12 March 1926
without the permission of the owner, and, further, knowing that that permission, if asked, would have been refused.
Counsel for the Crown say that that complaint discloses a crime which the Court was bound to investigate, and that that crime consists in taking and using something clandestinely, without the permission of the owner having been given. It appears to me that the proposition for which the Crown contends is supported by the authorities which were cited. But, speaking for myself, I should not have required any authority to convince me that the circumstances set out in this complaint are sufficient, if proved and unexplained, to constitute an offence against the law of Scotland.
The matter may be tested by considering what the contention for the respondent involves. It plainly involves that a motor car, or for that matter any other article, may be taken from its owner, and may be retained for an indefinite time by the person who abstracts it and who may make profit out of the adventure, but that, if he intends ultimately to return it, no offence against the law of Scotland has been committed. I venture to think that, if that were so, in these days when one is familiar with the circumstances in which motor cars are openly parked in the public street, the result would be not only lamentable but absurd. I am satisfied that our common law is not so powerless as to be unable to afford a remedy in circumstances such as these.
All that we are deciding, and I understand your Lordships agree, is that this is a relevant complaint. All defences will be open to the accused. We merely decide that the learned Sheriff-substitute has gone too fast in dismissing the complaint as irrelevant at this stage. It appears to me that investigation is necessary; and, in that view, I suggest to your Lordships that we should answer the question put to us in the negative.
As your Lordship has pointed out, it is not merely said that the respondent took the car without getting the owner's permission, but also that he did so clandestinely and knowing quite well that the owner would not have given permission. If the contention of the respondent is right, then no offence is committed under the criminal law of Scotland if anyone goes to a garage and takes a car and petrol clandestinely. It would be very unfortunate if that were the state of the law, when we know how so many cars are parked in cities like Glasgow and Edinburgh. I am satisfied, however, that the common law of Scotland does not consider that an act of that sort is not crime. It may turn out that the offence is more or less venial or more or less criminal, but it is not for us to speculate.
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