| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
| | [2014] CSIH 46 |
Lady Smith Lady Dorrian Lord Philip | A29/11 and A30/11 OPINION OF THE COURT delivered by LADY SMITH in the Reclaiming Motions by CORA FOUNDATION Pursuers and Respondents; against EAST DUNBARTONSHIRE COUNCIL Defenders and Reclaimers: and THE BOARD OF MANAGERS OF ST MARY'S KENMURE Pursuers and Respondents; against EAST DUNBARTONSHIRE COUNCIL Defenders and Reclaimers; _______________ |
Act: Lake QC, A Jones, solicitor advocate; bto
Alt: Thomson QC, Balfour; Simpson and Marwick
27 May 2014
Introduction
[1] Both these actions concern riot damage. The pursuers offer to prove the following averments:
"Between approximately 20:00 hours on Saturday 29th and the morning of Sunday 30th March 2008 a riot occurred within the Premises. About twelve persons accommodated within the secure unit became disruptive and refused to obey requests from St Mary's staff (the Unit Staff). The persons began to behave in a violent manner. They shouted and threw things at the Unit Staff. One member of the Unit Staff was slashed on the face. These inmates damaged the Premises and items within. They tore down the football park and lit fires on the pitch. They smashed windows in the Premises and attempted to release persons who were within the Unit. They ripped out wiring and broke electronic key fob systems. They threw computers and computing equipment about. They started fires within the buildings. The Unit Staff were unable to contain the persons and required to withdraw for their own safety. The persons engaged in these acts acted with a common criminal purpose to cause damage to the Unit and intimidate or harm the Unit Staff. Police were called. Further police skilled in riot control were required to attend. The police brought the riot under control. Persons engaged in the disturbance were subsequently convicted on charges of mobbing and rioting."
"Premises" is a reference to St Mary's School Kenmure ("the school") which is a secure residential facility. The pursuers, who are respondents in the reclaiming motions, are the Cora Foundation ("Cora") who own the premises and the school's board of managers ("the Board"). They seek to recover their losses from the defenders ("the Council"), who are the local authority in whose area the school is situated. The Lord Ordinary, after having heard debate on the procedure roll, allowed parties a proof before answer in both actions. The Council say that the actions are irrelevant and should have been dismissed; they have, accordingly, reclaimed (appealed).
[2] The respondents' claims are based on section 10 of the Riotous Assemblies (Scotland) Act 1822 which, they say, confers on them an entitlement to be paid compensation by the Council for the riot damage caused to the school buildings and to fixtures, furniture and goods within the buildings. The original and current terms of section 10 of the 1822 Act and its legislative history are set out below.
Liability for Riots: the Legislative History
[3] For three hundred years, persons whose heritable property is damaged by rioters have been entitled to recover their losses from the community. For about two hundred years, such persons have also been entitled to recover from the community in respect of loss of or damage caused by rioters to moveable property within their premises. Although counsel for the reclaimer also referred us to earlier, English, legislation which, in certain circumstances, rendered the local population liable for losses arising from robberies, particularly for the purpose of protecting trade with visiting merchants[1], we do not find them to be of assistance and propose, rather, to begin our considerations by referring to the relevant provisions of the Riot Act 1714 ("the 1714 Act").
[4] It was common ground that the 1714 Act was passed at a time of considerable political unrest. George I, the first Hanoverian monarch, had become king in August that year amidst considerable opposition, from the Jacobite cause, to his accession. Hence the preamble:
"I Whereas of late many rebellious Riots and Tumults have been in divers Parts of the Kingdom, to the Disturbance of the Publick Peace, and the endangering of His Majesty's Person and Government, and the same are yet continued and fomented By persons disaffected to his Majesty, presuming so to do, for that the Punishments provided by the Laws now in being are not adequate to such heinous Offences; and by such Rioters his Majesty and his Administration have been most maliciously and falsely traduced, with an Intent to raise Divisions and to alienate the Affections of the People from his Majesty:"
Section one then made further provision as follows:
"That if any persons to the Number of twelve or more, being unlawfully, riotously and tumultuously assembled together, to the Disturbance of the Publick Peace, ...and being required or commanded by any one or more Justice or Justices of the Peace, or the Sheriff of the County, or his Under-Sheriff, or by the Mayor, Bailiff or Bailiffs, or other Head- officer, or Justice of the Peace of any City or Town-corporate, where such Assembly shall be, by Proclamation to be made in the King's name, in the Form hereafter directed, to disperse themselves, and peaceably to depart to their Habitations, or to their lawful Business, shall, to the number of twelve or more (notwithstanding such Proclamation made) unlawfully, riotously and tumultuously remain or continue together, by the Space of one Hour after such Command or Request made by Proclamation, that then such continuing together to the Number of twelve or more, after such Command or Request made by Proclamation, shall be adjudged Felony without benefit of Clergy and the Offenders therein shall be adjudged Felons, and shall suffer Death as in the case of Felony with Benefit of Clergy."
The phrase "unlawful, riotous and tumultuous assembly" was transposed, intact, into subsequent legislation including the current section 10 of the 1822 Act.
[5] The reading of the Proclamation was not dependent on the assembly of persons having done any damage to property or person. Nor did it depend on the assembly of persons being in a public place. There only required to be twelve or more persons assembled in an assembly of such nature that it could be described as unlawful, riotous and tumultuous and was, in some manner, to the disturbance of the public peace. As to the latter, there need not, we consider, have been actual disturbance to the public peace; the purpose of the Proclamation was, clearly, to try to prevent public disturbance; it follows that it must have been sufficient if there was a real risk of disturbance to the public peace without such disturbance taking place.
[6] It also follows that, giving an ordinary reading to the terms of section 1, such an assembly within private premises could, potentially, have amounted to a relevant riot. It would have done so if, for instance, the noise emanating was such as to disturb the public peace. Likewise, we consider, again giving an ordinary meaning to the words used, such an assembly within private premises would have been covered if their activities could be seen or otherwise discovered by the public and were activities likely to cause alarm. Other examples are not difficult to envisage; it would depend on the facts of the individual case. However, if the words are given their ordinary meaning, we see no reason why a riot would have been excluded purely because it occurred in a private place.
[7] Section four provided:
"IV....That if any Persons unlawfully, riotously and tumultuously assembled together, to the Disturbance of the publick Peace, shall unlawfully, and with Force demolish or pull down, or begin to demolish or pull down any Church or Chapel, or any Building for religious Worship certified and registered.....or any Dwelling -house, barn, Stable, or other Out-house, that then every such demolishing, or pulling down, or beginning to demolish, or pull down, shall be adjudged Felony without Benefit of Clergy, and the Offenders therein shall be adjudged Felons, and shall suffer Death as in the case of Felony without Benefit of Clergy.", and
section nine provided:
"IX.......all Prosecutions for repairing the Damages of any Church or Chapel or any Building for religious Worship, or any Dwelling -house, Barn, Stable or Out-house, which shall be demolished or pulled down in whole or in part, within Scotland , by any Persons unlawfully, riotously and tumultuously assembled, shall and may be recovered by summar Action, at the Instance of the Party aggrieved, his or her Heirs, or Executors, against the County Stewartry, City or Borough respectively, where such Disorders shall happen, the Magistrates being summoned in the ordinary form, and the several Counties and Stewartries called by edictal Citation at the Market-crofts of the Head-borough of such County or Stewartry respectively, and that in general, without mentioning their Names and Designations."
[8] Plainly, a relevant assembly could move from its initial gathering place. It could, for instance, begin in a private dwelling house, barn, stable or outhouse then progress to the public streets and attempt to pull down a church. The rioters would then have faced the death penalty, irrespective of whether or not there had been a section 1 proclamation and the owners of the church would have been entitled to look to the relevant magistrates or the County Stewartry for compensation. Equally, however, we consider that, on an ordinary reading of the words of section 9, if a relevant assembly of rioters had remained within, say, a private barn and partly pulled it down, the owner would have been entitled to be compensated in the same way.
[9] As to what was required for an assembly, on an ordinary reading of the words used, the relevant "assembly" was not limited to those persons who were from the local community or to those who were free citizens.
[10] Regarding the words "unlawful, riotous and tumultuous", it did not seem to be disputed by the reclaimers that the activities described in the averments would have fitted that description if they had occurred in the public street. The problem was not so much the nature of the activities described as that they occurred within a school which the Council did not control, that they were not of sufficient severity, and that they did not have any or at least, a sufficient, public element.
[11] The workings of the 1714 Act gave rise to some practical difficulties. No provision was made for a mechanism whereby, in Scotland, the magistrates of a burgh or the commissioners of supply in a county could raise the compensation due under section 9 by an assessment levied on inhabitants. The case of Mylne v County of Perth M. 13,180, in 1775, is illustrative of these difficulties. An action had been directed against "the County of Perth" in which Mr Mylne claimed compensation for losses sustained when a mob had attacked his house and "almost totally demolished the fabric of the house, destroyed a large quantity of silver plate, papers, and other valuable articles, and plundered and carried off other articles to a considerable value, ...." The court confirmed that the 1714 Act applied insofar as compensation was sought for the demolition of the house and doing, it seems, the best they could, given the lack of statutory direction on the matter, imposed liability to pay, as follows: "the defenders, the householders residing within the county of Perth, liable conjunctly and severally, in the said sum to the pursuer; decern against them, or any two of them, for payment accordingly." As Lord Jamieson observed in Capaldi v Greenock Magistrates 1941 SC 310, at 316, that was "..no doubt a convenient way of getting over the difficulty, but it would not appear to have had any legislative sanction."
[12] Those difficulties remained until 1822. Legislation had, in the meantime, been enacted to extend the provisions of the 1714 Act so as to cover mills, business premises and machinery, coal mines and related machinery, and furniture, fixtures and the contents of buildings, thus widening the categories of losses for which compensation could be claimed and demonstrating legislative objectives wider than those of quelling and deterring political unrest. In particular, that extended operation of the 1714 Act seems to have been directed at protecting a wide range of public and economic interests.
[20] The 1714 Act had not been repealed by 1822 - Hume [2], writing of it in 1797, observed:" the Riot Act which passed at the accession of the House of Hanover, on account of the many tumults arising from the political divisions of that time; but proving a useful supplement to the law, it has been allowed to stand unrepealed, after that reason has long been at an end."
However, in 1822, a new procedural mechanism for recovering compensation due under the 1714 Act, was provided for. The long title of the legislation then enacted - "3 Geo. 4 C.33"( "the 1822 Act") bears that it was:
" An Act for altering and amending several Acts passed in the First and Ninth years of the Reign of King George the First, and in the Forty-first, Fifty -second, Fifty-sixth and Fifty-seventh Years of the Reign of His late Majesty King George the Third, so far as the same relate to the Recovery of Damages committed by the riotous tumultuous Assemblies and unlawful and malicious Offenders."
The reference to the Act passed in the First year of the reign of George I is to the 1714 Act. The following statement, which appears in the course of a long preamble to section 1, is, we think, significant:
"..And Whereas great expenses are incurred in recovering a Compensation for small Damages by proceeding under Actions at Law, in compliance with the Directions of the said recited Acts, the Costs greatly exceeding, in many Instances , the Amount of the Damages..."
The 1714 Act is one of the recited Acts. That statement is, we consider, demonstrative of a general legislative concern to provide not for the right to obtain compensation for damage caused by rioters - as extended since 1714 - since that statutory right continued, unrepealed, in existence[3], but for an effective, straightforward and practical means of recovery of such compensation.
[13] Section 10 of the 1822 Act was the first of several sections that applied to Scotland. It provided that:
"...all prosecutions for repairing the damages of any church or chapel ,....should and might be by Summary Action at the instance of the Party aggrieved, his Heirs or Executors, against the county, city or burgh"
and that:
"..in every Case where any Damage or Injury shall be done to any Church, Chapel or Building for Religious Worship, or to any House, Shop or other Building whatsoever, or any Fixtures attached thereto, or any Furniture, Goods or Commodities therein, by the Act or Acts of any Person or Persons engaged in or making part of such unlawful, riotous or tumultuous Assembly of Persons, or by the Act or Acts of any Person or Persons engaged in or making part of such unlawful, riotous or tumultuous Assembly, the Party injured or damnified thereby shall be entitled to recover full Compensation for the Loss or Injury, by summary Action against the Town Clerk of the City or Burgh within which the Loss or Injury shall have been sustained, or the Clerk of Supply of the County or Stewartry within which the Loss or Injury shall have been sustained..........which Action shall and may be brought before the Justices of the Peace....".
[14] Provision was made thereafter, in section 11, for the lodging of any decree for such compensation with the Town Clerk or Clerk of Supply - the forerunners of modern local authority councils - , as appropriate, for the summoning of a meeting of the relevant Commissioners of Supply or Burgh Magistrates, and for authorising and requiring those persons to raise an assessment on the land or houses within their area, to meet the amount of the compensation.
[15] Precisely what can and cannot be taken from that legislative history was a matter of much contention in the course of the hearing before us and we say more about that below. The following, however, seems clear and was not seriously disputed. First, it demonstrates that the will of Parliament was, consistently, that those who suffer property damage as a result of rioting of the sort described should be entitled to compensation to make good their losses. Secondly, it demonstrates that the will of of Parliament was, consistently that fault was not to be relevant - there was to be no enquiry into whose fault had occasioned the loss or into how it might have been avoided. Put simply, strict liability applied. Thirdly, it demonstrates that the will of Parliament was, consistently, that compensation should be paid not by the wrongdoers or by any individual but by the community as a whole. As for the funding of that compensation, between 1822 until 1973 the compensation due was raised by way of an assessment on ratepayers directly related to the award of compensation. That is, the loss was spread across the whole community. After 1973, the local authority was not required to make a specific assessment in respect of the compensation payable; from that date onwards, it is not, therefore, to be assumed that liability for riot compensation would automatically give rise to an increase in rates or council tax. Fourthly, it demonstrates that the will of Parliament was, consistently, that claimants should be able to recover the compensation due to them quickly, cheaply and effectively. The means adopted, namely entitling claimants to recover from the local authority, enabled them to avoid the difficulty, delay or impossibility likely to be inherent in trying to recover from the rioters, given the inevitable problems of tracing, identification and recovery of awards of money if they had to sue the rioters directly.
Current Statutory Provisions: The Riotous Assemblies (Scotland) Act 1822 ("the current 1822 Act")
[16] By 1973, the 1714 and the other relevant pre 1822 legislation had been repealed. Section 10 of the 1822 Act then became the source of the substantive right to compensation. Following various repeals and following amendments in both 1973 and 1994[4], section 10 is all that remains and, as amended, is now and was, as at March 2008, in the following terms:
"10 Provision for recovering damages sustained in Scotland
In every case where any damage or injury shall be done to any church, chapel, or building for religious worship, or to any house, shop or other building whatsoever, or any fixtures attached thereto, or any furniture, goods, or commodities therein, by the act or acts of any unlawful, riotous, or tumultuous assembly of persons, or by the act or acts of any person or persons engaged in or making part of such unlawful , riotous or tumultuous assembly, the party injured or damnified thereby shall be entitled to recover full compensation for the loss or injury by summary action against the council (being a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 within whose area the loss or injury shall have been sustained); which action shall and may be brought before any competent court in Scotland."
Yarl's Wood Immigration Ltd v Bedfordshire Police Authority [2010] QB 698
[17] The interpretation and effect of the equivalent English legislation has been the subject of judicial consideration. The Yarl's Wood case concerned a serious riot which took place, in 2002, at an immigration centre where immigrants and asylum seekers were detained. The Court of Appeal discussed the interpretation of the similar but not identical provisions of section 2(1) of the Riot Damages Act 1886[5] (applicable in England but not in Scotland). It was the subject of extensive submissions before the Lord Ordinary and she was criticised by the reclaimers for having, to some extent, relied on it. One of the issues addressed by the court was whether the riot in Yarl's Wood was outwith the Act because the operators were not the police authority; it was argued that since central government were responsible for good order and control within the centre ( a responsibility which was, ultimately, the subject of a sub- contract with Group 4, who were the operators of the centre) on the application of a purposive approach the police authority could not be held liable. The application of the statute was limited by a functional rationale which stressed the fact that the police did not have control of the premises. The Lord Ordinary found some assistance in part of Rix LJ's analysis at paragraph 63, where he observed that account had to be taken of the use of the words "any person" which was, on the face of it, without exception, that conditions relating to injury and the nature of the riot had to be satisfied, and that the section imposed strict liability on the police authority. We agree that these pointers are of some assistance. However, in the light of the submissions to this court, when considering the issues in the present case, we found some of his observations at paragraph 54 and 69 to be of greater assistance:
"54.....the distinction which has been argued, and the stress which has been placed by the parties' submissions on the choice between the rationalisations are not particularly helpful to the process of statutory interpretation which has to be undertaken. I can see no useful distinction for present purposes whether the 1886 Act is described as providing for no-fault compensation or as providing for liability premised on the notional responsibility of the police to maintain law and order. The police undoubtedly have a real and not merely notional responsibility for law and order (and within that responsibility a duty to deal with and, if they can, prevent riot).........What it seems to me is more significant for present purposes is that such a responsibility in terms of the 1886 Act is a strict one, however that is described: strict, notional, or not dependant on fault, blame or breach."
[18] In paragraph 69, having commented that he found there to be no "overbearing inconsistency, absurdity, or inconvenience such as to require the court to depart from the plain meaning of the text of the statute", Rix LJ said:
"69......the critical provisions of the 1886 Act are broad and straightforward and there is no obvious sign that there is any problem about a possible limitation on those who would qualify for compensation , jurisdictionally speaking, by reference to a notional responsibility which, even if it lies in the background as part of the rationale of the statue is nowhere mentioned in it. The impression therefore is that the result in this case for which the authority contends is derived not so much from an interpretation of the language of the statute, even if that language had to be pressed....to avoid absurdity and the like, but from an a priori view of what the answer is to be."
Thereafter, in paragraph 70, he adds:
"70. Moreover, there are two clues which strongly suggest that the authority's purposive approach to the problem in this case is misguided."
One of them is said to be what is referred to as the proviso incorporated in the section (not replicated in the Scottish legislation) which provides for regard to be had, when fixing the amount of compensation, to the conduct of the claimant; the proviso was available to achieve with "much greater subtlety and attention to the facts" a result which mediated appropriately between the responsibilities of payer and payee. That showed that there was no need for a purposive approach to find what might be considered a desirable solution - not, we would add, that we read Rix LJ as having intended to backtrack on his earlier clear admonition not to proceed on any a priori view.
[19] Insofar as the reclaimers sought to rely on this passage as demonstrating, in effect, that it was necessary to read in wording to match or at least be akin to the proviso, we reject that submission. To do so would be to ignore the substantive rejection of any need to afford the provision anything other than its plain meaning, in paragraph 69 and that paragraph 70 was all prefaced by "Moreover"; the reasoning in paragraph 69 is clearly intended to stand alone. Further and perhaps more significantly, the effect of the proviso is not to exclude from the class of potential claimants any person whose claim might, because of the power conferred by the proviso, be reduced; their claim is still, in principle, a relevant one and the person is still a relevant claimant.
The Issues
[20] The principal issue is whether or not the respondents have relevantly averred a case of entitlement to compensation under section 10 of the 1822 Act.
[21] The reclaimers submit that they have failed to do so for two reasons which, in turn, give rise to the following issues:
(a) Whether or not the phrase "unlawful, riotous or tumultuous assembly", as used in section 10 of the 1822 Act, could apply to the events at the school on the night of 29/30 March 2008?
(b) If the answer to (a) is in the affirmative, whether or not Cora and/or the Board could qualify as "parties injured" in terms of section 10?
"Unlawful, riotous or tumultuous assembly"
[22] We begin by observing that the respondents do not seek to take advantage of the use of the word "or". They are content to proceed on the basis that their averments are apt to satisfy all three component parts of the phrase and, accordingly, the implications, if any, of the use, in section 10, of the word "or", as opposed to the use of the word "and" (as in section 1 of the 1714 Act and on the first page of the preamble to section 1 of the 1822 Act) need not be considered.
Submissions for the Reclaimer
[23] Counsel for the reclaimer concentrated their arguments on the first issue. At the heart of their extensive submissions lay the proposition that the disturbance averred in this case lacked the requisite character to be covered by section 10. As to what was required before a disturbance qualified, the submissions were somewhat discursive and without specification of clear descriptors. Indeed, at one point, senior counsel disavowed any attempt to set out the precise boundaries of what would be covered by section 10, relying instead on a submission that it could not apply to the circumstances averred.
[24] It was said that this disturbance did not qualify because it lacked the character of being a serious disturbance by an assembly. There needed to be particular concerns about public order involving the coming together of free citizens in a public place and behaving there in the manner described. At some points in counsels' submissions, it was said that the rioters needed to come from within the community that was liable to pay the compensation. What was key was the public nature of the riot and there being an immediate threat to the public because of the risk of the disorder spreading. Stress was laid on the fact that the disturbance at the school did not occur in a place to which the public had unrestricted access; the school was, it was said, akin to a prison and a riot within it could not qualify for that reason. It did not meet the description in the 1714 Act; unlawful, riotous and tumultuous assembly had a particular meaning in 1714 and nothing had happened to change that. That meaning was something more than just a riot. It was also more than what was required for the common law offence of mobbing and rioting as was demonstrated, for instance, by the use of the word "tumultuously" which inferred an assembly of considerable size, anger and agitation: J W Dwyer Ltd v Metropolitan Police District Receiver [1967] 2 All ER 1051. That said, counsel also submitted that section 10 ought not to be interpreted literally but he ultimately recognised that, on one view, it could be said that the wording of section 10 applied to the circumstances averred.
[25] A purposive approach was always required and that meant that external aids had to be considered even if the words used seemed unambiguous; that was the import of what was said by Lord Bingham of Cornhill in R v Secretary of State for the Environment, Transport and the Regions Ex parte, Spath Holme [2001] 2AC 349 at p.386 and 388 and in R(Quintavalle) v Secretary of State for Health [2003] 2 AC 687 at p.695 - 6 and also by Lord Steyn at p.700. Using a purposive approach meant a restrictive interpretation had to be adopted; the requirement for that was demonstrated by the terms of section 1 of the 1714 Act, the whole legislative history, the characterisation of the 1714 Act in the case of Mylne as being a "penal" statute and Lord Mansfield, in the case of Ratcliffe v Eden 2 Cowp 484, having indicated that what was required was a particularly serious type of felony.
[26] Reference was also made to discussion in English authorities of liability arising because the local populace and, subsequently, the police, were regarded as notionally liable for not having prevented the riot, each having had responsibility for keeping the peace[6], the import of that submission seeming to be that where the riot occurred in a place outwith local authority control, liability ought not to arise.
[27] Underlying the reclaimers' submissions on this issue was also a general assertion that it would not be fair to regard the circumstances averred as covered by the words of the phrase "unlawful, riotous and tumultuous" for the same reasons as it would not be fair to regard the respondents as parties injured or damnified. Those reasons were, put shortly, it was unfair to do so because the reclaimers were not at fault, they were not in control of the school and those who were in control and had failed to prevent the riot, would be compensated.
Submissions for the Respondents
[28] Counsel for the respondents submitted that the reclaimer's interpretation could not be justified. It involved laying aside the plain meaning of the statute and giving the words a different meaning, not that it was clear what meaning they actually sought to attribute to them albeit that it seemed to require more of a public element than the words themselves already implied. The reclaimer's approach went far beyond a purposive construction. A purposive construction was not to be used as a licence to rewrite the legislation nor as an invitation to consider what would have been Parliament's reaction to the facts of the case under consideration. Rather, the task was to ascertain what was Parliament's intention- what was the object and purpose of the legislation; that did not necessarily require resort to external aids and it was not legitimate to start with the outcome and reason backwards from it (Quintavalle at paragraph 8 -10, Spath Holme at p, 384 - 5 and 388; Clarke v Kato [1988] 1WLR 1647 at p.1654 - 165). The 1714 Act was remedial rather than penal, in nature, as observed, in terms, by Aston J, in the case of Ratcliffe v Eden at p.1202, as was implicit in the discussion in that case by Lord Mansfield, also at p.1202, which referred to the inhabitants of the locality being sureties for one another, and in Rix LJ's reference to the case in Yarl's Wood Immigration Ltd v Bedfordshire Police Authority [2010] QB 698, at paragraph 36. The mischief which the legislation sought to address was the need to provide an effective remedy for riot damage. There was no hint of the purpose being only to provide a remedy where the rioters came from within the community. Indeed, history showed that rioters could as readily come from outwith the community as from within it. Fault of the community in failing to suppress the riots was irrelevant; the legislation provided for strict liability. Further, it was not for the populace to take the law into their own hands; the community could not be blamed for not having done so nor could any such failure be a pre - requisite to liability.
[29] More fundamentally, the reclaimer's approach focussed on the party on whom the liability is placed whereas the focus of the statute was on the party entitled to damages. The legislation reflected a policy decision that, in order to assist that party to achieve an effective remedy, the community were to pay the compensation. Regarding the phrase with which this issue was concerned, counsel submitted that Parliament had amalgamated all the elements of the common law crime of mobbing and rioting in arriving at the definition of what would be a relevant riot for the purposes of section 10. Nothing more was required. The respondents' counsel did not rely only on the averment that persons had been convicted of mobbing and rioting following the events averred. Reliance was also placed on the description of what occurred; it was amply demonstrative of what was required. Whilst there required to be a public element, that was satisfied if there was some affront to public peace; the assembly did not have to gather in a public place. The fact that the rioters were detained in the school did not prevent them assembling together for a nefarious purpose; the respondents offered to prove that they came together to do damage with their conduct escalating, tumultuously, in the manner averred. There was plainly an unlawful purpose to their activities.
Discussion
[30] We have already set out, in the legislative history section above, what we consider to be the ordinary meaning of the phrase "unlawful, riotous or tumultuous assembly". We cannot find any justification for limiting that interpretation or rewriting the legislation in the manner contended for by the reclaimers. The respondents' approach is, to the contrary, a sound one which was, we would add, explained to us with commendable clarity. In particular, we agree that the reclaimer's approach was wrong footed from the outset in that it was characterised by an "a priori" view of the sort criticised by Rix LJ in Yarl's Wood. It had a distinct sense of being driven by a general submission to the effect that "it cannot be fair to make this council pay for these losses". There are, however, two problems with that approach. First, whenever strict liability applies there is potential for the paying party to be left with a sense of unfairness; such is the nature of strict liability. Secondly, it may, as here, lead to attempts at a strained construction of the statutory language which cannot be justified.
[31] Turning to some of the details of the construction contended for by the reclaimers, we make the following observations. We do not accept that the modern approach to statutory interpretation necessarily involves scrutiny of its legislative history or, indeed, of any other external aids; the passages relied on in Spath Holme and Quintavalle are not authority for that proposition and a distinct note of caution about their use is to be found in the speech of Lord Nicholls, in Spath Holme, at p.397 and in his reference, on the same page, to what Lord Diplock said about the need for legal certainty in Fothergill v Monarch Airlines Ltd [1981] AC 251, at 279:
"The source to which Parliament must have intended the citizen to refer is the language of the Act itself. These are the words which Parliament has itself approved as accurately expressing its intentions. If the meaning of those words is clear and unambiguous and does not lead to a result that is manifestly absurd or unreasonable, it would be a confidence trick by Parliament and destructive of all legal certainty if the private citizen could not rely upon that meaning but was required to search through all that had happened before and in the course of the legislative process in order to see whether there was anything to be found from which it could be inferred that Parliament's real intention had not been accurately expressed by the actual words that Parliament had adopted to communicate it to those affected by the legislation."
[32] In any event, if the legislative history is taken into account when construing section 10, it does not support any restriction to the ordinary meaning of an "unlawful, riotous, or tumultuous assembly". Whilst what originally prompted the legislation, in 1714, was concern about the possibility of political unrest, one of the mischiefs that was plainly addressed by the 1714 Act was that it would inevitably be difficult if not impossible for persons whose property was demolished in whole or part to recover their losses from the relevant rioters who would have suffered the death penalty or, if alive, not likely to be easy to identify or trace. Then, the circumstances in which it was envisaged that riots might occur widened as the years passed; the concern was not only about political unrest but generally about riotous unrest which could damage various economic interests both public and private. All the legislation continued to address that mischief.
[33] We accept that there must be some public element but we can find no justification for the restrictions argued for by the reclaimers. The ordinary meaning of the words does not, as we have explained, require them. If they were to be read in, that would exclude some riots which cause or are likely to cause a disturbance to the public peace, without any apparent justification. The power and potential of an assembly of persons gathering for an unlawful purpose in a private place but in circumstances where the public may become aware of it, is, we consider, as likely to terrify and disturb the peace as if it occurs in a public building. Further, it might be thought that the risk of heightened violence being encouraged and/or facilitated through modern communication methods means that application of the principle that a statute is always speaking also points away from the reclaimer's restricted interpretation.
[34] It is also, we consider, relevant that the riots in these cases occurred in an institution which was being provided and run for a public purpose, supervised by public bodies, where young people were detained on public authority, in circumstances which, on the face of the averments, amounted to a considerable affront to that public authority. The school does not fall into the same category as a private dwelling house, as the reclaimer's submissions seemed to suggest, not, we would add, that a riot in a private dwelling house would necessarily be excluded, for the reasons we have already explained.
[35] Moving then to the submission that the inclusion of the word "tumultuous" demonstrated that something more than actions amounting to the common law offence of mobbing and rioting is required, we reject it. First, the word may add little if anything to "riotous" since both imply behaviour which is chaotic, out of control and unruly; if it does add anything it can only be a matter of emphasis. Secondly, it is clear from the relevant discussions in Hume[7] and Allison[8] that the word is in fact used in their descriptions of the common law offence and we were referred to no other authority on the matter. Thirdly, of more significance may be the distinction that can be drawn under reference to the use of the word "lawful"; whilst Hume[9] refers to a case in 1790 where the crime of mobbing and rioting was found to have been committed even although the perpetrators were carrying out a lawful purpose (implementing a decree of the court which authorised the removal of a dam-dyke on the River Leven), it is not referred to as one to which the 1714 Act would have applied, notwithstanding his adjacent discussion of the 1714 Act. The only apparent reason for that would seem to be that the lawfulness of the perpetrator's objective was no answer to the charge of mobbing and rioting; it was irrelevant. In the present case, it was not nor could it have been suggested, however, that the averments showed that the rioters were engaged in a purpose which could, in any sense, be described as lawful.
[36] Regarding the submission that the 1714 Act - and its successor statutes - were penal in nature and, that being so, the phrase required to be construed restrictively, we note that the submission was not based on a quotation from the court's judgment but on a comment in the editor's summary that it had been observed on the Bench "that penal statutes operating against innocent persons for the offences of others, are not to be extended beyond their precise words", the context being that Mr Mylne was not awarded compensation for the damage to and destruction of various items of moveable property since the statute provided only for compensation in respect of total or partial demolition of a house. Even assuming the report of the observation to be correct, it has to be regarded as obiter and, interestingly, it did not prevent an award being made for the damage to the house itself. A more accurate characterisation can, we consider, be found in Aston J's description of the 1714 Act in the case of Ratcliffe , at p.1202, as being "a remedial law". We can accept that, in the 18th century, it could also be seen as seeking to encourage the populace to prevent and suppress riots, as discussed by Lord Mansfield, also at p.1202, in Ratcliffe. The latter, however, can no longer be regarded as an appropriate analysis; the prevention and suppression of public disturbances is not nowadays a matter for the general public to take into their own hands nor is it the responsibility of local authorities. It is a matter for the police. Section 10 of the 1822 Act cannot be regarded as being for the purpose of, as it was put by Lord Mansfield, encouraging people to resist rioters or to punish them for having failed to do so. Where, however, Lord Mansfield's discussion is of some assistance is that it is early evidence of a recognition that the legislation could be seen as being about circumstances where "the whole neighbourhood....mutually pledges for each other's good behaviour". There is, we consider, no room for any approach based on the notion that the statute was or is penal in nature. Strict liability, which is what is involved, is not about punishment; it is inherent in such liability that nobody is blamed .
"The Party Injured or Damnified"
[37] Before turning to counsel's submissions and our discussion in relation to this issue, it is, we think, important to have regard to the nature of and circumstances surrounding the school.
The School
[38] Local authorities have responsibility for providing and maintaining establishments, including secure accommodation, in connection with the fulfilment of their functions under legislation including the Children (Scotland) Act 1995 ("the 1995 Act") and were, at the material time, empowered by legislation then in force (Social Work (Scotland) Act 1968 sec 59) to contract with voluntary organisations such as Cora and the Board to provide and maintain the necessary premises and services.
[39] The school is a secure residential facility. At the material time, children accommodated within it would have been placed there either as a result of a children's hearing order for compulsory measures of supervision or in implement of a custodial sentence pronounced by a criminal court. Regarding the former, a children's hearing could have determined on a requirement for compulsory measures of supervision for one or more of a wide range of reasons (see: sec 52(2) of the 1995 Act) including but not restricted to the child having committed an offence and not necessarily inferring wrongdoing on the part of the child. Children placed in a secure establishment such as the school have a wide range of needs; they may be vulnerable. Any decision of the children's hearing to require compulsory measures of supervision and any decision of a court to impose a custodial sentence is subject to the overarching principle set out in section 16 of the 1995 Act that "the welfare of that child throughout his childhood shall be their or its paramount consideration."
[40] Regard would also require to have been had, when making such a decision, to articles 3 and 37 of the United Nations Convention on the Rights of the Child. Article 3 provides that the best interests of a child must be the primary concern in the making of decisions that may affect them. Article 37 requires that no-one is allowed to punish a child in a cruel or harmful way and, if they break the law, they must not be treated cruelly.
[41] The school was and is subject to a detailed scheme of regulation including the requirement for Ministerial approval for its operation and, since it is also an educational establishment, the inspection regime carried out by Her Majesty's Inspectors, Education Scotland.
[42] Duties are imposed on the managers of such establishments, such as under the Residential Establishments-Child Care (Scotland) Regulations 1996, which include that the welfare of each child must be safeguarded and promoted. The managers are empowered to determine appropriate sanctions relevant to control of the children accommodated (reg 10(1)) but any sanction must accord with a written statement of functions and objectives (reg 5(1)) and no sanction can include corporal punishment (reg 10(2)).
[43] In short, the objectives of any establishment such as the school will be, primarily, the care and welfare of the individual child, education, guidance and rehabilitation, as opposed to punishment. Prison is not, in our view, an appropriate comparison. Such an approach accords with the overarching requirement to treat the child's welfare as the paramount consideration and is, manifestly, also in the public interest. The public interest is also furthered by requiring that any such establishment has to operate within a carefully controlled, regulated and monitored system.
[44] We also note that the placement of a child in a particular secure unit is not dependent on that child residing in the local authority area in which it is situated. Accordingly, children placed in the school do not require to have their normal residence in the geographical area for which the Council is responsible.
[45] Local authorities have responsibility for providing and maintaining establishments, including secure accommodation, in connection with the fulfilment of their functions under legislation including the Children (Scotland) Act 1995 ("the 1995 Act") and were, at the material time, empowered by legislation then in force (Social Work (Scotland) Act 1968 sec 59) to contract with voluntary organisations such as Cora and the Board to provide and maintain the necessary premises and services.
[46] The school is a secure residential facility. At the material time, children accommodated within it would have been placed there either as a result of a children's hearing order for compulsory measures of supervision or in implement of a custodial sentence pronounced by a criminal court. Regarding the former, a children's hearing could have determined on a requirement for compulsory measures of supervision for one or more of a wide range of reasons (see: sec 52(2) of the 1995 Act) including but not restricted to the child having committed an offence and not necessarily inferring wrongdoing on the part of the child. Children placed in a secure establishment such as the school have a wide range of needs; they may be vulnerable. Any decision of the children's hearing to require compulsory measures of supervision and any decision of a court to impose a custodial sentence is subject to the overarching principle set out in section 16 of the 1995 Act that "the welfare of that child throughout his childhood shall be their or its paramount consideration."
[47] Regard would also require to have been had, when making such a decision, to articles 3 and 37 of the United Nations Convention on the Rights of the Child. Article 3 provides that the best interests of a child must be the primary concern in the making of decisions that may affect them. Article 37 requires that no-one is allowed to punish a child in a cruel or harmful way and, if they break the law, they must not be treated cruelly.
[48] The school was and is subject to a detailed scheme of regulation including the requirement for Ministerial approval for its operation and, since it is also an educational establishment, the inspection regime carried out by Her Majesty's Inspectors, Education Scotland.
[49] Duties are imposed on the managers of such establishments, such as under the Residential Establishments-Child Care (Scotland) Regulations 1996, which include that the welfare of each child must be safeguarded and promoted. The managers are empowered to determine appropriate sanctions relevant to control of the children accommodated (reg 10(1)) but any sanction must accord with a written statement of functions and objectives (reg 5(1)) and no sanction can include corporal punishment (reg 10(2)).
[50] In short, the objectives of any establishment such as the school will be, primarily, the care and welfare of the individual child, education, guidance and rehabilitation, as opposed to punishment. Prison is not, in our view, an appropriate comparison. Such an approach accords with the overarching requirement to treat the child's welfare as the paramount consideration and is, manifestly, also in the public interest. The public interest is also furthered by requiring that any such establishment has to operate within a carefully controlled, regulated and monitored system.
[51] We also note that the placement of a child in a particular secure unit is not dependent on that child residing in the local authority area in which it is situated. Accordingly, children placed in the school do not require to have their normal residence in the geographical area for which the Council is responsible.
Submissions for the Reclaimer
[52] Counsel for the reclaimer submitted that the respondents could not qualify as parties injured or damnified essentially because they had a public law duty in respect of the rioters. They accepted that the construction they proposed was a strained one and they accepted that it was one which was harder to maintain in the case of Cora, who were owners of the buildings, not the managers of the school. The point argued was, essentially, that it was necessary to look for justifications for the respondent's entitlement to compensation from the council. There were, potentially, two but they could not in fact meet either of them. One was the actual or notional failure by the populace itself which had no place in Scotland and the other was that it would be unduly burdensome for the person concerned to bear the loss and that could not, it was submitted, be said of these respondents. Control of the rioters was a highly significant matter. Why, it was asked, should the respondents be entitled to recover where they had failed to control the miscreants? The populace had done its duty in bringing the individuals before the courts or the children's hearing. It was not fair that the council taxpayer should foot the bill. Excluding the respondents from the ambit of the provision would be legitimate and correct.
[53] The respondents' interpretation led, it was submitted, to an absurd result and it was not to be presumed that absurdity is what Parliament intended: R (on the application of Edison First Power Ltd) v Central Valuation Officer and another [2003] UKHL 20, per Lord Millett at para. 116. It would be absurd to have those who had no control of the rioters be made to pay.
[54] In a development away from their initial position, the reclaimers ultimately accepted that section 10 could apply to claimants who were businesses, the Crown or to an organisation which owned and/or controlled a prison.
Submissions for the Respondents
[55] Counsel for the respondents submitted that, again, the reclaimer's submission began at the result they sought to achieve and worked backwards. That was not a legitimate approach. There was no indication at all that Parliament intended to refrain from conferring the right to compensation on all parties who were injured. There was no place for speculation about what Parliament might have intended had they addressed the present circumstances or indeed, any other particular set of facts. There was no room for any restriction by reference to "innocent parties" or to entitlement arising only in the event of failure by the local authority. The words used could not bear that meaning.
Discussion
[56] We reject the reclaimer's submissions as to the meaning of the phrase "the party injured or damnified". First, since they all seemed to be based on the claimant having control of the rioters, they could not, on any view, apply to Cora who did not have any control of the young people at all. Secondly, the words used in the statute are clear and straightforward and do not, if given an ordinary meaning, admit of any restriction. The justifications for which the reclaimers argued seemed, once more, to amount to saying that strict liability was not fair but, as we have already observed, strict liability is what this provision is all about. Furthermore, the reclaimer's approach seemed to proceed on an unjustified assumption that running the school was necessarily characterised by a strictness of control which might best be described as being Victorian in nature but that is to ignore that its purposes and duties were as we have outlined in the "School" section above. Their approach was also to the effect that those in charge of the school were, simply by reason of that role, to be criticised if a riot broke out and was not quelled before damage occurred. None of that follows. In any event, even if there was any fault on the part of the school, it is irrelevant. It would not prevent them from qualifying as claimants nor would it, as discussed above, have prevented them doing so were the school to have been situated in England and the claim, therefore, subject to adjudication under the 1886 Act.
[57] In these circumstances, we refuse the reclaiming motions and adhere to the interlocutors of the Lord Ordinary.