McEldowney v Forde
| Jurisdiction | England & Wales |
| Judge | Lord Guest,Lord Hodson,Lord Pearce,Lord Pearson |
| Judgment Date | 01 January 1970 |
| Court | House of Lords |
| Date | 01 January 1970 |
[1969] UKHL J0618-1
Lord Hodson
Lord Guest
Lord Pearce
Lord Pearson
Lord Diplock
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause McEldowney (A.P.) against Forde (on Appeal from the Court of Appeal in Northern Ireland), that the Committee had heard Counsel, as well on Monday the 28th as on Tuesday the 29th, days of April last, upon the Petition and Appeal of John McEldowney (Assisted Person) of Slaughtneil, Maghera, County Londonderry, in Northern Ireland, praying that the matter of the Order set forth in the Schedule thereto, namely an Order of Her Majesty's Court of Appeal in Northern Ireland of the 29th of November 1968, so far as regards the words, "This Court doth answer the said Question in the negative and doth remit the said Case to the Magistrates to do as justice may appertain," might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied or altered and that the Question in the Case Stated mentioned in the Schedule to this Appeal might be answered in the affirmative or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament might seem meet; and Counsel having been heard on behalf of Michael F. Forde, the Respondent in the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal in Northern Ireland, of the 29th day of November 1968, in part complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Costs incurred by the said Appellant in respect of the said Appeal to this House be taxed in accordance with the provisions of the Third Schedule to the Legal Aid and Advice Act (Northern Ireland) 1965.
My Lords,
The question for determination on this appeal is whether the Resident Magistrates sitting as a Magistrates' Court for the Petty Sessions District of Maghera on 12th June 1968 were right in law in dismissing a complaint against the present Appellant. He was charged in these words:
"You the said defendant were and remained a member of an unlawful association, namely, a Republican Club, contrary to Regulation 24A of the Regulations made under the Civil Authorities (Special Powers) Acts (Northern Ireland) 1922-1943."
The Act of 1922, which I will call "the Act", was enacted, as the title shows, to empower certain authorities of the Government of Northern Ireland to take steps for preserving the peace and maintaining order in Northern Ireland and for purposes connected therewith. Section 1 provides:
"1. (1) the civil authority shall have power, in respect of persons, matters and things within the jurisdiction of the Government of Northern Ireland, to take all such steps and issue all such orders as may be necessary for preserving the peace and maintaining order, according to and in the execution of this Act and the regulations contained in the Schedule thereto, or such regulations as may be made in accordance with the provisions of this Act (which regulations, whether contained in the said Schedule or made as aforesaid, are in this Act referred to as 'the regulations'):
Provided that the ordinary course of law and avocations of life and the enjoyment of property shall be interfered with as little as may be permitted by the exigencies of the steps required to be taken under this Act.
(2) For the purposes of this Act the civil authority shall be the Minister of Home Affairs for Northern Ireland, but that Minister may delegate, either unconditionally or subject to such conditions as he thinks fit, all or any of his powers under this Act to any officer of police, and any such officer of police shall, to the extent of such delegation, be the civil authority as respects any part of Northern Ireland specified in such delegation.
(3) The Minister of Home Affairs shall have power to make regulations—
( a) for making further provision for the preservation of the peace and maintenance of order, and
( b) for varying or revoking any provision of the regulations;
and any regulations made as aforesaid shall, subject to the provisions of this Act, have effect and be enforced in like manner as regulations contained in the Schedule to this Act.
(4) All regulations made as aforesaid shall be laid before both Houses of Parliament as soon as may be after they are made, and, if an address is presented to the Lord Lieutenant by either House within the next fourteen days on which such House shall be sitting after any such regulation is laid before it praying that the regulation may be annulled, the Lord Lieutenant may annul that regulation and it shall thenceforth be void, without prejudice to the validity of anything done thereunder, or to the power of making a new regulation; and regulations made as aforesaid shall not be deemed to be statutory rules within the meaning of section one of the Rules Publication Act 1893."
Section 2 deals with offences against the Regulations.
Section 3 provides for trial of such offences by a Court of Summary Jurisdiction and requires that the prosecution must be by an officer or person authorised by the Attorney-General. No question arises as to these procedural requirements in this case.
On the 22nd May 1922 the then Minister of Home Affairs made a further regulation under the powers conferred by section 1(3) of the Act. This was Regulation 24A and reads:
"Any person who becomes or remains a member of an unlawful association or who does any act with a view to promoting or calculated to promote the objects of an unlawful association or seditious conspiracy shall be guilty of an offence against these Regulations.
If any person without lawful authority or excuse has in his possession any document relating to or purporting to relate to the affairs of any such association or emanating or purporting to emanate from an officer of any such association or addressed to the person as an officer or member of any such association or indicating that he is an officer or member of any such association that person shall be guilty of an offence against these regulations unless he proves that he did not know or had no reason to suspect that the document was of any such character as aforesaid or that he is not an officer or member of the association.
Where a person is charged with having in his possession any such document, and the document was found on premises in his occupation, or under his control, or in which he is found or has resided, the document shall be presumed to have been in his possession unless the contrary is proved.
The following organisations shall for the purposes of this Regulation be deemed to be unlawful associations:
The Irish Republican Brotherhood
The Irish Republican Army
The Irish Volunteers
The Cumann na m'Ban
The Fianna na h'Eireann."
These named organisations were specific existing organisations of a militant type and it was conceded before your Lordships, as it was before the Court of Appeal in Northern Ireland, that they were in fact unlawful organisations.
On the 7th March 1967 the present Minister of Home Affairs purporting to act under section 1 (3) of the Act made a further regulation by way of addition to the list of organisations deemed to be unlawful associations. This, which is the impugned regulation, recites that it is expedient that further provision for the preservation of the peace and maintenance of order should be made, and runs:
"1. Regulation 24A of the principal Regulations shall have effect as if the following organisations were added to the list of organisations which for the purpose of that Regulation are deemed to be unlawful associations:
'The organisations at the date of this regulation or at any time thereafter describing themselves as "Republican Clubs" or any like organisation howsoever described.'"
The Appellant was found by the magistrates to have been on the date stated in the charge and thereafter a member of the Slaughtneil Republican Club. They also found that no evidence was given that he "or the said Club was at any time a threat to peace law and order but it was conceded by witnesses for the Complainant in cross examination that in so far as the Police were aware there was nothing seditious in its pursuits or those of its members."
In dismissing the complaint the Magistrates bore in mind the contents and purposes of the Act, that the Regulations thereunder are "Regulations for Peace and Order in Northern Ireland" and, noting the words "or any like organisation howsoever described" in the Statutory Rule and Order of 1967 and that no definition of the term "Republican Club" was shown to them, came to the conclusion that the only reasonable interpretation to be given to the words "organisations … describing themselves as "'Republican Clubs'" is "Clubs which have as their object the absorption of Northern Ireland in the Republic of Ireland the activities of whose members in seeking to further that object constitute a threat to peace and order in Northern Ireland—or any like organisation howsoever described."
The magistrates accordingly found that the complainant had not proved that the Slaughtneil Republican Club was an unlawful association within the meaning of Regulation 24A and dismissed the Complaint.
The Court of Appeal in Northern Ireland by a majority allowed the appeal and the question posed in the Case Stated was answered in the negative. The case was accordingly remitted to the Magistrates to do as to justice may appertain.
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