Scottish Court of Session Decisions

Now, the first count in this indictment has been given up—and I think quite properly—by the Solicitor-General. I do not think it was proved that the defenders were rectifying methylated spirits for the purpose of their being used as a beverage. Indeed, Mr Helm, the first witness for the Crown, stated that the product of the still in the defenders' premises might have been used for trade purposes and not as a beverage.

But the case on the second count stands in a totally different position; and here I may state that I intend to give my judgment upon the footing that these defenders bought from Warrick & Sons those spirits not knowing them to contain methyl—that they were entirely ignorant of the fraud which Warrick & Sons were perpetrating—bought innocently this grog mixed, if it was so mixed—I shall consider that immediately—with methyl, in the ordinary course of trade, with the view of rectifying it and turning it into spirits for trade purposes other than as a potable drink. But I hold that the defence stated on their part—of ignorance of the fraud that was perpetrated upon them—if there was a fraud—and I assume there was—is totally irrelevant in a case of this kind; scienter has nothing to do with the question. The whole point is, have these defenders in their possession goods liable to seizure? If they have, these goods must be forfeited, unless, indeed, a case like that stated by the Dean of Faculty could be proved, viz, that some person had feloniously during the night put into their premises a barrel containing spirits mixed with methyl. That is a totally different case. In such circumstances the spirits would not be in their possession though within their premises. The article must be received by the defenders before it can be held to be in their possession within the meaning of the statute. We are here dealing with the case of a trader who did willingly receive the spirits, and who could have discovered, if he had used the means—it is entirely a matter of pounds, shillings, and pence—of ascertaining, whether there was methyl in them. He could have analysed it. No doubt that would be costly and troublesome, but still that is the only way by which he could protect himself. In the application of these Excise laws it is absolutely necessary to put aside scienter. Men have been found liable in damages where there was no guilt upon their part, but, on the contrary, where there was the most positive instruction against doing that for which they were found guilty. A servant misuses a permit, and thereby violates the Excise laws; the master is liable. Many other cases come to my recollection of convictions under the Excise laws where there was no intention to do wrong, and no knowledge on the part of the trader of the wrongous act. Malt being found where it ought not to have been, against the orders of the master, the master was notwithstanding found liable. A hole was found in a pipe which conveys whisky away from the still to the receiver—a hole made fraudulently by a workman against his master's knowledge—the master is found liable in the penalties. And so here, although these parties were perfectly ignorant of the methyl being in the goods they got from Warrick & Sons, and knew; nothing of the fraud Warrick & Sons were committing, these goods are liable to be forfeited. I am not here dealing with the question of penalty; I say nothing about that, because only forfeiture and not penalty is claimed by the Crown.

Now, then, upon that footing, the only question for me to determine is this, Was there or was there not methyl—wood naphtha, or some substance—in the spirits seized that brought it within the statute? If there was, then the second count is proved, because the defenders received the spirits from a person not entitled to retail methylated spirits, and on the record they admit they received them from Warrick & Sons, who are not licensed retailers. If they did not receive them from Warrick & Sons, they have not proved that they got them from a licensed retailer.

One of the most difficult parts of the judicial office is to estimate the weight due to conflicting testimony,—and especially scientific testimony—given by learned and honourable men, each intending to speak his real opinion. One is driven in the circumstances to proceed on very general rules indeed. And what do I find here? I find, on the one hand, four chemists from the Government establishments in London, whose business it is to inquire into such matters as this—Is there methyl in this spirit? It is their business; they are taken from their fellows and put into conspicuous positions in a Government office to make analyses, and they do it, and have been doing it for years. They bring to bear upon the matter the fruits of study and the lessons of long experience. They have no interest in this case except to discharge their public duty with official and skilful aptitude. They come here and state how they fulfilled that duty. They made inquiry by

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