APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
Appeal No: 1486/98
OPINION OF THE COURT
delivered by THE LORD JUSTICE GENERAL
APPEAL TO COMPETENCY AND RELEVANCY
ALAN MICHAEL SHIELDS
PROCURATOR FISCAL, Dumbarton
Appellant: Scott; John McGovern & Co.
Respondent: Bell, Q.C., A.D.; Crown Agent
11 August 1999
In this appeal under Section 174(1) of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act") the appellant is Alan Shields who was charged on summary complaint with breach of the peace and a contravention of Section 41(1)(a) of the Police (Scotland) Act 1967. In each of the charges the locus was Helensburgh Railway Station. At the hearing of the appeal parties were agreed, first, that the procurator fiscal who had raised the complaint was the procurator fiscal for the area which includes Helensburgh and, secondly, that at all stages the complaint had been brought before justices of the district court which has jurisdiction over offences committed in Helensburgh. It was equally a matter of agreement that in the complaint the prosecutor cited the appellant to appear at the District Court of Argyll and Bute at Dumbarton. And indeed, when the case first called on 19 February 1997, it called at Dumbarton and the appellant pled not guilty. The trial diet was fixed for 25 June 1997 but on that date it was adjourned until 19 November when the trial diet was once more adjourned, this time until 1 April 1998. On 1 April 1998 the justice sat at Helensburgh. The agent for the appellant took a plea to the competency of the proceedings and on 22 April 1998 the justice repelled that plea. The appellant appealed to this court.
The plea which the justice repelled was to the effect that the proceedings were incompetent because the jurisdiction of the Argyll and Bute District Court had been transferred to Helensburgh from Dumbarton without the approval of one or more of the Justices. At an early stage in the hearing of the appeal counsel for the appellant acknowledged that this particular plea was misconceived, but the discussion during the hearing brought out another point which was advanced as a matter of fundamental nullity.
As we have explained, the offence was committed in Helensburgh in the local government area of Argyll and Bute: Local Government etc. (Scotland) Act 1994 ("the 1994 Act"), Section 1(2) and (4) and Part I of Schedule 1. The council for the area is the Argyll and Bute Council (Section 2). All the hearings in the case, however, apart from the hearings on 1 and 22 April 1998, took place in Dumbarton, which is in the local government area which was originally known as Dumbarton and Clydebank: Part I of Schedule 1 to the 1994 Act. Subsequently, by a resolution of 29 November 1995 under Section 23(1) of the Local Government (Scotland) Act 1973 as amended by Section 180(1) of, and Schedule 13 to, the 1994 Act, the council changed the name of the area to "West Dunbartonshire". The council for the area is therefore the West Dunbartonshire Council (Section 2).
Section 6(1) of the 1995 Act provides:
"Each commission area shall be the district of a district court, and the places at which a district court sits and, subject to section 8 of this Act, the days and times when it sits at any given place, shall be determined by the local authority; and in determining where and when a district court should sit, the local authority shall have regard to the desirability of minimising the expense and inconvenience occasioned to those directly involved, whether as parties or witnesses, in the proceedings before the court."
Section 6(6) says that "commission area" means the area of a local authority, i.e. a council constituted under section 2 of the 1994 Act. It follows that the area of the Argyll and Bute Council is the district of the Argyll and Bute District Court and the area of the West Dunbartonshire Council is the district of the West Dunbartonshire District Court.
The position therefore is that, in the hearings before 1 April 1998, the justice of the Argyll and Bute District Court sat in Dumbarton, which is not in the district of that court but is, rather, in the district of the West Dunbartonshire District Court. The sharp question which came to be focused in the appeal was whether, on the various occasions before 1 April 1998, it had been competent for the justice to sit and conduct those proceedings in Dumbarton outside the district of the Argyll and Bute District Court.
In the absence of direct authority on the point it is appropriate to look for guidance in comparable areas of our law. Erskine, Institute 1.2.3 says:
"Doubtless the supreme power is, in the general case, the fountain of jurisdiction; for he who has the right of enacting laws ought also to have the right of erecting courts, and appointing magistrates for applying those laws to particular cases; L. unic. ad leg. Jul. de amb. pr. But by the Gothic or feudal plan, which prevailed almost universally in Europe upon the decline of the Roman Empire, kings, though they had not the sole right of legislation, became the supreme feudal lords of all the lands within their dominions, and had also the executive power of the state committed to them. Under these two characters our sovereigns were vested with the sole right of jurisdiction; in consequence of which they communicated judicial powers to others, sometimes along with a grant of lands, and sometimes without it, in such degree and to such extent as they thought expedient. The tract of ground or district within which a judge thus constituted has a right of jurisdiction over the persons and estates of the inhabitants is called his territory. As his whole powers are confined to the precise limits of that district, every act of jurisdiction exercised by him beyond his territory is null; not only his judicial proceedings before, or at giving judgment, but those acts by which his sentence is to be made effectual; L. 20, de jurisd. Thus an arrestment executed without the territory of the judge who granted the warrant was declared null, though he in whose hands the arrestment was used had his residence within the territory: Millar, 5 Dec. 1671, M. 7293."
The two passages quoted by Erskine are D.48.14.1 pr., Modestinus 2 de poenis, and D.2.1.20, Paul 1 ad edictum.
Since the powers of judges were thus conceived as being confined to the territory within which they had jurisdiction, it came to be recognised that Sheriffs - the equivalent of Sheriffs Principal today - could not sign interlocutors or do other acts outside their sheriffdoms. Since most of the Sheriffs lived far from their sheriffdoms and visited them only once or twice a year, this was a potential cause of difficulty. In practice the difficulty was circumvented by the device of having the interlocutors subscribed by the resident Sheriff-substitute "after advising with the Sheriff". See McGlashan, Sheriff Court Practice (2nd edition, 1842), paragraph 3.15. The need for resort to this device was removed when Section 47 of the Sheriff Courts (Scotland) Act 1853 gave Sheriffs the power to sign interlocutors, judgments and decrees when furth of their sheriffdoms.
The authorities which we have mentioned deal with civil as opposed to criminal law. It is plain, however, that a somewhat similar difficulty must have been felt in the case of summary criminal proceedings, for Parliament passed the Summary Procedure Act 1864 and Section 13 of that Act provided:
"Any sheriff, magistrate, or justice, though out of his county or jurisdiction, may sign any conviction, judgment, warrant, or interlocutor under this Act, provided the evidence and every other proceeding necessary to support such conviction, judgment, warrant, or interlocutor shall have been had before him when within his county or jurisdiction."
The significance of this section for present purposes is not so much the power which it grants as the narrow scope of that power. The sheriff, magistrate or justice can sign papers when out of his county or jurisdiction but all the underlying stages in procedure must have taken place before him when he was within his county or jurisdiction. This shows that Parliament was not innovating more generally on the previous law: the basic position remained that the judge had power to act only within the limits of the area for which he was appointed.
Section 13 of the 1864 Act was repealed along with the rest of the Act by Section 3 of, and Schedule A to, the Summary Jurisdiction (Scotland) Act 1908. But Section 7 of the 1908 Act provided inter alia:
"The jurisdiction and powers of all courts of summary criminal jurisdiction, except in so far as the same may be altered or modified by this or any future Act, shall remain as at the commencement of this Act...."
This provision was repeated as Section 3 of the Summary Jurisdiction (Scotland) Act 1954 and as Section 284 of the Criminal Procedure (Scotland) Act 1975 before reaching its present embodiment as Sections 5(1) and 7(1) of the 1995 Act. The effect of these provisions was, and is, in our view to carry over the general law on the jurisdiction of summary courts except in so far as it has been from time to time modified by statute.
Applying that approach to the present case, we consider that the general rule is that a justice, when conducting the proceedings of his or her district court, must do so within the district of the court. Parliament qualified that general principle in Section 13 of the 1864 Act and could do so again, of course. The Advocate Depute argued that Parliament had indeed done so in Section 6(1) of the 1995 Act by saying that the local authority can determine where and when a district court should sit. He argued that this power was not circumscribed, save only by the need to have regard to the desirability of minimising the expense and inconvenience occasioned to those directly involved in the proceedings. In the exercise of this power a local authority could therefore determine that, where appropriate, the district court should sit outside the local authority area and hence outside the court's district. That was what had happened in this case: when the district court building at Helensburgh required to be renovated, the local authority had determined that the court should sit temporarily in Dumbarton, in the neighbouring local authority area.
In our view, Section 6(1) gives the local authority no such power. The subsection begins by defining the district of a district court by reference to the commission area, which is the local authority area. That must be regarded as the ruling provision. Obviously, questions could arise as to how the seat of the court should be fixed. The natural meaning of the remainder of the subsection is that it answers such questions by giving to the local authority - which has the duty to provide suitable and sufficient premises and facilities for the purposes of the court (Section 8(1) of the District Courts (Scotland) Act 1975) - the power to determine when and where the court is to sit within its district. This interpretation is consistent with the essential idea of district courts. As their very name implies, they are intended to be local courts and one would therefore expect that they would have to sit in the district which they serve. Moreover, if the scheme of the 1994 Act is considered, it would be wholly surprising if one local authority were empowered, by virtue of Section 6(1) of the 1995 Act, to provide one of its services, the provision of a district court, in the area of another local authority. Any such power would tend to cut across the power actually given by Section 58 of the 1994 Act for local authorities to enter into agreements under which one authority will carry out a particular activity or service for another. Similarly, Section 23 of the Education (Scotland) Act 1980, as amended by Section 32 of the 1994 Act, makes specific provision for a local authority to have its pupils educated in a school or educational establishment managed by another local authority.
Since the Advocate Depute very frankly conceded that he could point to nothing other than Section 6(1) of the 1995 Act as support for the Crown's position that it had been competent for the justices to sit outside their district, we are satisfied that they had no such power. It follows that citing the appellant to appear before the district court when it was supposedly sitting in Dumbarton was a nullity and the purported first diet was also a nullity. For these reasons the whole proceedings must be regarded as tainted by a fundamental nullity. On this basis we allow the appeal.
The point taken by the appellant is highly technical but it is also fundamental; since it has emerged in the course of the proceedings, we must give effect to it. As Storie v. Friel 1993 S.C.C.R. 955 demonstrates, it should not be assumed that the court would take the same attitude where an accused person had acquiesced in any conviction or penalty.