Kenealy v O'Keeffe

• Jurisdiction: Ireland
• Judgment Date: 19 December 1899
• Date: 19 December 1899
• Court: Queen's Bench Division (Ireland)

Kenealy

and

O'Keeffe (1).

Q. B. Div.

CASES

DETERMINED BY

THE QUEEN'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1901.

Local Government — Disqualification — Penalty — Right to prosecute — Common informer — Appropriation of penalty.

Any member of the public may prosecute for penalties under Article 12, clause 11, of the Application of Enactments Order of December, 1898, for acting as a District Councillor when disqualified, and it is competent to the Justices, under sect. 22(8) of the Petty Sessions Act, to award to the prosecutor a part of the penalty, not exceeding one-third.

Case stated by the Justices of county Kilkenny sitting at Kilkenny Petty Sessions on the 28th November, 1899, for the opinion of the Queen's Bench Division, pursuant to 20 & 21 Vict. c. 43, in the matter of a complaint at the prosecution of 0. J. Kenealy against Patrick J. O'Keeffe, charging that the defendant did on the 3rd July, the 7th August, the 19th September, and the 31st October, 1899, act as a member of the Corporation of Kilkenny, and of the Urban District Council of Kilkenny, the defendant being at the time disqualified from being a member of such Corporation and Council by reason of being concerned by himself or his partner in a bargain or contract entered into with the said Corporation or Council or participating by himself or his partner in the profit of such bargain or contract.

When the case came on for hearing, the Justices, upon the objection of counsel for the defendant, adjudged that the complaint be dismissed without prejudice, with costs. the preliminary objection so taken by counsel for the defendant was that the

complainant was not entitled to prosecute under the Local Government (Ireland) Act, 1898—Article 12 of the Local Government (Application of Enactments) Order of the 22nd December, 1898—the right to prosecute thereunder being vested solely in the Crown. In support of this view the case of Bradlaugh v. Clarke (1) was cited; and it was further relied upon before the Justices that, although the 4th Schedule to the Local Government (Ireland) Act, 1898, gave power to apply certain sections of the Municipal Corporations Act, 1882 (45 & 46 Vict. c. 50)—sect. 224 of the latter Act (which declared that an action could not be brought except by a burgess of the borough) was not included amongst these sections; and it was submitted that such omission indicated an intention on the part of the Legislature to confine the right of prosecution, in such a case as the present, to the Crown. For the complainant it was contended that he was entitled to prosecute, inasmuch as under the statute (section 12, sub-section 11) the case was one of summary jurisdiction, and was consequently governed by the rules and procedure of the Acts affecting summary jurisdiction, under which it was submitted that the complainant was entitled to prosecute either as a burgess of the borough or as a common informer; and that the case of Bradlaugh v. Clarke (1), if applicable, had relation only “to the power of sustaining suits at the civil side of the Court, and did not touch the criminal jurisdiction.”

The Justices being of opinion that the complainant was not entitled to act as prosecutor, and that the right to prosecute was vested solely in the Crown—inasmuch as it did not appear (to them) that it was a necessary and imperative inference from Article 12, sub-section 11, of the Local Government (Application of Enactments) Order of December 22, 1898 (2), that the procedure, though of a summary character, was to be regulated, in respect to the person capable of becoming a prosecutor in the case, by the Acts affecting summary jurisdiction; and inasmuch further as there did not appear to be any limitation to the application of the decision in Bradlaugh v. Clarke (1), with which the case seemed (to them) to be practically identical, such as to justify them in ignoring the clear statement of the law as laid down in that case,

or in adopting the inference sought to he drawn from Article 12, sub-section 11—dismissed the complaint, without going into evidence. At the complainant's request the Justices now stated this case, to the effect above set forth, upon the question whether they were right in point of law in their determination, and as to what should be done in the premises.

[In addition to the authorities cited in the judgment counsel referred to Reg. v. Labouchere (1); Reg. v. Yates (2); Templeman v. Trafford (3); Shackell v. West (4); Bruce v. M'Alister (5); Powell v. Castletown (6); Stevenson v. O'Neill (7); Fleming v. Bailey (8)].

Cur adv. vult.

The judgment of the Court was delivered by—

W. G. Gibson, and T. M. Healy, Q.C., for the appellant.

J. J. Clancy, and J. H. Campbell, Q.C., for the respondent.

Palles, C.B.:—

The question in this case is whether a private person can prosecute for a breach of Article 12, sub-article 11, of the “Local Government Application of Enactments Order, 1898.” That order was made under section 104 of 61 & 62 Vict. c. 37, which enacts that there shall apply to Ireland so much as the Lord Lieutenant, by Order in Council, declares applicable, of the English and Scottish enactments specified in the 4th schedule to that Act, with such adaptations of the said enactments as appear necessary or expedient for carrying into effect their application to Ireland.

I understood it to have been suggested by Mr. Campbell that the sub-article in question was not an adaptation of any of the specified enactments; but, as the 107th section of the Act provides that an order, unless annulled as thereby provided, shall be deemed to have been duly made and passed within the powers conferred by the Act, and that no objection to its validity shall be taken in any proceeding, this suggestion cannot be considered by us.

The material words of the sub-article in question are:—“If any person acts when disqualified … he shall for each offence be liable on summary conviction to a fine not exceeding £20.”

It is clear that this sub-article creates a criminal offence in respect of a matter of public policy and utility which concerns the public generally as distinguished from any particular individual. It does not specially direct by whom the proceeding to procure a conviction shall be instituted, nor is there any express provision in it that the informer or prosecutor shall be entitled, for his own use, to any part of the penalty.

The Justices decided that the appellant was not entitled to institute the prosecution, basing their conclusion upon the well-known decision of the House of Lords in Bradlaugh v. Clarke (1). That case, however, was a civil action to recover penalties, not a criminal proceeding to obtain a conviction for an offence and the appropriate award of the penalty as a punishment for that offence. Lord Selborne bases his judgment upon the incontestable proposition of law, that, “where a penalty is created by...