R (Futter) v The Justices for The County of Cork

• Jurisdiction: Ireland
• Judgment Date: 08 May 1917
• Date: 08 May 1917
• Court: King's Bench Division (Ireland)

R. (Futter)

and

The Justices For The County of Cork (1).

K. B. Div.

CASES

DETERMINED BY

THE KING'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.

1917.

Justices — Jurisdiction — Petty Sessions — Commencement of Prosecution — Conviction on first Summons quashed — Second Summons based on original complaint — Fisheries (Ireland) Act, 1850 (13 & 14 Vict. c. 88), s. 50.

The complaint made to the justice of an offence against sect. 16 of the Fisheries (Ireland) Act, 1869 (32 & 33 Vict. c. 92), and not the issuing of the summons, is the commencement of a prosecution under the Fisheries (Ireland) Acts. Held accordingly, that where the complaint was made within six months from the commission of the offence, the prosecution had been commenced within the time limited by section 50 of the Fisheries (Ireland) Act, 1850 (13 & 14 Vict. c. 88).

Beardsley v. Giddings, [1904] 1 K. B. 847, and Brooks v. Bagshaw, [1904] 2 K. B. 798, applied.

Held also, that since a complaint had in fact been made to the justice before he issued one summons (which had been quashed), it was immaterial whether he had or had not present to his mind the existence of such complaint at the date when he issued a second summons.

Mandamus.

This was an application to make absolute a conditional order that a writ of mandamus should issue directed to the Justices of Co. Cork, commanding them to enter continuances upon and proceed to hear and determine according to law a complaint entered for hearing before them on 14th of November, 1916, in which the prosecutor was complainant, and James White and Patrick Regan were defendants.

The prosecutor was the secretary and inspector to the Board of Fishery Conservators for the Cork District. In the month of April, 1916, he wrote to the Clerk of Petty Sessions for the District of Passage West, and enclosed a statement of complaint against the defendants, and requested the clerk to fill up a summons alleging an offence against section 16 of the Fisheries (Ireland) Act, 1869 (32 & 33 Vict. c. 93), directed to the defendants, and to bring it to a justice for signature. The clerk prepared a summons and brought it to Mr. Oliver S. S. Piper, J.P.,

who signed it on 13th of April, 1916. Having filled up the summons from the information contained in the written complaint made by the prosecutor, the clerk, according to his usual practice, destroyed the latter.

The summons came on for hearing on 18th of April, 1916, when the defendants were convicted in the terms of the summons. On 28th of July, 1916,. the defendant James White obtained a conditional order for a writ of certiorari to quash the conviction on the ground that the order of conviction was bad for uncertainty. The conditional order was made absolute on 6th of November, 1916 (1).

Upon the quashing of the conviction, the Petty Sessions Clerk, acting upon a letter from the prosecutor's solicitor, prepared a fresh summons against the defendants, and brought it to Mr. Oliver S. S. Piper, J.P., who signed it on 9th of November, 1916.

When this second summons came on for hearing on 14th of November, 1916, the magistrates declined to hear it on the ground that, since the alleged offence was committed on the 15th day of March, 1916, the complaint in respect of the same should have been made within six months, and they accordingly made an order of “no jurisdiction” upon the summons.

There was some dispute as to what occurred when the Petty Sessions Clerk brought the second summons to Mr. Oliver S. S. Piper, J.P., for signature; and as to whether or not the clerk informed him that he had already, in the month of April, 1916, signed a former summons against the same defendants dealing with the same alleged offence. An affidavit, sworn by Mr. Piper on 27th of January, 1917, was filed on...