Re Hamilton ; Re Forrest
| Jurisdiction | UK Non-devolved |
| Judge | Lord Fraser of Tullybelton,Lord Elwyn-Jones,Lord Salmon,Lord Scarman,Lord Roskill |
| Judgment Date | 18 June 1981 |
| Judgment citation (vLex) | [1981] UKHL J0618-2 |
| Date | 18 June 1981 |
| Court | House of Lords |
[1981] UKHL J0618-2
Lord Fraser of Tullybelton
Lord Elwyn-Jones
Lord Salmon
Lord Scarman
Lord Roskill
House of Lords
My Lords,
These appeals were heard together. They raise two questions, one of which is common to both appeals, and the other of which arises only in the case of Forrest. I shall consider the common point first.
On 15th March 1979 the appellant, Peter Forrest, pleaded guilty to several offences and was sentenced by the magistrates' court in Brighton to consecutive terms of imprisonment totalling 12 months. On 4th April 1979, when he was, of course, in prison, the same court issued a warrant for his imprisonment for a further period of 144 days, consecutive to the sentences passed on 15th March, in respect of his default in paying a large number of fines which had been imposed by various magistrates' courts on various dates since 1975. He was given no notice of the proceedings on the 4th April, and he had no opportunity of making representations to the court before it issued the warrant for his further imprisonment. The first that he knew of the matter was after the court proceedings on 4th April, when he was informed by the governor of the prison where he was then serving his sentence of 12 months that the warrant had been issued and that he would have to serve an additional 144 days. He applied to the Divisional Court for an order to quash the order of 4th April on two grounds, the first of which was that the justices had erred in law in committing him to prison without giving him any notice or warning of the hearing on that day. When his application came before the Divisional Court (Ormrod L.J. and Lloyd J.) that court felt itself bound by an earlier decision of the Divisional Court in Reg. v. Dudley Justices, Ex parte Payne [1979] 1 W.L.R. 891 to dismiss the application. But Ormrod L.J., with whose opinion Lloyd J. agreed, said that he arrived at his conclusion "with both surprise and some considerable measure of regret."
The facts in the appeal by Michael Hamilton do not differ in any relevant respect from those in Forrest's case, although they are perhaps more striking because of the long period which they span. In August 1971 the appellant, Hamilton, entered into a personal recognizance of £100 to appear at Marylebone magistrates' court about a month later in answer to a charge under the Forgery Act. He did not appear, having gone abroad, but on 23rd March 1978 he was eventually brought before the court. On 23rd May 1978 the court ordered that his recognizance be forfeited, giving him seven days to pay. The appellant failed to pay, and on 12th July 1979 the magistrates' court fixed a period of 30 days as the period to be served in default of payment in accordance with the Magistrates' Courts Act 1952, section 65 (2). By 12th July 1979 the appellant was serving a sentence of 5 years' imprisonment in respect of another offence and he failed to pay the £100 recognizance. On 22nd October 1979 the same court issued a warrant committing the appellant to prison for a period of 30 days, to be consecutive to the period of 5 years imprisonment which he was then serving, and because he was in prison no inquiry into his means had to be held or was held—see section 44 (4) and (6) of the Criminal Justice Act, 1967. The appellant was given no notice of the proceedings in the Marylebone court on either 12th July or 22nd October 1979. He applied to the Divisional Court for an order of certiorari to quash the orders made by the magistrates on those dates. His application, like that of the appellant Forrest, was refused by the Divisional Court, consisting on this occasion of Lord Lane C.J. and Comyn J. The opinion of the court was given by Comyn J. who said that the court was bound by the decision in the Dudley Justices case (supra) "however difficult we may find it to accept the majority ruling." Lord Lane C.J. agreed with that opinion and said that he felt the same "hesitation" as Comyn J.
In the light of these expressions of opinion by the (differently constituted) Divisional Courts in the instant appeals, and having regard to the fact that the decision in the Dudley Justices case was by a majority (Michael Davies J. and Lord Widgery C.J.) and that a strong dissenting opinion was expressed by Robert Goff J., the soundness of that decision clearly merits consideration.
The appellants may not be deserving of much sympathy, but the question whether they were entitled to notice of the proceedings in the magistrates' courts concerning them respectively raises an issue of some constitutional importance. One of the principles of natural justice is that a person is entitled to adequate notice and opportunity to be heard before any judicial order is pronounced against him, so that he, or someone acting on his behalf, may make such representations, if any, as he sees fit. That is the rule of audi alteram partem which applies to all judicial proceedings, unless its application to a particular class of proceedings has been excluded by Parliament expressly or by necessary implication. That principle has often been stated, nowhere more clearly than in the passage cited in the Dudley Justices case from the case of Bonaker v. Evans (1850) 16 Q.B. 162, 171, by Parke B. as follows:
"No proposition can be more clearly established than that a man cannot incur the loss of liberty or property for an offence by a judicial proceeding until he has had a fair opportunity of answering the charge against him, unless indeed the Legislature has expressly or impliedly given an authority to act without that necessary preliminary."
It was because the learned judges who considered the instant appeals in the Divisional court were conscious of that rule that they expressed the surprise and hesitation they did at the decisions to which they felt themselves driven by authority. But Mr. Cocks, who appeared as amicus curiae, while accepting (rightly in my opinion) that the proceedings in which magistrates fixed the term of imprisonment in default of payment and issued warrants for committal were judicial proceedings, argued that the application of the rule had been excluded by necessary implication in the legislation which applies to these appeals.
The power of magistrates to commit to prison for default in payment of fines is derived from the Magistrates' Courts Act 1952, section 64 (1) which, so far as relevant, provides that—
"…. where default is made in paying a sum adjudged to be paid by a conviction or order of a magistrates' court, the court may issue a warrant …. committing the defaulter to prison."
That power is subject to certain limitations which are now set out in section 44 of the Criminal Justice Act 1967 in several subsections which apply to various circumstances in which the power may fall to be exercised. The subsection relevant here is subsection (6) which provides as follows:
"(6) After the...
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