The King (Boylan) v The Justices of Londonderry

• Jurisdiction: Ireland
• Judge: K. B. Div.
• Judgment Date: 10 May 1912
• Court: King's Bench Division (Ireland)
• Date: 10 May 1912

The King (Boylan)

and

The Justices of Londonderry (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.

1912.

Justices — Order to find sureties for the peace and good behaviour — Showing jurisdiction on face of order — Bona fide question of title involved.

So held by Palles, C.B., and Gibson, J. (Lord O'Brien, L.C.J., dubitante).

The prosecutor was charged as defendant on the prosecution of a head constable of the Royal Irish Constabulary on a summons in the following form:— “Whereas a complaint has been made to me that you, the defendant, on the 6th day of November, 1911, at … did unlawfully assault John Begley and James Begley of …, and to show cause why you should not be bound to be of the peace and good behaviour.” The case was heard by the Justices at Petty Sessions. It appeared from the evidence that an assault had been committed by the defendant, arising out of a dispute involving a bona fide question of title. The magistrates made an order which was entered in the order book. It set out the complaint as in the summons, and ordered that the defendant should enter into security by recognizance to keep the peace and be of good behaviour for twelve months, and in default should be imprisoned.

Held, by Palles, C.B., and Gibson, J.; Lord O'Brien, L.C.J., dubitante, that the order did not show jurisdiction on its face and should be quashed on certiorari.

The question whether Justices have power to bind to the peace where a bona fide question of title is raised, considered.

The prosecutor, Patrick Boylan, was charged as defendant in a summons at the prosecution of Samuel Doherty, Head Constable, Royal Irish Constabulary, the material statements in the summons being as follows:— “Whereas a complaint has been made to me that you, the defendant, on the 6th day of November, 1911, at Ballyscullion, in the county of Londonderry, did unlawfully assault John Begley and James Begley of Ballymultimber, and to show cause why you should not be bound to be of the peace and good behaviour. This is to command you,” &c.

The summons was heard at the Petty Sessions at Limavady,

in the county of Londonderry, and it appeared from the evidence that an assault had been committed by Boylan on the Begleys, arising out of a dispute as to a right to take sea-weed from certain lands. No evidence was given that the Begleys had declined to prosecute. The solicitor for the defendant submitted that the Justices had no jurisdiction to determine the case, on the ground that the Begleys had not declined to prosecute, and also on the ground that a bona fide question of title was involved.

The magistrates made an order that the defendant should enter into recognizances to keep the peace and be of good behaviour. The order was entered in the Petty Sessions order-book. It set out the cause of complaint as in the summons, viz.:— “The defendant on the 6th day of November, 1911, at Ballyscullion, in the county of Londonderry, did unlawfully assault John Begley and James Begley of Ballymultimber, and to show cause why you should not be bound to be of the peace and good behaviour.” The particulars of the order made were set out as follows:— “That the defendant enter into security by recognizance, himself in £10, with two sureties in £5 each, to keep the peace and be of good behaviour towards all His Majesty's subjects, and particularly towards the said John Begley and James Begley, for the period of twelve calendar months, and in default of entering into security as aforesaid to be imprisoned in Londonderry gaol for the period of one calendar month, unless the recognizance is sooner entered into. Allowed until 7th December to enter into said recognizance at request of defendant's solicitor.”

The prosecutor obtained a conditional order for a writ of certiorari to bring up and quash the order of the Justices, on the grounds that it was made without and in excess of jurisdiction, (a) as a bona fide question of title was involved in the determination of the complaint, (b) as the defendant was acting under a bona fide claim of right to property. Subsequently, by leave of the Court, the following further ground was inserted:— “(c) That the order is bad on its face, because it does not disclose the facts which authorized the Justices to exercise their jurisdiction.”

The present application was on behalf of the prosecutor to make the conditional order absolute, notwithstanding cause which had been shown on behalf of the Crown.

Horner, K.C. (with him Julian), for the prosecutor:—

The order is bad on its face, inasmuch as it does not set out facts showing that the Justices had jurisdiction to make it. In every case of an order by Justices it must expressly appear on the face of the order that the Justices had jurisdiction to make it, and the facts raising such jurisdiction should be shown, or it will be bad: Burns, Justice of the Peace, 30th ed., p. 1109; The Queen v. Treasurer of CountyKent (1), per Denman, J., p. 606, and Hawkins, J., p. 607; The Queen v. Campbell (2), per Crampton, J., p. 588; Day v. King (3), per Williams, J., p. 367. There is no distinction in this respect between orders binding over to keep the peace and be of good behaviour, and other orders. If a person informs the Court that he goes in fear and danger of personal violence by reason of the threats of another, surety may be granted.“Unless such a case appear, no jurisdiction appears”: The Queen v. Dunn (4), per Lord Denman, C.J., p. 617. Dalton, dealing with the subject of sureties for the peace, says:— “This precept or warrant then must be made in writing, and under the Justice his seal, … and must contain the cause and at whose suit”: Dalton, Justice of the Peace, p. 271. “If it be for the peace or good behaviour where sureties are to be found or required, then the warrant ought to contain that special cause”: Ib., p. 440. The form of warrant given in Dalton (p. 459) recites that the complainant has taken a corporal oath that he is afraid that the defendant will beat him, &c. In The Queen v. The Justices of Londonderry (5) the summons set out facts showing jurisdiction. In The Queen v. Wilkins (6) the order showed jurisdiction on its face; it alleged defendant's statement on oath that the complainant had used threats towards him calculated to provoke a breach of the peace.

Where a question of title to land is involved, as in the present case, there is no jurisdiction to bind to the peace: Rex (Mahon) v. Justices of Antrim (7).

The Solicitor-General (Ignatius O'Brien, K.C.), and J. Linehan, for the Crown:—

Orders binding to the peace or good behaviour are not governed by the Petty Sessions (Ireland) Act, 1851. Sect. 21 of that Act, requiring orders to be entered in the order-book, deals only with cases in which evidence can be adduced on both sides, and has no application to orders binding to the peace or good behaviour. The provisions of sub-sect. 2 of section 21, as to orders made out of Petty Sessions, apply only to orders permitted by the Act itself to be made out of Petty Sessions, that is to say, the cases mentioned in section 8, sub-sect. 2. The intention was to leave in force the old procedure in cases of surety for the peace and good behaviour. Under the old procedure it was the warrant or precept, not the order, which was required to set out the cause. An order could be made even by word of mouth: Dalton, Justice of the Peace, pp. 270, 271. No warrant was necessary if the party against whom the surety was sought was present before the Justice: Ib., p. 271. Orders for sureties for the peace and good behaviour are essentially different in their nature from all other orders of Justices, inasmuch as this Court on certiorari can examine the evidence, and if insufficient quash the order: The Queen v. The Justices of Londonderry (1).What is looked at in cases of this kind is not the order, but the evidence. This essential difference is referred to by Holmes, J., in his judgment in the last-mentioned case (p. 459), and he goes on to say:— “In an order requiring sureties, however, nothing appears that would enable us to say, prima facie, that the magistrate had jurisdiction, unless we inquire into the evidence or facts upon which he acted.” The omission from the order of facts showing jurisdiction inflicts no hardship on the person required to enter into surety, since he is entitled on certiorari to go into the whole evidence which was before the Justices.

But assuming that the order must set out facts authorizing it, we submit that such facts are set out here. The complaint is not a charge of assault—it would have been bad as such, since it does not state that the party aggrieved had declined to prosecute—it is

a demand for sureties based on an assault. An order reciting such complaint sufficiently shows jurisdiction: Ex parte Davis (1). It is no longer considered necessary that an order binding to the peace should state that the complainant goes in bodily fear of the defendant: Rex. v. Wilkins (2).

There was ample evidence before the magistrates to justify the order; therefore, even assuming it to be bad in form, the Court in the exercise of its discretion should refuse certiorari

The principle that where a question of title to land is involved the jurisdiction of the Justices is ousted, does not apply to a preventive jurisdiction such as requiring sureties for the peace and good behaviour.

Julian in reply, referred to Kennington v. Daniel (3); The Queen v. O'Brennan (4); Fitzpatrick v. Pine (5).

An order of Justices requiring a person to find sureties to keep the peace and be of good behaviour must show on its face facts necessary to give the Justices jurisdiction to make such order.

Lord O'Brien, L.C.J.:—

I have considered this case very carefully, and have discussed it with the Lord Chief Baron and my brother Gibson, yet I...