Scottish High Court of Justiciary Decisons

Lord Justice-General (Clyde).—[After referring to the first question in the case, with which this report is not concerned]—With regard to the relevancy of the complaint, both parties before us were agreed, and I think rightly so, in regarding the remarks of the Sheriff-substitute in the stated case with reference to this matter as involving a certain amount of misapprehension. But there is no real doubt or ambiguity as to what the merits of the relevancy question are.

The Prevention of Crimes Act, 1871, contains provisions which create a number of new statutory offences. It also arms the criminal authorities with a number of valuable administrative powers. Among its other provisions there is a definition clause (section 20), and by that clause separate and distinct meanings are assigned to the expressions “crime” and “offence” as used in the Act. So far as Scotland is concerned, “crime” is said to mean any of the pleas of the Crown, theft, if so serious or aggravated as to be punishable by penal servitude, forgery, fraud, and uttering false coin. All of these involve high or serious violations of the law. The expression “offence” is said to mean “any act or omission which is not a crime as defined by this Act, and is punishable on indictment or summary conviction.” Roughly, the object appears to be to distinguish between major and minor criminal offences, “crime” being restricted to the former class, and “offence” to the latter; but I am not suggesting that that is by any means an exhaustive description of the definitions. The present question arises in this way. Under section 7 it is provided that a person, whose criminal record includes (1) a conviction on indictment of a “crime” and (2) proof of previous conviction of a “crime,” is to be held guilty of an offence against the Act in, among other circumstances, the following:—if he is found anywhere in circumstances which “satisfy the Court before whom he is brought that he was about to commit or to aid in the commission of any offence punishable on indictment or summary conviction, or was waiting for an opportunity to commit or aid in the commission of any such offence.” Now, if the statutory definition of “offence” is to apply to the word as twice used in the provision just quoted, it would follow that a statutory offence occurs if the circumstances are that the person accused was about to commit what I have described as a minor criminal offence; but no statutory offence will occur where the evidence shows that the accused was about to commit any of those major criminal offences which the statute defines as a “crime.” This is a sufficiently startling result of the strict application of the definition clause to the terms of section 7. It might almost be said that it makes nonsense of the statute. The respondent asks us to take the narrow view that the word “offence” is used in the restricted sense of the definition clause. The appellant contends that we should read the word “offence” as occurring in the above-quoted part of the section without being tied to the definition clause, and in such a way as to give a reasonable meaning to the section—in other words, to read it as meaning what it means in the ordinary use of the English language, namely, an act contrary to, and punishable by, the law.

A definition clause does not necessarily, in any statute, apply in all possible contexts in which the word may be found therein. This is not a novel proposition; and, though I do not know of any decision on the topic in Scotland, the proposition is one I have heard stated more than once, from the bench, in my own time at the bar. In England, there is authority for it; and I have no doubt that it is in accordance with the law of Scotland in relation to the interpretation of statutes that, if defined expressions are used in a context which the definition will not fit, then the words may be interpreted according to their ordinary meaning. The difficulty of applying that principle to the construction of an enactment which, as Mr Watson very clearly and very forcibly pointed out, creates a new statutory offence, is considerable; and, if we had had no help from other parts of the statute, it might have been necessary to refuse to apply it in the present case. But there are a number of sections—especially sections 16 and 19—in which the administrative powers of the criminal authorities are increased and improved, and I think it was truly said by the appellant that in these sections the context in which the expression “offence” appears is such as to make it impossible to apply the statutory definition to it. Thus an “offence involving fraud” is a misnomer, if fraud is a “crime” within the meaning of the Act, and if—keeping the definition clause in view—“crime” and “offence” are separate and distinct categories. I acknowledge the difference between an administrative section and a section which creates a new form of offence. The difference is a serious one. But once it is shown that, in other parts of the same statute, the context must be allowed to prevail over the artificial conceptions of the definition clause, the difficulty in doing the same thing in another part of the statute is materially diminished. There is another point which is not, perhaps, very important, but still is worthy of mention. It is that in section 7 the word “offence” does not occur purely. The expression used is “offence punishable on indictment or summary conviction.” If the statutory definition of “offence” were intended to apply, why are the words just quoted added to it? For, if the definition did apply, the added words are mere surplusage.

As the result of reading section 7 as the respondent would have us to do would be to make the section absurd and irrational, I think that, having regard to the considerations I have discussed, the case is one in which we may safely hold that the statutory definition is not applicable, because it will not fit the particular context in which the defined word is found. This is enough to dispose of the relevancy point.

[His Lordship then dealt with a point on which the case is not reported, and continued]—I therefore propose to your Lordships that we should answer question two in the negative.

Lord Skerrington.—I have found this case to be one of difficulty, but I think that your Lordship has suggested sufficient reasons to entitle us, and indeed to require us, in construing the expression “offence punishable on indictment or summary conviction” as used in the third head of section 7 of the Prevention of Crimes Act, 1871, to take it in its popular sense and not to apply to it the definition of the word “offence” which is to be found in section 20. The application of the statutory definition would lead to results so unreasonable that they ought to be avoided if possible, and I think that it is possible to read the third head of section 7 as containing its own definition of the offences to which it refers. Even from the point of view of the ordinary use of the English language it is difficult, if not impossible, to substitute for the word “offence” occurring in the third head of section 7 the statutory interpretation of that expression given in section 20.

Lord Sands.—I am of the same opinion. I rather think that the way the difficulty emerges is that the statute framers, in defining the word “offence,” had their attention directed to the fact that they wished to deal with something which was not so serious as crime but which could be punished on indictment or summary conviction. To such acts the generic word “offence” seems applicable. Every crime is an offence, but every offence is not a crime. What I think the framers of the statute had really in their minds was that the expression “offence” means “any act or omission which is punishable on indictment or summary conviction even although it may not be a crime under this Act.” But if that was their intention they have certainly gone about giving effect to it in a manner which creates great difficulty, and it is only by a somewhat bold reading that we can get over that difficulty. But I am encouraged in the course we are taking by the knowledge that this statute has been in operation for more than fifty years, and that there have been many prosecutions under it in cases where no doubt the intention was to commit a “crime” because housebreaking was specified in the charge, and I think the fact that the question has not been raised in these cases is an element that we are entitled to take into account.