Ex parte John Clarke

• Jurisdiction: Ireland
• Judgment Date: 27 January 1890
• Date: 27 January 1890
• Court: Exchequer Division (Ireland)

Ex. Div.

Bfore ANDREWS, J.

Ex PARTE JOHN CLARKE

In re RiceUNK Ir. R. 7 C. L. 74.

Ex parte ThompsonENR 6 H. & N. 193.

In re Thompson 6 Jur. ( N. S.) 1247.

Reg. v. BrickhallUNK 33 L. J., M. C. 156.

R. v. Justices of Surrey 1 Jur. (N. S.) 1138.

The Queen v. Justices of Suffol'k 18 Q. B. 416.

R. v. Justices of Hertfordshire 6 Q. B. 753.

Wilkinson v. DuttonENR 3 B. & S. 821.

Dimes v. The Grand Junction Canal Co. 3 H. L. Cas. 794.

The Queen v. Justices of Suffolk 18 Q. B. 416.

Many other authorities See Reg. v. O'Grady (1857), 7 Cox C. C. 247.

The Queen v. BrickhallUNK 33 L. J., M. C. 156.

Justic Appeal to Quarter Sessions Assault 24 & 25 Vict. C. 100, ss. 42, 43, 47 Conviction

LAW REPORTS (IRELAND). QUEEN'S BENCH AND EXCHEQUER DIVISIONS. Ex PARTE JOHN CLARKE (1). Ex. Div. 1890. Justices-Appeal to Quarter Sessions-County Officers and Courts Act, 1877 Jan. 25, 27. (40 41 Vict. c. 56), 8. 73-Assault--24 4.25 Vict. c. 100, 88. 42, 43, 47 -Conviction. The provisions of the 73rd section of the County Officers and Courts Act, 1877, should be strictly observed by Justices on the hearing of appeals from Petty Sessions. On the hearing of an appeal from a conviction and sentence of imprisonÂÂment at Petty Sessions one of the magistrates who had adjudicated in the Court below took his seat on the bench, and remained there until the appeal was decided, and was consulted by the County Court Judge as to the number of magistrates who took part in the decision appealed from, and their unanimity, but he did not otherwise take part in the hearing of the appeal:- Held, sufficient to invalidate the proceedings, and to entitle the prisoner to be discharged on habeas corpus. Upon a charge of assault on a female, occasioning her actual bodily harm, the accused was convicted thereof at Petty Sessions, and ordered to be imprisoned for two calendar months, with hard labour :- Quere, whether the charge appearing to be for an offence under the 47th section of the 24 & 23 Viet. c. 100, the conviction could be sustained? P OTION, on behalf of John Clarke, senior, to make absolute a conditional order for a writ of habeas corpus. (1) Before ANDREWS, S. VOL. XXVI. 2 LAW REPORTS (IRELAND). [L. R. L Ex. Dir John Clarke was, by a summons, dated the 9th November, 1890. 1889, entitled "The Queen, at the prosecution of Acting-Serjeant Ex parte . J. Tipping, R.I.C., complainant, and J. Clarke, defendant," sum- CLARKE moned to appear before the Petty Sessions at Aughnacloy, in the County Tyrone, to answer a complaint that he did, on the 4th November, 1889, unlawfully assault, beat, and abuse one Eliza Jane Clarke, thereby occasioning her actual bodily harm. The charge was heard at the Aughnacloy Petty Sessions on the 11th November, 1889 ; and after hearing same, the Justices convicted the defendant, and ordered him to be imprisoned for two calendar months, with hard labour. The defendant then appealed to the Quarter Sessions, and the appeal was heard by the County Court Judge and the Justices at Dungannon on the 6th January, 1890, and, after hearing same, the order of the Justices at Petty Sessions was affirmed. A warrant was subsequently issued for the arrest of the defendant, and the defendant was arrested and imprisoned in Armagh gaol. The application was grounded on an affidavit of the prisoner, who deposed that at the hearing of the case before the Petty SesÂÂsions he had no solicitor to conduct his defence, nor any witnesses present, and his application for an adjournment was refused. There were six Justices present on the bench, including Captain W. Brown. He was represented by two solicitors on the appeal. The appeal was heard throughout by the County Court Judge (Sir Francis Brady, Bart.) and several Justices. During the progress of the case Captain W. Brown came upon the bench, and took his seat as a Justice ; and the deponent's solicitor, noticing that a new Justice had come on the bench, and when the County Court Judge was consulting with him, turned round and asked deponent with reference to Captain W. Brown. Deponent then informed his solicitor that Captain W. Brown was one of the magistrates in the Petty Sessions Court at the hearing of the case, and had taken part in the decision. The solicitor then proceeded to address the Court, when the County Court Judge began to deliver judgment, which was to the effect that' he had spoken to a magistrate of the district, and that he found there were eight magistrates at the Petty Sessions who were unanimous, and that they could not, without weighty reasons, reverse their decision, and VOL. XXVI.] Q. B. & EX. DIVISIONS. 3 would affirm it. The solicitor then proceeded to draw the atten- Ex. Div. tion of the County Court Judge to the fact that Captain W. 1890. Ex parte Brown was on the bench, taking part in the proceedings, and had vLARKE. actually been consulted by the Judge with reference to the deciÂÂsion. The County Court Judge stated that that was not so ; that he had only spoken to Captain W. Brown on the matter, and ascertained from him about the bench, viz. that there were eight magistrates, and that they were unanimous. The solicitor stated that he could not know, and would not mention if he did know, what the nature of the communication between the County Court Judge and Captain W. Brown was ; that he could only speak from the physical fact that he had seen, viz. that the County...