty to the claimant. There is a stronger imperative to place responsibility on the police who have a legal responsibility in relation to law and order than there would be in relation to the Local Authority whose responsibility is now purely notional as an indemnifier representing the community, not as a person in breach of duty.

[11] Mr Balfour noted that there had been academic criticism of the Court of Appeal's decision in Yarls' Wood. In an article in the Cambridge Law Journal, "Rioting detainees, who pays? Statutory Interpretation and the shackles of the past" CLJ 2010, 69(3), Professor David Feldman suggested it might be regarded as anomalous for the claimant company, who operated a detention centre for profit under a commercially negotiated contract with the Government (representing the state) with a contractual responsibility to uphold order there, to be indemnified by another arm of the state when a foreseeable risk of riot eventuated.

[12] Counsel considered the position regarding penal establishments at around the time the 1822 Act and its predecessors were enacted. Reference was made to paragraphs 1 and 2 of the Penal Establishments section of the Stair Memorial Encyclopaedia and, for the position in England, paras 1.01 to 1.05 of Prison Law by Livingstone, Owen & Macdonald. Prior to 1839 prisons in Scotland were provided by the local burghs and long term detention of inmates did not exist. It was submitted that it was difficult to imagine that the purpose of the 1714 Act or the 1822 Act was to entitle the owner and operator of a prison or similar establishment to obtain compensation from the community should a riot occur within the establishment. In any event, as prisons were operated by the burgh, permitting a burgh to recover against itself by virtue of section 10 would involve circularity. Such a claim would be inconsistent with the purpose of the Act in relieving an inhabitant of bearing a disproportionate share of the loss.

[13] In support of a submission that the term "party injured" in section 10 did not include the owner or operator of a secure unit residential facility where the compensation sought relates to damage caused to that facility by those accommodated within it, counsel examined the statutory context within which the pursuers were operating. The legislation in place at the material time included section 59 of the Social Work (Scotland) Act 1968 which provides that local authorities, which have the responsibility of providing and maintaining residential establishments required for their functions under, inter alia, the Children (Scotland) Act 1995 may secure the provision of such establishments by voluntary organisations or other persons including other local authorities. Residential establishments are defined in section 94 of the 1968 Act as those providing residential accommodation for the 1968 Act or the 1995 Act, whether for reward or not. Section 70 of the Children (Scotland) Act 1995 contains the relevant provisions for the making of supervision requirements by the children's hearing, including residence in secure accommodation for children likely to abscond or likely to injure himself or some other person. Secure accommodation is defined in section 93 of the 1995 Act as meaning accommodation provided in a residential establishment for the purpose of restricting the liberty of children. There is also provision for detaining children in residential accommodation under the Criminal Procedure (Scotland) Act 1995, such accommodation being provided under the 1995 Act by the appropriate local authority. Duties on the managers of residential establishments where children are placed are imposed by the Child Care (Scotland) Regulations 1996. These include ensuring that the welfare of the child placed and kept is safeguarded and promoted (reg 4). Managers can determine sanctions relevant to control of the children but may not authorise the giving of corporal punishment (reg 10). The Secure Accommodation (Scotland) Regulations 1996 impose similar duties on managers in relation to secure accommodation. Mr Balfour submitted that these provisions made it apparent that the pursuers play a public function involving control of the residents in relation to the secure unit residential facility. They are not ordinary citizens. The accommodation is analogous to prison. Accordingly, having engaged contractors to provide the facility the defenders have no continuing day to day responsibility for security at the facility or for the control of the residents.

[14] In conclusion on the words "party injured" in section 10, counsel contended that an interpretation that excluded the pursuers in both actions was a legitimate if slightly strained one. It was inconceivable that Parliament intended that "party injured" be constructed in an unlimited manner such that a participant in a riot whose property was damaged could claim. The pursuers' claims do not accord with the legislative purpose of compensating the innocent bystander whose property was damaged in the disorder, the ratepayers being notionally responsible for failing to prevent it. An extension of the provision to an owner and an operator of a secure unit residential facility would involve the extension of the provision's application to a state of affairs of a completely different kind from that which was being addressed when the legislation was passed. It would burden those who had absolutely no control over law and order and no responsibility for failing to prevent the disturbance with reimbursing those who had control responsibilities. The legislature did not contemplate claims being made by those who owned and operated penal establishments. If the pursuers were entitled to claim, it would follow that the state would be able to claim against a council in the event of a riot in a prison operated by the state. Such a position would be absurd. If the council had not subcontracted the operation of the facility the defenders would potentially have a claim against themselves in respect of damage caused through disturbance in such a unit. In the absence of a means of avoiding such unreasonableness or absurdity by reference to conduct and permitting only "just" damages as with the English legislation, the only proper construction of section 10 was one that excluded the owner or operator of a secure unit residential facility where the compensation sought related to damage caused to the facility by those accommodated within it.

[15] On the second term falling for construction namely "unlawful, riotous or tumultuous assembly", Mr Balfour submitted that properly construed this term did not include a riot within the confines of a secure unit residential facility. The pursuers aver that the disturbance was a "riotous assembly". They aver that those who engaged in the disturbance were subsequently convicted on charges of mobbing and rioting. Reference was made to Hume's Commentaries on Crime, in particular to Chapter XVL "Of Mobbing" which is part of the section "Of Offences Against The Public Peace". It was submitted that according to Hume, mobbing and rioting must involve an assembly "to the fear of the lieges". The focus was on the "public peace". Alison's Criminal Law (1832), Vol 1, p509, also puts the focus of the crime of mobbing and rioting on disturbing the public peace. Both writers confirm the power of the magistrate to demand that the local people assist him in checking the riotous behaviour. It was submitted that the fact of the convictions for mobbing and rioting did not assist the pursuers as the prosecutions will have taken place before the decision of a five judge bench in Harris v HMA 2010 JC 245. There the court clarified the law on breach of the peace, which, Mr Balfour submitted, was treated historically as in effect a lesser form of mobbing and rioting. The court held that the true nature of breach of the peace was a crime which has at least a public element. While the conduct need not be directly observable by the third parties, if in private there must be a realistic risk of it being discovered. Counsel submitted that it follows that mobbing and rioting must also have a public element, although what was at issue was not the criminal offence, but what Parliament's purpose was in enacting section 10 of the 1822 Act. In any event the pursuers required to demonstrate not just that the disturbance was "riotous" but also that it was an "assembly". Persons who are already confined together lack the element of coming together voluntarily which is implied by the term "assembly". Reference was made to Johnstone v Kerr (1837) 16S 104 in support of the contention that a crowd of inmates who set fire to the premises would not be classed as a riotous assembly. If the concern of the statutory provision is to place liability on those with notional responsibility for law and order and preservation of the public peace, its considerations are not relevant where there was no public nature to the gathering. Clearly if a riot occurred in the streets outside a residential facility and caused damage to the premises the provisions of section 10 would apply. Counsel concluded that the interpretation advanced by the defenders on this point would give effect to Parliament's purpose and would be a natural interpretation not requiring strained construction. Any other interpretation would involve an extension of the provision's application to a state of affairs completely different from that being addressed by the legislation. While the argument had been divided into two chapters, it may be appropriate to look at the provision as a whole and determine that its purpose was not to cover the circumstances of the present cases.

[16] Mr Balfour presented a secondary submission that the pursuer's second conclusion in the Board of Managers case was incompetent and ought to be dismissed. The sum sued for in that conclusion is £2,635,152. The averments of loss, at article 4 of condescendence give notice that what is sought is the loss of revenue sustained by the pursuers during a period when the unit required to be closed for a period during which repairs were effected. The defenders argue that, properly construed, section 10 of the 1822 Act does not make provision for compensation for loss of revenue such as that claimed by those pursuers. The compensation allowed by section 10 relates to "the loss or injury" to any building. Counsel submitted that the use of the definite article means that the loss or injury must relate back to the description of damage or injury referred to earlier in the section, namely the damage or injury done to the building, fixtures or contents. Compensation is limited to physical damage, the legislation making no provision for any consequential loss such as loss of profits. Anticipating the arguments that might be made on behalf of the pursuers, reference was made to Davie v The Lord Provost 1951 SC 720, Landcatch Limited v International Oil Pollution Compensation Fund 1999 SLT 1208 and Logan v Scottish Water 2006 SC 178. Mr Balfour suggested that little could be drawn from such cases which arose out of different statutes whose context and purpose was completely different from the provision under construction in the Board of Managers case. Those cases all involved statutes which placed liability on those with actual responsibility for causing the damage in question. Each could be distinguished. In Davie the provision was expressed as compensation for "any damage done" and in Landcatch "any loss injury or damage". In Capaldi v Greenock Magistrates 1941 SC 310 it was recorded ( at p315) that the defenders did not dispute that if the action had been properly and timeously raised the pursuer would have been entitled to compensation under the 1822 Act for such loss as he may have sustained " other than loss of profits". As was apparent from the discussion in Coia v Robertson 1941 SC 111, between 1822 and 1973 (when the Acts of 1714 , 1816 and 1817 were repealed), section 10 was viewed as a procedural provision for enforcing rights under the earlier Acts. Those earlier Acts did not cover consequential losses such as claims for loss of revenue. It was inconceivable that in 1973 the nature of the longstanding provision would be completely transformed without any change being made to the wording of the provision. Section 9 of the Riot Act 1714 made clear that it was the cost of repair to the physical structure that could be claimed and the Acts of 1812 and 1816 were in similar terms. The current English provision, section 2(1) of the Riot (Damages) Act 1886 is on one view less clearly restricted to physical damage. It refers to "compensation as hereinafter mentioned" to "any person who has sustained loss by such injury, stealing or destruction". However, the judge of first instance in Bedfordshire Police Authority v Constable [2009] Lloyd's Rep IR 39 commented on the extent of damages that are recoverable and recorded with apparent approval a submission that there was no compensation of personal injury or personal property except of the type expressly referred to in the statute and that no provision was made for any forms of loss consequential upon property damage. In Yarls' Wood Rix LJ commented that the assessment of quantum was not "a mere matter of valuation of the lost or damaged property" in a context suggesting that the claim was restricted to issues relative to such property rather than consequential loss. There are no recorded cases in either this jurisdiction or in England where a claimant has been awarded loss of profits under any of the relevant statutes covering damage to property caused by riotous assembly. Recovery of loss of profits would place a disproportionate burden on those members of the community not engaged in business who would be exposed to potentially large claims but have no similar claim to make should their own property be damaged. The legislative history revealed a conscious balance between recovery of loss and burden on the community. It was submitted that the meaning of the provision was clear and did not include claims for loss of revenue. Esto there was thought to be any ambiguity on the provision on this point, it is a principle of legal policy that a person should not be penalised except under clear law (Bennion, Statutory Interpretation, p 825). The provisions of section 10 are not clear enough to justify imposing what is effectively a penalty on the defenders.

[17] Senior counsel for the defenders adopted Mr Balfour's submissions. He contended that the medieval Acts were relevant because, while they dealt with robbery and similar crimes, the Riot Act of 1714 that brought in the rationale of compensation provisions made reference to the 1584 Act which itself refers back to the Acts of 1285 and 1324. These all explained the background of the community being encouraged to catch villains and compensate innocent victims. The lack of fault on the part of the victims was central to the legislation. From 1285 onwards, as a matter of basic fairness there had been a link between the desire to provide surety and the burden imposed. The pursuers' position presupposed that fairness no longer mattered. Historically, a person could only benefit from a claim of this type if he fulfilled certain conditions, including not being a party to the crime; he had to be a "worthy claimant". A central plank of the pursuers' argument was that a riot must be a riotous and tumultuous assembly. That argument was unsustainable. Reference was made to Hume, page 434 and the reference to Darrochs case therein. If a mob breaks into a house the act of breaking in is not the purpose, it is the act of destroying property that became a felony. Thus a riotous assembly in a house was possible but only if the mob had broken in first. That was presupposed in Darrochs case. Alison's Criminal Law, Chapter 23 distinguished the crimes of mobbing and rioting. Thus the 1822 Act is not synonymous with the common law crime. To fall within the Act the assembly must be riotous, unlawful and/ or tumultuous, not a disturbance in a confined institution. History does not record disturbances in houses, pubs, brothels and the like being charged as mobbing and rioting. The Riot Act was designed to control public assemblies usually with a political flavour that had a riotous or tumultuous character. It was not apposite to cover prisoners demolishing a prison or schoolboys smashing up a school. Parliament did not intend those running an institution to be able to claim against the community. The exceptional and restricted remedy provided by the legislation arose because the local community was liable for the damage caused by a felon from their midst, who they had failed to stop, causing an innocent member of the community to suffer damage, the burden of which was shared to avoid disaffection and spread the blame. If either the pursuers cannot be characterised as an injured party or the disturbance was not a riotous assembly the claim could not be permitted to proceed.

[18] Mr Thomson concentrated on rebutting the suggestion that the legislation had been so radically altered in 1973 that the starting point for interpretation was that time. There were, he submitted eight reasons why it was wrong of the pursuers to take the stance that the legislative history fell away in 1973 and that all that mattered was the provision as it stood from that point on. First, the repeal of a statute does not mean that its former existence is irrelevant. As was seen in the cases of Coia and Capaldi, the court could properly have regard to a preamble and provisions that had been repealed. Secondly (and in any event) Coia and Capaldi were wrongly decided insofar as they state, at a time when the earlier Acts had not been repealed, that the 1822 Act was a procedural provision only. In Johnstone v Kerr and Barrie (1837) 16S 104, a case involving a riot in the street where a house was burned down by the rioters, an issue arose as to whether the act was done from within or outwith the building. It is apparent from the interlocutor of the First Division in the case that the cause of action was the 1822 Act. The case of Johnstone was not cited to the court in Coia or Capaldi. There was a good argument that the later cases flew in the face of the previous approach and were wrongly decided. Thirdly, neither the 1973 Act nor the 1822 Act can be interpreted in a vacuum. There was nothing to show that a different approach was required in 1973. In any event, an argument that there was a substantial change in 1973 presupposes that the defenders approach to the law prior to that is correct. It could not be said that the nature of the responsibility changed in 1973. It was clear that what happened was a tidying up by getting rid of unnecessary statutes and a substitution of the local council for the burgh. These could not amount to a transformation of the scope of the Act. Fourthly, the argument that the change in the 1973 Act was that it regarded the Council as "standing in the shoes of the wrongdoer" was misconceived and based on a colloquial phrase used in the Yarls' Wood case. The Court of Appeal in that case had said only that generally in cases of strict liability often those responsible are regarded as standing in the shoes of the wrongdoer. The police in the Yarls' Wood case were not being said to be liable for consequential loss, yet they had a real responsibility for law and order at the unit in question. It was that responsibility that led to liability being established. The defenders in contrast had no responsibility to "keep the peace" at the secure residential unit. It should be noted that the day before the changes implemented by the 1973 Act the party that was liable was the burgh, a concept not so different from a local council. The burgh did not stand in the shoes of the wrongdoer and neither does the local authority. To suggest otherwise was illogical. It was also illogical to suggest that because at common law wrongdoers are liable for consequential loss the local authority was so responsible under this statute. The compensation is whatever the statute provides. In the Scottish Plate Glass Insurance Company case the insurance company could not recover because it wasn't the "party injured". Fifthly, the history of fairness being a feature of the earlier statutes meant that it was unlikely that Parliament suddenly wanted to jettison that fairness in 1973. Sixthly, changing the class of persons who can sue and the extent of the loss that could be claimed would have had to be done openly and justified, not effected by stealth. The pursuers effectively accept that there could have been no consequential loss under the earlier statutes, as they were in even clearer terms on the issue. Seventhly, the repeal of the earlier statutes in 1973 was clearly because they had become unnecessary; the 1822 Act was sufficient provision on its own and the opportunity of repeal was taken at the time the liability was being changed from the burgh to the local council. Finally, the pursuers sought to rely on the historical discussion of the English provision in Yarls' Wood but negate a similar exercise for the Scottish provision.

[19] Mr Thomson also argued that the fundamental difference between the provisions north and south of the border was that the element of "notional blame" continues to predominate in England because the police actually still have responsibility for law and order. It was that responsibility, together with the fact that conduct of the claimant can be factored in by the proviso, that led to the result that a victim suing does not require, in England, to be an innocent bystander. In Scotland, where the burgh (and then the local authority) became liable purely on a representative capacity basis after the abolition of police burghs, the burgh could not be said to be even notionally at fault. However, even if it could be said that fault was somehow still behind the Scottish provisions, the statute would have to be interpreted in that light and the pursuers would still be unable to claim. It might be fair (notionally) to regard the local populous as responsible for failing to quell a riot in their street, but a prison population has no geographical link and is within the control of those who run it, the local populous could never be at fault for what happens within it as they cannot enter it. It was beyond doubt that the pursuers in the Board of Managers case were in control of the unit, so there was no need for proof. Unless they could put themselves within the scope of the legislation their action must fail. While the local authority has statutory duties to the children it has no duty to the establishment. It was because the police had a duty to the plaintiffs in Yarls' Wood that they were liable. The whole absence of a mechanism in the Scottish legislation to take account of fault on the part of those whose property is damaged supports a contention that those in control of an institution are not "parties injured" under the Act. While it might be thought unfair if a party running such an institution in Scotland who was not at fault in any way was unable to claim under the Act, such an injustice was less serious than the very obvious prejudice to those in the defenders' position if they were allowed to claim. Those in control of an institution could not fall within the Scottish provision.

[20] Senior counsel also submitted that an analysis of the reasoning in Yarls' Wood illustrated that the opposite result would have been likely had the Court of Appeal been interpreting the Scottish provision. Rix LJ (at para 54 of Yarls' Wood) would have recorded that the local authority do not have responsibility for law and order. Where at paragraph 55 he states "It might perhaps be otherwise if one could state that no duty was owed to Group 4 by the police; but the judge reasoned otherwise" in relation to the decision that the plaintiffs could claim, it seemed that the opposite conclusion would result in a situation where the defenders owed no duty to the pursuers. In paragraph 61 there is support for the view that one would intuitively wish to take account of the ramifications of any failure by those running and in control of the institution and it is clear from paragraphs 63-65 that the proviso of section 2(1) of the 1886 Act is central to the decision not to adopt a strained construction such as would exclude the plaintiffs from claiming. It was also noteworthy that "any person" in the English legislation was interpreted in Yarls' Wood by reference to the legislative history and an analysis of who was in control of the situation. If Parliament wanted the populous in Scotland to be responsible on a strict liability basis, it was easy to understand why that could not extend to liability to institutions. If the legislation applies in Scotland there is no relief, no mitigation based on the conduct of the party claiming; that scope is central to the issue of who is covered by the Act. On a literal interpretation even a rioter would be included, though the absurd result that would ensue would presumably lead to a purposive interpretation. The defenders cannot plead a case of conduct on the part of the pursuers (e.g for failing to keep control) because it would be irrelevant in light of the terms of section 10.

[21] Senior counsel reiterated the position advanced by Mr Balfour that no strained construction was necessary in order to construe riotous or tumultuous assembly as requiring public character. The phrase is consistent with the legislative history of public gatherings of the mob where tumultuous behaviour might ensue. Violent public protest in the streets is the mischief at which the legislation is directed. Where an owner invites teenagers into his house and they smash the windows from inside, it could not be suggested that the council must pay to repair the damage. The boys are not a riotous or tumultuous assembly, they are just behaving reprehensibly within a property. Similarly, it would be inconceivable that where a group of customers within a pub cause a disturbance and destroy part of the pub from within the local authority would require to compensate the pub owner under the legislation. A riot in a house or a pub is not a riotous assembly. The pursuers are in the same category as the publican, householder or night club owner, a point that does not appear to have been taken in Yarls' Wood. The pursuers could not rely on the conviction for mobbing and rioting alone because the ingredients of the behaviour that led to the conviction are unknown. In any event, the conviction was prior to the decision in Harris v HMA. The current state of the law would require the pursuers to at least infer that there was public alarm and that staff could not be said to be members of the public for that purpose and there were no averments of "innocent inmates". It is possible to have a common law riot within a house, but if everything is peaceful outside the property that riot is not a riotous assembly within the meaning of the Act. There were no examples of the Scottish legislation being used to claim after a riot indoors.

[22] In relation to the competency of the claim for lost revenue, it could proceed only if the pursuers could show that in 1973 the law changed from allowing only property damage to allowing consequential loss. The case of Mylne v County of Perth (1775) M, 13180 confirmed that the 1714 Act as it applied in Scotland, being a penal statute should not be extended beyond its precise words and that only corporeal damage could be claimed. If on the face of the words used two meanings are possible, then the provision had to be construed in favour of restricting the penalty. While neither Capaldi v Greenock Magistrates nor Bedfordshire Police Authority v Constable decided the point, it appeared to be acknowledged in both cases that consequential loss could not be claimed. The whole loss must be sustained within the local authority area of the defenders; that was consistent with claims for corporeal damage only. The loss is not all loss of a party, which would have been expressed as "his loss", it is "the loss" to the building not the party. Section 11 of the Remedies Against the Hundred Act of 1827, which applied in England, used the terms "full compensation" and made clear that such compensation was damage to both heritage and moveables. The intention of Parliament was clear only five years after the 1822 Act was passed, at a time when there was legislation on the issue covering both jurisdictions. No different legislative intention could be imputed for the Scottish provision. The cases relied on by the pursuers were too different in context to be of assistance.

The pursuers' arguments

[23] Mr Jones moved that a proof before answer be fixed in both actions. He presented his argument in four parts. The first part related to whether disturbance of the public peace was necessary for a claim under section 10 and the extent of the averments required to fall within the meaning of "riotous assembly". Under reference to Harris v HMA, it was submitted that no actual disturbance of the public peace was required for breach of the peace, only the threat of such disturbance. Even if there was a necessary public element to riotous assembly, whether or not there had been a disturbance of the public peace was a matter for proof. There were averments of tearing down a football pitch and lighting fires on the pitch and of smashing windows. In any event, both the staff (upon whom some violence was visited) and the non-rioting inmates would constitute members of the public for the purpose of any public element. While it was accepted that there was no averment offering to prove that those outside the unit might have been frightened, it could not be assumed that this was somehow a sound tight unit. Only the prospect of alarming the lieges was required. In light of the conviction for mobbing and rioting the pursuers had conclusive proof that a crime was committed - Law Reform (Miscellaneous Provisions) Act 1968. The law provided only one definition of riot and the pursuers had averred sufficient to fall within it. The defenders offered no authority in support of a proposition that there is a difference between criminal mobbing and rioting and civil riotous assembly. In Pitchers v Surrey County Council the rioting soldiers were not members of the local population. The Court of Appeal specifically recorded that there was nothing to suggest that the law did not operate in the institution the court was dealing with and that what had occurred was both an offence of rioting against the criminal law and a riotous assembly under the Act. If it was accepted that the Riot Act 1714 was the genesis of the 1822 Act, the 1714 Act was concerned with both civil and criminal consequences. There was no point at which it could be said that the law diverged such that a riot under the criminal law wouldn't be a riotous assembly under the statutory provisions and vice versa. It was submitted under reference to Hancock v HMA 1981 JC 74 that it is the nature of the criminal purpose that makes the assembly contrary to law. That the inmates of an institution are not there voluntarily is not the point, they had a common unlawful purpose and were assembled for that. To accept that a riot cannot occur in a private or secure place would have absurd consequences. The cases of Dwyer Ltd v Metropolitan Police 1967 QB 970 and Edmonds Ltd v Sussex Police Authority were of no assistance as the facts and circumstances being considered were very different. In Yarls' Wood v Bedfordshire Police Authority police control was said to be considered because of the underlying rationale of the 1886 Act provisions. The defenders could not emphasise the factor of police control in Yarls Wood while at the same time found on the pursuers' control of the secure residential unit in these cases.

[24] Mr Jones' second submission was that loss of income is recoverable under section 10 of the 1822 Act. He argued that the pursuers' position that such loss could not be included required a strained interpretation. The case of Capaldi v Greenock Magistrates did not decide this issue; there was a concession by the parties on it. Neither was it decided for the purposes of the English provision under Yarls' Wood. In the related litigation of Bedfordshire Police Authority v Constable the dicta relied on by the pursuers was no more than the recording of a submission made that there was no provision in the legislation for consequential loss. It should be noted that the words of section 10 provide for "...full compensation for the loss or injury", the word "full" suggesting a broader type of compensation that the defenders suggested. Further, although the definite article "the" is used, the expression "loss or injury" as distinct from "loss or damage" free up the concept of loss from the concept of damage to a building. The defenders argument failed to explain the words "Full compensation" or "loss".

[25] In analysing the historical context of section 10 of the 1822 Act it was neither appropriate or relevant to consider the pre 1973 legislation according to Mr Jones. The provision had undergone "major surgery" at that time. The Acts of 1285, 1354 and 1585 were pre Union and relate to robbery. The 1714 Act had a purpose quite different to that of section 10. The 1812 and 1826 Acts broadened protection to commercial premises, thus it couldn't be said that the purpose of the legislation was just to protect ordinary citizens. In 1886 Parliament saw fit to make the position in England different. To try to achieve the same result as that different position through purposive interpretation was incorrect. Standing the radical amendment in 1973 the Scottish statute couldn't be interpreted the way it would have been when first enacted. Concepts of the responsibility of the police were relevant. Where there is no historical concept for law and order responsibility there was no room to argue that any responsibility on the part of the pursuers for control somehow negates the local authority's responsibility. While Rix LJ in Yarls' Wood (at p 722) states that the conclusion might have been otherwise if no duty was owed to Group 4 by the police, that was not authority for the proposition that in the absence of underlying responsibility no claim can be made. In the context of the English legislation it may matter what responsibility the police owed to those with control of the detention centre, in the Scottish legislation it makes no difference. In any event, there were no averments in the defences of fault on the part of the pursuers in either case. It was accepted that there was no scope for arguing contributory fault in the Scottish legislation, unlike the position in England where the proviso of section 2(1) which permits the conduct of the party whose property was damaged to be taken into account. Mr Jones relied on the dicta of Lord Nicholls in R v Secretary of State ex parte Spath Holme Ltd [2011] 2 AC 349 to contend that there should be a degree of circumspection in looking at external aids to displace unambiguous terms not productive of absurdity to avoid legal uncertainty. Where a statute has been radically amended the original historical context will be less relevant and maybe not at all.

[26] It was contended that the repeal of the 1714, 1812 and 1816 Acts by the Statute Law (Repeals) Act 1973 was significant. The dicta of Lord Jamieson in Capaldi v Greenock Magistrates that the 1822 Act did not create a new right, but merely repeated the rights in the earlier legislation coupled with the view of Lord Wark in Coia v Robertson 1942 SC 11 that the 1822 Act was concerned with procedure only meant that the substantive rights being dealt with in those cases ceased to exist in 1973. The changes to section 10 made by the Local Government (Scotland) Act 1973 (and the subsequent change from regional council to council in 1994) converted the 1822 Act from being one that dealt with procedure to one that gives rise to the right and the remedy. It had become something quite different to what it was previously and tracing back the history of the provision was inappropriate. If looking at purpose the correct approach was to look at 1973 when Parliament imposed the right and see what the purpose was then. The social circumstances had altered by 1973; there was no longer a need to encourage citizens to quell riots, that was for the police force. All that was behind the provision was to make the ratepayers share the cost of the damage. There was no need to adopt a strained construction if the exercise started in 1973. Where the wording of a statute is clear the court should follow it even where the result might be draconian - Slamon and another v Planchon [2005] Ch 142, per Rix LJ at 151. The provision should be read as a whole to construe it properly, although it may require to be broken into parts and read many times to form a view of the whole - Customs & Excise Commissioners v Zielinski Baker [2004] 1 WLR 707, per Lord Walker at paras 38 and 39. In 1973 Parliament put the local authority in the shoes of the wrongdoer at common law, which explains why section 10 widens out compensation to "full compensation for loss" as opposed to the physical damage in the opening words. The "qualifying condition" for being a claimant is being the party injured or damnified - The Scottish Plate Glass Insurance Company Limited v The Corporation of the City of Edinburgh 1940 SC 115.

[27] Considerable reliance was placed on the decision of the Second Division in Landcatch Limited v Braer 1999 SLT 1208. Damage and loss are not in practice interchangeable terms. Loss of revenue was not a secondary or relational claim. There cannot be a concern that the pursuers interpretation would lead to limitless claims because the class is limited to those injured or damnified, just as there was a geographical limitation in Landcatch. The physical damage is a pre-requisite and the class of claimants is limited by that, so loss of revenue alone would be insufficient. Logan v Scottish Water 2006 SC 178 illustrated that a provision entitling a claimant to " ...compensation for any loss or damage" would include any loss sustained in a direct sense by reason of the relevant act. In Davie v Lord Provost of Edinburgh 1951 SC 720 the Lord President (Cooper) expressed the view that in interpreting a statute that made provision for "...full compensation for any damage done" due weight had to be given to the qualifying epithets "full" and "any" but that in the absence of any reference to "injury" the right might be confined to physical damage and opinion was reserved on whether matters such as business loss would be included. It was submitted that the wording of the section makes clear that all direct loss, including economic loss flowing from the physical damage is included.

[28] On the third issue of "The party injured", Mr Jones submitted that in the absence of agreement or proof of the facts on the nature and extent of the asserted public law function of those in charge of the unit, it would be premature to decide whether the pursuers fall within the term "party injured". Even if the Board of Managers could be described as Mangers in terms of the Regulations relied upon by the defenders, Cora Foundation as owners are in a different position. In any event it could not be said that the defenders, as the local authority had no responsibilities for the children in the unit. It was clear from the terms of the Social Work (Scotland) Act 1968 that the primary duty to accommodate such children is on the local authority. On the possibility of the circularity of the local authority being responsible to themselves if they operated the facility it was accepted that the legislation would not apply in that context as the doctrine of confusio would negate the claim. Unlike the position in Yarls' Wood where there had been a large measure of agreement at first instance as a backdrop to the legal argument, there was no such agreement here and the facts required to be established first. The defenders were wrong to rely on the first instance decision in Yarls' Wood that had been overturned on appeal. Mr Jones accepted that the proviso of section 2(1) gave the English a more sophisticated way of dealing with problems that could arise in cases of this sort but that shouldn't affect a decision on whether someone was a "party injured". The words of the statute were clear and gave the answer. The pursuers dispute that the existence of the proviso was the fundamental reason for the decision in Yarls Wood. The following eight positive factors could be taken from the decision in Yarls Wood;-

1. The purposive approach was inappropriate where it interfered with the plain meaning of the provision

2. The rationale of the provision was for the sake of a party whose property was damaged and to encourage that party to keep the peace and spread the burden of the damage caused evenly

3. The proviso is not penal in nature and does not limit the persons who may claim

4. Claims are not limited to "ordinary citizens" and may even come from the Crown

5. It made no difference to the outcome that the party claiming was exercising public functions

6. It made no difference to the outcome that the party claiming had duties to the rioters

7. The defenders interpretation would have excluded the plaintiffs in Yarls Wood even where they were entirely blameless, as it would in the present cases

8. There is no absurdity in allowing such a claim to proceed.

[29] The final issue addressed by Mr Jones was that of statutory interpretation. Reference was made to Bennion, Statutory Interpretation at p 946. If the wording of the 1822 Act were given their plain meaning then the purpose of sharing liability for damage caused by rioters was achieved. Accordingly, a purposive approach to cut down the ambit of the legislation was not justified see R v Secretary of State for the Environment, Transport and the Regions, ex parte Spath Home Limited [2001] 2 AC 349 at 385. The limits on Parliament's intention suggested by the defenders (no claims by prisons, detention centres and others with public law duties) were entirely speculative and had no basis. They could not ask what Parliament would have done in the current cases, not in contemplation at the time, and fill the gap by supplying the answer themselves. That fell foul of the correct approach to statutory interpretation - see R (Quintavalle) v Secretary of State for Health [2003] 2 AC 687, per Lord Steyn at 702. The authorities did not support a contention that legislation must be construed not to apply to situations not envisaged when passed. Mr Jones confirmed that the pursuers did not disagree with many of the propositions made by the defenders in relation to statutory interpretation, but the emphasis was different. A purposive approach should not be a quest for purpose unrelated to the wording of the statute. The question is what was the purpose in using certain words. The context of the statute and its historical social and factual place do not flow from the purposive approach but exist independently of it. Care was required with an act which had been much altered as to the moment at which the factors are to be assessed. There was no question in this case of trying to extend the application of the provision. The defenders sought to restrict it but the pursuers contend that on a plain reading of the provision their case is included. A strained construction can only be adopted if it is necessary to give effect to a provision; it should not be used to twist wording to limit its application. Some issue was taken with the defender's ninth proposition that the court ought not to interpret legislation in a manner which is manifestly absurd or unreasonable. This is more properly expressed as a rebuttable presumption and is in any event subject to a requirement that the court should give effect to clear wording. The individual elements of what is meant by absurd or unreasonable are considered in Bennion, Statutory Interpretation (pages 971, 979, 986, 999, 1003 and 1006). It could not be said in this case that any of the elements to be avoided, such as an unworkable impracticable or inconvenient result, an anomalous, illogical, futile or pointless result, an artificial result or a disproportionate counter-mischief would attach if the pursuers interpretation was favoured. If the underlying basis for the legislation has gone, it would be for Parliament to repeal the Act. On the issue of control the pursuers do not dispute that the children within the residential unit were being held in terms of the legislation cited by the defenders. However, neither the owners nor the operators of the unit were in the position of police or prison officers. They were providing services to a public body (the defenders) in return for payment. The words of the statutory provision clearly cover such a situation.

[30] Senior counsel for the pursuers, having adopted his junior's submissions, argued that section 10 was a provision that was short and easy to understand. By giving the words of the statute their ordinary meaning the pursuers in both cases were "a party injured" and the disturbance in the unit was a "riotous assembly". It was the defenders who sought something other than an ordinary meaning. The focus of the defenders' argument was wrong. The correct approach was to consider the legal principles, then to apply those to the legislation and lastly to address the issue of consequential loss. The important legal principle was that it was the meaning of the words of the statute that must be considered. A purposive construction was simply part of that exercise. It was clear from the case of R v Secretary of State for the Environment, Transport and The Regions ex parte Spath Holme Limited [2001] 2 AC 349 that it was usually inappropriate to trace back to earlier provisions behind a consolidation statute. Where the statute was not a consolidating one, as in this case, there was even less justification for tracing back. While context of a provision was important, it is the language that is read in context. Where the words of a statute change in later Acts, there can be no assumption that the intention at both times is the same.

[31] Under reference to Clarke v General Accident 1998 1 WLR 1647 at 1654-1655, Mr Lake argued that a purposive construction cannot be used to apply unnatural meanings to familiar words, particularly where the language has no evident ambiguity or uncertainty about it. Thus "the party injured" cannot be stretched to mean "other than a party who had control of the rioters" on any proper approach to interpretation. Senior Counsel did not dispute that a purposive approach was appropriate, but it had limits. An analogy could be drawn with the way in which the definition of embryo in the Human Fertilisation and Embryology Act 1990 was approached by the House of Lords in R (Quintavalle) v Secretary of State for Health [2003] 2AC 687. Although the definition referred to fertilisation, the protective purpose was plainly not intended to be tied to the particular way in which an embryo might be created and the definition should include embryos created by cell nuclear replacement, something developed scientifically since the legislation was enacted. There was nothing to suggest that Parliament intended the words "the party injured" to be restricted so as to apply only to certain individuals. In any event, what the court thinks Parliament intended does not trump a clear provision - Slamon and another v Planchon [2005] Ch 142. The duty of the court is to give effect to the language used. A purposive interpretation cannot be used to cut down the ambit of a provision and it is not permissible to ask what Parliament would have done on the facts of the present cases. The defenders were speculating as to what Parliament would have done. If the identified policy is met, there is no need to cut down or limit the application of the provision. The defenders contend that the policy was to compensate some people and not others. Unless the policy was clearly so limited, it should be taken as being simply "to compensate", rather than limiting its scope where it would otherwise apply. The purpose of section 10 has always been to allow a remedy by which compensation can be paid by one party to another. It has only ever gone to recovery of damages, not to explaining what the wrong is. It does not create the wrong, it simply regulates compensation. The only identifiable purpose of section 10 was to amend and extend the provisions for relief.

[32] Mr Lake did not go so far as to suggest that in interpreting the provision nothing earlier than 1973 was relevant. He referred to passages from Ratcliffe v Eden (1776) 2 Cowp 486 where Lord Mansfield referred to the 1714 Act as being a remedial law. This meant that the provision should be used to put the parties in the position they were prior to the incident. The earliest Act that might be relevant was that of 1714. Neither it, nor the Acts of 1816 or 1817 were linked to the earlier English legislation. The general intention of Parliament in the various Acts was to provide a remedy to a person who sustained loss as a result of riotous assembly. The purpose might be said to have been to encourage them to stand up to that assembly. There is nothing in the legislation to suggest that the rioting assembly must come from within the local populous. The attempt at rioting when the G8 summit was held at Gleneagles in 2005 was no less of a rioting assembly because those rioting were a community of international protestors. It was not proper to ask whether Parliament could have designed the legislation to deal with rioting children. If the purpose of the legislation was met, the court shouldn't stop it applying to specific entities. Such a restrictive approach was rejected both in Pitchers v Surrey County Council [1923] KB 57 and in Yarls' Wood. In Mr Lake's submission it made no difference whether the purpose was ascertained in 1973 or in 1822, the purpose was still remedial not punitive. However, he accepted that the date of intention being ascertained it made a very significant difference to whether or not consequential loss could be claimed. He disputed that in 1973 all that was done was the substitution of local council for the burgh. The repeal of the earlier Acts was important. Reliance was place on Coia v Robertson 1941 SC 111 which had directly addressed the issue of whether the 1822 Act confers substantive or just procedural rights and concluded it was procedural. In contrast, the point had not been considered in Johnstone v Kerr (1837) 16 S 104 at all. Only the ratio of a decision is binding and there was none in Johnstone. The provision became a substantive one only in 1973. The development of a practice, such as rioting in secure accommodation, not in contemplation when the Act was passed, might well fall easily within the words of the statute - Lord Bingham in Quintavalle at 695 - 696. The rationale behind the 1822 Act was to identify who may be the recipient of compensation. There was no reason why it wouldn't apply to the present pursuers in both actions. It was not a difficult question of the development of science as it was in Quintavalle, it was straightforward.

[33] Senior counsel did not dispute that matters had "moved out of step" as between Scotland and England from 1886. A new test was introduced for England that permitted the court to take account of conduct in fixing such compensation as was just. However, the absence of discretion in the Scottish provision should not be used to twist or thwart the plain language of a section. Any notion of fault on the part of the pursuers can be ignored as there is no case on record for that. In any event there was no basis for suggesting that any argument about control applied to Cora, who were simply owners, not operators of the unit. While the children involved were being held under the various statutory provisions relied on by the pursuers, most of those imposed duties to act in the children's best interests and were not in any sense targeted at preventing riots. The situation was quite different from a prison or immigration detention centre. In any event, it was averred that police skilled in riot control required to attend the unit to bring matters under control. It could not be suggested that the Board of Managers, the operators, were responsible for control in the sense of controlling riots.

[34] Considerable attention was again given to the Yarls' Wood case. The Court of Appeal had overturned the first instance view that a public authority could not be "any person" for the purpose of the 1886 Act. The policy behind the legislation was that everyone should be responsible for good order and should share the burden when it goes wrong, that is what is meant by "standing in the shoes of the wrongdoer" (para 54). It matters not whether it is the police (in England) or the local authority (in Scotland), Parliament has decided that different, both publicly funded, bodies are liable in each jurisdiction but the principle is the same. The rationale of Yarls' Wood did not turn on the duty of the police to keep law and order. Rix LJ acknowledged the strict liability imposed by the legislation. Analysing paragraph 55 of Yarls' Wood Mr Lake submitted that in the present cases it couldn't be said that the pursuers have any duty for law and order. In any event the court had rejected expressly the idea that the existence of duties on the part of the police had the effect of excluding the claimants. There was even less reason to look at the duties of the local authority under the Scottish legislation where it was unlikely that any notion of fault on the part of the local authority would arise. Too much emphasis had been placed on the expression ".. it might perhaps be otherwise if one could state that no duty was owed to Group 4 by the police.." as it was a comment directed at the particular facts of the case. Further, there was express contemplation of claims by the Crown being possible (para 56). The first three factors relied on by Rix LJ at para 63 to include the plaintiffs within the definition of "any person" apply equally to the defenders in these cases. The term "the party injured" is also broad, inclusive and without apparent limitation, the claim is possible only if there has been injury or damage caused by those riotously or tumultuously assembled together and the local authority in which the lost or damaged property is situated is liable. All that could be said about the proviso of section 2(1) in the English legislation was that it didn't exist in Scotland. As with the analysis of "building" by Rix LJ for the English Act, the definition of building in the 1822 Act, which includes " ...or any other building whatsoever" was so broad that it clearly applies to schools, prisons, secure units and the like. Once that is accepted, there would have to be a linguistic pointer to exclude damage from within and there was none. Turning to para 69, everything said there was applicable to the present cases. There is no inconsistency, absurdity or inconvenience caused in the interpretation proposed by the pursuers nor obscurity about their suggested meaning. This is not a detailed or complex provision producing anomalies and there is no obvious sign in the Act that there is any need to limit those qualifying for compensation. On the issue of the emphasis placed on the English proviso (see para 71) the position in Scotland would be that those engaged in unlawful conduct would not be able to claim, in accordance with the principle ex turpi causa non oritur actio, but that apart there was nothing in the 1822 Act to limit claimants to innocent victims. Neither the concept of "qualifying persons" nor the issue of "control" is to be found in the Act. In short, the 1822 Act is clear in its terms without any reference to Yarls' Wood, although the case is helpful in explaining the clear rationale behind such provisions. A purposive approach does not result in cutting down the class of persons who may claim. The idea that Rix LJ would have decided in favour of the defenders had he been analysing the Scottish provision should be rejected. The defenders had failed to explain how to get from "party inured" to the restriction they sought. They were not seeking to read in words and the purposive approach could not be used to cut down the ambit of the provision.

[35] On whether an ordinary interpretation would lead to an absurd or undesirable result, Mr Lake relied on R (on the application of Edison First Power Limited) v Central Valuation Officer [2003] UKHL 20. It must be presumed that Parliament did not intend a statute to have absurd, objectionable unworkable or impracticable results. The more unreasonable a result the less likely that Parliament intended it. Senior counsel accepted that the unreasonableness of the result could go against the pursuers on the consequential loss argument, but as the court had recognised in Slamon v Planchon the harsh consequences of a statute in clear terms may have to prevail. The circularity of the Council being able to make a claim against themselves should not lead to a result that excluded certain classes of person. Even if the Council could not claim against themselves for damage caused by riots in council car parks or swimming pools, third parties' owning such places should be able to claim. Even if there was an argument based on control, it could not apply to the Cora Foundation case. It could hardly be said to be necessary that Cora aver that they were not in control of the premises.

[36] On the issue of what constituted a "riotous or tumultuous assembly", senior counsel emphasised that in Pitchers v Surrey County Council [1923] KB 57 an argument was presented that soldiers rioting in a camp were not "persons riotously and tumultuously assembled together" in a civil law sense because they were solders subject to military discipline. The Court of Appeal had rejected that contention and held that those circumstances did not take the case out of the provisions of the legislation. Pitchers also supported (at pages 74-75) the contention that there is a relationship between the criminal law of rioting and riotous assembly. In the present cases, the conviction referred to on record, taken with section 10 of the Law Reform (Miscellaneous Provisions) Act 1968, was sufficient to prove all of the necessary ingredients of mobbing and rioting. Referring back to Hume and Alison, those ingredients were (i) "a great host or multitude of people assembled", fear of the lieges and disturbance of the public peace (which can be taken to be established on the basis of the conviction), (iii) persons combined for violence or mischief and (iv) causing disturbance to the public peace by damaging or seizing property. All were met in this case not just by the conviction but by offering to prove violent behaviour, smashing windows, lighting fires including outside on a football pitch as part of a relevancy it could not be said that the pursuers would be unable to prove that there had been a riotous assembly. The lack of previous examples of cases brought under section 10 in respect of rioting in a prison or similar institution did not matter standing the conviction available. In The School Board of Glasgow v The Corporation of Glasgow 1912 SLT 332 an action under s10 failed because it was not averred that the schoolboys marching through the streets had a common purpose or how any such purpose was begun or executed. More importantly, there was nothing averred about the boys " ...displaying force and violence ...in such a manner as to alarm anybody of reasonable firmness and courage". Accordingly it could not be said that they were an unlawful, riotous or tumultuous assembly. In contrast, all the relevant factors had been pled here. Mr Lake also submitted that the case of Harris v HMA was not relevant, the closest crime being mobbing and rioting, not breach of the peace. In any event, in Harris the remark to the police had not been heard by anyone else. In the present cases, there were members of staff and others who would have been directly affected by the riot and it was a far less private incident that that in Harris. Nothing turned on the curiosity of the disjunctive "or" being used in the Scottish provision. It could hardly be disputed that the disturbance in the present cases was unlawful and riotous and tumultuous. Lesser disturbances in houses or pubs might well not be a riot, much would depend on the circumstances. The combination of the riot police being required to stop the disturbance and the criminal convictions were sufficient to take the case out of being a disturbance not covered by the Act into a riotous assembly that had caused damage, recoverable by the party injured.

[37] Senior counsel added to the submission of his junior in relation to the extent of damages recoverable. He submitted that three groups of terms in section 10 were interrelated. The words "any damage or injury" in line 1 referred to damage to structures and contents. The words "the party injured or damnified thereby" in line 5 did not relate to physical damage it is the party who is damnified by the property damaged. The words "the loss or injury" in line 6 more naturally deals with the damage to the party and allows them to recover the loss they have suffered. It is the party's loss that should be compensated, not the damage to the building. The word "loss" connotes an effect on a person not a building. It was important also to give effect to the words "full compensation". In Davie v Magistrates of Edinburgh the Lord President reserved his position only on the absence of reference to injury in the statute in question, a word that is present in section 10. The provision was remedial not penal and should not be construed against the pursuers. It was accepted that it was described as penal in Mylne v County of Perth but that case was inconsistent with more recent authorities and the concept of what was "penal" had altered since 1822. Mr Lake accepted that when cases such as Mylne were decided, the Act applied only to building structures. However, if, as was said in Yarls' Wood the defenders "stand in the shoes of the wrongdoer" why should the liability be less than would be owed by a wrongdoer at common law? The reason for there being no claim for loss of revenue in Yarls' Wood was not known. As there could be no liability without physical damage the loss of revenue must also be tied to the unit and no problems with jurisdiction arose. In any event the issue of whether the loss of revenue could be claimed in the Board of Managers case was one of relevancy not competency. The remedy sought is payment of a sum of money which is competent, the question was whether the averments on loss of revenue are relevant.

Discussion

Statutory Interpretation

[38] It is appropriate to begin by considering the general points made about statutory interpretation. As the arguments developed it became clear that there was a broad measure of agreement between the parties on the relevant authoritative statements on the issue of statutory interpretation and the propositions to be derived from them. What is really at issue is the result of the task of giving effect to Parliament's purpose rather than a dispute about the nature of the task itself. While the defenders urge a purposive approach with a view to excluding the pursuers from claiming under the Act, the pursuers do not contend that it is wrong in principle to read a provision in the context of the statute as a whole and to some extent against the historical backdrop in which it was passed. The difference in approach is that the defenders focus on the historical approach as justification for their interpretation, while the pursuers emphasise that the words of the statute may be all that matters if they are free from ambiguity and their ordinary meaning does not produce an absurd or objectionable result. Neither side suggests that in 1822 Parliament would have envisaged children in a secure residential establishment rioting and the operators of that unit making a claim. This is one of those situations where the provision requires to be interpreted against a background of developments having taken place that were unforeseen at the time. The defenders claim that the statute is not apt to cover a claim made by those who own or operate a secure unit within which a riot or disturbance takes place. The pursuers regard the application of the provision as requiring no twist of language or extension of a clear provision. The language of the statute is permissive in terms of possible claimants and the riot had all the necessary qualities of a riotous assembly. The case of R (on the application of Quintavalle) v Human Fertilisation and Embryology [2003] 2 AC 687 is of particular interest and was relied on by both parties. Perhaps the passages that are most pertinent, from the speech of Lord Bingham, are the following;-

"There is, I think, no inconsistency between the rule that statutory language retains the meaning it had when Parliament used it and the rule that a statute is always speaking. If Parliament, however long ago, passed an Act applicable to dogs, it could not be interpreted to apply to cats; but it could properly be held to apply to animals which were not regarded as dogs when the Act was passed but are so regarded now..." (page 695)

"More pertinent is the guidance given by the late Lord Wilberforce in his dissenting opinion in Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800. The case concerned the Abortion Act 1967 and the issue which divided the House was whether nurses could lawfully take part in a termination procedure not known when the Act was passed. Lord Wilberforce said, at p.822 ;-

' ....when a new state of affairs, or a fresh set of facts bearing on policy, comes into existence, the courts have to consider whether they fall within the parliamentary intention. They may be held to do so, if they fall within the same genus of facts as those to which the expressed policy has been formulated. They may also be held to do so if there can be detected a clear purpose in the legislation which can only be fulfilled if the extension is made. How liberally these principles may be applied must depend upon the nature of the enactment, and the strictness or otherwise of the words in which it has been expressed. The courts should be less willing to extend expressed meanings if it is clear that the Act in question was designed to be restrictive or circumscribed in its operation rather than liberal or permissive'."

The argument of the defenders in the present cases is not that an express meaning should be extended, but that, at least in relation to "party injured", it should be interpreted so as to exclude those owning or operating an institution within which a disturbance takes place. It is accepted in relation to that part of the argument that a strained construction would be necessary but contended that such a construction is appropriate having regard to the historical context of the provision and related material. Against that background, can the words "the party injured" reasonably be taken as used by Parliament to include those owning or operating an institution whose inmates have rioted? So far as " riotous or tumultuous assembly is concerned", the central issue is whether the assembly requires to have a public content, given the historical background of the need to quell assemblies of the populous, usually those with a political aim, whose coming together became violent with consequent threat to disturbance of the public peace followed by actual damage. A riot may not be a riotous assembly. Without the constituent elements of an assembly a disturbance would not fall within the provisions of section 10. On both the expressions to be interpreted the starting point is, indisputably, the ordinary meaning of the words. Only if the meaning is ambiguous or leads to a result that is manifestly absurd or unreasonable is there a need for external aids. Such aids should not be used to displace meanings which are otherwise clear and unambiguous - Lord Nicholls of Birkenhead in R v Secretary of State for the Environment, Transport and the Regions ex parte Spath Holme Limited [2001] 2 AC 349, citing Lord Diplock in Fothergill v Monarch Airlines. Also relevant in the context of the present cases is the dicta of Lord Clyde in Clarke v General Accident Fire and Life Assurance Corporation plc [1998] 1 WLR 1647 on the issue of the limits of giving words a strained construction ;-

"It may be perfectly proper to adopt even a strained construction to enable the object and purpose of the legislation to be fulfilled. But it cannot be taken to the length of applying unnatural meanings to familiar words or of so stretching the language that its former shape is transformed into something which is not only significantly different but has a shape of its own".

The defenders contend that an interpretation that includes the owners and operators of these premises to claim would be undesirable, illogical and produce an unreasonable result that would not give effect to Parliament's purpose. In reaching a view on that contention it is necessary to consider the historical and factual context of the provision, something that also has a bearing on the issue of the extent of the compensation that can be claimed.

Historical and legislative background

[39] The main aspects of the historical background have been carefully researched and analysed, particularly by Mr Balfour. The short summary at paragraphs [6-7] above does little more than record the sources brought to my attention but these were very fully explained in the development of the argument about the purpose of the various legislative provisions. The pre-1707 history of the English provisions is interesting as a background to understanding the imposition of responsibility for a victim's loss through criminal acts on those in the community who have failed to prevent the crime or apprehend the defender. (I was not informed of any Acts of the pre union Scottish Parliament on the matter). However, I regard the Riot Act of 1714 as the real starting point for the discussion. That piece of legislation is important for a number of reasons. First, it is the first post union statute on the issue of quelling riots and has separate provisions for Scotland and England. Secondly, by section 9 it introduces the right to recover from the County, Stewarty, City or Burgh in Scotland the cost of repairing certain buildings damaged by those unlawfully, riotously or tumultuously assembled. It became clear that claiming against the Burgh was a mechanism for distributing the cost among the local community, as discussed in Capaldi v Greenock Magistrates at 316. Thirdly, the relevant provisions of the 1714 Act remained in force until repealed by the Statute Law Repeals) Act of 1973. It was accepted by the pursuers that the terms of the 1714 Act and the associated provisions in the Acts of 1812, 1816 and 1817, which extended claims to commercial premises and to moveables damages by riotous assembly, all restricted claims to damage to corporeal property. The 1822 Act required to be interpreted along with the Acts of 1714, 1812 and 1816 until 1973. Accordingly, unless the changes in 1973 altered the position such as to allow claims for consequential loss such as the loss of revenue claimed in this case, section 10 of the 1822 Act does not permit such claims. I accept that the basis for the local population being liable to make good the damage caused by riotous assembly is the concept of their being notionally responsible for failing to stop the offenders and that such a concept has its historical foundation in the early legislation.

[40] The status of the 1822 Act within the body of available provisions prior to 1973 then requires to be considered. In Capaldi v Greenock Magistrates 1941 SC 310, a decision of the Second Division, the court rejected an argument that an aggrieved party whose property had been damaged could choose whether to proceed under the 1714 Act ( referred to in Capaldi as the 1715 Act) or the 1822 Act.. It held that the 1822 Act altered the old procedure and that it ..." did not introduce any new right to recover damages, but merely repeated rights which are to be found in the Acts of 1715 and 1817." The court concluded that actions of this sort required to proceed under section 10 of the 1822 Act. In Coia v Robertson 1942 SC 117, another Second Division decision, the court discussed Capaldi and went further, describing the 1822 Act as "... truly only a procedure Act", concluding that the substantive rights remained under the earlier Acts. Accordingly, an action brought under the 1822 Act should specify which of the earlier Acts was being relied upon for the substantive right. The court was not referred in either of those cases to the decision in Johnstone v Kerr (1837) 16 S 104, where the First Division of the Inner House, overturning a decision rejecting a claim under section 10, pronounced an interlocutor finding the cause of action, which was under the 1822 Act alone, established. While it is unfortunate that the case of Johnstone was not before the court in the cases of Capaldi and Coia, I cannot conclude, as senior counsel for the defenders suggested I should, that those cases were wrongly decided. Capaldi and Coia are decisions of the Inner House in which the issue of the status of the 1822 Act was properly discussed. The case of Johnstone may illustrate that the approach to the role of the 1822 Act as procedural or substantive has not been entirely consistent, but there is no analysis of the issue and Capaldi is an authoritative pronouncement to the effect that the 1822 Act did not introduce a substantive right but restated existing rights. In the context of the present cases, what that means is that prior to 1973 the 1822 Act was not a stand-alone provision. It could only be understood under reference to the Acts of 1714, 1812 and 1816. Thus in order to understand what rights it now imposes, it is acceptable to refer back to those statutes, because the 1822 Act was a re statement of existing rights. I reject the suggestion that the substantive rights "ceased to exist" in 1973, the rights were a necessary precursor to the 1822 Act and continued after 1973 but in a different form. In my view, what follows from that is that, absent a clear change in the rights afforded by the Act, the rights it previously re stated continue to be relevant. Counsel for the pursuers suggested that, if on the basis of Coia and Capaldi the 1822 Act became a substantive provision only in 1973, then that was the tempus inspiciendum for ascertaining the meaning and purpose of section 10. I consider that to be an over simplistic and potentially misleading approach. Parliament enacted most of the words (and certainly the two expressions of particular contention in these cases) in 1822. Two changes occurred in 1973. One was to substitute the local council for the Burgh, but these are both entities that fit well with the historical concept of notional responsibility of the community and do not go to the substance of the right. The second was to repeal older statutes that had become unnecessary as the 1822 Act was capable on its face of providing both the substantive right and the remedy. Perhaps the most instructive point that can be taken from Coia and Capaldi is that the existence of several statutes appearing to provide the same or similar remedies for damage caused by riots had become unwieldy and led to procedural confusion. The 1822 Act, being the route to damages under all of the legislation in force at the time, was clearly the most appropriate to become the single stand alone provision providing both the right and the remedy in 1973. There is in my opinion no basis for contending that because of that, the rights for which it provided a remedy until that time were somehow eradicated and the extent of the remedy altered. I will return to this point in explaining my decision on the loss of revenue claim in the St Mary's Board of Management case.

The position in England prior to and including and the case of Yarls' Wood v Bedfordshire Police Authority

[41] The parties are agreed that by the late nineteenth century there was a divergence of the statutory provisions on compensation for damage caused by riotous assembly such that the English legislation imposed liability on the local police authority. More importantly, section 2(1) of the Riot (Damages) Act 1886 which continues in force in England, specifically provides that " .. in fixing the amount of such compensation regard shall be had to the conduct of the said person, whether as respects the precautions taken by him or as respects his being a party or accessory to such riotous or tumultuous assembly, or as regards any provocation offered to the persons assembled or otherwise." Accordingly, a method of restricting compensation if a party is implicated in the riot is explicit. Further, the level of compensation is restricted, by section 3 of the 1886 Act, to that which is "just". Prior to the case of Yarls' Wood, the most significant decision under the English statute was that of the Court of Appeal in Pitchers v Surrey Country Council [1923] KB 57. That involved soldiers rioting in a camp, although the property of civilians was damaged. In my view, two points emerge from the case. First, it was thought sufficient that the camp was within the police district for liability of the local police authority to be invoked. Secondly, an argument that the disturbance in question was not a riot for the purpose of the 1886 Act was specifically rejected. Atkin LJ expressed the view (at p75) that the possibility of a disturbance by three or four soldiers within a camp, sufficient to constitute a riot, must have been well within the contemplation of the legislature at the time they made the provision. While the plaintiff in Pitchers was an individual citizen whose property had been damaged, the case lends some support to the view that a riot within a confined area separate from the community may be a riotous assembly for the purposes of the English provision.

[41] In Yarls' Wood v Immigration Limited v Bedfordshire Police Authority, there is a full discussion about the applicability of the 1886 Act to those with public law duties for order within a building or buildings containing detained persons. At first instance, Beatson J held that Parliament did not intend to include such persons or entities as claimants but that decision was overturned by the Court of Appeal. The defenders in these cases argue that a different result would have been reached if the Court of Appeal had been looking at the Scottish provision and that in any event the court's conclusion was based on provisions which have no application in the present cases. The pursuers argue that Yarls' Wood supports a permissive interpretation rather than one that excludes certain categories of person. In my view, while the case of Yarls' Wood is of considerable interest, being a Court of Appeal decision on a similar issue, the differences between the Scottish and English provisions currently in force mean that it could never be regarded as being "on all fours" with the present cases. I acknowledge that the court was to some extent influenced by the ability to remedy what might be otherwise undesirable or unreasonable outcomes by relying on the proviso in section 2(1). It does not follow, however, that in the absence of the proviso the court would necessarily have reached a different decision. Other factors were important, as is evident from the following instructive passage from the opinion of Rix LJ ( at para 63) ;-

"It seems to me that a solution of the problem in this case has to take account of the following matters. (1) The reference to 'any person' (see also the broad and inclusive definition in section 9) is on the face of it without exception. (2) The limitations on the scope of the 1886 Act are to be found elsewhere. There has to be injury, theft or destruction, by persons riotously and tumultuously assembled together, of a house, shop or building or of property therein. (3) The person who has sustained loss by reason of such injury, theft or destruction can claim compensation to be paid out of the police fund of the police area in which the lost or damaged property is situated. Nothing whatsoever is said about the nature of the local police force's duties. It is common ground that the liability of the police fund to answer for the claim is strict. (4) The claim is directed in the first instance to the compensation authority of the police area in question, but if the claimant is not satisfied by that authority's response, then the claimant may sue the authority in the courts. (5) The compensation to be fixed is such as 'appears' to the authority to be 'just'. The authority (and presumably the court too, but we are not concerned with that wrinkle) is therefore entitled to take a broad view of what the claimant is entitled to. That is emphasised by the proviso to section 2(1) which requires that regard shall be had to the conduct of the claimant, of which examples such as (lack of) precautions, complicity, and provocation are given, but the statute ends generally with 'or otherwise'. Therefore, the assessment of quantum is not a mere matter of valuation of the lost or damaged property. It is a global assessment which takes account of the claimant's conduct in the broadest sense. (6) In the most relevant dictum in any authority put before us, Atkin LJ in the Pitchers case [1927] 2 KB 57 contemplated that where a claimant was the Crown (as in the case of damage to or theft from military barracks), the section 2(1) proviso would enable the assessing tribunal or court to reach a just result which would take account of just such factors of relative control and accountability as were raised in that case. (7) The 1886 Act goes into greater detail about buildings in section 7..."

The first three factors relied on by Rix LJ are equally applicable to the Scottish provision. The reliance on the proviso of section 2(1) does illustrate an important difference between the two provisions. In the absence of a proviso that can take conduct on the part of the claimant into account, can it be implied that Parliament intended only innocent victims to be able to claim? That question is not answered by Yarls' Wood and must be addressed in the present cases. I am unable to express a view on how the Yarls' Wood case would have been decided had the Court of Appeal been considering section 10. While considerable reliance was placed on the express suggestion by Rix LJ ( at para 55) that the decision on inclusion or exclusion of the claimants as a qualifying person "... might perhaps be otherwise if one could state that no duty was owed to Group 4 by the police." that dicta is in my view far from sufficient to justify a conclusion that the absence of actual duty by the local authority to the pursuers in these cases excludes the pursuers from falling within the ambit of section 10. All that can be said is that there was a focus in Yarls' Wood on the relative duties of the parties' involved and the role of the police authority in controlling law and order in their particular area, the factual background having been agreed as a precursor to the argument. The context was whether the undoubted fact that Group 4 had a public responsibility for good order within Yarls' Wood resulted in that entity being unable to qualify as "any person" under the Act. The absence of practical involvement on the part of the police in Yarls' Wood did not ultimately exclude those running the institution from claiming, just as the complete control exercised by the military authorities in Pitchers did not take the claim outside the scope of the 1886 Act. I consider that the eight factors that Mr Jones suggested could be taken from Yarls' Wood (which I have set out at paragraph 28 above and need not repeat in full) are soundly based. In short, a party who has duties to maintain order within an institution is not thereby excluded from claiming under the English legislation.

[42] The final point from Yarl's Wood germane to the issues in the present cases is the approach taken to the purposive interpretation proposed by the police authority. Rix LJ expressed the view (at para 70) that it would be undesirable in principle to adopt an interpretation with regard to the scope or jurisdiction of the statute that would be likely to be a blunt tool, giving rise to difficult cases. Excluding a category of persons from claiming would do that. It must be acknowledged that the reasoning went on to rely on the fact that the statute contained language on the assessment of quantum of a claim which was capable of delivering justice on the facts of each case. However, it is clear from the following paragraph (71) that an approach that included or excluded a claimant depending on concepts of shifting control and responsibilities was disapproved, as it would " ...make a large demand on the wording of the statute" and would be inconsistent in many cases with the statute's clear purpose, for example where a riot started in an institution and control for quelling it was formally handed over to the local police. Rix LJ concluded (at para 74) that it was difficult to see how the statute could be interpreted as providing no duty to a claimant where the provision is premised on a duty which is both notional and strict and thus unavoidable. On that issue, while being conscious that the provisions differ materially, I have found Yarls' Wood of some assistance in looking at section 10.

The meaning of section 10

(i)            "The party injured"

[43] On the first issue of whether the words" the party injured" are apt to include the owners and/ or operators of an institution such as secure residential unit in which young people are detained, I have decided that they can be, if the other requirements of section 10 are made out. It is difficult to separate the expression "the party injured" from the rest of the provision. Damage to a building or its contents by an unlawful, riotous or tumultuous assembly is also necessary. The real question is whether the party injured must be an "innocent bystander" in the sense of being a civilian with no relationship to those who riot. In my view there is no evident ambiguity in the words "the party injured". Anyone whose property is damaged by a riotous assembly is included within that term. I accept the submission of senior counsel for the pursuers that it would be stretching the language of the provision too far to read into it "other than a party who had control of the rioters". In my view this is one of those situations Lord Bingham referred to in Quintavalle, where Parliament long ago passed legislation applicable to one thing but where it can properly now be held to apply to something not anticipated at the time but falling within the same purpose that Parliament originally intended. A riot within secure accommodation was clearly not in contemplation when the Act was passed, but it would appear to fall within the words of the statute if the other qualifications of damage and riotous assembly are met. The words of section 10 cover all parties whose property is injured by riotous assembly. The historical analysis explains the background of making the community pay for the damage, thus spreading the cost amongst those who, now notionally, could have stopped the riot. In Scotland, there has been more consistency in the identity of the payer than in England. The Burgh has been replaced by the local council but there is clear continuity in the approach. In this jurisdiction, liability was not transferred to those who became actually responsible for preserving law and order. It has always been the responsibility of the local community as a whole and the modern form of that is through the authority that collects the local tax, currently council tax. For that reason, there is in my view less need to analyse the relative responsibilities of the parties involved. The local authority is not directly involved in keeping the peace and will not be involved in quelling a riot. In my opinion, the lack of actual responsibility on the part of the local authority is not a relevant factor. The legislation imposes strict liability on the council for the reasons explained. The fact of the pursuers (at least in the Board of Managers case) having control over the place in which the riot took place relates primarily to the issue of whether they can be categorised as "innocent bystanders". I consider that at one level the legislation does imply innocence on the part of those claiming under it. What I regard as "innocent" in that context is that those who have participated in an unlawful or riotous assembly could not make a claim, in accordance with the maxim ex turpi causa non oritur actio. That is not the case here. A more difficult situation might arise where a riot is started and those in charge of an institution fail to take the any steps to control it and thus limit any damage caused. There is no room for a reduction in damages on the basis of contributory fault. In this case there are no averments on fault on the part of the pursuers. There are positive averments that riot police were called. The defenders do not aver that there was an unconscionable delay in so doing. While no doubt such averments would have been another subject of the discussion about relevancy given the terms of the legislation, the fact is that there are none and I need not consider this case as one in which it is contended that the pursuers are in any sense at fault for failing to prevent or control the riot. The lack of ability to reduce damages on account of contributory fault may be relevant in interpreting the issue of the extent of the damages that can be claimed, but in my view is not determinative of the issue of inclusion or exclusion of a class of claimants from the expression "party injured". To interpret the provision as excluding all those operating a secure institution, whatever the circumstances in which the damage was caused, may lead to unreasonable and absurd results. To include, at least in the first instance, those who in some cases might have failed to mitigate the damage is less problematic. The precise circumstances of what occurred in such a case should in any event first be subject to inquiry by proof before answer. Only after such inquiry would the court be able to determine whether there was any difficulty in characterising the pursuers as parties injured. It would be premature to make assumptions about the issues of the extent of the pursuers' control in the Board of Managers case prior to proof. No such issues arise in the Cora Foundation case and on the basis that those pursuers were owners of an institution that they did not operate, I consider that they fall naturally and easily within the definition of "party injured". In neither case do I regard my decision as extending or stretching the meaning of the words used by Parliament. It would be speculative to conclude that Parliament did not intend those running an institution to be able to claim against the community. There is no need to adopt the strained interpretation proposed by the pursuers.

(ii) Any unlawful, riotous or tumultuous assembly

[44] The issue for discussion under this category is whether the term "riotous assembly", on which the pursuers in both cases rely in the pleadings, can apply to a disturbance within a secure residential unit. A riot usually involves a disturbance of the public peace. The question is whether a riotous assembly necessarily has a public context. While in Pitchers v Surrey County Council [1923] KB 57 the Court of Appeal decided that soldiers rioting in a camp were capable of being "persons riotously and tumultuously assembled together", that was a decision under the English provision. The writings of Hume and Alison on criminal law do seem to require, as a necessary ingredient of the crime of mobbing and rioting, fear of the lieges and disturbance of the public peace. While a conviction for mobbing and rioting is not sufficient to conclude that the inmates involved in this disturbance formed a riotous assembly, as opposed to a riot without assembly, it does illustrate that the requirement of causing disturbance to the public peace can be taken as having been met in the criminal context of mobbing and rioting arising from this incident. It did not seem to be disputed that the conviction in question will have pre dated the five judge bench decision in Harris v HMA 2010 JC 245. However, the importance of that decision is the clarification provided on the requirements for breach of the peace. While some form of public element is necessary, there is no requirement that the crime be committed in a public place, as is apparent from the following passage in Harris ;-

"It is unnecessary for the purposes of this opinion to seek to give definitive guidance as to what public element would be sufficient. Disturbance or potential disturbance of even a small group of individuals in a private house - as in Paterson v HM Advocate -may suffice. The conduct need not be directly observable by the third parties (as it was not in that case) but, if in private, there must be a realistic risk of it being discovered." (para 25)

If it is accepted that breach of the peace is a lesser from of mobbing and rioting and that the passage above would apply equally to that crime, it seems clear that it is not a pre requisite that mobbing and rioting take place in the street or some other form of public place. What is required is a realistic risk of the behaviour being discovered by third parties such as members of the public. The averments in this case are that the young people causing the disturbance acted violently, smashed windows and lit fires, including on a football pitch. In the absence of proof about the configuration of the unit, its proximity to the houses within the local community and in particular the location of the football pitch that was set on fire, I cannot conclude that the requirement of a realistic risk of discovery will not be fulfilled. The point about the risk of discovery is the impact on those affected. It can be inferred with ease that those in close proximity to a group of youths smashing windows and setting fire to a football pitch would be alarmed. I cannot characterise the events of 29 and 30 March 2008 with any confidence as a private incident. While the historical background of the provision related to a particular type of assembly, I consider that it does not stretch the language used in section 10 to apply it to the type of secure unit in question. The inmates of the unit may not have come together voluntarily in the sense that they are detained under law, but it is their actings on the dates in question that are under scrutiny, not the circumstances in which they came to reside in the unit. The averments are that they joined together for a common purpose. To the extent that the coming together in the form of an assembly requires to be voluntary, that requirement would appear to have been met. It is not suggested that all of the inmates were involved. It is averred that about twelve persons within the unit were involved. In my view the formation of a group within the unit for the purpose of unlawful and riotous acts causing damage to property is capable of falling within the definition of riotous assembly. The case of Johnstone v Kerr (1837) 16S 104 is not authority for the contrary proposition. It is simply an example of the Inner House overturning a decision of the Lord Ordinary where it was found at first instance that the requirements of the legislation were not met. In The School Board of Glasgow v The Corporation of Glasgow 1912 SLT 332, the case was dismissed in the absence of sufficient averments of common purpose or of the manner of any force or violence. I consider that in contrast the pursuers have averred sufficient in this case to permit enquiry of the precise circumstances and character of the disturbance before deciding whether what occurred was a riotous assembly within the meaning of the Act.

The extent of damages recoverable under section 10.

[45] The question of whether or not a relevant claim for loss of revenue can be pled under the 1822 Act arises only in the Board of Managers case. The operators of the secure unit where the disturbance took place seek to claim damages for the revenue lost while the unit was closed for repair for the damage caused. The sum sued for under this head is £2,635,152. It would appear that this is the first time that such a claim has been attempted under either the Scottish or the English legislation. While it is recorded in Capaldi v Greenock Magistrates 1941 AC 310 that the pursuer would have been entitled, had the action been properly and timeously raised, to claim for his loss "other than loss of profits", I do not consider that even went so far as being a concession. It was in effect a statement by the defenders that they would have accepted only a claim for physical damage, not an acceptance by the pursuers that they could claim no more than that. The English cases to date have not addressed this issue, although in Bedforshire Police Authority v Constable [2009] Lloyd's Rep IR 39 there is implicit acceptance of a submission that consequential loss cannot be claimed.

[46] The starting point on this issue must again be the words of the statute. Before any claim can be made there must be "..damage or injury...to any ...building...". The person who may claim is "the party injured or damnified thereby.". The entitlement is to "..full compensation for the loss or injury...". The key issue is whether the use of the definite article "the" means that the loss or injury must relate back to the description of damage or injury done to the building. In my view the argument that claims for loss or injury under section 10 are limited to physical damage is a sound one for the following reasons. First, the language of the provision can be contrasted with statutes allowing for compensation for "any damage done" or "any loss or damage". The loss that can be claimed is limited, it is not any loss arising from damage caused by riotous assembly. I have not found any assistance in the decisions of Davie v The Lord Provost 1951 SC 720 or Logan v Scottish Water 2006 SC 178 of assistance on this point as the expressions used in the provisions under consideration in those cases imposed no restriction on the type of the loss recoverable, using the adjective "any" to suggest the absence of limit of the types of claims rather than the more restrictive definite article of section 10. In Landcatch Limited v International Oil Pollution Compensation Fund 1999 SLT 1208 the relevant provision permitted claims for "any damage caused in the area of the United Kingdom by contamination resulting from the discharge or escape...". The case concerned claims arising out of the grounding of the Braer oil tanker off Shetland. As with section 10, the provision did not depend on proof of fault. Lord Cullen, then the Lord Justice Clerk, accepted that the mere fact that the expression "loss" was apt to include claims of pure economic loss in the context of the legislation did not entail that every claim for pure economic loss was admissible. The Second Division rejected a claim for secondary or relational claims finding that "loss", as included in "damage" in the provision in question, did not include such claims. Again the term used in that case, "any damage" was less limiting than that in the present case. In any event, the decision illustrates that even where a wider term is used for damages recoverable, there may yet be limitations on the scope of claims. In section 10, damage to a building and/or its contents is not the only qualifying condition. The damage must be of a type caused by an unlawful assembly. It is the physical damage caused by those acts that is recoverable. Secondly, as I have accepted (at para 40 above) that the 1822 Act was, prior to 1973 viewed as a procedural provision for enforcing rights under the earlier Acts of 1714, 1816 and 1817, it seems to me to be proper to look to those earlier Acts to see whether the scope of claims for compensation could include loss of revenue. I reject the argument that in 1973 the 1822 Act underwent "radical surgery" as the pursuers contend. Where two or three legislative provisions exist that relate to the same remedy, the decision to choose to retain one of them does not alter the meaning of the primary right and associated remedy unless there is a clear intention to alter the existing right. I cannot accept that in 1973 Parliament intended to alter the type of loss that could be claimed when buildings are damaged by riotous assembly such that loss of revenue was for the first time relevant compensation under the Act. It was not disputed that section 9 of the Riot Act 1714 permitted recovery only in respect of physical damage to buildings. The parts of section 10 of the 1822 Act that set out what compensation can be claimed were untouched during the amendments made by the 1973 Act. The amendments made reflected only the change from liability on the part of the Burgh to liability on the part of the Council. In the absence of any alteration to the provision for compensation, there is nothing to suggest that the very significant change suggested by the pursuers was effected. The 1822 Act may have become a standalone provision in 1973 but the primary right it now provides was in existence long before that and that right has never extended, on the face of the various provisions, to an ability to claim for economic loss. Thirdly, it must be presumed that Parliament did not intend a statute to have absurd, objectionable, unworkable or impracticable results and the more unreasonable a result the less likely that Parliament intended it - R (on the application of Edison First Power Limited) v Central Valuation Officer )[2003] UKHL 20. An interpretation of the compensation provisions of section 10 that would allow claims for loss of revenue would be bound to lead to unreasonable and objectionable results. Again the absence of a proviso such as that contained in the English legislation highlights the inability of the court to restrict damages in claims under the Scottish legislation to that which is "just" or which takes account of conduct or failure on the part of the claimant to mitigate loss. The inability to reduce damages in those circumstances lends further weight to a more restrictive interpretation of the words "the loss or damage". In my view this is not a situation such as that facing the court in Slamon v Planchon [2002] Ch 142 where the harsh consequences of a statute in very clear terms had to prevail. The words "the loss or injury" in section 10 most naturally relate back to the "damage or injury" to the building. While an alternative meaning may be possible, it is not in my opinion the most obvious one. Further, nothing much turns on the expression "full compensation". That expression was used prior to 1973 in statutes that made clear that such compensation was for physical damage to heritage and moveables, for example in section 11 of the Remedies against the Hundred Act 1827 which applied in England. The expression is used in connection with the term" the loss or damage". As I have decided that the loss or damage is loss or damage to the building (and any moveables) in question, the expression "full compensation" is qualified by that. The compensation imposed by the 1714 Act was described in Mylne v County of Perth (1775) M 1380 as "penal", which would require that it should not be extended beyond its precise words. While later authorities may not have treated the 1822 Act as a penal statute, for the reasons stated above I consider that the more expansive interpretation favoured by the pursuers on this particular point is unjustified by the language of the provision. Accordingly, it does not come down to a choice between two equally plausible meanings; the language is fairly clear and has been consistently expressed throughout the life of the 1822 Act. I conclude that the claim for loss of revenue pled is irrelevant and will be deleted.

Decision

[47] For the reasons given above, I will allow a proof before answer in the Cora Foundation case. In the case of Board of Managers of St. Mary's Kenmore, I will delete the averments in Article 4 of Condescendence that relate to the claim for loss of revenue and dismiss the second conclusion. Quoad ultra I will also allow a proof before answer in that case. All questions of expenses will be reserved meantime. I wish to record my gratitude to all counsel involved for their interesting and helpful submissions in these unusual cases.