R (Redding) v Swifte

• Jurisdiction: Ireland
• Judge: K. B. Div.
• Judgment Date: 01 February 1909
• Court: King's Bench Division (Ireland)
• Date: 01 February 1909

The King (Redding)

and

E. G. Swifte, one of the Divisional Justices of the Police District of Dublin Metropolis (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.

1909.

Justices — Dublin Divisional Justice — Jurisdiction to issue summons for service outside Dublin Police district — 5 & 6 Vict. c. 24, s. 49 — “Stipendiary Magistrate” — Married Women (Maintenance in case of Desertion) Act, 1886 (49 & 50 Vict. c. 52).

A Divisional Justice of the Dublin Metropolitan Police district has jurisdiction, in respect of any matter summarily determinable by him, and arising within such district, whether of a civil or criminal nature, to issue a summons for service on a defendant anywhere in Ireland.

Great Southern & Western Railway Co. v. Leyden ([1907] 2 I. R. 160) distinguished.

The expression “Stipendiary Magistrate” in sect. 1 of the Married Women (Maintenance in case of Desertion) Act, 1886, includes a Divisional Justice of the Dublin Metropolitan Police district.

Proceedings under the last-mentioned Act are of a civil nature.

Quære: Does the decision in Great Southern & Western Railway Co. v. Leyden ([1907] 2 I. R. 160) apply to proceedings under that Act in Petty Sessions districts outside the Metropolitan Police district.

Certiorari.

A summons was issued by Mr. Swifte, one of the Divisional Justices of the Dublin Metropolitan Police District, requiring the prosecutor herein, Thomas Benson Redding, who resided at New-townards, in the county of Down, to appear before one or more of the Justices in the said district, presiding at the Dublin Metropolitan Police Court, to answer the complaint of Hannah Redding, who resided within the Metropolitan District, for that the prosecutor, being the husband of the complainant in the summons, and being able wholly or in part to maintain her, did wilfully refuse and neglect so to do, and had deserted her; and requiring him to show cause why he should not be ordered to pay to the com-

plainant for her support such weekly sum, not exceeding £2, as might be in accordance with his means, and any means the complainant might have. This summons was served personally on the prosecutor at Newtownards.

The summons was heard before Mr. Swifte at the Southern Division Metropolitan Police Court, on the 31st July, 1908. The prosecutor did not appear. Evidence was given of the service of the summons; of the marriage of the parties; and that the prosecutor had deserted his wife at the Four Courts Hotel, Inns Quay, in Dublin. Evidence was also given as to the means of the prosecutor. The magistrate made an order that the prosecutor should pay to his wife the sum of 30s. per week.

The prosecutor obtained a conditional order for a writ of certiorari to quash this order on the grounds—(1) “That the said magistrate being a Dublin Metropolitan Police Magistrate, and not a magistrate for the county of Down, which county is not a county adjoining the county of Dublin, did issue a summons for service in the said county of Down requiring the attendance of defendant before said magistrate in the city of Dublin, and that in so doing the said magistrate acted in excess of jurisdiction.” (2) “That the said magistrate made the said order of the 31st July, 1908, in the absence of the said defendant, he not having submitted to the jurisdiction of the said magistrate.”

Cause having been shown on behalf of the Crown against making the conditional order absolute, the present application was on behalf of the prosecutor to make the conditional order absolute, notwithstanding cause shown.

Ronan, K.C. (with him Vincent Rice), for the prosecutor:—

We contend—first, no jurisdiction is given to a Dublin Divisional Police Magistrate by the Act under which the present proceedings were instituted, viz., the Married Women (Maintenance in case of Desertion) Act, 1886. The power to issue a summons or make an order under that Act is given to two Justices in Petty Sessions, or a Stipendiary Magistrate. A Dublin Divisional Magistrate is not a Stipendiary Magistrate. Mr. Molloy in his note on section 16 of the Criminal Justices Act (18 & 19 Vict, c. 126), referring to the expression ‘Stipendiary Magistrate,’ says: “This does not mean every Stipendiary or Resident Magistrate such as we have in Ireland, but a particular class of Stipendiary Magistrates appointed for some city or town, &c., and sitting at a Police Court, or other place appointed in that behalf. There does not appear to be any Stipendiary Magistrate of that class in Ireland” (Molloy's Justice of the Peace, p. 52); see also p. 835, note (d). When the Legislature intends that the expression “Stipendiary Magistrate” shall include a Dublin Divisional Magistrate, it so enacts in express terms. Thus, in the Merchant Shipping Act, 1876, it is enacted (sect. 42), that “Stipendiary Magistrates” shall be deemed to include any of the Justices of the Peace in Dublin Metropolis.” The words “shall be deemed to include” show that the term “Stipendiary Magistrate” would not of its own force include such Justices. In Nun and Walsh, Justices of the Peace (2nd ed.), p. 2, a distinction is drawn between the Metropolitan Police Magistrates and Stipendiary Magistrates.

Secondly, a Dublin Divisional Magistrate has no jurisdiction in any case to issue a summons for service outside the Dublin Metropolitan Police district. There is no power to issue a summons for service outside the territorial limits of the jurisdiction of the Justice issuing it: Great Southern and Western Railway Co. v. Leyden(1). It is said in Nun and Walsh, Justices of the Peace, p. 164, that some few statutes authorize the service of the summons beyond the jurisdiction of the Justice granting it—a statement, as Lord O'Brien, L.C.J., says in Leyden'sCase(1), p. 162, which plainly implies that there was, in the opinion of the profession, no power to serve a summons generally throughout Ireland; and the Lord Chief Justice accepts this as a correct statement of the practice. One of the statutes referred to in Nun and Walsh is the Municipal Corporations Act (3 & 4 Vict. c. 108), by section 161 of which it was enacted that both summonses and warrants issued by a borough Justice might be served and executed within any county in which the borough was situated, or within seven miles of such borough. By the Dublin Police Act, 1842 (5 & 6 Vict. c. 24), passed two years after the last-mentioned Act, it is provided by section 48 that a warrant issued by a Dublin Divisional Justice

may be served or executed out of the Dublin metropolitan police district (a provision having no application to the present case, which is of a civil and not criminal nature); while section 49, which deals with summonses, gives no power to serve out of the district. The argument ab inconrenienti cannot be relied on by the Crown. By section 2 of the Act of 1886 a summons under the Act may be granted and served as in cases of assault. Redding could, therefore, have been prosecuted before the Justices at Newtownards: Petty Sessions (Ireland) Act, 1851, sect. 10. It may be contended that section 1, sub-section 1, of the Act of 1886, which enacts that payment of the sum ordered may be enforced against the husband in the same manner as payment of money is enforced under an order of affiliation, refers to 35 & 36 Vict. c. 65, and by incorporating the provisions of that Act gives the magistrate jurisdiction irrespective of the residence of the defendant. But that Act never applied to Ireland. In any event, section 1, sub-section 1, of the Act of 1886 applies only to the enforcement of the order, and not to the making of it.

Redmond Barry, K.C. (Solicitor-General), and Dudley White, for the Crown:—

As to the first point: A Dublin Divisional Justice represents in the Dublin metropolitan police district the authority of Petty Sessions in other parts of Ireland. By the Dublin Police Act, 1859 (22 & 23 Vict. c. 52), sect. 11, such Divisional Justice may do alone at the Dublin Police Courts any act which by any law then in force, or any law thereafter to be made not containing a provision to the contrary, is to be done by more than one Justice. At all events the expression “Stipendiary Magistrate” is wide enough to include a Dublin Divisional Justice. He is a magistrate receiving a stipend. It could never have been intended that the Act of 1886 should not apply to the Dublin police district.

As to the second point: Even apart from any special jurisdiction which may be conferred by the Married Women (Maintenance in cases of Desertion) Act, 1886, we contend that a summons issued by a Dublin Divisional Magistrate in respect of any matter summarily determinable by him, and arising within the Dublin metropolitan police district, may be served in any part of Ireland. By section 48 of 5 & 6 Vict. c. 24, the warrants therein mentioned, including a warrant to compel the appearance of any person, or warrant for the apprehension of any person charged with any offence, may be served or executed out of the district. The word “served” can only apply to the warrant to compel appearance, and shows that that expression must include a summons, since the word “served” would not be applicable to a warrant under which a person was arrested, “executed” being the word in such case. A summons is not a mere notice. It is a judicial process to compel appearance: Leyden'sCase(1). The Divisional Justice has jurisdiction, “without issuing any summons,” to issue a warrant for the apprehension of any person charged with any offence cognizable before him (5 & 6 Vict. c. 24, sect. 51), and such warrant may admittedly be executed although the defendant is outside the Dublin police district. It could not have been intended to give the magistrate power to issue a warrant in such case, but to preclude him from adopting the more lenient course of issuing a...