Scottish Court of Session Decisions

OPINION OF THE COURT.—In this case the pursuer is challenging the revocation by the defender of the pursuer's shotgun and firearm certificates. At the time when this cause was initiated, the pursuer was the head keeper of Haddo estate, and had been such for approximately three years. He had been a keeper for approximately 22 years and during that period had held firearm certificates and shotgun certificates in terms of the Firearms Act 1968. By letter dated 3rd August 1988, the defender intimated to the pursuer that because of a previous conviction and a number of pending charges the defender was no longer satisfied that he could be entrusted with a firearm or possess a shotgun without danger to the public safety or to the peace. The defender accordingly revoked these certificates, and the letter proceeded to give directions regarding the possession and disposal of various firearms and shotguns.

On receipt of this letter the pursuer appealed to the sheriff under the provisions of secs. 30 and 44 of the Firearms Act 1968. On 5th January 1989 the sheriff at Aberdeen sustained his appeal and recalled the revocation by the defender of the pursuer's firearm certificate and shotgun certificate. The defender then appealed to the sheriff principal and on 19th April 1989 the sheriff principal refused the appeal as incompetent. In the note annexed to his interlocutor of that date, the sheriff principal indicated that if he had held the appeal to be competent, he would have accepted the submissions addressed to him on behalf of the defender and would accordingly have allowed the appeal and held that the defender had not erred in his decision to revoke the certificates held by the pursuer. Against that decision of the sheriff principal the defender has appealed to this court.

At the time when the defender revoked the certificates the pursuer had appeared on petition charged with a total of 28 charges. Counsel for the defender informed the court that on 23rd May 1989, that is after the sheriff principal had issued his interlocutor, the pursuer had pled guilty to charges on an indictment which were in the terms of charge 6, charge 8, charge 10, charge 26 and charge 27 on the petition. Between the date of the sheriff principal's decision and the pursuer's plea of guilty to these charges, the defender on 27th April 1989 had marked an appeal to this court. We were also informed that on 28th January 1990, while the present appeal was awaiting a hearing, the pursuer's shotgun certificate had expired. A hearing of the appeal took place on 9th November 1990 after which the court appointed the appeal to be reheard by a court of five judges. Between that date and the hearing before five judges, namely on 25th April 1991, the pursuer's firearm certificate had expired. We were also informed that the pursuer was now living in Shropshire, and that accordingly if he wished to obtain a firearm certificate or a shotgun certificate he would require to apply to his local chief constable.

In limine a question arises as to whether the issues raised in the appeal are so academic that this court should decline to entertain the appeal. Despite these alterations of circumstances described above, counsel for the defender urged the court to allow the appeal to proceed. He pointed out that if the appeal was not allowed to proceed the result would be that the pursuer would be deemed to have been the holder of two certificates which had never been revoked, whereas if the defender's appeal were to proceed and be upheld by this court, it would be material for any other chief constable to realise that the pursuer had been the holder of two certificates which had been revoked. He also stressed that at the time when the appeal was originally taken, both the firearm certificate and the shotgun certificate were current. He also stressed that an important question which was to be argued in this appeal was whether the case of Kaye v. Hunter 1958 S.C. 208 had been rightly decided.

Counsel for the pursuer, on the other hand, maintained that the issues which were raised in this appeal were now academic. Both certificates had expired, and if the pursuer wished to obtain certificates again he would require to apply to his local chief constable. In his application form he would require to disclose whether he had ever been the holder of a certificate which had been revoked. Counsel maintained that the defender now had no real interest in prosecuting this appeal. What the defender was seeking to do was to prosecute this appeal in the interests of other chief constables and in support of an academic proposition, namely, that Kaye v. Hunter had been wrongly decided. He also addressed an argument to this court to the effect that if there was doubt as to whether chief constables and sheriffs were adopting the correct approach in relation to matters of this kind, that was something which was susceptible to judicial review.

Since the two certificates were in existence and in full force when the appeal by the defender was lodged, and since, in the event of the pursuer applying for certificates again, it might be material to know whether the two certificates which are the subject of the present proceedings had been revoked or not, we have come to the conclusion that the issues which arise in this appeal are not purely academic. Although the two certificates have by now expired, we are of opinion that the defender has a clear interest to have it determined whether the certificates were validly revoked by him. Moreover whether or not these certificates were validly revoked might be a material consideration in the event of the pursuer deciding to apply for a new firearm certificate or shotgun certificate. Counsel for the pursuer maintained that having regard to what had occurred, the pursuer would not seek employment again as a gamekeeper, but he accepted that he might apply for a shotgun certificate again. For these reasons we are satisfied that the present appeal cannot properly be regarded as raising questions which are academic only.

Counsel for the defender, under reference to the relevant statutory provisions, then submitted that the sheriff principal had erred in holding that the appeal to him was incompetent. He recognised that the case of Kaye v. Hunter afforded strong reasons in support of the sheriff principal's view that an appeal to him was incompetent. Kaye v. Hunter related to the refusal of a chief constable to grant a firearm certificate, and the present case related to the chief constable's decision to revoke both a firearm certificate and a shotgun certificate. The criteria for granting certificates are similar to the criteria to be applied when consideration is being given to the revocation of certificates. However, counsel pointed out that the Act of Sederunt which was in force at the time when Kaye v. Hunter was decided contained language different to the language used in the Act of Sederunt now in force for appeals under the Firearms Act 1968. In Kaye v. Hunter the relevant Act was the Firearms Act 1937, and the Act of Sederunt dealing with appeals was the Act of Sederunt of 11th June 1937. That Act of Sederunt provided:

"Appeals to the Sheriff under sections 2(8), 8(5), 10(4) and 21(3) of the said Firearms Act 1937, shall be by initial writ under the Sheriff Courts (Scotland) Acts, 1907 and 1913…, and the proceedings thereon shall be as laid down in these statutes."

In the present case the relevant statute was the Firearms Act 1968, and the relevant Act of Sederunt is the Act of Sederunt (Firearms Appeals) 1970. That Act of Sederunt provides inter alia as follows: [Their Lordships quoted para. 2 of the Act of Sederunt and continued thereafter.]

Counsel for the defender maintained that it would be open to the court to distinguish Kaye v. Hunter upon the view that the language used in the Act of Sederunt of 1970 was different to the language used in the Act of Sederunt of 1937 which was in force at the time of that decision. The Act of Sederunt of 1970 expressly provided not only that an appeal under sec. 44 of the Firearms Act 1968 should be by initial writ but also that the appeal should be disposed of as a summary application as defined in the Sheriff Courts (Scotland) Acts 1907 and 1913. He pointed out that, in terms of sec. 50 of the Sheriff Courts (Scotland) Act 1907, when dealing with a summary application a sheriff was required, where a hearing was necessary, to have such a hearing, and, if there was a hearing, to give his judgment in writing. He submitted that if the sheriff was required to give his judgment in writing, that clearly showed that he was acting in a judicial capacity. Moreover since he was giving a judgment, the provisions of secs. 27 and 28 of the Act of 1907 applied, and it was accordingly competent to appeal to the sheriff principal or to the Court of Session against such a judgment of the sheriff.

Although the argument was an attractive one, we are not persuaded that Kaye Hunter can be distinguished upon such a narrow ground. In our opinion the decision in Kaye v. Hunter would apply to the present case, and, accordingly, the critical question is whether that case was correctly decided. Before considering this issue however it is necessary to refer briefly to the relevant provisions of the Firearms Act 1968. Section 27 deals with the grant of a firearm certificate, and sec. 28 deals with the grant of a shotgun certificate. Revocation of certificates is dealt with in sec. 30. Section 30 is in the following terms: [Their Lordships quoted sec. 30 and continued thereafter.] The language of sec. 30 (1) (a)echoes the language used in the proviso to sec. 27 (1), and the language used in sec. 30 (2) echoes the language used in sec. 28 (1) of the Act of 1968.

Revocation is further dealt with in sec. 12 of the Firearms (Amendment) Act 1988. Section 12 (1) empowers the chief constable upon revoking a firearm certificate or shotgun certificate to give notice to the holder to surrender forthwith the certificate and the relevant firearms and ammunition. Section 12 (5) of the Act of 1988 provides that sec. 30 (4) shall not apply to a revocation made under sec. 30 (1) (a) or sec. 30 (2) of the Act of 1968 if a notice has been served under sec. 12 (1) of the Act of 1988.

Section 44 of the Act of 1968 deals with appeals from police decisions. In terms of sec. 44 (1) (read along with Scheds. 1, 9 and 11 to the Courts Act 1971) an appeal under inter alia sec. 30 of the Act of 1968 lies in England and Wales to the crown court, and in Scotland "in accordance with Act of Sederunt to the sheriff". Section 44 (2) (as amended) provides as follows: [Their Lordships quoted sec. 44 (2) and continued thereafter.] Schedule 5 has the following heading:

"Provisions as to Appeals under s. 44 of this Act

"Part I

"Courts with Jurisdiction to entertain Appeal".

There then follow the first and third columns as described in sec. 44 (2) as amended.

Before coming to consider the case of Kaye v. Hunter, counsel for the defender submitted that the general principle was that there was an appeal in every case unless Parliament had decided otherwise. He proceeded to refer to a number of authorities. In Marr & Sons v. Lindsay (1881) 8 R. 784 at p. 785, Lord President Inglis said:

"and the general rule is that the right of appeal from an inferior to a superior Court cannot be taken away except by express words. That is a rule which may be said to be subject to some qualification, because, if the jurisdiction exercised by the Sheriff is a jurisdiction which is specially given to him by statute, and in which this Court has not previously had jurisdiction, it may be much more easily implied that the Sheriff's jurisdiction is not only privative, but final, and not subject to review".

In Harper v. Inspector of Poor of Rutherglen (1903) 6 F. 23 at p. 25, Lord Trayner said:

"The constitutional principle is that every judgment of an inferior Court is subject to review, unless such review is excluded expressly or by necessary implication."

In Allen & Sons Billposting Ltd v. Corporation of Edinburgh 1909 S.C. 70, Lord Low expressed the view (at p. 75) that whether an appeal from a sheriff was competent depended upon the terms of the procedure provided by the Act, and upon a consideration of the character of the jurisdiction which was conferred upon the sheriff. He proceeded to express the view that when a statute provided for an appeal to "the sheriff" the question was whether "the sheriff" should be read as meaning the sheriff court or whether it referred to an individual judge. In that case, the court held that the decision on the appeal by the sheriff substitute could not competently be appealed to the sheriff.

An important case in this context is Arcari v. Dumbartonshire County Council 1948 S.C. 62. That again was a case where a statute provided for a right of appeal "to the sheriff". It was held that the judgment of a sheriff or sheriff substitute pronounced in such an appeal could competently be appealed to the Court of Session. In delivering the leading opinion in that case, Lord President Cooper pointed out (at p. 66) that whether a sheriff in hearing an appeal was acting in a judicial or an administrative capacity depended upon the provisions of the statute under which he was acting. In the course of his opinion he pointed out that there were a number of features which favoured the view that the sheriff had been acting administratively and that accordingly no appeal from his decision was competent. These features were that the procedure involved a new jurisdiction not previously known, that proceedings did not originate in a formal demand by a litigant for a remedy from the sheriff court, that the tribunal invoked was the "the sheriff" and not the sheriff court, and that it had been thought necessary expressly to empower the sheriff to deal with expenses whereas every ordinary court has an inherent power to deal with expenses. After referring to these features Lord President Cooper said (at pp. 67–68):

"These factors in combination certainly suggest that we have been taken extra cursum curiaeinto a region in which normal powers of review by appeal have no place. But I am unable to regard them as decisive. In every appeal under this section there is in a real sense a true lis between the authority who seek to enforce the maintenance of the status quo and the citizen who seeks to assert his civil right to the uncontrolled use and enjoyment of the subjects which he owns or occupies. These appeals fall within the definition of ‘summary applications’ in the Sheriff Court Act of 1907 …, sec. 50 of which requires that the determination should be embodied in a written ‘judgment’, while sec. 28 subjects the final ‘judgment’ of the Sheriff (subject to qualifications which are immaterial and to any exclusion of appeal contained in any Act of Parliament) to an appeal to the Court of Session. In this instance the Sheriff's allowance of the appeal is in the sense of the Act a final judgment by him. There is no express exclusion of appeal, and I cannot find in the factors alluded to enough to raise any clear or necessary implication of such exclusion."

Counsel for the defender stated that he adopted that reasoning of Lord President Cooper, and he thus maintained that in the present case the sheriff had been acting in a judicial capacity with the result that an appeal against his judgment was competent, and that the sheriff principal had erred in holding otherwise.

He recognised, however, that the case of Kaye v. Hunter which related to the refusal to grant a firearm certificate, was to a contrary effect. He submitted that that case had been wrongly decided, and should be overruled. In delivering the leading opinion in that case, Lord President Clyde made certain observations regarding the distinction between appeals to a sheriff in his administrative capacity and those in his judicial capacity, and counsel did not demur to much that the Lord President said in that regard. In his opinion the Lord President referred both to Allen & Sons Billposting Ltd. v. Corporation of Edinburgh and to Arcari v. Dumbartonshire County Council . Counsel for the defender, however, maintained that Lord President Clyde had erred in disregarding the general statement which Lord President Cooper had made in Arcari, and in not recognising that what Lord President Cooper had said regarding the provisions of sec. 50 and sec. 28 of the Act of 1907 applied to the present case. He also submitted that Lord President Clyde had been in error in not appreciating that there was an important difference between the legislation conferring the right of appeal in Allen & Sons Billposting Ltd. v. Corporation of Edinburgh and the legislation under consideration in Kaye v. Hunter . He also submitted that Lord President Clyde had been in error when he regarded it as significant that under the provisions of the Firearms Act 1937 the sheriff in hearing an appeal had no power to grant or withhold a certificate. He accordingly submitted that we should overrule Kaye v. Hunter .

In completing his submissions in this regard, counsel for the defender very properly drew attention to F.v. Management Committee and Managers of Ravenscraig Hospital 1988 S.C. 158. He submitted that in that case it had been plain that the sheriff was acting in an administrative and not a judicial capacity.

Counsel for the pursuer submitted that the sheriff principal had reached the correct conclusion and that an appeal from the sheriff was not competent for the reasons given in Kaye v. Hunter . He urged the court not to overrule that case. Counsel traced the history of the legislation dealing with firearms and shotguns. So far as regards the Act of Sederunt (Firearms Appeals) 1970, he submitted that it merely reflected the existing position. He also stressed that since then a number of departmental committees had considered the legislation relating to firearms, and although certain alterations had been effected by the Act of 1988, Parliament had not sought to alter the law regarding the competency of further appealing as laid down in Kaye v. Hunter . Counsel maintained that central to the scheme of legislative control of firearms had been the knowledge and discretion of the chief constable. That was considered as important in Kaye v. Hunter upon the view that the chief constable was best able to exercise that jurisdiction. Counsel submitted that an appeal against the refusal of a chief constable to grant a firearm certificate had been introduced in the Firearms Act 1920, and he submitted that until Kaye v. Hunter no appeal had ever been sought to be taken against the decision of a chief constable. He also contended that nothing turned upon the different language used in the Act of Sederunt (Firearms Appeals) 1970 as compared to the Act of Sederunt 1937, and that it would be surprising if the former Act of Sederunt had been intended to alter the effect of the decision in Kaye v. Hunter . He also submitted that Kaye v. Hunter had been approved by the court recently in Greenline Carriers (Tayside) Ltd. v. City of Dundee District Council 1991 S.L.T. 673. Counsel maintained that the sheriff in hearing the appeal had been exercising an administrative jurisdiction and that no further appeal was accordingly competent. He also contended that when a sheriff was exercising an administrative jurisdiction, the matter proceeded before him by means of summary application under sec. 50 of the Act of 1907, and that accordingly nothing should be taken in the present case from the fact that the procedure had been by way of summary application. In this connection he drew attention to the provisions of the Act of Sederunt (Statutory Appeals) 1981, and in particular to para. 3 thereof which provides: [Their Lordships quoted same and continued thereafter.]

In support of his submission that the sheriff had been exercising an administrative jurisdiction, counsel for the pursuer stressed that the appeal was stated to be "to the sheriff" and not "to the sheriff court"; the matter had not originated in the sheriff court itself but in an administrative act of the chief constable. The sheriff court had not hitherto had any jurisdiction in relation to firearms, there was no lis in any true sense between the parties, and the scheme of the statute showed that it was desired to reach a positive result, and that if further appeal was to be allowed it might take a long time to reach finality. He accordingly submitted that the proper conclusion to draw was that Parliament intended the sheriff to be final.

We are not persuaded that the criteria suggested by counsel for the pursuer inevitably lead to the conclusion for which he contended. We recognise that the appeal is stated to be to the sheriff and not to the sheriff court, and that that has in some cases been regarded as an important consideration (Ross-shire County Council v. Macrae-Gilstrap 1930 S.C. 808; Allen & Sons Billposting Ltd v. Corporation of Edinburgh ). It was made clear however by Lord President Cooper in Arcari v. Dumbartonshire County Council that that consideration is not conclusive. Moreover, as Lord Low pointed out in Allen & Sons Billposting Ltd. v. Corporation of Edinburgh at p. 75, there are cases where the expression "the sheriff" falls to be read as meaning "the Sheriff Court". In our opinion, the present case is such a case because when regard is had to the terms of Sched. 5 to the Act of 1968, the heading shows that, when the sheriff's jurisdiction is being referred to in the column, that is in the context set by the heading "Courts with Jurisdiction to entertain Appeal". Moreover there is no doubt that in the Act of 1968 (read along with the Act of 1971) so far as England and Wales are concerned an appeal lies to a court, namely, the crown court. In our opinion it would be surprising if Parliament in this context was providing for an appeal to lie in England and Wales to a court exercising an administrative jurisdiction, but for an appeal in Scotland to lie not to a court but to a sheriff acting in an administrative and not a judicial capacity. It appears that the law in Scotland is different to the law in England and Wales regarding the rights of appeal against the exercise of administrative jurisdiction, but in both Scotland and England and Wales the important point is that an appeal lies to a court.

Again we recognise that the proceedings in the present case originated not in a formal demand by a litigant for a remedy from the sheriff court, but in an administrative act by the chief constable, so that when an appeal is taken against his decision, the sheriff is exercising an appellate and not an original jurisdiction. That point was referred to in Allen & Sons Billposting Ltd. Corporation of Edinburgh but, as Lord President Cooper pointed out in Arcari v. Dumbartonshire County Council this factor also is not conclusive. It is true also, as counsel for the pursuer contended, that the procedure being resorted to involves a new jurisdiction which had not been known until 1920. This aspect of the matter was referred to in Marr & Sons v. Lindsay and in Main v. Lanarkshire and Dumbartonshire Railway Co . (1893) 21 R. 323 at p. 324 per Lord Adam, but again this point was not regarded as conclusive in Arcari v. Dumbartonshire County Council . We are not persuaded by counsel for the pursuer that the scheme of the statute shows that Parliament must have intended that there should be no further appeal because of the time which further appeals would take. The answer to this point is that Parliament has allowed the legislation to stand in the knowledge that the court in England has affirmed that there is a right of appeal under sec. 30 of the Act of 1968 to the crown court, and to the divisional court (Ackers & Others v. Taylor [1974] 1 W.L.R. 405). It has also been recognised that there is in such circumstances an appeal from the divisional court to the Court of Appeal (Kavanagh v. Chief Constable of Devon and Cornwall [1974] Q.B. 624). If Parliament has found it acceptable that the decision of a chief constable to revoke a firearm certificate may be made the subject of successive appeals in England, we see no reason to conclude that Parliament has regarded that as undesirable in Scotland.

When Kaye v. Hunter is subjected to the close analysis to which counsel for the defender subjected it, we are of opinion that the reasoning of the Lord President (with whom Lord Carmont and Lord Russell agreed) is seen to be flawed. In our opinion the principal criticism which must be made of Lord President Clyde's opinion is that he has not paid proper regard to the general statement which Lord President Cooper made in Arcari v. Dumbartonshire County Council at p. 68. On p. 68 Lord President Cooper pointed out that the appeal fell within the definition of "summary applications" in the Sheriff Courts Act of 1907, sec. 50 of which required that the determination should be embodied in a written judgment, while sec. 28 subjects the final judgment of the sheriff to an appeal to the Court of Session. In Kaye v. Hunter the relevant Act of Sederunt (i.e. that of 11th June 1937) provided that proceedings should be as laid down in the Sheriff Courts Act, and having regard to the terms of sec. 3 (p) of the Act of 1907 the appeal fell within the definition of "summary application". This aspect of the matter is not mentioned by Lord President Clyde.

We are also of opinion that Lord President Clyde's judgment is undermined because he did not recognise the important difference which existed between the legislation conferring the right of appeal in Allen & Sons Billposting Ltd. v. Corporation of Edinburgh on the one hand and the legislation under consideration in Kaye v. Hunter on the other hand. In the former the relevant statute—the Edinburgh Corporation Act 1899 as amended by the Edinburgh Corporation Act 1906—expressly provided that in any appeal to the sheriff, the sheriff might "either dismiss the appeal, or if he finds that the Corporation, in refusing the licence, have not reasonably exercised their discretion under this Act, he may grant the licence for a period not exceeding three years, and shall pronounce such order regarding expenses as he may deem just". Accordingly in the former case the legislation allowed appeal to the sheriff only upon one specified statutory ground, namely, whether in refusing the licence the corporation had not reasonably exercised their discretion. In the latter case, on the other hand, the statute did not prescribe for the sheriff any specific test to be applied in the appeal but merely provided that there was a right of appeal. That being so, we are of opinion that Lord President Clyde was not well founded when he stressed that the sheriff was only entitled to interfere with what had been done provided he was satisfied that a discretion conferred by the statute had not been reasonably exercised. In support of that proposition he relied upon Allen & Sons Billposting Ltd. v. Corporation of Edinburgh without apparently realising that the legislation relating to appeals in that case had been markedly different to the legislation with which he was dealing.

The matter does not end there. In Kaye v. Hunter Lord President Clyde regarded the following as supporting his view that the sheriff was acting in an administrative capacity only:

"The Sheriff is given no power to grant or withhold a certificate, as he would have been given if his jurisdiction in a judicial capacity had been invoked"

[at p. 212]. In our opinion, however, this point is not a valid one because in Allen & Sons Billposting ltd. v. Corporation of Edinburgh the statute did confer upon the sheriff power to grant the licence, and yet he was held to be acting not in a judicial but in an administrative capacity.

In Kaye v. Hunter the Lord President recognised that the question of whether what was appealed to the sheriff was in a real sense a true lis might well determine the issue in many cases. However it is implicit in his judgment that in Kaye v. Hunter there was not in any real sense a lis between the parties. In our opinion, however, in arriving at that implied conclusion Lord President Clyde erred. In that case, as in the present case, there was a true lis. In the present case, in our view there was a true lis between the parties; as the pleas in law show, there were questions of law which arose between the parties and upon which the sheriff had to pronounce a judgment between them. As the Act of Sederunt made plain, the appeal to the sheriff fell to be disposed of as a summary application, and accordingly in terms of sec. 50 of the Act of 1907 the sheriff was required to give a judgment in writing. As Lord President Clyde said in Kaye v. Hunter at p. 211:

"If what is appealed to the Sheriff is in a real sense a true lis between the parties, so that the sheriff has to pronounce a judgment between the respective claimants, then the appeal involves invoking the Sheriff in his judicial capacity and his decision is subject to review by this Court—see the case of Arcari and the opinion of the Lord President at the top of p. 68."

With that expression of opinion we agree, and since the sheriff in the present case had to pronounce a judgment, it follows in our opinion that the appeal involved invoking the sheriff in his judicial capacity with the result that the sheriff's decision is indeed subject to review by the sheriff principal or the Court of Session (sec. 27 and sec. 28 of the Act of 1907).

We would merely add that we do not regard the case of Greenline Carriers (Tayside) Ltd. as approving Kaye v. Hunter; all that the court did in that case was to observe under reference to Kaye v. Hunter that where the sheriff was exercising a statutory jurisdiction, he had to exercise that jurisdiction in the manner prescribed by the relevant statute. We are also satisfied that F. v. Management Committee and Managers, Ravenscraig Hospital was very different on its facts. There the sheriff was plainly acting in an administrative capacity; he was not being invited to deliver judgment on any question of law. Accordingly although the application there was by way of summary application to the sheriff, it was otherwise clear that the sheriff's function was administrative and not judicial.

For the foregoing reasons we are satisfied that the reasoning of Lord President Cooper in Arcari v. Dumbartonshire County Council is to be preferred to that of Lord President Clyde in Kaye v. Hunter; we are also satisfied that the decision in Kaye v. Hunter was unsound and that the case should now be overruled. It follows that the sheriff principal in the present case was in error in refusing the appeal as incompetent. The appeal to the sheriff principal was competent just as is the present appeal to this court.

As already observed, in the note annexed to his interlocutor, the sheriff principal indicated that if he had held the appeal to be competent he would have allowed the appeal, and would have held that the defender had not erred in his decision to revoke the certificates. We do not, however, find it necessary to consider the reasons which the sheriff principal gives for arriving at that latter conclusion. It is now agreed that the decision of the defender was in fact based upon erroneous information. It is plain from art. 5 of the condescendence and ans. 5 that both parties were under error as to the nature of the pursuer's previous conviction. Both parties were apparently under the impression that the pursuer had been convicted in 1981 of two charges of criminal damage, a charge of assault, a charge of using threatening behaviour and two charges under the Prevention of Crime Act 1953, sec. 1. In other words they were under the impression that he had been convicted of six offences. Counsel however pointed out, under reference to the extract conviction which is reproduced in the appendix to this appeal, that the pursuer had apparently in 1981 pled guilty to three charges only, namely, a charge of assault, a charge of using threatening behaviour and one charge under sec. 1 of the Prevention of Crime Act 1953; pleas of not guilty had been accepted to two charges of criminal damage and one charge under sec. 1 of the Prevention of Crime Act 1953. Since it is plain that the original decision of the defender to revoke the certificates was based upon a material misapprehension, we are of opinion that the decision cannot now stand. The misapprehension was sufficient to vitiate the decision. In the circumstances we do not consider that it would be appropriate to remit the case for further consideration, and accordingly it appears to us that the appropriate course to follow is to refuse the appeal on the merits.

We shall accordingly sustain the appeal against the interlocutor of the sheriff principal dated 19th April 1989, we shall hold the appeal to be competent, and thereafter we shall refuse the appeal on the merits and shall adhere to the interlocutor of the sheriff.