Scottish Sheriff Court Decisions

In this case the charge against the accused is that:

On 22 January 2004 the accused appeared before Sheriff MacFadyen and tendered a plea to the competency and relevancy of the complaint. The sheriff adjourned the matter for debate on 12^th February 2004. For reasons that are not now material, the diet of debate had to be adjourned on a number of occasions and the complaint was eventually called before me on 18^th August 2004. The procurator fiscal appeared on his own behalf and the accused was represented by counsel. Having heard them, I repelled the plea to the competency and relevancy of the complaint, giving my reasons for doing so there and then in open court. Counsel sought leave to appeal against my decision, but I refused this since I considered that the primary submission for the accused which underpinned all his other submissions was more or less unstateable. The accused was then asked to plead to the charge against him, but declined to do so. I therefore directed that a plea of not guilty should be recorded and the case was adjourned for trial on 8^th October 2004 with an intermediate diet on 16^th September 2004.

I have now been asked by the accused to write a note in support of my decision. Since the matter is evidently of importance to him, and since it is in any event of some interest, I have agreed to do so.

The primary submission for the accused was that the imposition of tolls upon the residents of what was Inverness-shire (which included the Isle of Skye where the accused resides) had been prohibited by certain Royal Charters. In a letter dated 21^st January 2004 which he wrote to the procurator fiscal the accused indicated that the Charters which he had in mind had been granted by Alexander II in 1226 and James IV(sic) in 1587 respectively. But counsel indicated at the outset, as I understood him, that the accused was in fact founding on two Charters granted by William the Lion in 1180 and a Charter granted by James VI (not IV) in 1587. I did not understand counsel any longer to maintain that the Charter granted by Alexander II in 1226 was of assistance to the accused. The procurator fiscal explained that this had been lost but that it had been replicated in a Charter granted by James IV in 1497. It was explained that this too had been lost but that it had been recorded in the Register of the Great Seal. I was given a copy of the Charter granted by Alexander II in the original Latin together with a translation of it into English. It was not disputed that this Charter was granted to the Burgh of Dingwall. And it is plain that the prohibition in it against the collection of tolls applied only to the collection of tolls from the burgesses of Dingwall. This no doubt explains why counsel did not seek to rely upon this particular Charter.

The Charter granted in 1587 by James VI was also in favour of the Burgh of Dingwall. Despite this obvious drawback from the accused's point of view, counsel nonetheless relied upon this Charter in support of the accused's plea to the competency and relevancy of the complaint. He drew attention in particular to a passage in the opening, narrative section of the Charter where it is recorded that Alexander II "made, constituted, erected and created a Burgh of Dingwall in Ross a free royal burgh, constituting the burgesses dwelling therein free citizens and burgesses of the same, and gave and granted to the same all and each the privileges, liberties, and free customs which our Burgh of Inverness burgesses and inhabitants therein had and possessed". Counsel maintained, as I understood him, that the effect of this passage was to prohibit the collection of tolls from the inhabitants of Inverness, including the accused. In my opinion, this submission was plainly wrong. In the first place, as I have noted, the Charter of 1587 was granted in favour of the Burgh of Dingwall rather than the Burgh of Inverness. And in the second place, the passage upon which counsel founded appears in the narrative section of the Charter and not in the operative section which, in short, grants to the Provost, bailies, Council and burgesses of Dingwall and their successors the same freedom from tolls as was earlier narrated to have been granted to the burgesses and inhabitants of the Burgh of Inverness.

One of the Charters granted by William the Lion in 1180 to which counsel referred was granted in the first instance to one Geoffrey Blund, a burgess of Inverness, and all the other burgesses of Inverness. The Charter conferred upon them certain immunities which are not material for present purposes, and it is only further on in the Charter that provision is made for the granting of immunity from tolls to the burgesses of Moray. It was not suggested that the accused was a burgess of Moray and at the end of the day I did not understand counsel after all to found upon this particular Charter in support of his primary submission. It can therefore be safely ignored.

Counsel founded chiefly upon the other Charter ("the Inverness Charter") granted by William the Lion in 1180 to which he had referred. In particular, he founded upon a passage in the Charter which, in the original Latin, read as follows:

Counsel produced a translation into English of this passage by Deborah M Adlam who evidently graduated with a 1^st class honours degree in Classics from Edinburgh University in 1982. The translation reads as follows:

Counsel submitted that the accused, as a resident of the Isle of Skye, fell within the category of persons described as burghers of Inverness in this Charter and hence was entitled to the benefit of the prohibition against the collection of tolls contained in the passage just quoted. In support of this somewhat startling submission he referred to a publication entitled An Historical Atlas of Scotland c.400 - c.1600 (edited by Peter McNeill and Ranald Nicholson for the Atlas Committee of the Conference of Scottish Medievalists - 1975), and in particular page 180 upon which appears a map of the sheriffdoms of Scotland in 1455. The sheriffdom of Inverness is shown as incorporating the whole of what was, until the reorganisation of local government in Scotland in 1975, Inverness-shire together with Ross and Cromarty, Caithness, Sutherland, the Isle of Skye and the Western Isles. Apparently ignoring the fact that this map shows the sheriffdom of Inverness, and not simply the Burgh of Inverness, counsel submitted that the map demonstrated that the Isle of Skye had been part of Inverness in 1587, though not necessarily in 1180. At that time of course the Isle of Skye had been part of the Norse empire, but it became, said counsel, part of Scotland and of Inverness in 1266. On this last point, the procurator fiscal helpfully reminded me that the Isle of Skye and other Hebridean islands had been disputed territory until the treaty of 1098 between King Edgar of Scotland and Magnus Barefoot of Norway in terms of which the Western Isles (including the Isle of Skye), Kintyre and the Isle of Man had been acknowledged as possessions of the Norwegian Crown. This remained the position until the Battle of Largs in 1263 and the death of King Haakon of Norway. In the subsequent Treaty of Perth of 1266 the Isle of Skye had become the property of the Scottish Crown.

At the hearing on 18^th August 2004 the procurator fiscal argued that the prohibition against the collection of tolls in the Inverness Charter did not apply to the accused for three reasons: (1) he was not a burgher, or more properly a burgess, of Inverness, (2) the prohibition applied only against the collection of tolls on cattle belonging to the feudal superior of the burgesses of Inverness, and (3) the prohibition did not in any event extend to the Isle of Skye which was not part of the Scottish Kingdom in 1180. In relation to the second reason, the procurator fiscal suggested that in the Latin phrase de eorum dominicis catallis the adjective dominicus meant "belonging to a lord" and that the noun catallus was a misprint for caballus meaning "a packhorse".

For present purposes I think that I need only record that at the time I was by no means convinced that the procurator fiscal was correct about his second and third reasons. But I was quite satisfied that he was correct in saying that the accused did not qualify as a burgher or burgess of Inverness, and it was for this reason that I repelled his plea to the competency and relevancy of the complaint.

The accused's request that I should prepare this note has afforded me the pretext to carry out some research of my own into the terms of the Inverness Charter as a whole and, having done so, I am more than ever convinced that the prohibition against the collection of tolls in the Inverness Charter could never at any time have been read as extending to the accused in his capacity (which was the only one claimed by him) as a resident of the Isle of Skye. My researches so far have not uncovered a complete translation of the whole of the Charter, but with the assistance of the publications which I have recorded at the end of this note I have been able to prepare my own translation. I do not pretend that it would merit a 1^st class honours degree, but I am confident that it reflects with sufficient accuracy for present purposes the meaning and effect of the Inverness Charter.

In the original Latin the Charter read as follows:

My translation of the Charter is as follows:

Some of the words used in the Charter appear not to have featured in classical Latin, for example stalagarius (a market stall-holder), wannagium (land under cultivation) and vicecomitatus (shire or sheriffdom - see Erskine's Institute of the Law of Scotland I.iv.1). Of the words highlighted by the procurator fiscal, it turns out that catallis is not a misprint, the noun catallum having meant "chattel, cattle or moveable property" in medieval Latin. Likewise, the adjective dominicus had various meanings including "belonging to a demesne or household" - and here it is interesting to notice that in the translation of the Charter of Alexander II in 1226 which was produced the expression de dominicis catallis suis is translated as "on their own proper goods".

In my opinion it is abundantly clear when the Inverness Charter is read as a whole that the prohibition therein against the collection of tolls applied only to the collection of tolls from the burgesses of Inverness themselves, and further that these burgesses formed a particular class of persons quite distinct from persons resident in the shire or sheriffdom of Inverness, or indeed elsewhere in Scotland. It was implicit in counsel's submissions that the accused accepted that the onus of proving that he qualified as a burgess of Inverness lay upon him, and this I think must be correct in light of paragraph 16 of schedule 3 to the Criminal Procedure (Scotland) Act 1995 which provides: "Where, in relation to an offence created by or under an enactment any exception, exemption, proviso, excuse, or qualification, is expressed to have effect whether by the same or any other enactment, the exception, exemption, proviso, excuse or qualification need not be specified or negatived in the indictment or complaint, and the prosecution is not required to prove it, but the accused may do so". In this context the offence with which the accused has been charged is created under section 38(1) of the New Roads and Street Works Act 1991 and the exception, exemption or qualification, as the accused would have it, is to be found in the Inverness Charter.

In the course of his submissions counsel did not refer at all to the manner in which, at any stage during its history, someone might have become a burgess of the Burgh of Inverness. A burgess was commonly a merchant or craftsman belonging to a guild or trade incorporation (for example, of weavers or cordiners), and the procurator fiscal reminded me that, as evidence of his status, a burgess would normally have been in possession of a burgess ticket issued to him by the appropriate officials of the burgh (and this the accused did not claim to possess). The procurator fiscal also mentioned in this context that there are now no surviving burgesses of Dingwall and that none had been appointed since the reorganisation of local government in Scotland in 1975. Whether, since 1975, anyone has been, or may be, admitted as a burgess of Inverness I am unable at present to say.

Everything that I have said so far of course begs the question whether, even if the accused is qualified to describe himself as a burgess of Inverness, the prohibition in the Inverness Charter against the collection of tolls remains valid and enforceable today. I heard an interesting discussion on this question and on the related question whether, to what extent and in what circumstances the Inverness Charter (or indeed any other Royal Charter or Act of Parliament) might be said to have been repealed expressly or by implication by subsequent legislation or to have fallen into desuetude. Reference was made to sections 27 and 36 of the New Roads and Street Works Act 1991, Gloag and Henderson: The Law of Scotland (11^th edition) at paragraphs 2.11 and 2.13, Lang v Munro 1892 19R(J) 53, Black-Clawson International Limited v Papierwerke Waldhof-Aschaffenburg A.G. 1975 AC 591, Perry v West 2000 SLT 363, Friel v Initial Contract Services Limited 1994 SLT 1216, Norman Macrae - The Romance of a Royal Burgh: Dingwall's Story of a Thousand Years (1923) and Stair's Institutions of the Law of Scotland I.16. In short, counsel maintained that the prohibition in the Inverness Charter remained valid and enforceable while the procurator fiscal, not surprisingly, submitted that it was not. In view of what I have already said about the primary submission for the accused, I do not think that I need to express any opinion on these questions.

Dingwall

27 August 2004

R E Latham: Revised Medieval Latin Word-List (Oxford University Press 1965)

Regesta Regum Scottorum: The Acts of William I edited by G W S Barrow (Edinburgh University Press 1971) pages 261/2

A Gerald Pollitt: Historic Inverness (The Melven Press 1981) pages 11/12 and 209

James Suter: Memorabilia of Inverness (Inverness: Donald Macdonald) pages 13/14

From the Story of Inverness-shire (Lang Syne Publishers Limited 1991) page 19