Scottish Court of Session Decisions

On 9th January 1909 Levy Leon, 3 M'Donald Road, Edinburgh, brought an action against the Edinburgh Evening News, Limited, in which he claimed £500 as damages for slander alleged to be contained in the head—note to a paragraph published by the defenders.

The head-note and paragraph were as follows:—“The Edinburgh Licensing Prosecution. Prisoners Acquitted. The test case in which Levy Leon and Barnet Jablensky were charged with a contravention of the Licensing (Scotland) Act came up for decision at Edinburgh City Police Court to-day, Bailie Inches presiding. The accused were charged with trafficking in exciseable liquors at a dance on the evening of 1st October in the Free Gardeners' Hall, Picardy Place. The Magistrate said that after fully considering the evidence he found the charge not proven, but thought that the action of the police was justified. The accused men were acquitted.”

The pursuer averred that the paragraph falsely and calumniously stated that he had been a prisoner when as matter of fact he was not.

The defenders admitted that the pursuer had never been apprehended or committed to prison, that no warrant to apprehend or imprison him was granted, and that he had duly appeared at the different diets of the case.

They pleaded, inter alia, that the action was irrelevant.

On 13th March 1909 the Lord Ordinary ( Salvesen) allowed the pursuer an issue.

Opinion.—“This is an action of damages for slander said to be contained in a paragraph published in the defenders' newspaper. The facts averred by the pursuer are that on 4th November 1908 he was served with a complaint for an alleged breach of the Licensing (Scotland) Act 1903; that on 6th November the relevancy of the complaint was debated, when it was held to be relevant, and proof allowed; and that on 10th November the charge was held not proven. The pursuer attended the trial under citation. He had not been apprehended,

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nor was any warrant ever granted to apprehend and imprison him, nor was he ever committed to prison.

The report of the proceedings in the defenders' newspaper bore the heading, ‘The Edinburgh Licensing Prosecution: Prisoners Acquitted.’ The paragraph which followed contains a correct account of the nature of the charge and proceedings; and the only complaint made is with regard to the heading. The pursuer says that the words ‘Prisoners Acquitted’ falsely and calumniously represented that he had been apprehended and was a prisoner in the hands of the police, and that it was so understood by members of the outside public.

The defenders plead that the action is irrelevant. They say that whenever the pursuer attended at the Police Court, which was a Court of criminal jurisdiction, to answer to a charge brought under the Summary Jurisdiction Acts and the Criminal Procedure Act, he necessarily was taken in charge of the bar officer during the time that the trial lasted, and that he was not entitled to leave the Court till the conclusion of the diet. Accordingly, they maintain that the pursuer was in fact a prisoner, and that they were entitled to describe him as such. In support of this contention they referred me to the definitions of ‘prisoner’ in the Imperial Dictionary, which are as follows:—1. ‘One who is confined in a prison by legal arrest or warrant’; 2. ‘A person under arrest or in custody of the magistrates, whether in prison or not—as a prisoner at the bar of a court.’ The second of these two definitions would appear to fit exactly the circumstances of the present case.

I have had considerable difficulty in the matter, but have come to the conclusion that the applicability of one of several dictionary definitions must always—be a question of circumstances. If from the context it had appeared that the word ‘prisoner’ was necessarily used in the sense for which the defenders contend, I should have felt bound to sustain the defenders' plea, but I do not think this is the case under section 93 of the Licensing (Scotland) Act 1893. In the case of a person complained of for trafficking in exciseable liquors without a certificate, an option is given to the magistrate of either granting a warrant to summon the offender or to grant warrant to apprehend him to answer to the complaint. Accordingly, even a person familiar with the legislation on this subject, and still more a member of the outside public, might, I think, have not unreasonably understood from the heading of the paragraph that the pursuer had actually been apprehended in order to be brought to trial. The distinction is by no means shadowy or illusory. According to our system it is not usual to grant a warrant to apprehend a law-abiding citizen who is perfectly willing to answer to a citation, and I think it would be unfortunate if a newspaper should be held entitled to describe every person who attends to answer to a complaint of some statutory contravention as a ‘prisoner.’ In the popular sense such a person, although not at liberty to leave the court during the proceedings, cannot truly be described as a ‘prisoner,’ for the primary definition of that word is a person who is confined in prison, or who, in the case of a man on trial, has been taken from prison, or at least is in the custody of the police. In the paragraph itself the pursuer was always described as ‘the accused,’ and I can see no good reason why this description was not also used in the heading. I hold, therefore, that the pursuer is entitled to an issue.

On the assumption that an issue was to be granted, the defenders asked me to approve of the counter issue lodged on their behalf. I think it is unnecessary that there should be any counter issue. If the jury are of opinion with the defenders that the pursuer was correctly described as ‘prisoner,’ then he cannot obtain a verdict, as the statement of which he complains would not be false. If, on the other hand, they reach the opposite conclusion, the counter issue could not be affirmed. I shall accordingly approve of the issue proposed by the pursuer for the trial of the cause, and disallow the counter issue.”

The defenders reclaimed, and argued—The words complained of were not slanderous. It was not libellous to say of a person that he was a prisoner when in point of fact he was not. A fortiori therefore the words “prisoners acquitted” were not slanderous. The headnote and paragraph must be read together, and when so read conveyed no imputation against the pursuer's character. The paragraph as a whole therefore was not libellous— Grand Theatre and Opera House, Glasgow, Limited v. Outram & Company, June 23, 1908 (not yet reported).

Argued for respondent—The Lord Ordinary was right. The defenders had falsely represented that the pursuer was a prisoner and that was a slander.