R (M'Kenney) v Justices of County Antrim

• Jurisdiction: Ireland
• Judgment Date: 25 June 1900
• Date: 25 June 1900
• Court: Court of Appeal (Ireland)

Reg. (M'Kenney)

and

Justices of Co. Antrim (2).

Q. B. Div.

Appeal.

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.

Licensing Acts — Licence — Application for certificate for spirit grocer's licence — Absence of objection by police — Evidence taken by magistrates as to the unfitness of the applicant — Refusal to grant a certificate as to the good character of the applicant — Mandamus — Effective alternative remedy by appeal — Certiorari.

M. applied to the magistrates at Petty Sessions for a certificate as to his good character and the suitability of his premises, to enable him to obtain a spirit grocer's licence. There was no objection by the police to the application. Two of the presiding magistrates retired from the Bench, and gave evidence of intoxication on the part of M. Acting on this evidence, and also on the evidence of another magistrate who happened to be in Court, though not on the Bench, the remaining presiding magistrates refused to grant the applicant a certificate of good character. The applicant's solicitor at Petty Sessions objected that it was not competent for magistrates to give up their positions on the Bench and become witnesses, but raised no point as to the absence of objection by the police. The applicant having moved the Queen's Bench Division for mandamus and certiorari, to compel the magistrates to grant him the certificate:—

Held, by Sir P. O'Brien, L.C.J., and Gibson, J., that there was no jurisdiction

given by the Licensing Acts to the magistrates enabling them to refuse a certificate of good character to an applicant seeking a spirit grocer's licence, except in cases where the police make an objection to the issue of such certificate; but that the applicant was not entitled to mandamus, because he had another effective remedy, viz. by appeal to Quarter Sessions.

Held, by Murphy and Madden, JJ., that a writ of mandamus ought not to issue to compel magistrates to give a certificate of personal character which they knew to be false.

Held, by the majority of the Court of Appeal, Walker and Holmes, L.JJ. (FitzGibbon, L.J., dissentiente), that in the absence of an objection by the police the magistrates had no jurisdiction to refuse the applicant a certificate as to his good character; that no appeal lay from the decision of the magistrates to Quarter Sessions, and that accordingly the writ of mandamus should issue.

Semble (per Walker, L.J.), that in cases where magistrates act without jurisdiction, or in excess of jurisdiction, even though a right of appeal may exist, mandamus may be granted as a more appropriate and effective remedy.

Per Fitz Gibbon, L.J., that the magistrates were not bound to give a certificate of good character, which they knew would be false, to the applicant, in the absence of objection by the police; that an appeal lay to Quarter Sessions, and afforded an adequate and effective remedy; that if the magistrates were directed to rehear the case, an objection would at once be made by the police, as would have been done at the first hearing had the point now raised been suggested by the appellant, and thus the remedy by mandamus would become abortive; and that for all these reasons the writ should not issue.

Mandamus.

This was an application to make absolute, notwithstanding cause shown, a conditional order, dated the 27th September, 1899, for a writ of certiorari directed to the respondent Justices to remove and quash an adjudication by them, made at the Annual Licensing Petty Sessions for the Bushmills district on the 14th September, 1899, refusing the application of Michael M'Kenney for a certificate to enable him to obtain a spirit grocer's licence in respect of certain premises in Ballantrae in that district, and for a writ of mandamus commanding the said Justices to enter continuances and to rehear the application: on the grounds (as to the certiorari) that the order of refusal was without and in excess of jurisdiction; that it was founded on no due or legal objection to the granting thereof, and upon grounds not warranted by law; and that, the only legitimate objector being the officer of police, and there having been no objection on his part before the Court, the Justices were bound to grant the certificate.

The conditional order was obtained on the affidavit of the applicant, Patrick M'Kenney, who stated that on the 14th September, 1899, he applied to the magistrates sitting at the Annual Licensing Petty Sessions Court for the Bushmills district for a certificate (under the Beerhouses (Ireland) Act, 1864) as to his good character and as to the suitability of his premises, to enable him to obtain a spirit grocer's licence for his house in Port-ballantrae, in which he resided and carried on business as a grocer, and that the district inspector of police had been duly served with the notice of the application; that the application was heard by the following magistrates:—Sir Francis E. Macnaghten, Bart., chairman, Lord Macnaghten, Dr. Anthony Traill, N. Grimshaw, A. H. Steen, and James Boyle; that, at the hearing, the district inspector of police appeared, and stated to the Court that he had been duly served with notice of the application, and that, having inquired into the circumstances of the case, and being satisfied as to the applicant's good character and the suitability of his premises, he did not offer any opposition; that the applicant was examined by his solicitor in support of the application, as was also the local sergeant of police, who stated that the applicant was a man of respectability and good character, and that the witness had examined the premises and had found them to be suitable for a spirit grocer's business; that “no other evidence was then tendered to the Court, and all the said magistrates retired to their consulting-room to consider their decision;” but that “before retiring, and while the evidence in the case was proceeding and a discussion thereon going on among the members of the Court, Dr. Traill, as one of the presiding magistrates, stated that he would never sign the certificate, and that, if the other magistrates decided to do so, he would have his protest entered in the order book”; that, “on returning into Court, the Chairman, standing on the Bench and addressing the people in Court, said: ‘Before the magistrates give judgment in this case, they wish to know if any person in Court wishes to offer any evidence against the application’”;—that thereupon, Dr. Traill, “one of the presiding magistrates, who had heard the case fully and had retired to the room with the other magistrates to consult, remaining with them there all the time, came forward and said he wished to give evidence”; that, notwithstanding protest by Mr. M'Laughlin (the applicant's solicitor), Dr. Traill was allowed to give evidence, and stated he considered that the applicant was not a suitable person to have a spirit grocer's licence, as he had seen the applicant under the influence of drink; -that, when Dr. Traill had finished his evidence, another of the magistrates, Mr. Steen, who had also taken part on the Bench in the hearing of the case, and had retired with the other magistrates for consultation, volunteered to give evidence, and, notwithstanding protest, was allowed to give evidence; that Mr. Steen said he wished to corroborate what Dr. Traill had said; that one of the said magistrates then called upon Mr. Richard M. Douglas, J.P., who was sitting in Court, to come forward and give evidence, which he did at their request, to the effect that he had seen the applicant under the influence of drink; that none of these three gentlemen were cross-examined by Mr. M'Laughlin, who urged that the procedure was irregular; that none of these witnesses were called by the district inspector, who (as was submitted in the affidavit) was the only person legally entitled to oppose the application, and that “none of their evidence was given until after the hearing of the case had closed and the magistrates had retired for consultation”; that, after the proceedings above mentioned, the application was refused “on the ground” (as appeared by the certified copy of the order book) of the “unsuitability of the applicant.”

A joint affidavit, made by Sir Francis Macnaghten and Lord Macnaghten, was filed as cause on their behalf. They deposed that, on the day in question, Mr. M'Laughlin, as solicitor on behalf of Patk.M'Kenney, applied to the magistrates at Bushmills Petty Sessions for a certificate of good character and of the suitability of his premises in order to enable him to obtain a spirit grocer's licence; that the district inspector of police (Mr. Ireland), who, however, was not examined as a witness or sworn, stated to the Bench that there was no objection on the part of the police; that Patrick M'Kenney was called by Mr. McLaughlin, but gave no evidence on the matter now in question; that Sergeant Carson, in charge of the police in Bushmills, was sworn, and deposed that he believed that M'Kenney was a person of good character; but did not state the ground of his belief, was not asked whether he had made any inquiry on the subject, and did not allege or suggest that he had done so; that no notice or intimation of the proposed application had been given by or on behalf of the applicant, or by or on behalf of Mr. Ireland or the police in Bushmills, to the magistrates living in the neighbourhood, or any of them; and that the application came as a complete surprise to the magistrates presiding in Petty Sessions on the 14th September, the majority of whom lived in the immediate neighbourhood of, or were frequently in, Portballantrae, and could not help being aware of the reputation for insobriety which, justly or unjustly, Patrick M'Kenney bore in the neighbourhood; that Dr. Traill, one of the presiding magistrates, asked...