Scottish Court of Session Decisions

This was a case stated by the Sheriff-Substitute at Perth in a prosecution instituted by the respondent, Procurator-Fiscal for the county of Perth, at the instance of the School Board of the parish of Kinloch-Rannoch against the appellant, a ghillie residing at Auchtarsin, in said parish, charging him with an offence against “the Education (Scotland) Act 1872,” in so far as from a date specified in 1875 he had neglected to send his children to school. The case stated that the nearest school to Auchtarsin was 3 1 2 miles from the appellant's house; that the children in question were both girls, aged respectively five and nine; and that the School Board had been required by the Board of Education to erect a school at Auchtarsin, but had failed to do so. This last circumstance the Sheriff did not feel himself entitled to take into consideration, and after some conversation with the appellant (who was in Court), the purport of which, however, was not stated, he convicted the appellant, and imposed a fine of 10s.

The 70th section of “The Education (Scotland) Act 1872,” 35 and 36 Vict. cap. 62, imposes a duty on School Boards to appoint an officer to ascertain and report what parents have failed and omitted and are failing and omitting to provide their children with elementary education in terms of the 69th section of the Act; and of such parents and their children the clerk of the School Board is directed to keep a list. The School Board is further authorised to summon such parents to appear before them and to require every information and explanation with respect to their failure in duty; and if the parent shall fail to appear or to satisfy the Board that he has a reasonable excuse, and shall not undertake to the satisfaction of the Board to perform his duty in future, it then becomes the duty of the Board to certify in writing that the parent has been and is grossly and without reasonable excuse failing to provide his children with elementary education. On this certificate being transmitted to the Procurator-Fiscal, he is bound to prosecute before the Sheriff for the failure of duty specified in the certificate, and on conviction the parent shall be liable to a penalty not exceeding 20s. or to imprisonment not exceeding 14 days; and such procedure may be repeated against the same parent, and in respect of a continuance of the same failure of duty, at intervals of not less than three months.

Argued for appellant—There was here no evidence of gross and unreasonable failure. There had formerly been a school at Auchtarsin, maintained by the Society for promoting Christian Knowledge, to which the appellant's children were sent; and there was a prospect of a Board School being opened.

Argued for respondent—By section 71 the judgment of the Sheriff is made final; and this appeal raises no question of law under the Summary Prosecutions Appeals Act 1875. Reasonable excuse was purely a matter of fact, and was negatived by the Sheriff. In Grant v. Wright, May 31, 1876, 3 Rettie, Just. Rep. 28, the wilful taking of sea-trout was held to be a question of fact, and the appeal was dismissed.

Replied for appellant—In Grant's case the Court held there was evidence before the Sheriff on which he might legally convict.

At advising—