Downie v. Fraser [1901] ScotLR 38_769 (10 July 1901)

Downie v. Fraser [1901] ScotLR 38_769 (10 July 1901)

Permitting tenants to place their furniture in houses with the intention of imminent residence, even if actual sleeping does not occur, constitutes 'occupation' under section 180 of the Burgh Police (Scotland) Act 1892. The appellant was therefore rightly convicted, but the breach was technical and unintentional, warranting a reduction of the penalty imposed.

Citation
[1901] ScotLR 38_769
Parties
Appellant/respondent: John Downie; Petitioner/respondent: Robert Fraser (Burgh Prosecutor, Musselburgh)
Jurisdiction
Scotland
Judgment Date
10 July 1901
Procedural Posture
Statutory Penalty Appeal / Appeal From Dean of Guild Court to Court of Session, Inner House
Outcome
Conviction upheld; penalty reduced; partial costs awarded to appellant.
Legal Topics
Burgh Police (scotland) Act 1892, Building Occupation Before Certification, Statutory Interpretation, Penalty Discretion
Administrative Law Local Government Law Criminal Law Burgh Police (scotland) Act 1892 Building Occupation Before Certification Statutory Interpretation Penalty Discretion

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Parties

John Downie

Appellant/respondent

Robert Fraser (Burgh Prosecutor, Musselburgh)

Petitioner/respondent

Procedural Posture

Statutory Penalty Appeal / Appeal From Dean of Guild Court to Court of Session, Inner House

Legal Issues

  1. 1 Whether permitting tenants to place furniture in a house before certification constitutes 'occupation' under section 180 of the Burgh Police (Scotland) Act 1892
  2. 2 Whether the penalty imposed was excessive for a technical contravention

Ratio Decidendi

Permitting tenants to place their furniture in houses with the intention of imminent residence, even if actual sleeping does not occur, constitutes 'occupation' under section 180 of the Burgh Police (Scotland) Act 1892. The appellant was therefore rightly convicted, but the breach was technical and unintentional, warranting a reduction of the penalty imposed.

Court Disposition

Conviction upheld; penalty reduced; partial costs awarded to appellant.

Orders

  • Sustain the appeal; recall the interlocutor of the Dean of Guild Court dated 3rd May 1901.
  • Find John Downie in contravention of section 180 of the Burgh Police (Scotland) Act 1892.