Scottish High Court of Justiciary Decisons

At advising on 11th June 1957,—

LORD JUSTICE-GENERAL (Clyde).—This is a stated case arising out of a complaint brought against the present appellant. There are two questions in the case. The first relates to the relevancy of the complaint, and, as this involves the reconsideration of several previous decisions, the case has been remitted to a Court of five Judges. The second question is concerned with the particular facts of the present case, and raises no such general issue as does the first question.

[His Lordship quoted the terms of the complaint and of Regulation 4 (c), and continued]—The main contention for the appellant was that the statute or regulation founded upon must itself fix what the offence is. This cannot be left to the Court to ascertain in the course of the trial, for the accused would then have no fair notice of what his alleged offence was and would therefore not be in a position to decide whether to plead guilty or not before the trial began. It was therefore contended that a failure "to take all reasonable precautions to ensure the safety of passengers" was too indefinite to constitute a criminal offence, since no indication was given in the Regulations as to what precautions Parliament or the Minister regarded as reasonable. The contention was based mainly upon the decision in Allan v. Howman 1918 JC 50 .

The effect of this contention, logically applied, would be very far reaching. For in effect it would mean that the incorporation of the words "reasonable care" or "reasonable precautions," or similar words of a general character, in the statutory description of a prohibition would render the prohibition so vague as to preclude the possibility of any prosecution in respect of it.

An attempt was made to avoid so far reaching a consequence by contending that there was a distinction between a statutory direction to take all reasonable steps to do something particular (which it was conceded might form the basis of a relevant charge) and a statutory direction to take all reasonable steps or precautions to achieve a general aim, as for instance the safety of bus passengers (which it was contended never could ground a relevant charge). But there is no logical justification for this distinction. If the latter type of direction is defective because of the vagueness of the word "reasonable," so also for the same reason must the former type be defective.

The appellant's contention, however, is in my opinion based on a fallacy. There may, of course, be regulations which are so obscurely or defectively drawn that it is impossible to tell how or where an offence against them is committed. In such cases obviously no relevant complaint for a breach could be framed. But, apart from cases of that kind, statutory prohibitions or directions in a great variety of different circumstances must necessarily incorporate words with a general signification which are incapable of rigid definition. It would be quite contrary to our law that the mere fact that such general words occur in a regulation should lead to the inference that the regulation can therefore never be effective. For instance Regulation 4 (a)of the Regulation in question here provides that a driver or conductor, when acting as such, shall behave in a civil and orderly manner. There is no definition in the Regulations of what such behaviour is, and I should certainly not be prepared to say that no complaint for a breach of such a direction could be framed because the Regulation did not contain a precise list of the circumstances constituting uncivil and disorderly behaviour. So rigid a requirement could only lead to technicalities and to injustice in the particular case, and it is much fairer to an accused to leave to the Court a discretion to determine in the particular case whether the conduct amounted to what is envisaged in the Regulations as a breach. In my opinion, general words such as "reasonable care" and "reasonable precautions" fall into this category, and I decline to endorse the view that their presence in a regulation thereby renders the regulation so unspecific that a breach of it can never be relevantly averred.

But that is not the end of the matter. Words of a general scope in a regulation may be so unspecific that their mere repetition in a complaint may not give fair notice to an accused of what the offence with which he is charged really is. In that event it would be the duty of the prosecutor to specify in the complaint such fuller details of what he intends to prove as would give the necessary notice to the accused. For an accused is entitled to know beforehand what the charge is.

It is quite true that section 16 (a) of the Summary Jurisdiction (Scotland) Act, 1954, repeating a similar provision in the 1908 Act, provides that "the description of any offence in the words of the statute or order contravened…shall be sufficient." But this provision has never been regarded as precluding the necessity for fair notice if the language of the statutory provision is in very general terms. As Lord Low said in Renton v. Ramage (at p. 268):

"Now in this case the indictment follows exactly the words of the statute, and accordingly I think we must hold it to be sufficient. In saying that, I should like to guard myself by observing that there may be an offence framed in such general terms that it would not be fair to libel the offence in similar general terms, and in such a case it might well be necessary to give such particulars as would afford fair notice of what was charged."

But such additional specification is not always necessary. Indeed in that case the Court was considering a complaint regarding a breach of section 15 of the Children Act, 1908. The complaint merely quoted the language of the section and gave no specification of what were "the reasonable precautions against the risk of fire" which the prosecutor considered necessary. The complaint was none the less held to be relevant. In my opinion, that case was rightly decided, and its decision is fatal to the appellant's argument in the present case. In my opinion, therefore, an offence may be effectively created in a regulation not withstanding the use in that regulation of general words such as "reasonable care" or "reasonable precautions." But, if the scope of these general words is so wide as not to give an accused fair notice of how it is alleged that he committed the offence in a particular case, further specification may require to be embodied in the complaint to give that notice.

The fallacy in the appellant's argument consists in the failure to distinguish between two quite separate matters, (1) the effective creation of an offence in the Regulations and (2) fair notice of what the offence is in a particular case. The standard of adequate specification in the first is quite different from what is necessary in the second. Fair notice may in some cases not be given in a particular case by merely quoting in the complaint the language of the regulation. But it is quite illegitimate to conclude in such a case, as the appellant's argument does, that therefore no offence can ever be effectively created by such a regulation, and that no complaint could ever relevantly be drawn in regard to it.

This confusion between these two quite separate matters is very apparent in Allan v. Howman 1918 JC 50 . In that case a baker was charged with a contravention of a Flour and Bread (Prices) Order which fixed a maximum price for bread and provided also that a reasonable additional charge might be made for making delivery. In the complaint the language of the Order was merely repeated, and the Court held that the complaint was irrelevant in respect that it did not state what was the reasonable additional charge for delivery which was exceeded. Had this case been decided on a question of lack of fair notice in the particular complaint, no real difficulty would have arisen in future from it. But the Court proceeded to hold that, as the regulation merely referred to the additional charge for delivery being reasonable without any further specification of what that term meant in the regulation, it was not possible to frame a relevant complaint arising out of it. This is just to confuse the efficacy of the regulation with fair notice of an alleged breach of it contained in a particular complaint. The decision in Renton v.Ramage was not quoted in Allan v. Howman 1918 JC 50 , and the two decisions cannot stand together. In my opinion, Allan v. Howman 1918 JC 50 was wrongly decided.

Allan v. Howman 1918 JC 50 was followed in Shepherd v. Howman The Order in question in that case would appear in any event to be so vague as not to be capable of constituting an offence at all, and the decision may therefore be justified on that ground. But, in so far as it purports to proceed on the ratio of Allan v. Howman 1918 JC 50, it is, in my opinion, a wrong decision. The next case is Rogers v. Howman The ratio of Allan v. Howman 1918 JC 50, was not applied in that case, and its decision calls for no comment. The case was concerned with a question of fair notice—see Lord Mackenzie at p. 94.

The matter next arose in Morrison v. Ross-Taylor . In that case, where there was a strong dissent by Lord Keith, the majority of the Court followed Allan v. Howman 1918 JC 50 But they did so with obvious reluctance, and the Lord Justice-General (Cooper) said (at p. 78):

"I should have been willing that the precise formulation of the principle of Allan v. Howman 1918 JC 50 should be re-examined in the light of the experience of the intervening thirty years, if we had been so moved, but we were not."

In my opinion, if Allan v. Howman 1918 JC 50 cannot stand, the ratio of the decision in Morrison v. Ross-Taylor must be unsound. In M'Fadyean v. Stewart, Allan v. Howman 1918 JC 50 and Morrison v. Ross-Taylor were distinguished, and the complaint, which in that case merely reproduced the general words contained in the statutory regulations, was none the less held to give fair and adequate notice of the offence and to be relevant. Finally, in M'Ilroy v. Bell, which was concerned with the same offence as in the present case and where the specification of the moduswas much less than in the present case, an attempt was made to present an argument similar to that presented by the appellant here. The Court refused to entertain the argument, as it had not been presented in the Court below, but the Lord Justice-General, with whom the other members of the Court concurred, said (at p. 95):

"But I think it right, in view of the argument which we have heard, to say that I am by no means satisfied that the type of criticism which prevailed in the case of Morrison v. Ross-Taylor can be directed against the Regulation which is here the subject of criticism. It is unnecessary for us to decide that in this case, and I formally reserve my opinion."

It is clear therefore that, although Allan v. Howman 1918 JC 50, and Morrison v. Ross-Taylor were decided some years ago, they have very rarely been followed and have more than once been adversely criticised. Their ceasing to be authoritative removes an anomaly in this branch of the law of Scotland.

The application of these considerations to the present case means that the presence of words of general signification in the Regulation in question does not prevent the Regulation from being capable of creating an offence, and the complaint in question gives more than ample notice of what the offence in this particular case was alleged to be. The Sheriff-substitute was therefore well founded in repelling the objection to relevancy, and the first question falls to be answered in the affirmative. [His Lordship then went on to consider whether on the facts the Sheriff-substitute was entitled to convict.]

LORD JUSTICE-CLERK (Thomson).—By virtue of section 85 of the Road Traffic Act, 1930, the Minister of Transport may make regulations as to the conduct of, inter alias,conductors of public service vehicles when acting as such. Subsection (2) of that section provides that, if any person to whom any such regulations apply contravenes or fails to comply with any of the provisions of the regulations, he shall be liable to a fine.

The Public Service Vehicles (Conduct of Drivers, Conductors and Passengers) Regulations, 1936, which were made by the Minister of Transport in virtue of that section and which therefore have the force of an Act of Parliament, provide, inter alia, that a conductor, when acting as such, shall take all reasonable precautions to ensure the safety of passengers in or on or entering or alighting from his vehicle. The appellant, a conductress, was charged with failing to comply with this regulation. The objection which she took to the relevancy of the complaint was that it is not possible for a Scots prosecutor to frame a relevant complaint based on that regulation. In other words Parliament has stultified itself and, while appearing to create an offence, has failed to do so, as the offence cannot be translated into a relevant charge.

This proposition is on the face of it somewhat startling and would appear to accuse an omnipotent parliament of legislative ineptitude. The ineptitude lies, according to the argument, in the failure of Parliament to point out a standard against which the negligence of the conductress can be measured. As there is no touchstone, there can be no offence. The foundation of this attack on the relevancy is Allan v. Howman 1918 JC 50, which has been followed, not always with enthusiasm, in a number of cases. I am entirely in agreement with your Lordship's review of this trend of authority and with your conclusion that it should be overruled. I shall confine myself to a few observations on Allan v. Howman 1918 JC 50 as being the fons et origo malorum.

The attitude of the Court is succinctly put by Lord Johnston (at p. 53):

"It is for the Order which creates the offence to leave no dubiety as to what the offence is and not to leave it to the Judge who tries the case to determine on evidence, and to a large extent according to his opinion, in what the offence consists."

The Lord Justice-General said (at p. 53):

"I seek to throw no blame upon the prosecutor for having laid before the Court an irrelevant complaint. In the circumstances it would have been impossible for him to have done otherwise."

Lord Mackenzie also said (at p. 54):

"There are not, at present, materials from which the Procurator-fiscal could construct a relevant complaint…I cannot assent to the proposition that a man can be charged in a criminal Court on a complaint which merely tells him that he did something unreasonable."

No doubt in 1918 regulations of this kind were something of a novelty, but since then a good deal of water—some of it pretty muddy—has flowed under Parliamentary bridges and we are now habituated not only to regulations but to legislative enactments of all sorts couched in similar general terms. For myself—quite apart from the duty which rests on both prosecutors and Courts to do what Parliament tells them—I feel no particular anxiety that the liberty of the subject will be imperilled or fair trial impeded because an enactment made by Parliament or on Parliamentary authority says that a man must take adequate care or reasonable steps and so forth and leaves it to the Judge to determine on evidence in what the offence consists. The theory of Allan v. Howman 1918 JC 50 is that no measuring rod has been provided in advance. I see no reason why the measuring rod should not emerge at the trial. This is the only practical way to look at the matter. When a man is accused of doing something unreasonable or of failing to take adequate precautions or reasonable steps or the like, the accusation is made in regard to some particular sphere of human activity in which he is engaged and of the ordinary incidents of which he must be well aware. It may be in regard to his family, his factory, his farm, his driving of his motor car or similar activities. In some of these activities the reasonableness or adequacy of his conduct may be easily enough ascertained by the Judge. In others, the situation may be complicated and a good deal of investigation may be necessary. Where there is a complicated background, if the prosecutor does not provide material sufficient to enable the Judge to reach a proper conclusion, the case against the accused will fail. It is all a question of circumstances. But in neither class of case is there any impropriety or injustice in leaving the measuring rod to be sought at the trial. In the varied activities of modern life it would be impracticable to provide it in advance.

Once it is established that the ratio decidendi of Allan v. Howman 1918 JC 50 is unsound and that a statutory enactment does not necessarily lose its force by its failure to provide in advance a standard by which the conduct of the accused is to be measured, this stated case is plain sailing. As your Lordship has observed, there may be enactments so defectively worded that it is impossible to spell a relevant charge out of them. This particular regulation presents no such problem. There is, moreover, very full specification of the modus and indeed no question of relevancy in its secondary sense of lack of specification was raised. I wish, however, to reserve my opinion as to whether a complaint following literally the terms of a widely drawn and unspecific enactment might be successfully attacked on the ground of absence of fair notice, either as irrelevant in the strict sense of the word or as lacking in specification. On this aspect issues of some nicety might arise, the solution of which would turn on the precise terms of the enactment and the relative complaint.

LORD CARMONT .—I agree.

LORD PATRICK .—I agree.

LORD MACKINTOSH .—I agree.