41.

HIGH COURT OF JUSTICIARY.

(The Lord Justice-Clerk, Lords Hunter and Anderson.)

19th January 1924.

Paterson v. Macpherson.

Justiciary cases-Bill of suspension-Competency Complainers craving the suspension of a warrant granted under the Betting Acts to enter their premises and there to seize certain documents-Averment that certain letters had been seized and opened-Amendment presented by the complainers craving alternatively (1) that the Court should suspend the seizure and retention by the respondent of seven letters alleged to have been opened illegally by a police officer acting under the warrant granted by the magistrate, and (2) that the Court should suspend the use of these "letters or their contents in any manner of way in, for, or

for the purpose of any proceedings in the said

Police Court or the Court of competent jurisdiction "

-Undertaking by prosecutor that he would depart

from the charge against the complainers if the magistrate in the course of trial should decide that the letters and their contents had been seized illegally -Held that the bill of suspension, if not absolutely incompetent, was at least highly undesirable, and that in view of the prosecutor's undertaking it was unnecessary-Bill of suspension therefore refused.

Bill of Suspension.

Christopher Cairns Paterson and Thomas Graham Paterson, both residing at 3 Newton Street, Edinburgh, on 8th January 1924 presented a bill of suspension to the High Court of Justiciary against Charles Angus Macpherson, Prosecutor for the Public Interest in the Police Court of Edinburgh,

for suspension of a warrant obtained by the respondent, from and granted by John Couston, Esq., J.P., Judge of Police, in the Police Court of Edinburgh, on 3rd November 1923, and all that followed thereon, in respect that what followed on said warrant was illegal, wrongous, and unjust, as will appear to your Lordships from the annexed statement of facts and plea in law.

The complainers averred :

COND. 1. On 3rd November 1923 a petition was presented in the Police Court of Edinburgh at the instance of the respondent, who is the Prosecutor for the Public Interest in the said Court. The said petition set forth that George Lumsden, a constable in the Edinburgh City Police, was prepared to make oath, as authorised by the 11th section of the Betting Act, 1853, that there was reason to suspect that the dwelling-house at 3 Newton Street, Edinburgh, occupied by the complainer the said Christopher Paterson, was kept or used as a betting-house; and that the said prosecutor was desirous of obtaining a special warrant in terms of the said section of the said Act. The said petition concluded with a crave that the oath of the said George Lumsden might be

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taken to the effect foresaid, and thereafter a special HIGH warrant granted authorising him to enter the said COURT house at 3 Newton Street, and if necessary to use OF JUSTIforce for making such entry, " and to seize all lists, cards, or other documents relating to racing or betting Paterson found in said premises." On the same day the said v. MacGeorge Lumsden deponed upon oath to the statements pherson. contained in the said petition, and the said judge of police granted the warrant as craved.

COND. 2. The said warrant was executed on the said 3rd November 1923, at or about 5 P.M., and there were found in the said house, at 3 Newton Street, twenty-six letters addressed to the complainers, or one or other of them, which had been delivered to the first-named complainer by the postman shortly before the search was made. All of the said letters

were

closed. When the first-named complainer entered his house he handed the said letters unopened to his wife, who placed them on the mantelshelf of the kitchen, and then sat down to tea along with his family.

COND. 3. The said George Lumsden was the officer in charge of the search operations. He was accompanied by two other members of the Edinburgh City

Police. On their arrival one or other of them knocked on the door and they were immediately admitted. They commenced their search with the kitchen, and the said George Lumsden went to the mantelshelf, took possession of the said twenty-six letters, and handed them to one of his assistants. After the said constables had completed the search of the rest of the house, the said George Lumsden produced certain football betting coupons and postal orders which he had removed from one or more of the said closed envelopes of which he had taken possession. It is believed and averred that the said George Lumsden, or those who were acting with him in the search, did illegally, wrongously, and unwarrantably open seven of the said twenty-six letters already referred to, and take illegal possession thereof and of their contents and convey them to the respondent. Although diligent search was made by the said George Lumsden and his associates nothing was found in the said house falling under said warrant.

COND. 4. Following upon said illegal, wrongous, and unwarranted seizing, opening, and retaining said letters, the respondent served a complaint upon the said Christopher Cairns Paterson and Thomas Graham Paterson, charging them with offences in contravention of the said Betting Act, 1853, sections 1 and 3, as extended by the Betting Act, 1874.

COND. 5. The complainers have reason to believe that the respondent intends to produce the said seven letters and their contents, and to use the same as evidence at the trial against the complainers, and this bill has accordingly been rendered necessary.

The respondent averred :

1. Admitted under reference to the petition and procedure following thereon.

2. Admitted that the said warrant was executed on 3rd November 1923, that a number of letters received through the post and addressed to the complainers, or one or other of them, were found in the said house. Believed to be true that the said letters had been delivered to the first-named complainer by the postman shortly before the search

January 19, 1924.

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HIGH was made. Quoad ultra denied. Explained that the COURT search was commenced by the police about 5.30P.M., OF JUSTI- and that of the letters found in the house seven were

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January 19,

1924.

found opened as hereinafter stated.

Paterson 3. Admitted that Sergeant George Lumsden was v. Mac- in charge of the search operations and was accompherson. panied by two other members of the Edinburgh City Police. Admitted that the police on presenting themselves were admitted to the said house and commenced their search with the kitchen. Quoad ultra denied. Explained that the said letters were found in the kitchen, and of these seven were found opened lying apart from the others. These seven

letters were taken possession of by Sergeant George

Lumsden and their contents examined by him. Thereafter he retained possession of the said seven letters and their contents and proceeded to search the other rooms of the house. No other incriminating matter was found in the house, and on completing the search he allowed the first-named complainer to take a note of the senders of the said seven letters which he took away and delivered with their contents to the respondent.

4. Admitted that the respondent served upon the

complainers a complaint which is referred to for its

terms. Quoad ultra denied.

5. Admitted that in so far as the said letters and their contents have been legally seized the complainer intends to use them in evidence against the complainers. If the magistrate in the course of the trial decides that the said letters and their contents have

been seized illegally he will depart from the charge against the complainers.

The complainers pleaded:

"The said seven letters having been illegally seized, opened, and taken possession of by the respondent under the warrant libelled, the said warrant should be suspended simpliciter, with expenses."

The respondent pleaded : "The respondent submits that the prayer of the bill should be refused in respect

(1) That the bill of suspension is incompetent, aut separatim is incompetent at this stage;.

(2) That the complainers' averments are irrelevant to support the prayer of the

bill; and

(3) That the complainers' averments, so far as material, are unfounded in fact."

The complainers craved leave of the Court to amend the prayer of the petition by adding after the crave "to suspend the said warrant simpliciter" the following words:

Or alternatively to suspend the seizure and retention by the respondent of the seven letters or postal packets addressed to the complainers or one or other of them and the contents thereof, removed by the police on 3rd November 1923 from the dwellinghouse at 3 Newton Street, Edinburgh, occupied by the complainers, and to suspend the use by the respondent or others on his behalf of said letters or their contents in any manner of way in, for, or for the purpose of any proceedings in the said Police Court or other

Court of competent jurisdiction, at the instance of the respondent against the complainers or either of them.

The case was heard before the High Court of Justiciary on 19th January 1924.

Argued for Complainers: The original warrant was not bad; but the procedure which had followed thereon was illegal, and the bill of suspension should be granted. The letters obtained would not be admissible as evidence (M'Lauchlan v. Renton, 1911 S.C. (J.) 12; 6 Adam 378; Rattray v. Rattray, 1897, 25 R. 315; Hodgson v. Macpherson, 1913 S.C. (J.) 68; 7 Adam 118; Crook v. Duncan, 2 Adam 658; 1 F. (J.) 50). The fact that the warrant had been executed did not preclude suspension (Bell v. Black, 1865, 5 Irvine 57).

Argued for Respondent: The bill of suspension should be refused. It was impossible to ask the Court ab ante to say that certain evidence was illegal. Counsel referred to Macdonald, Criminal Law of Scotland, 3rd ed., p. 533; H.M. Advocate v. Graham, 1876, 3 Couper 217; Burns v. Hart and Young, 1856, 2 Irvine 571; Priteca V. H.M. Advocate, 1906, 5 Adam 79; 8 F. (J.) 66; Hodgson v. Macpherson (cit.), per Lord Kinnear.

On 19th January 1924 the Court refused the bill of suspension.

The Lord Justice-Clerk (Alness). - This is a bill of suspension brought by two persons named Paterson against the Public Prosecutor in the City of Edinburgh. A warrant was granted under the Betting Acts, in virtue of which the police visited and searched the complainers' house. The terms of the warrant were to enter the premises "and to seize all lists, cards, or other documents relating to racing or betting found in said premises."

Under the warrant certain letters were seized in the house of the complainers by the police. The complainers say that these letters, when seized, were closed, and that the police improperly opened them. The respondent, on the other hand, says that the letters were not opened by the police, but were open when they were seized by them. It is admitted, as I understand, by the complainers that, if the letters were open when they were seized, they were competently seized, and this bill must fail. It is also admitted, as I understand, by the respondent that, if the letters were seized and opened by the police, that was improper, and, in point of fact, the prosecutor says that, if that is proved, he will not ask for a conviction.

What then is our duty in the matter ? What is involved in the request which is made to us by the complainers? We are invited by them, so to speak, to switch this case off at this stage from the Police Court which would otherwise be seised with it. If the question of the competency of what was done can be thrashed out in the Police Court, it is difficult to see that we are called upon at this stage to intervene, because, if the evidence were wrongly admitted, if the question were wrongly decided by the magistrate, I have no doubt at all myself that an ample remedy would subsequently be open to the complainers. If, on the other hand, it is clear that the question could not be raised and decided in the Police Court, our intervention might, in such circumstances, be deemed to be demanded. I am not satisfied that Mr Paton has made out any such proposition in law; but in view of the subsequent undertaking of the prosecutor, to which I shall refer in a moment, that question appears to me to be of no materiality or at any rate of small materiality. What is perfectly plain is that it is highly undesirable that this Court should deal with the case at this stage. It is awkward that the Court should have to consider this case without even having competently before it the complaint in which the obtaining of this warrant was an incidental step. Further, as Lord Hunter pointed out in the course of the discussion, if we sustain this bill, this Court might equally well be invited, merely because of an anticipation that incompetent evidence might be led at a forthcoming trial, by a similar application to prevent that possibility from being realised. If that were the law, I have no doubt that this Court would be flooded with applications of that kind. No precedent was cited for such an application, and I do not believe that any precedent exists. Therefore, it would appear prima facie that the application, if not incompetent, is one which it is highly undesirable that this Court at this stage should entertain.

But I think the undertaking which the prosecutor has given makes it quite clear that this bill is, in any view, unnecessary. I cannot for myself see that if, apart from the undertaking, the magistrate were satisfied on the facts that the letters had been seized closed and had been opened by the police, there is anything to restrain him from giving effect to that objection, and from holding that the execution of the warrant was improper and the evidence incompetent. But the attitude of the public prosecutor is that he will not put Mr Paton or his clients to the trouble of maintaining that view before the magistrate. He says and he has given an undertaking at the bar as well as in his pleadings-that "if the magistrate in the course of the trial decides that the said letters and their contents have been seized illegally, he will depart from the charge against the complainers."

In these circumstances, it appears to me that this bill, if not absolutely incompetent (for

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which view there is a good deal to be said), HIGH is at least highly undesirable, and that, in any event, in view of the prosecutor's undertaking, it is entirely unnecessary. I therefore respectfully suggest to your Lordships that the bill Paterson of suspension should be refused.

v. Macpherson.

Lord Hunter.-I agree. The present applica- January 19, tion is not only an unusual but, as I think, an anomalous application. As originally presented to this Court, the suspenders craved the suspension of a warrant granted under the Betting Acts to enter the suspenders' premises and there seize certain documents of a character referred to in the terms of the Act. That was a competent enough application; but there was no averment to support the application, and an amendment was presented by the suspenders, which is to the effect that the Court should suspend the seizure and retention by the respondent of the seven letters that are alleged to have been opened illegally by a police officer acting under warrant granted by the magistrate. So far as I am concerned, I have the gravest doubt whether an application of that sort can competently be presented to the Justiciary Court.

The further terms of the application are of rather an extraordinary character and have been commented on and rightly commented on-by Mr Keith. They are to the effect that the Court should proceed then to say that no use is to be made of these "letters or their contents in any manner of way in, for, or for the purpose of any proceedings in the said Police Court or other Court of competent jurisdiction." What the effect of granting an interdict in these terms would be I confess I am at a loss to understand. It may be that proceedings, quite competently brought, perhaps in consequence of information quite properly obtained, would be futile. I see no reason in the world why, in a case like the present, we should step in and take such a course as is suggested. But, assuming that the suspenders might be prejudiced in the trial that is about to take place by the use of these letters - and there is a decision of this Court in virtue of which the use of the letters if they were ultroneously obtained by the police officer would be unjustified-the suspenders are amply protected by the circumstance that the prosecutor has said that, if the magistrate is satisfied that these letters were opened by the police officer and were not found open by him-because that makes all the difference then he would stop the proceedings. So far as I can see, there is nothing objectionable in the public prosecutor indicating that this is the course he proposes to take. His intimation to that effect is ample protection to the suspenders in any rights they may have in the matter.

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I entirely agree with your Lordship in thinkOF JUSTI. ing that this suspension ought to be refused.

v. Mac

1924.

CIARY. Lord Anderson. The prayer of this bill of Paterson suspension contains two craves, one of which pherson. is competent and the other of which I hold to be incompetent. The competent crave is January 19, that the search warrant should be suspended; but the other crave, which is contained in the amendment, is, in my judgment, incompetent. The competent part of the prayer is, however, not supported by any relevant averments, because Mr Paton frankly conceded that the statutory procedure which led to the granting of the search warrant had been properly followed, and, accordingly, that he had no objection to the granting of the warrant. What he objected to was the way in which it had been executed. Accordingly, while he has in his prayer a competent crave for the suspension of the search warrant, he has no relevant averments which justify that part of the prayer being granted.

The alternative crave consists of two parts, the first being the crave that the seizure and retention of the seven letters should be suspended, and the second being a crave that the respondent, the public prosecutor, should be interpelled from using these letters for any purpose whatever. It seems to me that part of the prayer of the bill of suspension is both premature and incompetent. It is premature, because the retention by the public prosecutor is legal if the letters had been found open, and that question of fact is yet undetermined, and until it is determined this crave seems to be premature. But I go further, and say that this part of the prayer is incompetent. No authority has been cited for it. Authority has been adduced by Mr Keith to the effect that the only competent craves in a bill of suspension are either for suspension of a warrant or suspension of a conviction. This is neither a warrant nor is it a conviction; it is something between these two, and, in the absence of authority, I reach the conclusion that it is an incompetent prayer.

The proposition of the suspenders, as I ventured to point out during the course of the discussion, seems to come to this, that the duty of this Court at this stage is to determine ab ante that certain documentary evidence which it is proposed to use at the trial is incompetent. I know of no authority for such a motion being granted in this Court. The proper procedure in the case, as it seems to me, is this-when the public prosecutor at the trial attempts to use that evidence the accused's adviser should intervene and take objection, the objection being that, if these letters were in point of fact seized in an un

opened condition, they cannot be competently used as evidence; and it will be the duty of the magistrate, on that objection to the competency of the evidence being taken, to investigate the facts, not by a separate enquiry, but by questions being put to the witnesses on both sides on this matter of fact. It will be his business to determine the question of fact and to give a ruling in law according as he determines that question of fact. The accused will suffer no prejudice from this procedure which, it seems to me, is the proper procedure to follow, because, if the magistrate decides in fact that the letters were seized unopened, then we have the undertaking of the public prosecutor that, in that event, the prosecution will be dropped. If, on the other hand, the magistrate decides-and decides wrongly that the letters were seized in an open condition, the accused have still their remedy against that wrong decision-because it is not entirely a matter of fact; it is, in my judgment, a mixed question of fact and of law. If the accused are dissatisfied with the magistrate's decision on that point, they may come here with proper findings in fact with a question in law appended to a stated case, or they may bring a bill of suspension on the ground that incompetent evidence had been adduced upon which the magistrate had convicted.

Accordingly, I agree that the judgment proposed by your Lordship is right, and that the bill of suspension ought to be refused.

Counsel for Complainers, Paton, Gibb; Agents, D. M. Gibb & Sons, S.S.C.-Counsel for Respondent, Keith; Agent, Andrew Grierson, S.S.C. M. G. F.

OUTER HOUSE.

(Lord Blackburn.)

brought an action against John Lawson, of Carriston, Markinch, Fifeshire, and David Fair, Duniface, Windygates, Fifeshire, in which they sought to have it found and declared (1) that they as proprietors of the solum of Carriston Reservoir were entitled to the exclusive right of fishing, boating, skating, curling, or sporting generally on the said reservoir; (2) that the defenders had no right or title to exercise the said rights over the said reservoir, or (3) alternatively that they were entitled to exercise the said rights concurrently

with the defenders or one or other of them. There were also conclusions for interdict.

only.

The action was defended by John Lawson The pursuers averred, inter alia :

COND. 2. By disposition dated 23rd and 25th February 1878, and unrecorded following upon a decree arbitral dated 15th and registered 17th October 1877, Thomas Lawson, the father of the defender John Lawson, disponed to and in favour of the Parochial Board of the Parish of Wemyss "all and whole those portions of ground delineated and coloured red on a plan subscribed by me as relative hereto, extending to 26 acres and onethousandth part of an acre imperial measure or thereby, and also the further quantity of ground extending to one-eighth of an acre imperial measure or thereby, together with the whole rights and pertinents of the said portions of ground and teinds, and all such right, title, and interest in and to the same as I am or might become possessed of or am by the said Acts empowered to convey." The said disposition further provided : "But providing and declaring always, as it is hereby expressly provided and declared, that the exclusive right of fishing, boating, skating, curling, and sporting generally shall belong to the proprietor of Carriston, over the reservoir presently in course of construction as far as situated on the lands hereby disponed, which right I, the said Thomas Lawson, and my successor shall not be entitled to let separately, it being understood that such shall not be exercised in any way injurious to the water and works, and reserving to the said Local Authority the right to keep and use a boat for all necessary purposes connected with the works." The said disposition and decree arbitral are produced herewith and referred to.

COND. 3. By disposition, dated 9th January 1882 and recorded in the division of the General Register of Sasines applicable to the county of Fife 27th March 1884, John Inglis of Ballinkirk disponed to and in

favour of the Parochial Board of the Parish of Wemyss "all and whole those portions of land delineated and coloured red on a plan subscribed by me as relative hereto, and extending in whole to 5 acres and 406 decimal or one-thousandth parts of an acre imperial measure, which includes 387 decimal

or one-thousandth parts of an acre taken subsequent

to the date of said agreement, and all such right, title, and interest in and to the said portions of ground as I am or shall become possessed of or am by the said Acts empowered to convey." The said

1924.

me and my successors and tenants in the said lands of HOUSE. Ballinkirk and Auchtermairney Mains the exclusive Wemyss right of fishing, boating, skating, curling, and and shooting and sporting over the reservoir constructed District by the said Local Authority, in so far as situated on Water the lands hereby disponed, but which right I and Trs. v. my successors and our tenants in the said lands of John Ballinkirk and Auchtermairney North Mains shall Lawson. not be entitled to let to other tenants, it being January 29, understood that such rights shall not be exercised in any way to be injurious to the water or reservoir : and reserving to the said Local Authority the right to keep and use a boat for all necessary purposes connected with the works, reserving to us the privilege of a boathouse at the side of the reservoir." The said disposition is produced herewith and referred to. The defender David Fair is the singular successor of the said John Inglis in the lands of Ballinkirk by virtue of a disposition in his favour granted by Mrs Catherine Mary Landell or Muir, residing at No 6 Montgomerie Quadrant, Glasgow, and another dated 27th December 1919, and recorded in the division of the General Register of Sasines applicable to the county of Fife 24th February 1920.

COND 4. The said lands were disponed by the defenders' predecessors for the purpose of enabling the Parochial Board of the Parish of Wemyss to construct thereon a reservoir. This was duly done, the reservoir constructed being known as Carriston Reservoir. The pursuers acquired the lands disponed and the said reservoir under and in terms of the said Wemyss and District Water Order Confirmation Act, 1910. The said lands so disponed form the whole ground upon which the said Carriston Reservoir is constructed. The lands of both defenders abut upon the said reservoir.

COND. 5. Under and in virtue of their titles to the said lands, the pursuers have not only the sole right to the solum thereof but they are also exclusively entitled either themselves or through others acting under their authority to exercise all the rights and privileges of landowners over the said reservoir, including the rights of fishing, boating, skating, curling, and sporting generally. But the defenders have challenged the rights of the pursuers therein, sought to obstruct them in the exercise of said fishing and other rights and privileges, and claimed the said rights for themselves. Neither of the defenders is entitled to exercise the said sporting and other rights over the said reservoir, either in virtue of their titles or of any personal contract with the pursuers. The defenders, however, have pretended wrongfully and illegally to have and to exercise such rights. In any event the pursuers are entitled by virtue of their title to exercise the said rights concurrently with the defenders.

The pursuers pleaded, inter alia :

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1. The pursuers having the sole and exclusive rights of fishing, boating, skating, curling, and sporting generally upon the said reservoir, decree should be granted in terms of the first

and second declaratory conclusions of the summons and of the first conclusion for interdict. 3. Alternatively, the pursuers being entitled to exercise the said rights concurrently

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