Scottish Court of Session Decisions

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Cite as: [1881] SLR 19_72_1, [1881] ScotLR 19_72_1

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SCOTTISH_SLR_Court_of_Session

Page: 72↓

Court of Session.

Wednesday, November 9. 1881.

(Before the Lord Justice-Clerk, Lord Young, and Lord Craighill.)

19 SLR 72_1

M'guire

v.

Fairbairn.

Subject_1Justiciary Cases
Subject_229 and 30 Vict., cap. 117, sec. 14 (Reformatory Act 1866)
Subject_3Police Offence-Shouting and Bawling in the Streets.
Facts:

The 14th section of the Reformatory Act 1866 does not authorise burgh police magistrates to send to a reformatory school boys convicted of ordinary police offences which are not of a kind punishable with penal servitude or imprisonment.

Headnote:

In this case the suspender Thomas M'Guire, aged 15, had on 27th August 1881 been apprehended for breach of the peace by shouting and bawling in the streets of Galashiels. He was brought before the Burgh Police Court, and having
Page: 73↓
pleaded guilty was sentenced to be imprisoned for ten days. In addition, the magistrates, acting under the 14th section of the Reformatory Schools Act (29 and 30 Vict., c. 117), ordered him to be sent to a reformatory for a term of five years.

The above enactment is as follows:—“Whenever any offender who, in the judgment of the Court, justices, or magistrate before whom he is charged, is under the age of sixteen years, is convicted, on indictment or in a summary manner, of an offence punishable with penal servitude or imprisonment, and is sentenced to be imprisoned for the term of ten days or a longer term, the Court, justices, or magistrate may also sentence him to be sent at the expiration of his period of imprisonment to a certified reformatory school, and to be there detained for a period of not less than two years and not more than five years.”

Against this order of the magistrates M'Guire presented this bill of suspension and liberation, and argued—The enactment under which the magistrates made the order was never intended to apply to a case like the present, where the offence was only one of a police nature, and not one punishable by penal servitude.

At advising—

Judgment:

Lord Justice-Clerk—I do not think that the clause of the statute was ever intended to apply to anything but the minor grades of great crimes. I think that we ought to affirm the conviction of ten days' imprisonment and quash the order of the magistrates.

Lord Young—The conviction of the boy upon his own confession of shouting and bawling in the street, followed by a sentence of imprisonment for ten days, is unimpeachable, but it seems that by a subsequent order the magistrates ordered him to be sent to a reformatory, to be there detained for five years. Now, I am of opinion that this order cannot be sustained, and is not warranted by the conviction for the offence on which it is founded. I am of opinion that the statute never intended to give magistrates discretion to send children under fifteen years of age or beyond that age to a reformatory school for years who were convicted of an offence of another character than was suggested by the words of the statute, “penal servitude or imprisonment.”

Lord Craighill—I am of the same opinion. The term of imprisonment here is one thing, and the order of the magistrates is another. While the first is unimpeachable, I agree with your Lordships that the second cannot be listened to.

The Court therefore sustained the appeal in regard to that part of the sentence which ordered the suspender to be detained in a reformatory.

Counsel:

Counsel for Appellant— Campbell Smith. Agent— Daniel Turner, Solicitor-at-law.

Counsel for Respondent— W. C. Smith. Agent— F. S. Fairbairn, Solicitor-at-law.
1881

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