Scottish Court of Session Decisions

This was an action at the instance of James Neil Hart, Procurator-Fiscal of the Lower Ward of Lanarkshire at Glasgow, against the County Council of Lanark, concluding for declarator in the following terms:—“That the defenders are liable and are bound and obliged to pay or provide to the pursuer, as holder of the said office of procurator-fiscal of the Lower Ward of Lanarkshire, at Glasgow, reasonable remuneration in respect of all business performed and discharged by him as holder of said office, other than such as is covered by the salary paid to him by her Majesty's Exchequer—that is to say, other than business performed and discharged by him in connection with (1) criminal and other cases in which precognitions of witnesses or reports are submitted by him for the instructions of Crown counsel, and (2) criminal prosecutions in the sheriff court instituted under warrant from the sheriff which result in trial or in which the accused party is served with a libel or warrant of commitment for trial.” The summons further concluded for payment of a sum of £297, 7s. 6d., being the amount of an account for work done by the pursuer in performance of the duties of his office in the county of Lanark and in the county of the city of Glasgow.

The “Rogue Money” Act 1724 (11 Geo. I. cap. 26) enacted:—Sec. 12 “And whereas for want of a sufficient fund for defraying the charges of apprehending criminals in North Britain, and of subsisting them when apprehended until prosecution, and of carrying on the necessary prosecutions against them, it often happens that criminals there escape the punishment due to their offences; for preventing of which inconveniences for the future, be it enacted by the authority aforesaid, that it shall and may be lawful to and for the freeholders of every shire, county, or district in North Britain to assess the several shires or stewartries where their estates lie, at their meetings at any of their head courts yearly, in such sums as they shall judge reasonable and sufficient for the purposes aforesaid, and that such monies so from time to time to be assessed … shall be applied for defraying the charges of apprehending of criminals, and of subsisting of them in prison until prosecution, and of prosecuting such criminals for their several offences by due course of law, and to and for no other use or purpose whatsoever.”

The duty of assessing for “rogue money” was transferred from the freeholders of the counties to the Commissioners of Supply by the Parliamentary Reform Act 1832 (2 and 3 William IV. cap. 65).

By a course of policy terminating in a Treasury Minute of 10th July 1861 the counties in Scotland were relieved by Exchequer of the burden imposed upon the “rogue money” for the remuneration of procurators-fiscal for criminal investigations and prosecutions in cases reported to Crown counsel, “leaving them still to be remunerated by fees for the business payable by the counties out of the ‘rogue money.’“This relief was afforded at first by payment of fees, but after 1850 by way of salary, and in 1855 the salary of the Procurator-Fiscal of Lanarkshire was increased in consideration of the transference to him of the duties in connection with criminal prosecutions and investigations within the burgh of Glasgow, which had formerly been performed by the procurator-fiscal of the burgh, appointed and paid by the magistrates.

“Rogue money” was abolished, and the county general assessment was substituted for it by the County General Assessment (Scotland) Act 1868 (31 and 32 Vict. cap. 82). That Act provided for the payment out of the county general assessment of certain salaries, fees, outlays, and expenses specified in section 3 of the Act, inter alia, as follows:—Sub-section (2)—“The salaries or fees and necessary outlays of procurators-fiscal

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in the sheriff and justice of peace courts, and clerks of justice of peace court, in so far as such salaries, fees, and outlays are at present in use to be paid by each county. (3) The expenses incurred in searching for, apprehending, subsisting, prosecuting, or punishing criminals…. (7) All expenses or payments presently directed by any Act of Parliament to be defrayed out of the rogue money.”

The Local Government (Scotland) Act 1889 (52 and 53 Vict. cap. 50), sec. 11, transferred to the county councils the powers of assessment theretofore exercised by the Commissioners of Supply.

The County Council of Lanark were deprived of their powers of imposing assessments within the city of Glasgow by the County of the City of Glasgow Act 1893 (56 and 57 Vict. cap. clxxxviii.), whereby the city and royal burgh of Glasgow, which had been extended by the City of Glasgow Act 1891 (54 and 55 Vict. cap. cxxx.), were created a county of a city “for the purposes of” that Act, and severed from the county of Lanark. Section 7 of the Act of 1893 enacts as follows:—“Nothing in this Act shall prejudice or affect the civil or criminal jurisdiction or administrative powers of the Sheriff or Sheriff-Substitutes of the county of Lanark as they existed prior to the passing of this Act.”

The present action was raised against the County Council of Lanark by the Procurator-Fiscal in 1899. The account sued on was for work done during 1898 in connection with 793 cases not reported to Crown counsel, and not resulting in prosecution, and of these 729 were Glasgow cases. The following excerpts from the account show the nature of the work charged for:—

“1. Accident to Margaret Muir or Sharp and Andrew Sharp.
1898. Jan. 1. Receiving Police Report, perusing and considering same, interrogating police officer, receiving explanations, and directing further inquiry,	£0	7	6
Jan. 5. Receiving and perusing further report, and marking no further proceedings,
2. Accident to Thomas Brady.
Jan. 1. Receiving Police Report, perusing and considering same, and marking no further proceedings,	0	7	6
3. Alleged assault on David Hunter.
Jan. 1. Receiving Police Report, perusing and considering the same—no evidence as to assailant, but directing further inquiry,	0	7	6
Jan. 5. Report that no further evidence obtainable, and Hunter now recovering, marking same no further proceedings,
4. Accident to Alexander Frame.
Jan. 1. Receiving Police Report, perusing and considering same—no evidence of blame, marking same no further proceedings,	0	7	6”

The pursuer was appointed to his office in 1883 “with right to the salary or emoluments attached thereto.” The duties of procurators-fiscal were prescribed in orders issued by successive Lords Advocate.

The pursuer pleaded—“(1) Reasonable remuneration for criminal business performed by the pursuer as Procurator-Fiscal in so far as not covered by the salary paid to him from Her Majesty's Exchequer being properly chargeable against the County and the County Council thereof, the pursuer is entitled to decree in terms of the conclusions of the summons. (2) The defenders being liable under and in terms of the County General Assessment Act 1868 and the Local Government Act 1889, to provide such remuneration, the pursuer is entitled to decree as concluded for. (3) The sum concluded for being reasonable remuneration to the pursuer for the business performed by him, and which is not covered by the salary paid to him as aforesaid, the pursuer is entitled to decree for payment of the same.”

The defenders pleaded—“(1) The pursuer's statements are irrelevant and insufficient in law to support the conclusions of the summons; et separatim, the account sued on is wanting in specification. (2) The pursuer having no contract with the defenders and no right to demand remuneration from them, the defenders are entitled to absolvitor. (3) The charges made by the pursuer being for business falling within the scope of his duties as Procurator-Fiscal, and duly and fully compensated by the salary paid to him from Exchequer, the defenders are entitled to absolvitor. (4) Charges of the class now sued for never having been properly payable out of the rogue money, et separatim not being in use to be paid by the County of Lanark at the time of the passing of the County General Assessment Act, the defenders are entitled to absolvitor. (5) In any case the defenders are not liable for the account sued for in so far as it includes cases arising within the city of Glasgow, in respect (a) that the defenders have no jurisdiction or rating power within the city; ( b) that the county authority has not and never had any duty or liability with regard to the expense of investigating or prosecuting cases arising within the city either under the Rogue Money Act or otherwise; and (c) that the Treasury salary of the pursuer is in full of his duties with regard to all such cases.”

A proof was allowed, from which it appeared that such charges as those sued on had been repudiated by the county of Lanark for more than forty years, but that they were paid by most of the other counties in Scotland. The nature of the proof otherwise sufficiently appears from the opinion of the Lord Ordinary infra.

On 24th January 1902 the Lord Ordinary ( Low) pronounced the following interlocutor:—“The Lord Ordinary having considered the cause, Finds, decerns, and declares

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in terms of the declaratory conclusions of the summons in so far as the business therein referred to relates to the county of Lanark, and assoilzies the defenders from said conclusions in so far as the said business relates to the county of the city of Glasgow: Before further answer appoints the pursuer to amend the account No. 6 of process by deleting therefrom all charges for business not relating to the said county of Lanark: Reserves the question of expenses, and grants leave to reclaim.”

Opinion.—“In this action the Procurator-Fiscal of the Lower Ward of Lanarkshire seeks to have it found that the County Council are bound to remunerate him for work done as Procurator-Fiscal which is not covered by the salary paid to him by His Majesty's Exchequer, and he also concludes for payment of the sum of £297, being his account for the year 1898.

“The work for which the pursuer claims that the county is bound to pay him consists of investigations which do not result either in a report being made to the Crown Office or in a prosecution.

The two main questions raised in the case are, first, whether, in any view, the defenders are liable to pay the pursuer for work done within the city of Glasgow; and secondly, whether the work for which the pursuer claims remuneration is of a kind for which the defenders are liable.

In regard to the first question the position of matters is as follows:—The county authorities have never been liable for the expense of criminal administration within the royal burgh of Glasgow. Prior to 1855 the magistrates had their own procurator-fiscal, whom they paid out of the common good, but in that year the Treasury, upon the recommendation of Lord Advocate Moncreiff, directed that the criminal work in Glasgow (other than police cases) should be conducted by the procurator-fiscal of the county and paid in Exchequer.

Lord Moncreiff's letter to the Home Secretary recommending the change will be found at p. 45 of print A. In that letter he thus succinctly stated the then existing position of matters in Glasgow:—‘At the present moment all criminal cases occurring within the ancient and extended royalty of the city of Glasgow are investigated by the procurator-fiscal of the burgh, who is appointed and paid by the magistrates, and the burgh also bears the expense of the criminal investigations and precognitions previous to the trial of criminals, whether these are tried before the Circuit Court of Justiciary or the Sheriff.’

Lord Moncreiff's recommendation which was given effect to by the Treasury) was as follows:—‘My recommendation is that all criminal prosecutions and investigations within the burgh of Glasgow other than police cases should be conducted by the procurator-fiscal of the county under the superintendence of the Sheriff, and that the expense of the same shall be charged and paid in Exchequer agreeably to the practice in the other burghs and counties in Scotland.’

In making that recommendation Lord Moncreiff seems to have been under the belief, in common I think with all the county authorities, that the Treasury had taken over the whole expense of criminal administration in Scotland. The Treasury, however, subsequently explained that although they had relieved the counties of the expense of unreported criminal prosecutions, they had not done so as regarded inquiries into sudden deaths or investigations regarding alleged crimes, the perpetrators of which had not been discovered.

The result is that as regards the latter class of work the Procurators-Fiscal of Lanarkshire have received no remuneration, and hence the present action. I shall by-and-by consider how the question stands as regards the county of Lanark, but in the meantime I am only dealing with work done for and in the city of Glasgow.

In so far as the royal burgh is concerned it is sufficient to say that the county authorities have never been under any liability for the expense of criminal administration, and I do not see how they can be made liable now for the first time.

The city of Glasgow, however, now extends greatly beyond the limits of the royal burgh, and includes a considerable area which used to form part of the county of Lanark. By the County of the City of Glasgow Act 1893 the city and royal burgh of Glasgow (as its boundaries were defined by the City of Glasgow Act 1891) were constituted a county of a city by the name of the County of the City of Glasgow, and for the purposes of the Act the said city and royal burgh were severed from the county of Lanark. The defenders have no power of imposing assessments within the county of the city of Glasgow, and accordingly as regards the Glasgow work the pursuer's demand is that the defenders shall pay him for work done in and for another county within which they have no jurisdiction.

In such circumstances I think that it would require a special enactment to render the defenders liable to pay the pursuer for Glasgow work, and it was contended that such an enactment was to be found in the 7th section of the Act of 1893. That section provides that nothing in the Act shall ‘prejudice or affect the civil or criminal jurisdiction or administrative powers of the Sheriff or Sheriff-Substitutes of the County of Lanark,’ or their judicial or official names, or the official names of the several officers of the Sheriff Courts of the county. That, however, is merely a saving of the jurisdiction of the Sheriff and Sheriff-Substitutes, and cannot, in my opinion, be construed as laying upon the restricted county of Lanark the obligation to pay out of the assessment levied within that county the expense of criminal administration within the new county of the city of Glasgow.

I am therefore of opinion that the pursuer's claim is not well founded in so far as the Glasgow work is concerned. That disposes of the larger part of the pursuer's claim, because out of 793 cases in connection

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with which fees are charged in the account no fewer than 729 occurred in Glasgow.

There still remains, however, a certain amount of work which is done within the county of Lanark, and in regard to it the question is whether it is a kind of work for which the defenders are liable, and which forms a good charge against the county general assessment.

That question depends in the first place upon the construction of the Rogue Money Act (11 Geo. I. cap. 26) and the County General Assessment Act 1868.

The former Act authorised, by section 12, the raising of money by assessment for the purpose of ‘defraying the charges of apprehending of criminals, and of subsisting them in prison until prosecution, and of prosecuting such criminals for their several offences by due course of law, and to and for no other use or purpose whatever.’

I am of opinion that the phrase, ‘the charges of apprehending of criminals,’ cannot be limited to the mere cost of actually taking criminals into custody, but must include the expense of the investigations which generally precede the apprehension. I regard the purposes specified in the Act as general heads or divisions under which the criminal administration of a county may be embraced, and I think that the words ‘for no other use or purpose whatever’ mean that the money must be applied only for the purpose of criminal administration. The preamble of the 12th section is that ‘Whereas for want of a sufficient fund for defraying the charges of apprehending criminals in North Britain and of subsisting them when apprehended until prosecution, and of carrying on the necessary prosecutions against them, it often happens that criminals there escape the punishment due to their offences.’ It was ‘for preventing of such inconveniences for the future’ that the levying of rogue money was authorised, and there was no other fund available for the expenses of criminal administration. Therefore, so far as I can find, the Act was in practice construed as authorising the use of the rogue money to defray any expenses properly incurred in criminal work, even although no prosecution resulted. I am confirmed in that view by the terms of section 3 (3) of the County General Assessment Act, which authorises payment out of that assessment of ‘the expenses incurred in searching for, apprehending, subsisting, prosecuting, or punishing criminals.’ These words are substantially those of the Rogue Money Act, amplified so as in terms to include investigations preceding apprehension, and I think that they express the interpretation which had in practice been put upon the latter Act.

The Act of 1868 abolished rogue money and substituted the county general assessment, and the 3rd section enumerates the purposes to which money raised by that assessment may be applied. Sub-section 2 deals with payments to Procurators-Fiscal. It is in these terms—‘The salaries or fees and necessary outlays of Procurators-Fiscal in the Sheriff and Justice of Peace Courts … in so far as such salaries, fees, and outlays are at present in use to be paid by each county.’

Now, the Procurators-Fiscal in the Justice of Peace Courts have always been wholly paid by the counties, and so also were the Procurators-Fiscal of the Sheriff Courts down to 1776, when Exchequer relieved the counties of certain expenses in reported cases. Afterwards further relief was given from time to time by Exchequer, until in 1868, when the Act was passed, the only expenses not defrayed out of the public funds were, as I have already said, those relating to investigations not resulting either in a report or in a prosecution. For the work which was not paid by Exchequer the general rule (I shall deal with the particular case of Lanarkshire presently) seems to have been that the county remunerated the Fiscal either by salary or by fees. In such cases I do not think that the provision of the Act in regard to salaries or fees presents any difficulty. In so far as these were then paid by Exchequer there was no authority given to charge the county general assessment, but in so far as the county had been in use to pay (whether by fees or salary or other allowance) for work for which Exchequer had not undertaken liability, the Commissioners of Supply were authorised to continue such payments out of the new assessment.

There is more difficulty in the case of Lanark (and I think one or two other counties are in the same position) which at the date of the Act were paying nothing whatever to the Sheriff Court Procurators-Fiscal for ordinary work not covered by the payments made to him in Exchequer. After 1851 or 1852 the Commissioners of Supply of Lanarkshire seem to have refused to make any payment (except certain outlays which were paid under protest, and fees for work done under special statutes, such as the Lunacy Acts) to the Procura tors-Fiscal. The Commissioners seem, in the first place, to have taken up the position that the Treasury had by their minute of 6th June 1851 undertaken to relieve the counties of the whole expenses of. criminal administration except in the Justice of Peace Courts, but the Treasury would not accept that view of their minute. The Commissioners, however, further maintained that the work for which the Treasury had not undertaken liability did not fall within the scope of the Rogue Money Act, and therefore could not be charged against the assessment levied in terms of that Act.

Now, I do not think that the fact that for some fifteen years prior to 1868 the Commissioners of Supply of Lanarkshire had refused to pay the Procurators-Fiscal any salary or fees is conclusive of the question. Although the Procurators-Fiscal did not press their claims in a Court of law, they never agreed to do the work for nothing, and if the Commissioners were wrong in the view which they took of the scope of the Rogue Money Act, and were wrong in refusing to remunerate the Procurators-Fiscal

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for work not paid in Exchequer, I do not think that the Act of 1868 was intended to relieve them of all liability. If there were expenses not undertaken by Exchequer, which formed a proper charge against the rogue money, and which the Commissioners ought to have paid, then it seems to me that for the purposes of the Act of 1868 these expenses must be regarded as if they had in fact been paid. The only question therefore seems to me to be whether the fees claimed by the pursuer would have formed a good charge against the rogue money or the county general assessment.

It is accordingly necessary to see what is the nature of the work for which the pursuer claims remuneration. In his account fees are charged in connection with 793 cases, which may be tabulated as follows:—689 accidents, 9 sudden deaths, 44 fires, 43 cases of alleged crime, and 7 attempted suicides.

All these are cases which were brought under the notice of the Fiscal by reports sent to him by the police, and in none of them was there anything criminal discovered. The practice is for the police to report all sudden deaths, accidents, fires, and the like to the Fiscal, who reads the report, makes such inquiries as he thinks necessary, and then either reports the case for instructions or institutes proceedings, or resolves that no further proceedings are necessary. All the cases now in question fall under the latter category.

The cases which bulk most largely in the account are accidents. The defenders argued that there is nothing criminal in an accident, and that the fact that the practice has grown up for the police to report all accidents, and for the Procurator-Fiscal to consider these reports, is no reason why the latter should charge fees against the county for doing so. Now, the practice of police reports is of comparatively recent growth, as police forces were not established until the middle of last century, the Lanarkshire police force being established in 1857. I do not know precisely how the practice of police reports arose, but it is a practice which is firmly established, and which has the recognition and approval of the criminal authorities. Therefore it must be taken to be one of the ordinary duties of a procurator-fiscal to read the police reports, and to consider whether any, and if so what, further inquiries or proceedings are necessary. I do not think that the defenders went so far as to say that that was not now part of the Procurator-Fiscal's duty, but they argued that the county was not bound or entitled to remunerate the Fiscal for considering reports in regard to such matters as pure accidents or sudden deaths from natural causes, because nothing of a criminal nature was involved. The very object, however, of the reports being made to and considered by the Procurator-Fiscal is to ascertain whether or not a crime has been committed. What may at first sight appear to be the result of a mere accident or of natural causes may turn out to be the result of crime, and the practice of the police making reports in all such cases appears to me to be one of the methods by which the search for criminals is now carried out. The expenses properly incurred in doing that work therefore seem to me to be prima facie a good charge upon the fund which is provided for defraying the cost of criminal administrations.

The defenders, however, further argued that the charges in question should not be allowed, because so long as payments were made by the county to the Procurator-Fiscal the practice or use was not to pay him for any work which was not done under warrant of the Sheriff.

Generally speaking that appears to have been the case, although my impression is that it was more a matter of taxation than anything else. Prior to the establishment of a police force the Fiscal made his own inquiries, and if he considered it necessary he applied to the Sheriff for warrant to precognosce. I apprehend that in those days the Fiscals did not make inquiries unless the circumstances coming to their knowledge appeared to be suspicious, and I imagine that when the Fiscal applied to the Sheriff for a warrant to precognosce, it was generally speaking granted as a matter of course. Therefore fees charged for investigations which resulted neither in a report to Crown counsel nor in a prosecution were as a rule disallowed, unless the necessity for investigation was vouched by a Sheriff's warrant. I do not, however, think that that is a sufficient ground for holding that (unless the Procurator-Fiscal can induce Exchequer to pay him out of the public funds) he is bound to do work of the kind in question gratuitously. It is work which it is his duty to do, and which now forms part of the recognised criminal administration of the country, and I am therefore of opinion that such work forms a proper charge against the county general assessment. I say nothing in regard to the rate of remuneration, because that, in the first instance at all events, is for the person who audits the accounts.

I shall therefore assoilzie the defenders in so far as the pursuer claims remuneration from them for work done for and in the county of the city of Glasgow, and I shall sustain the pursuer's claim as regards work done for and in the county of Lanark.”

The defenders reclaimed, and argued—It was not the Procurator-Fiscal's duty to make investigation in non-suspicious cases, as the majority of those in the account sued on were. The police reports referred to in the account were made without authority, and the perusal of them was not within the proper duties of the pursuer, and could not be regarded as falling within the purposes for which the assessment for “rogue money” was instituted by the Act of 1724. Assuming that the charges in question were proper charges against the rogue money, those charges were not “in use to be paid” by the county of Lanark at

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the passing of the Act of 1868, and so were not proper charges on the county general assessment; section 3, sub-section 2 of the Act of 1868 contained the sole provision for the remuneration of Procurators-Fiscal, sub-section 3 did not affect them. What was “in use to be paid by each county” fixed the liability of each. The Lord Ordinary had proceeded upon his view of what ought to have been paid, not upon what had in fact been paid. The work charged for was just such abortive work as the pursuer had to do for nothing when he was paid in Exchequer by fees, and if the salary which had taken the place of fees did not cover the work charged for, and the Exchequer declined to meet these charges, that did not render the county liable. The County had been relieved by Exchequer of the burden of remunerating the pursuer. In any case the defenders were not liable for work done in the county of the city of Glasgow, within which they had no powers of assessment.

Argued for the respondent—The pursuer only asked to be put in the same position as the Procurators-Fiscal in the other counties of Scotland. The defenders would have been liable in payment of the charges sued on under the Act of 1724, but the terms of that Act were not so wide as those of the Act of 1868, which provided in subsection 3 of section 3 for the expenses of “searching for” criminals. In so far as the work charged for was in connection with cases to which suspicion attached, it was in connection with searching for criminals. So far, therefore, the pursuer was entitled to declarator that payment was due to him by the defenders for that work. The pursuer was ready to submit to taxation of his account, and to have those charges taxed off which were made on account of cases in which there was no suspicion; therefore he was entitled to declarator in terms of the summons, as the salary paid by Exchequer did not cover the work for which it was sought to have the county found liable. The relief given to the counties by Exchequer was not intended to be exhaustive. Though the county of the city of Glasgow was not assessable by the defenders, it did not follow that that county was not entitled to any benefit from the county general assessment levied by the defenders in Lanarkshire— Macarthur v. County Council of Argyll, March 18, 1898, 25 R 829, 35 S.L.R. 612. The county of the city of Glasgow was created and severed from the county of Lanark by the Act of 1893 only for the purposes of that Act, and section 7 of the Act preserved the powers and duties of the pursuer within the new county, and the Act could not be read as depriving him of his right to remuneration for these duties as existing before the passing of the Act, or as altering the liability of the defenders for that remuneration. At the passing of the Act of 1868, and up to 1893, the charges now made by the pursuer undoubtedly fell within the purposes of the “Rogue Money” Act of 1724. That Act did not exclude charges for apprehending, subsisting, and prosecuting criminals within burghs.

Parties further founded on the regulations made by successive Lords Advocate with regard to the duties of the Procurators-Fiscal, and upon numerous communications between the Treasury and the Commissioners of Supply, and the Procurators-Fiscal, all of which it is unnecessary to narrate for the purposes of this report.

At advising—