Scottish Court of Session Decisions

Lord Adam—This is an appeal from a decision of the Dean of Guild Court at Musselburgh in a petition at the instance of the Burgh Prosecutor. The prayer of the petition is in the following terms:—[ His Lordship read the prayer]. The question in the case is, whether the present appellant, an owner of two houses, permitted these houses to be occupied before a certificate had been obtained from the Burgh Surveyor. The section of the statute which regulates the matter is in the following terms:—[ His Lordship read section 180]. Now, it appears that the Burgh Surveyor visited these buildings on the 25th March, and returned on the 28th, when he found that two of the houses in the tenement were occupied, and finding people in occupation he declined to give his certificate. But he says the houses were perfectly ready for occupation, and that he would have granted a certificate if he had not found them occupied. The question is whether the appellant permitted these people to occupy his houses, and it appears to me that the answer to that question turns on the true construction of the word “occupy” in the Act. If, as the appellant maintains, a house cannot be said to be occupied unless it is actually used as a human habitation, then the appellant is entitled to succeed, because the evidence shows that the people who were in these houses did not sleep in them. I think it is clear on the evidence that the appellant gave his tenants permission to put their furniture into the houses, but that he told them not to occupy them themselves—that is, not to sleep there—[ His Lordship read the evidence]. The question is, whether on that evidence it can be held that the appellant gave the tenants permission to occupy in the sense of the statute, the fact being that the tenants' whole furniture was put in, and put in not as into a warehouse but in order that they might come and live in the houses themselves. Did the appellant permit his tenants to occupy his houses when he allowed them to put their furniture in in that way, and only told them that they must not sleep there? On that question I am of opinion that it is not necessary for occupation that a house should be a human habitation—that is, that human beings should sleep there. I think that in the present case the houses were fully occupied although the tenants did not actually sleep in them. I am, however, far from saying that if a tenant left his umbrella or some other articles of his property in the house, that would be occupation within the meaning of section 180. I should hesitate to put any such construction on the section. I think it is a question of circumstances in each case. But when the house is so far occupied that the tenant might have slept there, but did not, I think that that is occupation within the meaning of the section. If that be so. I think the appellant was rightly convicted, because I think he allowed his tenants to occupy his houses in the sense which I have explained.

But looking to the whole circumstances I think the penalty imposed was too severe for what was only a slight error on the appellant's part. I should not be inclined to interfere with the discretion of a magistrate as to the amount of a penalty if it could be said to be reasonable. But when we find here that the maximum penalty has been imposed for a mere mistake, I think it is excessive, and should be reduced to five shillings or half-a-crown.

Lord Kinnear—I agree with your Lord-ship. I think the case must be taken on the same footing as if the Surveyor had granted his certificate on the 28th March, and I think Mr Cullen conceded that it must be so taken. On the merits, I agree that the appellant here allowed his tenants to occupy his houses before a certificate had been granted by giving them the keys and allowing them to put in their furniture. I cannot say that I have any doubt that if a tenant sends his furniture into a house on one day and enters himself on the following day, his occupation begins on the day on which he sends in his furniture. I see no sufficient reason for a construction of the word occupation so restricted as to exclude that meaning, and have no doubt that a house is occupied when the tenant has procured the keys and sends in furniture, not as into a warehouse to be stored, but in order to be used as the furniture of a dwelling-house.

But I also entirely agree that if the statute has been violated it has not been a substantial violation, and has been due to a mere mistake, and not to any intention to break the law. On the evidence I think it is clear that the appellant had no intention to disobey the statute, but thought that he was within its requirements when he told his tenants that they might put in their furniture but must not occupy the houses themselves. I therefore agree that this is not a case where the maximum penalty for the greatest and most deliberate offence should have been inflicted. The offence was very slight, and the evidence shows that it was not intentional, hut due to an error in law. We are told that the higher penalty imposed was due to the appellant having previously been convicted of offences under the statute. These previous convictions are not before us, and we can pay no attention to that statement, but I would observe that whether the fact of previous offences having been committed may or may not be taken into account in fixing a penalty, the magistrate should be very careful not to allow his mind to be influenced by them when he is considering whether an offence has been committed at all, or what is the character of that offence.

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