Scottish Court of Session Decisions

The Diseases of Animals Act 1894 enacts—Section 2—“The local authorities in this Act described shall execute and enforce this Act and every order of the Board of Agriculture so far as the same are to be executed or enforced by local authorities.” Section 60—“In the application of this Act to Scotland (1) the local authority … shall … be ( a) for each burgh not being a burgh to which section fourteen of the Local Government (Scotland) Act 1889 applies, the magistrates and town council …( b)

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for each county and any burgh to which section fourteen of the Local Government (Scotland) Act 1889 applies, … the county council… Section 52—“If any person without lawful authority or excuse, proof whereof shall lie on him, does any of the following things, he shall be guilty of an offence against this Act:—(1) if he does anything in contravention of this Act, or of an Order of the Board of Agriculture, or of a Regulation of a Local Authority.”

The Markets and Sales Order of the Board of Agriculture dated 23rd June 1903 provides—Section 2—“(1) Any market place, highway, saleyard, or other premises in or upon which markets or sales are habitually held shall, as soon as practicable after being used for the purposes of a market or sale and before being again so used, be cleansed and disinfected as follows:—(i) The premises shall be thoroughly scraped or swept, and such parts thereof as permit of the same being effectually cleansed by washing shall be so cleansed; (ii) after such cleansing the premises shall be thoroughly sprinkled with a solution of carbolic acid and limewash containing not less than five per cent. of actual carbolic or cresylic acid; (iii) all pens, hurdles, and fittings used in connection with the market or sale shall, as soon as practicable after being used for such purpose, and before being again so used, be cleansed by scraping and washing, and after such cleansing shall be thoroughly sprinkled with a solution of carbolic acid and limewash as prescribed above; and (iv) the scrapings and sweepings shall forth with be well mixed with quicklime and be effectually removed from contact with animals.” Section 3—“The provisions of this Order, except where it is otherwise provided, shall be executed and enforced by the Local Authority.”

The Markets and Sales Order of the Board of Agriculture of 1904 provides that the Board of Agriculture may by licence modify the requirements of article 2 of the Order of 1903.

This was an appeal by way of stated case from a conviction in the Sheriff Court of Roxburgh, Berwick, and Selkirk in a complaint at the instance of Sydney Hilson, procurator-fiscal of Roxburghshire, against John Swan & Sons, Limited, cattle salesmen and auctioneers, Edinburgh. The complaint was in these terms—“That John Swan & Sons, Limited, cattle salesmen and auctioneers, 6 Clifton Terrace. Edinburgh, and having their registered office at No. 21 Hill Street, Edinburgh, the proprietors and occupiers of The Southern Central Mart at Newtown St Boswells, in the parish of Melrose and county of Roxburgh, on 20th September 1906 did hold a sale of animals without having since the date of their immediately preceding sale of animals at the said The Southern Central Mart on 17th September 1906, and before again so using it on said 20th September 1906, disinfected 140 unpaved pens by thoroughly sprinkling them with a solution of carbolic acid and limewash, contrary to the Diseases of Animals Act 1894, section 52, and to section 2 (1), sub-sections (i), (ii), and (iii) of the Markets and Sales Order of 23rd June 1903, and to the Markets and Sales Order of 3rd February 1904 made by the Board of Agriculture (now the Board of Agriculture and Fisheries) by virtue and in exercise of the powers in them vested under the Diseases of Animals Acts 1894 to 1903 and of every other power enabling them in this behalf: Whereby the said John Swan & Sons, Limited, are guilty of an offence against the said first-mentioned Act, and are liable in terms of section 51 thereof to a fine not exceeding £20, said fine in default of payment to be recovered by arrestment and poinding and sale in terms of the Summary Jurisdiction (Scotland) Acts 1864 and 1881. May it therefore please your Lordship to grant warrant to cite the said John Swan & Sons, Limited, to appear before you to answer to this complaint, and thereafter to convict them of the aforesaid contravention and to adjudge them to suffer the penalty provided by the said first-mentioned Act, also to order that one-half of any money penalty imposed shall be paid to the complainer in terms of section 57 of the said first-mentioned Act.”

In the Sheriff Court the respondents, before tendering a plea, stated the following objections to the complaint:—(1) That the instance was bad in respect that the Order of 1903, section 3, and the Diseases of Animals Act 1894, section 2, specially provided that the Order and Act should be enforced by the local authority, while this complaint was at the instance of the procurator-fiscal. (2) That the complaint was incompetent and irrelevant and void from want of specification, in respect that, inter alia ( a), it was not averred in the complaint that this was a place where sales were habitually held; ( b) that it was not set forth in the complaint that the pens in question were used at the sale on the 17th September and again on 20th September.

The Sheriff-Substitute ( Baillie) repelled these objections and allowed a proof. From the evidence adduced at the proof the Sheriff-Substitute held it to be proved that the respondents were occupiers of the said Southern Central Mart, where they held their usual fortnightly sales and also certain special sales to the number of six or seven annually; that the total area of the sale-yard was 5 1 2 acres or thereby; that it contained a large number of pens, and in addition to the pens used at the fortnightly sales there were the 140 unpaved pens in question which were only used in connection with the special sales; that on 17th September 1906 they held a special sale of 12,000 sheep, and on 20th September 1906 another special sale when some 10,000 sheep were sold; that the respondents employed a mart keeper to attend to the cleansing of the mart; that on 18th September two men, and on 19th September three men, were engaged cleaning and disinfecting the sale-yard; that on these dates the respondents were unable, owing to the harvest, to obtain further additional labour; “and that the 140 pens occupied on the 17th were not disinfected before being occupied on 20th September aforesaid.”

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The Sheriff-Substitute convicted the appellants of the contravention charged and imposed a penalty of £3.

The respondents appealed.

The questions of law for the opinion of the Court were, inter alia—“(1) Was the complaint maintainable at the instance of the procurator-fiscal? (2) Was it necessary for the respondent to aver specifically that this was a place where sales were habitually held, and that the pens in question were used on 17th and 20th September 1906 respectively?”

Argued for the respondents and appellants (John Swan & Son, Limited)—(1) The instance of the complaint was bad. The Diseases of Animals Act 1894, section 2, and the Order of 1903, section 3, provided that the Act and Order should be enforced by the local authority. These provisions plainly excluded the title of the procurator-fiscal. Further, it was clear also from sections 57 (5) and 64 (4) of the Act, which provided that a half or such part as the Court should think fit, of any penalty recovered under the Act should be paid to the person who proceeded for the same, and that the remainder of the penalty should be paid to the parties or authorities therein mentioned, that the procurator-fiscal was not entitled to present a complaint, because in the event of his doing so these provisions would be rendered nugatory. In the similar case of Roberts v. The Local Authority of Inverness, December 12, 1889, 17 R. (J.C.) 19, 27 S.L.R. 198, the complaint was at the instance of the local authority. (2) The complaint was irrelevant in respect that it did not state either that the Southern Central Mart was a place on which markets or sales were habitually held or that the pens in question were used on both the 17th and 20th September, and unless both of these statements were made there was no relevant specification of a contravention of section 2 of the Order of 1903. It was not mentioned in the complaint where the pens in question were located; and although it was true that the respondents were described as proprietors and occupiers of the Southern Central Mart and the sale of 20th September was stated to have been held there this was insufficient, because it did not follow that all the pens were used when a sale was held in the market.

Argued for the complainer and respondent (Hilson)—(1) The instance of the complaint was good. Section 3 of the Order of 1903 merely repeated the provision in section 3 of the Diseases of Animals Act 1894, and sections 35, 43 (1), and 64 showed that the procurator-fiscal was not divested of his title at common law to prosecute for offences. [ The Court intimated that no further argument on this point was required.] (2) The statutory offence was duly set forth in the complaint. The appellants were described as owning the Southern Central Mart and the offence was libelled as having been committed in the mart; the definition of a mart was that it was a place where sales or markets were habitually held, and any further statement on this point was therefore unnecessary. The charge was that the Orders of 1903 and 1904 were contravened, and these two Orders were therefore to be held as incorporated in the complaint. In any event the defect fell within the provision of section 5 of the Summary Procedure Act 1864 (27 and 28 Vict. cap. 53) that no objection on the ground of any defect in form or substance not changing the character of the offence should be allowed.