Re McC. (A Minor)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Keith of Kinkel,Lord Elwyn-Jones,Lord Bridge of Harwich,Lord Brandon of Oakbrook,Lord Templeman |
| Judgment Date | 22 November 1984 |
| Judgment citation (vLex) | [1984] UKHL J1122-4 |
| Court | House of Lords |
[1984] UKHL J1122-4
Lord Keith of Kinkel
Lord Elwyn-Jones
Lord Bridge of Harwich
Lord Brandon of Oakbrook
Lord Templeman
House of Lords
My Lords,
I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend, Lord Bridge of Harwich. I have some reservations upon the question, which does not require to be decided in the present appeal, whether the liability of justices for acts done within their jurisdiction but with malice and without probable cause should be treated as having fallen into desuetude. I should prefer to leave this question to be decided after full argument in an appropriate case.
In all other respects, however, I agree entirely with the speech of my noble and learned friend, and would dismiss the appeal for the reasons he gives.
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Bridge of Harwich. For the reasons he has given I would dismiss the appeal.
My Lords,
This is an appeal brought by leave of your Lordships' House from an order of the Court of Appeal in Northern Ireland (Lord Lowry C.J., Jones and O'Donnell L.J.J.) reversing an order of Hutton J. who decided a preliminary point of law in favour of the present appellants (defendants in the action) and dismissed the action brought by the present respondent (plaintiff in the action) for damages for false imprisonment.
The matter arises in this way. On 5 December 1977 the respondent pleaded guilty before the Belfast Juvenile Court to an offence of having in his possession four car keys for use in connection with theft. On 23 January 1978, when he was just 14 years of age, the respondent was ordered to attend the attendance centre at Millfield College of Technology on 28 January and subsequently at times to be fixed by the officer in charge of the centre. On 6 July 1978 the respondent appeared again before the same court charged with failing to attend the attendance centre on certain dates when he had been required to do so. After further adjournments the respondent was ordered on 31 August 1978 to be sent to St. Patrick's Training School, Belfast, where he was detained. The appellants are respectively the resident magistrate and the two lay justices by whom the training school order was made.
In due course the respondent applied to the Divisional Court in Northern Ireland for an order of certiorari to quash the training school order. He relied on article 15(1) of the Treatment of Offenders (Northern Ireland) Order 1976 ( S.I. 1976 No. 226 (N.I. 4)). which provides:
"15.-(1) A magistrates' court on summary conviction or a court of assize or county court on conviction on indictment shall not pass a sentence of imprisonment, Borstal training or detention in a young offenders centre on a person who is not legally represented in that court and has not been previously sentenced to that punishment by a court in any part of the United Kingdom unless either -
( a) he applied for legal aid and the application was refused on the ground that it did not appear his means were such that he required assistance; or
( b) having been informed of his right to apply for legal aid and had the opportunity to do so, he refused or failed to apply."
It is now common ground that the training school order was a "sentence of … detention in a young offenders centre" within the meaning of that article. The respondent had never before been sentenced to that punishment. In the proceedings before the Belfast Juvenile Court he was not legally represented and he had never applied for legal aid. Before the Divisional Court there were conflicting affidavits as to whether the respondent had ever been informed of his right so to apply. He deposed that he had not. The clerk of the court deposed that the resident magistrate, who presided in the Belfast Juvenile Court on all relevant occasions, had informed the respondent of his right to apply for legal aid at the first hearing, on 5 December 1977, of the proceedings which led to the making of the attendance centre order. It was common ground that he had not been so informed again at any time after the making of the attendance centre order and before the making of the training school order.
The Divisional Court (Lord Lowry C.J. and Jones L.J.) accepted the clerk's evidence, but held that this was insufficient to satisfy the requirements of article 15(1) of the Order of 1976 on the ground that the proceedings for breach of the attendance centre order, which led to the making of the training school order were separate and distinct from those which preceded and led to the making of the attendance centre order; accordingly the training school order could not lawfully be made as the respondent had not been again informed of his right to apply for legal aid in the course of the later proceedings. The Divisional Court quashed the training school order by order of certiorari on 17 November 1978 and the respondent was thereupon released.
On 12 March 1980 the respondent's writ in the action for damages for false imprisonment was issued. The statement of claim in the action recites the relevant history of the proceedings for breach of the attendance centre order leading to the making of the training school order which I have in substance already recounted and this history is admitted in the appellants' defence. The defence does not plead that the resident magistrate informed the respondent on his first appearance before the Belfast Juvenile Court on 5 December 1977 of his right to apply for legal aid. Accordingly, on the pleadings as they stand, the issue of law which the Divisional Court resolved in the respondent's favour as to whether this fact, if proved, would satisfy the requirements of article 15(1) of the Order of 1976 simply does not arise in the civil proceedings.
On 28 July 1982 an order was made by consent for the determination as a preliminary issue of law of the question, in substance, whether on the facts pleaded any action would lie against the appellants. This in turn depends on whether the appellants, in making the training school order, "acted without jurisdiction or in excess of jurisdiction" within the meaning of those words in section 15 of the Magistrates' Courts Act (Northern Ireland) 1964 ("the Northern Ireland Act of 1964"), the provision in force when the writ was issued which has since been re-enacted as article 5 of the Magistrates' Courts (Northern Ireland) Order 1981 ( S.I. 1981 No. 1675 (N.I. 26)). As indicated at the outset, Hutton J. decided the preliminary question in favour of the appellants but was reversed by the Court of Appeal.
The appellants in their printed case and at the outset of the oral argument before your Lordships sought to reopen the point decided in favour of the respondent by the Divisional Court in Northern Ireland as to whether it was sufficient to justify the making of the training school order that the resident magistrate informed the respondent of his right to apply for legal aid on his first appearance before the Belfast Juvenile Court on 5 December 1977. This point was never raised before Hutton J. or the Court of Appeal. The respondent objected to the point being taken before your Lordships and continues to deny that he was ever informed as alleged. In these circumstances it was, as your Lordships thought, manifestly impossible, in these proceedings on a preliminary issue of law, to allow the point to be raised. It is perhaps right to mention, however, that this implies no opinion as to whether the decision of the Divisional Court in Northern Ireland on this point was right or wrong. If properly raised, the point would remain open either in the Court of Appeal in Northern Ireland or in this House.
Section 15 of the Northern Ireland Act of 1964 provides as follows:
"No action shall succeed against any person by reason of any matter arising in the execution or purported execution of his office of resident magistrate or justice of the peace, unless the court before which the action is brought is satisfied that he acted without jurisdiction or in excess of jurisdiction."
Considered in isolation the implication of this section seems clearly to be that, if somebody suffers an actionable wrong pursuant to an order made by justices (I shall use this convenient shorthand plural to include the singular and to denote any court of summary jurisdiction properly constituted) acting as such, it is a complete defence that they acted within their jurisdiction, but no defence if they acted "without jurisdiction or in excess of jurisdiction." I believe this first impression to be amply confirmed by a consideration of the relevant Irish legislative history, the analogous legislation in England and Wales and the decided cases, to all of which I must later refer. It follows that the detention of the respondent pursuant to the appellants' order from 31 August to 17 November 1978 will establish a cause of action if, but only if, that order was made "without jurisdiction or in excess of jurisdiction" within the meaning of those words in section 15.
There are many words in common usage in the law which have no precise or constant meaning. But few, I think, have been used with so many different shades of meaning in different contexts or have so freely acquired new meanings with the development of the law as the word jurisdiction.
Consider two extremes of a very wide spectrum. Jurisdiction meant one thing to Lord Coke in 1613 when he said in The Case of theMarshalsea 10 Co. Rep. 68b. at p. 76 a:
"… when a court has jurisdiction of the cause, and, proceeds inverso ordine or erroneously, there the party who sues, or the officer or minister of the court who executes the precept or...
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