Scottish High Court of Justiciary Decisons

ANDREW WILLIAM McCALLUM v. PROCURATOR FISCAL, HAMILTON [1999] ScotHC 193 (23rd July, 1999)

The appellant appeals against his conviction on 4 September 1998 of an offence against byelaw 3(1) of the South Lanarkshire Council (Prohibition of Consumption of Alcohol in Designated Places)(Various Areas) Byelaws 1996. The charge of which he was convicted was that on 27 September 1997 he consumed alcoholic liquor, namely Buckfast wine, in Calderwood Road, East Kilbride. Calderwood Road is a designated area for the purposes of the byelaws.

The simple facts found by the magistrate were that two police officers observed the appellant on Calderwood Road and saw him drinking from a bottle. When the appellant saw the police, he threw the bottle into a nearby hedge. The bottle was recovered from the hedge but contained only a small amount of liquid, which was insufficient for analysis. The label on the bottle indicated that the contents had been Buckfast Tonic Wine with a 15% alcohol content. The magistrate convicted the appellant in reliance on a presumption created by byelaw 4(3) to the effect that the contents of the bottle should be presumed to conform to the description on the container. The only question raised on appeal was whether the byelaws were intra vires of the South Lanarkshire Council, insofar as the presumption was concerned.

The byelaws were made under section 201 of the Local Government (Scotland) Act 1973 which provides, inter alia,

There is provision in the remainder of section 201 and in sections 202 and 203 for the confirmation of byelaws by the Secretary of State and for the procedure for making byelaws and for offences under them. The byelaws in question were made in 1996. They define the areas to which they apply and provide that, subject to certain exceptions, a person consuming alcohol in a designated place shall be guilty of an offence and liable to summary conviction. Byelaw 4, which is headed "Presumptions" provides,

The submissions which we heard were relatively brief. For the appellant, it was submitted that insofar as the byelaws interfered with the general law of evidence by creating a presumption, they were not within the powers conferred on the local authority. Parliament had created certain presumptions about the contents of containers for the purposes of the licensing laws. Thus, section 127 of the Licensing (Scotland) Act 1976 provided that any liquid found in a container, whether sealed or open, in licensed premises should be presumed to conform to the description of the liquid on the container. Again section 55 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 amended section 127 of the 1976 Act by adding a presumption that an open container which was found to contain no liquid or insufficient liquid for analysis, but which was sealed when sold or supplied to a person, should be presumed to have contained, at the time of the sale or supply, liquid which conformed to the description of the liquid on the container. Parliament therefore had chosen to introduce carefully limited presumptions for the purposes of the Licensing Acts and the local authority had gone far beyond those presumptions in creating the general presumption under byelaw 4(3). In doing so they had acted unreasonably. For the respondent, it was submitted simply that the byelaw was evidently within the very general power conferred by section 201.

We were not referred to any authorities in connection with the circumstances in which byelaws may be held ultra vires. We are aware, however, that in cases such as Aldred v Miller 1925 J.C. 21 it has been held that there is a strong presumption in favour of the validity of a byelaw passed by a local authority, particularly if it has been confirmed, in accordance with the provisions of the statute authorising it, by some public official such as the Secretary of State for Scotland or the sheriff. The power conferred by section 201 is a wide and general one. It is evident from the statutory provisions to which reference was made that there is nothing in principle to be said against the making of a presumption as to the contents of containers which contain or may have contained alcoholic liquor, according to the description on their exterior. No evidence and no argument was placed before either the magistrate or us to support any suggestion that the byelaw presumption had an unreasonable or excessive effect. In these circumstances, it seems to us that on the material and the arguments before us we have no reason to doubt the validity of the presumption under byelaw 4. In these circumstances we shall dismiss this appeal.