Scottish Court of Session Decisions

At a Justice of Peace Court held at Lerwick in August 1886 Jan Jan Rijnbergen and others, the master and certain seamen of the “Merchant,” of Schiedam, were charged (under the Summary Jurisdiction Acts) on the complaint of Jeremiah Dodsworth, superintendent of Customs at Lerwick, with an offence against the Customs Consolidation Act 1876. Their agent objected to the complaint as defective in specification, and it was amended, the respondent's agent consenting,

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and the amendment being authenticated in the ordinary way by the Clerk of Court.

The amended libel, it is sufficient to say, charged the accused with having in their possession within the three-mile limit, or within the port of Lerwick, packages of tobacco and spirits of a size and character such as are prohibited to be imported,

At the adjourned diet (the adjournment having been made at the respondents' request) the respondents' counsel objected to the complaint in respect the original complaint was bad, and the amendment virtually amounted to a new complaint. This objection was repelled, as also certain objections to relevancy, and the accused were convicted on evidence and fined.

They appealed. The grounds of appeal are fully stated in the opinion of the Lord Ordinary. His Lordship dismissed the appeal.

“ Opinion.—The five appellants were convicted by Mr Sheriff Cheyne, acting as a Justice of the Peace for the county of Zetland, of an offence under the 179th section of the Customs Consolidation Act 1876, in so far as they being foreigners, had on board a foreign ship, within one league of the coast of the United Kingdom, within the limits of the port of Lerwick, packages of spirits, tobacco, and cigars of a size and character prohibited to be imported into the United Kingdom, and they were sentenced to pay penalties or be imprisoned. The present appeal has been taken against the conviction and sentence under and by virtue of the 17th section of the Court of Exchequer (Scotland) Act 1856 (19 and 20 Vict. cap. 56). Various grounds have been stated in support of the appeal, and these raise questions of importance in regard to procedure in the Court of Exchequer.

“1. It is maintained that the complaint, as originally presented, was not relevant, in respect that it was defective in specification of particulars. This objection was stated to the Justice of the Peace, and the minutes of Court bear that ‘the Justice having intimated that he was of opinion that the objection was well-founded, Mr Anderson (the solicitor for the prosecutor), with a view to obviate the objection, craved leave to amend the complaint’ by deleting certain portions of it and inserting new matter. ‘Mr Galloway, on behalf of the respondents, consented to the proposed amendments being made, and the Justice accordingly sanctioned their being made, and appointed them to be authenticated by the Clerk of Court in common form.’ The objection has been renewed before the Lord Ordinary, while at the same time it is admitted that the amended complaint cannot be challenged for want of specification. It is argued, however, that the amendments were incompetent as changing altogether the character of the complaint. The Lord Ordinary is of opinion that it was competent so as to amend it, but further, that it is not allowable now, after the amendments were consented to, to renew the objection.

“2. The next ground of appeal is that the captain of the vessel, Jap Jan Rijnbergen, tendered himself as a witness, and the Justice refused to allow his evidence to be taken. This being a proceeding for a penalty, it was incompetent (unless there be some statutory enactment allowing it) to allow the accused in such a proceeding to be adduced as a witness— Bruce v. Linton, December 13, 1861, 24 D. 184; Alison v. Watson, December 2, 1862, 1 Macph. 87; Blair v. Mitchell, July 9, 1864, 4 Irvine, 546. But it is said that by the Customs Consolidation Act 1876, section 259, persons accused like the appellants are made competent, and are compellable to be witnesses. That section does not apply to the present case. It is only in any prosecution where a dispute shall arise as to whether the duties of customs have been paid, or whether the goods have been lawfully imported or lawfully unshipped, or concerning the place from whence they have been brought, that the accused's evidence may be taken. There is no dispute here about any of these matters. The present case only concerns the having on board at a prohibited place certain goods of a character forbidden to be imported into the United Kingdom,

“3. It is next objected to the conviction that the evidence was not recorded by the Justice of Peace. The prosecution is one under the Summary Procedure Act 1864, the 16th section of which enacts that ‘it shall not be necessary, in any proceeding under the authority of this Act, to record or to preserve a note of the evidence adduced.’ But the answer to this section made by the appellants is, that where a special statute directs that a note of the evidence shall be preserved, the section of the Summary Procedure Act does not take away the right thereby conferred upon the parties, even although the prosecution is expressly brought under the Summary Procedure Act, and reference is made to the case of Halliday v. Bathgate, June 1, 1867, 5 Irvine, 382. Unfortunately for the appellants, there is no provision in the Customs Consolidation Act directing a note of evidence to be taken. It is said, however, that the 243d section of that Act shows that a writ of certiorari can issue to bring up the proceedings to the Supreme Court upon complying with the conditions set forth in that section. This provision was in the previous statute, which was in operation when the Court of Exchequer Act passed, viz., 16 and 17 Vict. c. 107, sec. 290. The writ of certiorari can no longer be issued from a Scottish Court, for by the 17th section of the Exchequer (Scotland) Act 1856 it is enacted that ‘in all cases where, at the date of the passing of this Act, a writ of habeas or a writ of certiorari might have competently issued from the Court of Exchequer to the effect of removing any proceedings before, or warrant granted or issued by, any Inferior Court or magistrate or public officer to the said Court of Exchequer in order to examination, it shall be competent to the party against whom such warrant is directed, or to either of the parties to such proceedings, to bring up such warrant or proceedings to the Court of Session sitting as the Court of Exchequer, to the like effect as by such writ of habeas or writ of certiorari before the passing of this Act, and that by lodging in the office of the Clerk of Court, attached to the Lord Ordinary in Exchequer causes, a note of appeal.’ The Lord Ordinary has no means of ascertaining under what circumstances a writ of certiorari could be issued by the old Scottish Court of Exchequer prior to the Exchequer Act of 1856. There are no books from which such information can be obtained. This, however, is of little consequence,

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because the Statute 6 Anne c. 26, sec. 6, enacts ‘that the said Court of Exchequer in Scotland shall and may act, do, and proceed therein and thereupon in every respect whatsoever, as by law, or as the Court of Exchequer in England, by the constitution, course, or practice of or in the said Court hath been, or is enabled, or hath used or practised to do in the like cases in England, and upon, and in all such informations, actions, suits, or demands, or touching or concerning any of the premises, or any the proceedings thereupon, shall and may make all such orders and rules, and direct, award, and issue all such writs, precepts, process, and methods of proceedings as hath or have been, is, are, or may be done or practised in the same or like cases in the Court of Exchequer in England.’ Now, then, what is competent under a writ of certiorari according to the practice and law of England? It is thus stated by Mr Archibald in his Treatise on the Justice of the Peace, vol. i. p. 195—‘Summary convictions by magistrates may be removed by certiorari into the Court of Queen's Bench for the purpose of moving that Court to quash them for errors appearing upon the face of them— R. v. Liston, 5 T.R. 338. In this respect the certiorari is in the nature of a writ of error, except that a special application must be made to the Court or a Judge for it, and they will not grant the writ until they are first satisfied that the alleged defect appears upon the face of the conviction— R. v. Cashiobury, J.J., 3 D. and R. 35. It is no ground for a certiorari that the Justices came to a wrong conclusion on evidence’— R. v. Bollon, 1 Q.B. 66; Anon. 1 B. and Ad. 382).’ Consequently the result of this is, that if the Supreme Court cannot review the decision of the Justices of the Peace on the merits, there was no object whatever in recording the evidence, nor any obligation on the Justice to do so, nor right on the part of the accused to demand that it should be done, and so the present case does not come within the decision in Halliday v. Bathgate.

“4. It is said that the proceedings are inept, in respect that the alleged initial writ, called an ‘information,' is not signed as it ought to have been by the Justice. The answer to this is that the prosecution had not begun by ‘information’ as prescribed by the Customs Consolidation Act, sec. 218, and subsequent sections. The prosecutor had power to adopt the form of ‘information,’ but also had power to avail himself of the more easy and familiar form of ‘complaint’ under the Summary Procedure Act. The 11th section of the Summary Jurisdiction (Scotland) Act 1881 (44 and 45 Vict. c. 33) especially enacts that ‘The Summary Jurisdiction Acts shall, not with standing any special provisions to the contrary contained in any of the statutes relating to Her Majesty's revenue under the control of the Commissioners of Inland Revenue or the Commissioners of Customs, apply to all summary proceedings under or by virtue of any of the said statutes.’ Therefore the prosecutor had full power to do as he in the present case did, viz., bring his complaint under the Summary Procedure Acts 1864 and 1881, which complaint he presented on the 21st of August, and it was upon that complaint that the whole subsequent proceedings took place. The paper called ‘information,’ dated 24th August, which has got into

process was never presented or acted upon, and forms no part of the proceedings.

“The result is that all of the objections to the conviction and sentence being groundless, the appeal must be dismissed with expenses.”

The appellants reclaimed, and argued—The complaint originally was incompetent, not having been signed by the presiding Justice, and it could not be amended, even of consent. By 46 and 47 Vict. c. 25, sec. 3, it was lawful for a crew to have on board large quantities of otherwise contraband goods for exportation. Therefore the complaint here should have been more specific than it was— Simson v. Crawford, Shaw's Jus. Reps. 523. If the evidence of the captain had been received, it would have been proved either that the ship was not within the three mile limit, or that it was there from stress of weather. Further, the evidence ought to have been recorded by the Justice of Peace, and this was not done— Halliday v. Bathgate, 5 Irv. 382; Penman v. Watt, 2 Broun, 586.

Counsel for the Crown were not called on.

At advising—