The King (Taverner) v Justices of County Tyrone

• Jurisdiction: Ireland
• Judge: K. B. Div.
• Judgment Date: 04 November 1909
• Court: King's Bench Division (Ireland)
• Date: 04 November 1909

The King (Taverner)

and

Justices Of County Tyrone (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 — Bias — Churchwardens — Select Vestry — Conviction — Omission of statement whether imprisonment to be with or without hard labour — Imprisonment in default of payment of fine — Omission of words “unless fine and costs be sooner paid” — Defect in form of conviction brought about by defendant's conduct — Certiorari — Discretion.

Held, that these Justices were not disqualified from adjudicating.

T. was convicted of the assault and fined. The conviction provided that in default of payment of the fine and costs the defendant was to be imprisoned for seven days:—

Held, that the conviction was not bad for omitting to state whether such imprisonment was to be with or without hard labour.

Ex parte Thompson (24 J. P. 805) followed.

Held, also, that T. was not entitled to a writ of certiorari to quash the conviction on the ground that it omitted to add, after the award of imprisonment, the words “unless such fine and costs be sooner paid,” it appearing that the omission of these words was brought about by a statement made on behalf of the defendant that the fine would be paid.

Certiorari.

The prosecutor herein was the defendant in a summons issued on the complaint of George Armstrong, charging the prosecutor

with having assaulted the complainant. In an affidavit made by the prosecutor for the purpose of obtaining the conditional order hereinafter mentioned, it was stated that the charge arose in connexion with an attempt made by the Churchwardens of Five-miletown Parish Church (one of whom was a brother of the complainant) to exclude the prosecutor from the church. That the prosecutor was a member of the church and of the select vestry, and that a pew which the prosecutor had occupied for a number of years had been allocated by the churchwardens to the complainant. That when the prosecutor was about to enter the church one of the churchwardens attempted to put him out, and during the struggle the prosecutor caught hold of the complainant's coat, which was the assault complained of.

The summons came on for hearing at Fivemiletown Petty Sessions, on the 2nd September, 1909, before a bench of five magistrates, of whom two, Mr. Montgomery (the Chairman) and a Mr. Lendrum, were members of the select vestry of Fivemiletown Church. At the beginning of the case it was suggested by counsel for the defendant that it might be better that any member of the Bench who was a member of the select vestry of the church should not adjudicate. Mr. Montgomery said he was a member of the select vestry, but that he could see no reason why he should not adjudicate, as the select vestry were not the complainants, nor had the summons been brought at their instigation; that it was purely a case of assault between two parties. Mr. Montgomery and Mr. Lendrum both adjudicated in the matter. Evidence was given, on which the Justices came to the conclusion that the defendant had assaulted the complainant. The defendant was convicted, and an order made to the following effect:— “Convicted of assault, and fined 10s., and 4s. costs, or in default to be imprisoned for seven days in Londonderry Jail.”

The prosecutor obtained a conditional order for a writ of certiorari to bring up and quash the conviction on grounds substantially as follows:— (1) That the order imposed a term of imprisonment without allowing the defendant the option of determining such term by payment of the fine, the words “unless such fine and costs be sooner paid,” or words to the like effect,

being omitted, from the part of the order imposing the term of imprisonment. (2) That the term of imprisonment was not ordered to be with or without hard labour. (3) That the Justices, or some of them, were disqualified from adjudicating by reason of bias, two of the Justices being members of the select vestry of the church, in connexion with the...