Attorney General for Northern Ireland's Reference (No. 1 of 1975)

JurisdictionUK Non-devolved
JudgeLord Diplock,Viscount Dilhorne,Lord Simon of Glaisdale,Lord Edmund-Davies,Lord Russell of Killowen
Judgment Date07 July 1976
Judgment citation (vLex)[1976] UKHL J0707-3
Date07 July 1976
CourtHouse of Lords

[1976] UKHL J0707-3

House of Lords

Lord Diplock

Viscount Dilhorne

Lord Simon of Glaisdale

Lord Edmund-Davies

Lord Russell of Killowen

Reference Under Section 48A of the Criminal Appeal (Northern Ireland) Act 1968, No. 1 of 1975

Upon Report from the Appellate Committee, to whom was referred a Reference under section 48A of the Criminal Appeal (Northern Ireland) Act 1968, No. 1 of 1975, That the Committee had heard Counsel, as well on Monday the 3d, as on Tuesday the 4th, Wednesday the 5th, Thursday the 6th, Monday the 10th and Tuesday the 11th, days of May last, upon the Petition and Reference of Her Majesty's Attorney General for Northern Ireland, praying, That the matter of the Order set forth in the First Schedule thereto, namely, an Order of Her Majesty's Court of Criminal Appeal in Northern Ireland of the 18th of December 1975, and the points of law set out in Reference No. 1 of 1975 (as amended), might be reviewed before Her Majesty the Queen, in her Court of Parliament; and Counsel having been heard on behalf of the Respondent mentioned in the said Reference; and due consideration had this day of what was offered on either side in this Reference:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That it be declared that the facts and circumstances set out in the Reference are sufficient to raise an issue for the tribunal of fact as to whether the Crown had established beyond a reasonable doubt that the Respondent's act of shooting constituted, in the circumstances, unreasonable force.

Lord Diplock

My Lords,

1

In the exercise of his powers under section 48A of the Criminal Appeal (Northern Ireland) Act, 1968, the Attorney-General referred to the Court of Criminal Appeal in Northern Ireland two points of law which had arisen in the case of a soldier who had been tried for murder at the Belfast City Commission and had been acquitted. The Court of Criminal Appeal gave its opinion on the points and, upon the application of the Attorney-General, referred them to your Lordships' House for its consideration.

2

At a late stage in the hearing before this House the Attorney-General voiced his doubts as to whether section 48A of the Criminal Appeal (Northern Ireland) Act 1968 had ever come into force. If it has not, neither this House nor the Court of Criminal Appeal in Northern Ireland has jurisdiction to entertain the reference. So I must deal with the question of jurisdiction first.

3

Section 48A was inserted in the Act of 1948 by section 63(3) and Schedule 4 of the Criminal Justice Act 1972. It is set out in Schedule 4 and reads as follows:—

"48A.—(1) Where a person tried on indictment has been acquitted (whether in respect of the whole or part of the indictment) the Attorney General may, if he desires the opinion of the Court of Criminal Appeal on a point of law which has arisen in the case, refer that point to the Court, and the Court shall, in accordance with this section, consider the point and give their opinion on it.

(2) For the purpose of their consideration of a point referred to them under this section, the Court of Criminal Appeal shall hear argument—

( a) by, or by counsel on behalf of, the Attorney General; and

( b) if the acquitted person desires to present any argument to the Court by counsel on his behalf or, with the leave of the Court, by the acquitted person himself.

(3) Where the Court have given their opinion on a point referred to them under this section, the Court may, of their own motion or in pursuance of an application in that behalf, refer the point to the House of Lords if it appears to the Court that the point ought to be considered by that House.

(4) If a point is referred to the House of Lords under subsection (3) of this section, the House shall consider the point and give their opinion on it accordingly; and section 38(1) of this Act shall apply also in relation to any proceedings of the House under this section.

(5) …

(6) A reference under this section shall not affect the trial in relation to which the reference is made or any acquittal in that trial.

(7) …".

4

It should be noted that the Act of 1972 also contained in section 36 a provision in substantially similar terms conferring a corresponding jurisdiction upon the Criminal Division of the Court of Appeal in England.

5

Section 63(3) of the Act of 1972 reads as follows:—

"63. (1) …

(2) …

(3) Without prejudice to the foregoing provisions of this section, there shall be inserted at the beginning of Part IV of the Criminal Appeal (Northern Ireland) Act 1968, as a new section 48A, the section set out in Schedule 4 to this Act (being a provision corresponding to section 36 of this Act)."

6

The Criminal Appeal (Northern Ireland) Act 1968 consolidated the law relating to the Court of Criminal Appeal in Northern Ireland and its jurisdiction. Part IV of that Act bears the heading "General", and the first section in that Part (before the insertion of section 48A) was section 49 which deals with rules of court. The relevant part of it is in the following terms:—

"49.—(1) Rules may be made under section 7(1) of the Northern Ireland Act 1962—

( a) for regulating generally the practice and procedure under Parts I and II of this Act and under Part III of this Act so far as it relates to the Court of Criminal Appeal; and

( b) for prescribing anything which by Part II of this Act is required or authorised to be prescribed."

7

Immediately before the passing of the Criminal Justice Act 1972 the express power to regulate the practice and procedure of the Court of Criminal Appeal in Northern Ireland by rules of court was thus limited to the exercise of its jurisdiction under Parts I, II and III of the Act of 1968 which are those parts of the Act which provided for the constitution of the court and conferred its jurisdiction on it. Upon a literal reading of the Act of 1968 as amended by inserting section 48A at the beginning of Part IV instead of in one of the preceding Parts, section 49 does not confer any express power to make rules of court for regulating the practice and procedure of the Court of Criminal Appeal in exercising its new jurisdiction under section 48A. So if there is any power to make such rules it must be sought for elsewhere than in section 49.

8

The last piece in the legislative jig-saw to which your Lordships' attention has been drawn is to be found in section 66(6) of the Act of 1972. The relevant part is as follows:—

"66. (6) This Act shall come into force on such day as the Secretary of State may appoint by order made by statutory instrument, and different days may be so appointed for different provisions:

Provided that—

( a)….

( b) neither section 36 nor the corresponding section referred to in section 63(3) shall come into force until provision has been made by rules of court with a view to preventing or restricting the disclosure of the identity of the acquitted person in references under that section."

9

The authority empowered to make rules under section 7(1) of the Northern Ireland Act 1962, is the Norther Ireland Supreme Court Rules Committee. On 11th October 1973 that Committee purported to make the Criminal Appeal (Reference of Points of Law) Rules 1973. They were expressed to be made under that section and section 49 of the Act of 1968 and "all other powers enabling us in that behalf". These rules deal generally with the procedure upon references to the Court of Criminal Appeal under the new section 48A of the Act of 1968 and contain provisions which comply with the requirements of section 66(6) of the Act of 1972 as respects the disclosure of the identity of the acquitted person. These rules were followed, on 27th November 1973, by the Criminal Justice Act 1972 (Commencement No. 4) Order 1973 made by the Home Secretary under section 66(6) of that Act appointing 1st January 1974 as the date upon which section 63(3) and Schedule 4 of the Act of 1972 should come into force.

10

Proviso ( b) to section 66(6) of the Act of 1972 under which the making of rules of court is a condition precedent to the coming into force of the new section 48A of the Criminal Appeal (Northern Ireland) Act 1968 was drafted upon the assumption that there would be when the Act was passed some means by which "rules of court" could be made regulating the practice and procedure to be followed by the Court of Criminal Appeal in Northern Ireland when exercising the new jurisdiction conferred upon it by section 48A of the 1968 Act. There was a similar assumption as respects the Criminal Division of the Court of Appeal in England when exercising its new jurisdiction under section 36 of the Act of 1972. The Attorney-General, however, has submitted that, as respects the Court of Criminal Appeal in Northern Ireland, this assumption may have been erroneous. The insertion of section 48A at the beginning of Part IV of the Act of 1968 instead of in one or other of the previous Parts may have been an obvious drafting slip, but the effect of doing so is to exclude the exercise of the jurisdiction which it confers upon the court from the subject-matter in respect of which "rules of court" may be validly made by the Northern Ireland Supreme Court Rules Committee under section 49. The rules purported to be made by that committee were accordingly ultra vires; and since there is no other rule-making authority empowered to make rules of court for the Court of Criminal Appeal in Northern Ireland, the condition precedent imposed by section 66(6)( b) of the Act of 1972 can never be fulfilled and section 48A cannot be brought into force until the matter has been set right by further legislation.

11

My Lords, upon analysis of this submission the first step in the argument involves applying, as an aid to the construction of section 49 after the amendment, the rule expressio unius exclusio alterius, i.e....

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