Ex parte Harken

• Jurisdiction: Ireland
• Judgment Date: 16 May 1889
• Date: 16 May 1889
• Court: Exchequer Division (Ireland)

Ex. Div.

Before PALLES, C.B., and ANDREWS, J.

EX PARTE HARKEN

R. v. WilkesST1 19 State Trials, 1075.

R. v. HorneST1 20 State Trials, 651.

R. v. M'Daniel & BerryST1 19 State Trials, 746, 749.

R. v. SpraggENR 2 Burr. 930.

Lord Thanet's CaseST1 27 State Trials, 822.

Williams' CaseENR 1 Leach, 529.

Dunn v. The QueenENR 3 Cox. 205.

R. v. O'ConnellENR 7 Ir. L. Rep. 261, 356; 11 Cl. & Fin. 155.

Evans and Cottington's CaseENR Cro. Car. 506.

Ex parte DavisUNK 24 L. T. (N. S.) 547.

Lort v. Hutton 45 L. J. (N. S.) M. C. 95.

R. v. Queen's Co. JusticesUNK 10 L. R. Ir. 294, 303.

Ex parte DavisUNK 24 L. T. (N. S.) 547.

Lort v. Hutton 45 L. J. (N. S.) M. C. 95.

Bennett v. WatsonENR 3 M. & S. 1.

Ex parte DavisUNK 24 L. T. (N. S.) 547.

Rhenwick Williams' CaseENR 1 Leach, C. C. 529.

—— Appeal to County Court Judge — Reduction of term of imprisonment — Direction that defendant should give bail himself, and two sureties, to keep the peace.

VOL. XXIV.] 4. B. & El. DIVISIONS. 427 Ex PARTS HARKEN (1). Ex. .Div. 1889. Criminal Law and Procedure (Ireland) Act, 1887-Order-Appeal to County May 9, 16. Court Judge-Reduction of term of imprisonment-Direction that defen dant should give bail himself, and two sureties, to keep the peace. On an appeal from a sentence of imprisonment pronounced by a Court of Summary Jurisdiction, under the Criminal Law and Procedure (Ireland) Act, 1887, the County Court Judge has jurisdiction, while varying the term of imÂprisonment, to order the prisoner to give, on its expiration, sureties for his good behaviour, or in default of so doing to be further imprisoned. MOTION for a writ of habeas corpus ad subjiciendum. Harken was on 15th January, 1889, summoned to appear before the Justices at Petty Sessions, constituted under the Criminal Law and Procedure (Ireland) Act, 1887, to answer a complaint that he had taken part in an unlawful conspiracy, and on the 2nd February, 1889, the said charge was duly heard, and an order was made by the justices that he should be sent to prison for five months with hard labour. From that order the prisoner appealed to the County Court Judge of County Donegal, and on the hearing of such appeal the County Court Judge affirmed the conviction, and made an order varying the sentence of the Justices, by directing that the prisoner should be sent to prison for three calendar months with hard labour, and at the expiration of the sentence that the prisoner should give bail, himself in £10, with two sureties in £5 each, to keep the peace and be of good behaviour for twelve calendar months, or in default be further imprisoned for two calendar months without hard labour. The prisoner now moved for a writ of habeas corpus. Healy, in support of the motion : The prisoner is in illegal custody. The County Court Judge had no jurisdiction to make a conviction ordering Harken to give (1) Before PALLES, C.B., and Assagivs, J. Vos. XXIV. 2 X' 428 LAW REPORTS (IRELAND). [L. R. I. Ex. Div. security for good behaviour, or to be imprisoned in default of so 1889. doing. That part of the conviction is ultra vires and bad. A. Ex parte conviction is one entire judgment, and must be good in its entirety, and if any part is bad, the whole is bad and void : Paley on ConÂvictions, 172, 189. Numerous decisions establish that. The 50 & 51 Vict. e. 20, conferred the Summary Jurisdiction in this case, and by the 11th section declared the punishment to which the party convicted should be liable, "imprisonment with or without hard labour for a term not exceeding six months." The County Court Judge had no power to sentence the party convicted to any kind of punishment but that mentioned in the statute under which he convicted. The statute gives no jurisdiction to order security for good behaviour. A different kind of punishment from that authorized by the statute has been inflicted. The punishment-imprisonment with hard labour-sanctioned by the statute has been inflicted, but with the addition of further punishment wholly unauthorized. There is both excess and want of jurisdiction, and a writ of habeas corpus should issue to discharge the prisoner. Molloy, Q.C. (with him J. Ross), for the Crown : The prisoner is in lawful custody under a good conviction. The County Court Judge had jurisdiction to order the prisoner to give sureties for his good behaviour, and to order his being imprisoned in case he refused to give sureties. In cases of misÂdemeanour all Courts are accustomed and have authority to require offenders to give security for good behaviour : R. v. Wilkes (1) ; R. v. Horne (2) ; R. v. APDaniel di Berry (3) ; R. v. Spragg (4) ; Lord Thanet's Case (5) ; Williams' Case (6) ; Dunn v. The Queen (7); R. v. O'Connell (8). It is said by Lord Mansfield in R. v. Horne (2), to be a most constant addition to the sentence. It is no part of the judgment or punishment. In Evans and Coltington's Case (9) nine persons were tried for riot, four of whom were found guilty, and the remaining five acquitted, the Court sentenced the (1) 19 State Trials, 1075. (2) 20 State Trials, 651. (3) 19 State TrialA, 746, 749. (4) 2 Burr. 930. (5) 27 State Trials, 822. (6) 1 Leach, 529. (7) 3 Cox, 205. (8) 7 Ir. L. Rep. 261, 356; 11 Cl. & Fin. 155. (9) Cro. Car. 506. . VOL. XXIV.] Q. B. & EX. DIVISIONS. 429 four convicted to five months' imprisonment and the pillory, and Ex. Div. required them to give surety for good behaviour ; and the Court 1889. also required three of those acquitted to give like surety. In Ex Ex parte ELRICEN. parte Davis (1), the Justices dismissed a summons for assault on the merits, but they required the defendant to give surety for his good behaviour, and the Court of Queen's Bench held they had jurisÂdiction to do so. Mr. Justice Blackburn said the proceeding was not by way of punishment, but only a precautionary proceeding to preserve the peace, and he expressed the same view in Lort v. Hutton (2). The jurisdiction of requiring sureties for good behaviour is derived from the Commission of the Peace, where a Justice of the Peace has reasonable ground for apprehending danger to the peace from any person, he has the jurisdiction, and it is his bounden duty under...