Scottish High Court of Justiciary Decisons

PAUL PATRICK THOMAS MONTAGUE v. PROCURATOR FISCAL, GLASGOW [1999] ScotHC 137 (28th May, 1999)

The appellant was convicted of a contravention of section 2(1) of the City of Glasgow District Council Byelaws Prohibiting Consumption of Alcoholic Liquor in Designated Places 1996. The circumstances, briefly, were that two constables on mobile patrol were directed by a member of the public towards an area to the rear of the Pollock Leisure Pool, Cowglen Road, Glasgow. On arrival there they saw a number of youths, including the appellant, who was seen to be drinking from a can of lager. At the close of the Crown case a submission was made on behalf of the appellant that there was no case to answer. The justice tells us that he understood the submission to be that there was a lack of corroborative evidence and he immediately indicated to the defence agent that he would reject the submission. It then became clear, however, that the defence agent wished to address the justice on a different matter and the submission then proceeded. On behalf of the appellant in this court Mr. Shead submitted that the justice's immediate rejection of the initial submission indicated that he had clearly made up his mind and that therefore justice was not seen to be done. However, we are quite satisfied that the justice's rejection was based on a complete misapprehension and there is no question as to him having made up his mind on the issue which was subsequently put before him.

The main submission was that the copy Byelaws produced by the procurator fiscal had not been properly authenticated, in that the plan annexed to the Byelaws had not been signed as relative thereto. Furthermore, it was impossible to read the street names on the plan and consequently the area covered by the Byelaws could not be properly determined. It was therefore submitted that the Crown had failed to prove that the locus of this offence was in fact within the designated areas. The justice rejected this submission which was repeated before us by Mr. Shead.

In the Byelaws which are before us "designated place" is defined as meaning "any place to which the public have access within the areas specified in Schedule 1 to these Byelaws and shown outlined in red on the plan annexed and signed as relative hereto". Schedule 1 is in the following terms:

There are then certain minor exceptions relating to peripheral areas. The plan which is produced is photocopied on a sheet of A4 paper and contains in general the whole of the City of Glasgow. Quite obviously, therefore, it is not in any way a detailed map in view of the very small scale. The photocopy is defective in that three small protrusions on the periphery of the City boundaries have been cut off by the photocopier and the photocopy does not contain the signature of the proper officer. However, there is a separate certificate from the proper officer that the Byelaws consisting of four pages and one plan are certified as a true copy. There is no reason to doubt that it is a true copy of what is, for present purposes, the relevant part of the plan. Accordingly, while the plan produced cannot be said to be entirely satisfactory, we are satisfied that the relevant features are contained within the plan and that accordingly the conviction cannot be attacked on the basis that the plan is defective.

The question, however, remains as to whether the plan is sufficient to fulfil the purpose for which it is intended. Clearly it is intended to demonstrate to any person having an interest to find out whether particular parts of Glasgow are contained within the boundary. In our view it cannot be argued that the plan should have contained the names of every single street, road, lane, path or other public place within the City of Glasgow. Indeed there may well be areas of wasteground, for example, which would not have any name at all and which would therefore not be named on any form of plan. In our view what is required is that there should be a plan to which witnesses can refer and on which they can point out the locus of any particular offence to show that that locus does indeed fall within the designated boundary as shown on the plan.

The question then arises as to what was done in the present case. The justice has found as a fact that the area to the rear of the Pollock Leisure Pool fell within the boundaries of the City of Glasgow as defined in the Local Government (Scotland) Act and as described in Schedule 1 of the Byelaws and accordingly was a designated place within the meaning of the Byelaws. In the justice's narrative of the evidence which was led before him, and in particular the evidence of the two police officers, he says:

Whatever may the shortcomings of the plan produced it is at least capable of verifying that the Pollock area is indeed within the delineated boundary of the City of Glasgow. It is not clear from the stated case if the constables were in fact referred to the plan but what is clear is that the plan was available and could have been used as a check on their evidence. We were referred to Donnelly v. Carmichael 1995 S.C.C.R. 737. That case involved the Motherwell District Council Byelaws which specified certain areas within Motherwell "shown delineated in black and edged in red on the plan marked 'area referred to in local By-law'". The Byelaws which were produced in the course of the trial, however, did not contain the plan referred to. The court held that the failure to lodge the plan was fatal as it was impossible to ascertain by reference to the plan which was an integral part of the Byelaws whether a particular area fell within the designated areas. It should also be noted that in that case it was not the whole of Motherwell that was included in the designated areas but only specified parts thereof. What was said by the court was

The distinction in the present case, however, is that the plan was lodged and available and the evidence of the police officers could be verified by reference to the plan. We are satisfied that provided the plan is produced and is capable of verifying that the locus falls within the designated area, the fact that the locus so falls is sufficiently proved by evidence of police officers to that effect. If there is any challenge to that fact the witnesses can be referred to the plan and required to point out where the locus is on the plan, but there was no such challenge in the present case. In these circumstances we are satisfied that, while police officers cannot give evidence that a particular locus is within a designated area when there is no plan produced against which that evidence can be checked, such evidence is competent where the plan has been produced and is capable of being used to verify the evidence given by the police officers. For these reasons we are satisfied that there was no validity in the submission made to the justice or made to this court and we shall accordingly answer both questions in the affirmative.