Binding Over

Cases

The King (Redmond) v. Jellett.

[1919] 2 IR 79

K. B. Div.

The judgment of the Court was delivered by
MOLONY C.J. :
On the 27th September, 1918 Joseph White, who is a steward to Colonel Erck of Shankill, swore an information before Mr. M. Barrington Jellett against William Redmond. It appears from the information that on the 17th of September last Colonel Erck was getting some threshing done, and that Redmond came to Colonel Erck’s place with a threshing machine belonging to Mr. Henry J. Fox of Kilternan, and asked for employment, which was refused. On the following morning he came again, and claimed that the men employed should get 12s. a day, but Joseph White made an arrangement with the men at 10s. a day, and again refused to employ Redmond. On the next day Redmond came back again, and made use of the language complained of.
On an information being sworn, the ordinary course for Mr. Jellett to have pursued would have been to issue a summons under sect. 11, sub-s. 2, of the Petty Sessions (Ireland) Act, 1851, and it might have occurred to him that this course would have been specially suitable in the present case, where the threats had been spoken eight days previously, and the ordinary Petty Sessions Court would have been held in three days. Assuming that there is power to issue a warrant in the first instance, this power should only be exercised in grave cases where serious personal violence immediately following the threats might be apprehended. In the present case Mr. Jellett considered, for reasons which were no doubt satisfactory to himself, but which I do not altogether appreciate, that the issue of a warrant was desirable, and he accordingly issued a warrant in the form prescribed by the Petty Sessions Act, in which the complaint was stated to be that on the 19th September, 1918, at Shankill, in the county of Dublin, the defendant had used threats towards Joseph White and others calculated to provoke a breach of the peace and to put him in fear. Redmond was arrested at 7 o’clock on the evening of the 27th September, and brought to the police station at Dundrum, and afterwards to the courthouse, which is in the same building. Mr. Jellett shortly afterwards appeared and proceeded to hear the evidence of Joseph White and Sergeant Lawton, R.I.C. Joseph White repeated the statements to which he had already deposed in his information, and Sergeant Lawton then gave evidence to the effect that Redmond was a man of bad character who could not get employment owing to his bad character, and he gave the names of three persons who, owing to his bad character, had refused to employ Redmond. He also deposed to the fact that on the 5th February, 1918, at the Commission in Green Street, Redmond had been convicted of sheep-stealing, and had pleaded guilty to cattle-stealing, and had been sentenced to eight months’ imprisonment.
It is no doubt open on an application for sureties of the peace to give evidence that the accused was not of good fame within the meaning of 34 Edw. 3, c. 1, but it is difficult to see how a statement of the sergeant as to the three persons whom he said had refused to employ Redmond on account of his character could have been relevant.
After hearing the evidence Mr. Jellett made an order requiring Redmond to enter into recognizances himself in £50 and two sureties in the sum of £25 each to keep the peace and be of good behaviour towards all His Majesty’s subjects, and particularly Joseph White, for a term of twelve months, and in default of finding such sureties and entering into recognizances as aforesaid, to be imprisoned in Mountjoy jail for six months, unless he should sooner enter into the said recognizances. The order purports to be made under the provisions of 34 Edw. 3, c. 1, and it is now sought to quash the said conviction on the ground: 1, that William Redmond was precluded from giving evidence by the decision of the King’s Bench Division in the case of R. (Garvey) v. Armagh Justices (1) and by the magistrate; and 2, that the order and sentence were influenced by illegal evidence. If Garvey’s Case (1) were rightly decided, it would appear that Mr. Jellett was not silting as a Court of summary jurisdiction, and that consequently the provisions of sect. 43, sub-s. 13, of the Criminal Justice Administration Act, 1914 (4 & 5 Geo. 5, c. 58), did not apply. In Garvey’s Case (1) the conditional order for certiorari was obtained on the ground that the order complained of was made without giving the accused an opportunity of calling witnesses for the defence, and thereby amounted to a denial of justice. It appeared from the affidavit of Henry Caraher, the complainant, that the accused. never expressed any wish to call witnesses, nor did he state that he had any witnesses, or that he would call any witnesses, nor did he ask for an adjournment to call witnesses, or for the attendance of a solicitor. If this statement was accepted by the Court, as it apparently was, it would appear that there were no grounds for the conditional order; but the Lord Chief Justice proceeded to discuss the question of law as to whether it was possible for the accused to tender evidence at the hearing, and came to the conclusion that the provisions of the Criminal Law Administration Act do not apply where justices by virtue of the jurisdiction inherent in them under their commissions bind over an individual with sureties to keep the peace and be of good behaviour. Unfortunately the attention of the Lord Chief Justice had not been called to the definitions of “Court of summary jurisdiction” and “summary jurisdiction” in the Petty Sessions Act, 1851, and in the Interpretation Act, 1889, and 20 & 21 Vict. c. 43, held to apply to peace cases. Had his attention been specifically drawn to these statutes, he would not, I think, have arrived at the conclusion at which he did. Under sect. 44 of the Petty Sessions (Ireland) Act, 1851, the expression “summary jurisdiction” shall be deemed to mean any case as to which a summary conviction or order may be made by a justice or justices out of Quarter Sessions, and “summary proceedings” shall mean any proceeding in respect of such case. This is undoubtedly a proceeding out of Quarter Sessions, and is a summary proceeding within the definition.
The matter is, however, made still more clear by the Interpretation Act, 1889, which, in sect. 13, sub-s. 11, enacts that the expression “Court of summary jurisdiction” shall mean any justice or justices of the peace or other magistrate, by whatever name called, to whom jurisdiction is given by, or who is authorized to act under, the Summary Jurisdiction Acts, whether in England, Wales, or Ireland, and whether acting under the Summary Jurisdiction Acts or any of them, or under any other Act, or by virtue of his commission or under the common law; and sect. 13, sub-s. 9, enacts that the expression “the Summary Jurisdiction (Ireland) Acts” shall mean, as regards the Dublin Metropolitan Police District, the Acts regulating the powers and duties of justices of the peace or of the police of that district; and as respects any other part of Ireland, the Petty Sessions (Ireland) Act, 1851, and any Act past or future, amending the same. It is clear that a magistrate, when he is sitting out of Petty Sessions for the purpose of hearing an application for sureties, is acting as a Court of summary jurisdiction: Boulter v. Kent Justices (1); Hagmaier v. Willesden Overseers (2). This being so, the provisions of sect. 43, sub-s. 13, of the Criminal Justice Administration Act, 1914, apply; and accordingly, when the defendant was called upon to show cause why he should not be bound over to keep the peace or be of good behaviour, he was entitled to call witnesses and tender evidence at the hearing of the complaint. It is alleged in the present case that the accused was deprived of the benefit of this section, and there is a good deal of controversy as to what really happened at the close of the evidence. Redmond has made two affidavits somewhat inconsistent in character. In the first affidavit, sworn 24th of October, 1918, he represents himself as having been dazed and dumbfounded by the proceedings, and unable to comprehend them, while in his second affidavit, sworn six days later, he says that he informed the magistrate that he had three witnesses, namely, the engine-driver, Copeland, and the two feeders, whom he wished to produce, and that he asked the magistrate to allow him time to do so, but that his application was refused. On the other hand, Mr. Jellett and Sergeant Lawton, both in precisely the same terms, say that it is not true that Redmond said he had three witnesses, and asked for time to produce them, but that what he did say was that he could prove that he followed Fox’s machine to get work, and that he did get work from farmers at threshings.
We are not satisfied that the accused ever requested the magistrate to give him time to call witnesses and tender evidence; and if he had made such a request, we find it difficult to think that an application so manifestly proper would have been refused. We are consequently unable to find that William Redmond was, in fact precluded from giving evidence, but we are equally satisfied that he was entitled to call witnesses and tender evidence, and that the decision of the Court in R. (Garvey) v. Armagh Justices (1), in so far as it purports to decide otherwise, cannot be supported.
Admitting now that Mr. Jellett was sitting as a Court of summary jurisdiction, and that the defendant at the hearing of the complaint was entitled to call witnesses and tender evidence the question arises as to whether we have power to examine the evidence and to quash the order if we are of opinion that the evidence was not sufficient to sustain it, or that the order was influenced by illegal evidence. In The Queen (Robert Orr and others) v. The Justices of Londonderry (2) it was decided by this Court that upon a motion for certiorari to bring up orders made by justices at Petty Sessions requiring persons to find sureties to
keep the peace and be of good behayiour, the Court has jurisdiction to examine the evidence given before the justices, and to quash orders made on insufficient evidence. This latter case was, however, referred to and distinguished in The King (Martin) v.Mahony (1), where Palles C.B. said in reference to it (p. 721):”Its ratio decidendi was the anomalous nature of the procedure in this country in relation to compelling such sureties to be found a procedure according to which the person sought to be compelled to provide sureties is not permitted to produce witnesses to contradict the case made against him.”
It seems to us that when, as here, the justice is sitting as a Court of summary jurisdiction, and the accused can call witnesses and tender evidence as he now can, and the order of the justice shows on its face the facts necessary to give jurisdiction to make such order, The Ring (Martin) v. Mahony (1) applies, and the order cannot be quashed on the ground of the reception of illegal evidence. We do not, however, decide that The King (Martin) v.Mahony (1) necessarily applies in every case where an order is made for sureties of the peace and good behaviour.
The result is that we cannot yield to the application of the defendant, and, therefore, the conditional order must be discharged.
Speaking far myself, I wish to express my regret at the result, as I cannot help feeling that the defendant has been harshly treated. I agree with and adopt the words of my predecessor, Lord O’Brien, in The King (Martin) v. Mahony (1),where he said:”In all matters of procedure the essentials of justice must be observed. It is one of the essential requirements of justice that a charge shall be duly formulated; that an accused person shall have due notice of it; and that he should be given an adequate opportunity of defending himself. Such matters are not mere formalities; they are the essential requirements of justice.”
In the present case, without any notice, the accused person is arrested at 7 o’clock in the evening, and brought at once to the courthouse at Dundrum. There does not seem to have been any necessity for issuing a warrant, and it could not be contended that a casual labourer with eleven children would be likely to disappear before the next Petty Sessions Court, which was to be held three days subsequently. He had not any real opportunity of procuring evidence, or of consulting his friends, or of obtaining legal advice; and in the end he is ordered to enter into a recognizance himself in £50 with two solvent sureties in the gum of £25 eachto keep the peace and be of good behaviour, or, in default, to be imprisoned for six months. I do not consider it reasonable that a person in the position of a casual labourer should be asked to find sureties in so large an amount, and, in default, to be imprisoned for so long a period for an offence of using threatening language a week previously; and it would be well for a justice to remember that although the amount of bail is in his discretion, he should, as is pointed out in Hawkins (2 Hawkins, c. 15, s. 4), be guided by the ability to give bail, the quality of the person, and the nature of the offence; and he should also remember that the Bill of Rights (1 Wm. and Mary, Sess. 2, c. 2), which is itself only declaratory of the common law, provides that excessive bail shall not be required. It is also to be noted that in England a magistrate, sitting, as Mr. Jellett sat here, in a Court of summary jurisdiction, could, under the 25th section of the Summary Jurisdiction Act, 1879, have only given the defendant fourteen days’ imprisonment in default of compliance with his order. I would be glad if there was a similar provision in this country; but it is my duty to administer the law as I find it, and within the law I am unable to give any relief in the present case.