(2006) 27 Journal of Legal History 267-287
R (MARTIN) V MAHONY: THE HISTORY OF A CLASSICAL
CERTIORARI AUTHORITY
R (Martin) v Mahony, a decision of the Irish High Court of 1910, continues
to be acknowledged by modern textbook writers as a leading authority for the
classical rule that certiorari could not correct error of law. This rule, which
considerably reduced judicial superintendence of magistrates' courts, had
been established by the English Court of Queen's Bench in the 1840s.
However, the rule was repudiated by the Court of Exchequer in Ireland in the
late 1880s, which developed a novel, liberal theory of certiorari. This
doctrinal innovation, which was used in overturning convictions under the
anti-boycotting statute, the Criminal Law and Procedure Act 1887, appalled
sections of Salisbury's Government, was disapproved of by the English
courts, and split the Irish judiciary. The division caused by the doctrine
persisted until 1910 when the High Court, having assembled in banc in
Martin's case in order to resolve the impasse, re-established orthodox
English doctrine.
1
CERTIORARI IN ENGLISH LAW 1841-57
A minimalist framework for the operation in English law of the writ of
certiorari was established in R v Bolton.1 Following Bolton the only defects
reviewable on certiorari were ones which impaired the original competence
of the tribunal; where 'he never ought to have begun the inquiry.'2 An inferior
court acquired jurisdiction to entertain the matter where 'a charge has been
well laid before a magistrate, on its face bringing itself within his
jurisdiction'.3 But, once the tribunal was competent to hear the charge, errors
in the construction of law, or miscarriages in the drawing of factual
conclusions, were beyond the supervisory power to the Court of Queen's
Bench. Denman CJ stated that the power of review was restricted to matters
'on the commencement, not at the conclusion of the inquiry; and affidavits to
be receivable, must be directed to what appears at the former stage, and not
to the facts disclosed in the progress of the enquiry’. Of course the most
serious errors were usually committed in the progress of the enquiry. These
were not accessible to review on certiorari. Error of law in the construction
of legislation had been reviewable when convicting justices were required to
set out the evidence in the formal conviction; a misunderstanding of what the
1
(1841) 1 QB 66; 113 ER 1055.
2
Ibid., 73.
Ibid., 74.
3
2
legislation required would be reflected in the absence from the face of the
conviction of evidence to sustain that missing component. But the power to
review errors of law by detecting error on the face of the record had been
withdrawn by the Summary Jurisdiction Act 18484 which set out a model
form of conviction which omitted the obligation to record the evidence; 'the
effect was to remove all opportunity for the detection of error; the face of the
record spoke no more; it was the inscrutable face of a sphinx'.5 After 1848
the only practical means of challenging a conviction was on the ground that
the convicting court did not have jurisdiction. But the concept of lack of
jurisdiction admitted only a very narrow range of defect. A court only lacked
jurisdiction at the initial stage: lack of jurisdiction referred to a lack of
jurisdiction to accept the process. Denman CJ’s successor as Chief Justice,
Coleridge CJ, expressed the narrow understanding of jurisdiction: 'where a
court has jurisdiction to entertain an application it does not lose its
jurisdiction by coming to a wrong conclusion, whether it is wrong in point of
law or of fact'.6
This very restricted power of judicial superintendence was
ameliorated by Parliament in 1857. Reform appears to have been prompted
by decisions of the Court of Queen' Bench and the Court of Exchequer in Re
Baker7 William Baker, a Stoke potter had been convicted under the Master
4
11 & 12 Vict., c.43. S. 18 made it lawful for justices to draw up a conviction according to one of
the model form prescribed in the schedule to the Act. This had the effect of relieving justices from
the burden of complying with the very elaborate technicalities of a justice's order required by the
common law.
5
Per Lord Sumner in R v Nat Bell Liquors [1922] 2 AC 128, 159.
6
R v Central Criminal Court (1886) 55 TLR 486, 488.
7
(1857) 7 El & Bl 697, 119 ER 1404; 2 H & N 219, 157 ER 92.
3
and Servant Act 18248 of absenting himself from his master's service 'before
the term of his or her contract'. He was discharged from prison having served
his sentence. Declining to return to work for his original employer he was
again prosecuted. The case was heard by the unpopular Staffordshire
magistrate, Thomas Rose, and he was convicted.9 Habeas corpus proceedings
for Baker's release were initiated in the Court of Queen's Bench 10 by the
Chartist solicitor WP Roberts.11 Baker's counsel argued that the contract had
been discharged by the first conviction so that there was no subsisting
contract from which Baker had absented himself. The Court of Queen's
Bench held that the contract survived imprisonment, and so refused the
application. The point that, according to the doctrine in Bolton's case, the
Court of Queen's Bench had no competence to consider this argument was
not even considered. Within a few days the habeas corpus application was relaunched before the Court of Exchequer. The Exchequer was able to
invalidate the conviction for a failure to include an essential recital on the
face of the conviction. However, the Court also found that there had been no
error of law: the employment relationship had not been dissolved by the
8
9
4 Geo 4, c.34.
Thomas Rose’s rigorous enforcement of the master and servant acts made him the subject of
odium amongst the Chartist and trade union movement. For an account of Rose’s career see C.
Franks, "'Let but one of them come before me, and I'll commit him": trade unions, magistrates and
the law in mid- nineteenth century Staffordshire', 44 Journal of British Studies (2005), 64.
10
11
(1857) 7 El & Bl 697; 119 ER 1404.
R. Challinor, Radical Lawyer in Victorian England: WP Roberts and the Struggle for Workers'
Rights, London, 1990.
4
imprisonment.12 It then dealt with the question whether it would be open to
the court to investigate and remedy error of law committed by convicting
magistrates. Bramwell B held that this would not be possible: on certiorari a
reviewing court could not investigate whether the actus reus had been
correctly interpreted; all it could do was see whether the procedural
fundamentals were in place:13 'all we are at liberty to enquire into is whether
the person convicting was a magistrate, whether a complaint was made,
whether the prisoner was a potter, and whether there had been an entry into
service'. But the Court could not review the magistrates' handling of the
'subject matter of the complaint'.14 The other members of the Court were
divided on the point: Martin B reserved adjudication on the point, but was
sympathetic to the argument that lack of such a capacity was unjust. Pollock
and Watson BB held that error of law could be reviewed on habeas corpus.
News reports of Bramwell B's restrictive account of the scope of
review on certiorari directed public attention to the lack of protection against
magisterial abuse which was a consequence of the Bolton doctrine, and this,
in turn, seems to have been the immediate cause of a legislative reform
introduced in the Commons some weeks later. A piece in The Dublin
Review15 by the chief law reporter of The Times and legal essayist, William
12
The Law Times described as 'disgraceful' an outcome under which a worker could be repeatedly
imprisoned for breach of the same contract (14 Law Times (1857), 1420). A similar line was
adopted in an editorial in The Daily News, 5 June 1857.
13
(1857) 2 H & N 219; 157 ER 92, 101.
14
Ibid.
'Justices' Justice and the New Habeas Corpus Act', 45 Dublin Review (1858), 388.
15
5
Finlason,16 written in the aftermath of the Baker case (which he had attended
as a court reporter) cogently protested against the doctrine:17
So if under a game act a justice decided a cat to be a rabbit, or a crow
to be a pheasant, or a sparrow to be 'game,' or a Passionate Father to be
a 'sturdy beggar,' or an Irish priest to be a 'suspicious person' there is
no remedy. To gaol the man must go, and meditate upon the
comparative freedom of England and of Naples, or remember (if ever
he read) Blackstone's lying eulogies on English law…There is no
redress for the most manifest and monstrous error of a justice on a
point of law even though it be against personal liberty unless he
chooses to give the aggrieved party the means of redress by disclosing
it on the face of his conviction… But the [Baker] case attracted
attention, and its monstrosity revolted public opinion. That is, in the
nineteenth century, Englishmen were for the first time awakened to the
fact that their law of personal liberty was marked by an oppressive
absurdity altogether intolerable.
In the final week of June 1857, just three weeks after the judgment of
the Exchequer in Baker's case, William Massey MP brought before the
House of Commons the Summary Proceedings Before Justices Bill 1857.
16
The Dublin Review piece was anonymous. However, the archives of the Review establish that
WF Finlason was the author: WE Houghton, The Wellesley Index to Victorian Legal Periodicals, 5
vols., Toronto, 1966-1989, vol.2, 83.On Finlason, see M. Lobban, 'Finlason, William Francis,
1818-1895,' Oxford Dictionary of National Biography 60 vols., Oxford, 2004, vol.19, 602.
17
45 Dublin Review (1858), 388, at 390, 401-402.
6
The 1857 measure (which was enacted as the Summary Jurisdiction Act
185718) introduced a statutory mechanism, the case stated, whereby disputes
in proceedings before magistrates about the proper interpretation of the law
could be taken before the High Court. A number of contemporary accounts
assert that the legislation was prompted by the pro-Bolton judgments in the
Court of Exchequer in Baker: an editorial note in the Law Journal19 attached
to the report of the judgment in the Baker case advised its readers: 'see now
the Summary Proceedings of Justices Act passed subsequently to the above
case, and probably in consequence of it', while Finlason in his Dublin Review
article, after referring to the public reaction to the Bramwell B judgment,
wrote: 'The remedy was an act of Parliament, and thus it was that in 1857, for
the first time, any security at all was given to the mass of the community
against magisterial tyranny and oppression.'20
Following the enactment of the Summary Jurisdiction Act 1857, the
case stated superseded certiorari as the usual means of settling disputes as to
the proper interpretation of the law. The Bolton rule became firmly
18
20 & 21 Vict., c.43.
(1857) LJMC 168.
20
There was, however, no express reference in the Parliamentary debates to the Baker decision.
19
The closest to confirmation that problems with certiorari underlay the enactment of the legislation
arose when Joseph Napier MP, in response to a question by Gathorne Hardy MP, who had
enquired what defect in magisterial law required this innovation, replied that the measure would
provide a means of avoiding the 'circuitous and inconvenient proceedings by way of certiorari now
necessary for bringing decisions of justices before the higher courts'. Parliamentary Debates,
series 3 , vol.146, cols.1020-22, 6 July 1857 (House of Commons); Morning Chronicle, 7 July
1857.
7
established. One of the clearest instances of this approach occurred in 1885
in R (Hillman) v Whitfield,21 where the relator challenged the sufficiency of
an examination carried out by two magistrates, who after an unsatisfactory
interview while Hillman was in a carriage, had ordered his detention under
section 63 of the Lunatic Asylums Act 1853.22 The Queen's Bench Division
discharged Hillman. However the Court of Appeal, in a ruling (from which
Coleridge LCJ dissented, and which the Pall Mall Gazette described as
'whitewashing the Sussex magistrates')23 held that the court was not
competent to review the sufficiency of the examination. Sir James Hannen
said:24
The cases of the Queen v. Bolton and Ex parte Hopwood and
numerous other cases decide that the question of jurisdiction of justices
depends not on the correctness of the order they may make, but on
whether they had the right to enter upon the inquiry in the course of
which they made the order sought to be impeached.
Three years later one of the superior courts in Ireland would mount a
challenge to the doctrine rehearsed by Sir James Hannen. The repudiation of
orthodox certiorari doctrine by the Irish Exchequer Division in 1888
continued a movement within the Irish judiciary which, for the previous
21
(1885) 15 QBD 122.
22
16 &17 Vict., c. 97.
Pall Mall Gazette, 5 May 1885. The Court of Appeal decision was the subject of a critical
23
editorial in The Times, 6 May 1885 and was raised in the House of Commons: Parliamentary
Debates, series 3, vol.297, cols.1846-47, 7 May 1885 (House of Commons).
24
(1885) 15 QBD 122, at 144.
8
thirty years, had regarded the Bolton rule as failing to providing adequate
superintendence of the constitutional rights of the subject.
CERTIORARI IN IRELAND 1857-88
By contrast with the position in England, the Court of Queen's Bench in
Ireland appears to have had a strong reluctance to adopt the principle in
Bolton. An examination of certiorari cases for the period 1870 to 1888
demonstrates that, notwithstanding Bolton, the Court of Queen’s Bench in
Ireland was quite prepared to review allegations of misconstruction of the
law. In Dorris v Knox25 in 1858, an application by way of certiorari to quash
an order committing the applicant as a military deserter, the ground of
challenge was that there was insufficient evidence of desertion. The Court
did not raise the objection, on the application to make the order absolute, that
the ground of complaint concerned a matter within the jurisdiction of the
justices, and so was unreviewable on certiorari. In Reynolds v Cork JJ26 the
applicant, who was a member of the Ladies' Land League, had appeared at
the scene of an eviction against two tenants of the Earl of Bantry, urging
them to 'pay no rent to the landlord. We will make you right about the land;
we will build you a house at any expense.' Reynolds was bound over to be of
good behaviour under the statute 34 Edw. 3 c.1. The applicant agued that her
conduct did not come within the definition of ‘evil fame’ in 34 Edw. 3 c.1.
No point was taken by either the Attorney General, who appeared in showing
25
Freeman's Journal, 11 June 1858.
26
(1882) 10 LR Ir 1.
9
cause against the application, or by the Chief Justice, May CJ, that this was
not a matter amenable to review on certiorari. Indeed May CJ, observed that
the court would have had jurisdiction to intervene if there had been
insufficient evidence: 'it is scarcely necessary to say that if it had clearly
appeared that any subject under such an order as this had been deprived of
liberty without sufficient grounds, this Court would interfere'.27 R (Atkinson)
v Armagh JJ 28 was just one of a number of instances29 in which the Queen's
Bench division decided an issue of pure statutory construction on certiorari:
in that case whether the offence constituted by section 6 of the Licensing
(Ireland) Act 187230 ('if any person having a licence to sell intoxicating
liquors suffers any other person to take or carry any intoxicating liquors out
of or from the premises') applied to the act of filling a bottle of whiskey for a
customer who knocked at a publican’s front door without entering the
27
Ibid., 9. In R (Feehan) v Queen's County JJ (1882) 10 LR Ir 294, another Land League case, the
objection that the magistrates in binding over proceedings had acted upon a report of the
traverser’s conduct which had been carried in a newspaper, was reviewed in certiorari proceedings.
Again, no point was taken by counsel for the respondents or by the court that a complaint about the
illegal use of hearsay evidence was not examinable on certiorari.
28
(1884) 18 ILTR 2.
29
In Re Hogan (1879) 13 ILTR 96 the applicant, had stood outside the shop of a former business
partner ranting 'old Phil Doyle robbed me out of £350 and never paid me; the public may see what
the Doyles are. Doyle the robber and young Doyle the usurer'. The Queen's Bench Division held
that the incident fell within the definition of 'riotous or indecent behaviour' contrary to s. 72 of the
Towns Improvement (Ireland) Act 1854. (17 & 18 Vict.,c.103) Once again the court did not even
consider the point that this was a matter which it was incompetent to review on certiorari. For
further examples of review of error of law by certiorari see R (Moriarty) v County Kerry JJ (1883)
12 LR Ir 384 and R (Collins) v Fermanagh JJ (1884) 14 LR Ir 50.
30
35 & 36 Vict., c.94.
10
premises. In R v Samuel King31 certiorari was sought by a tract distributor for
a non-conformist church who had persisted in attempting to persuade two
Roman Catholic priests to take a pamphlet advertising a religious meeting,
and had been charged with 'threatening, abusive or insulting words or
behaviour' contrary to section 14(13) of the Dublin Police Act 1842.32
Despite acknowledging that the rule on certiorari was that the court should
only intervene 'when the act sought to be reviewed was in excess of
jurisdiction, and not for a mere point of form' May CJ reviewed the question
whether the action fell within the definition of 'threatening, abusive or
insulting words or behaviour.' In 1888 a member of the Irish Queen's Bench
Division openly conceded that for the previous twenty years the court had
reviewed allegations that there was no evidence to sustain an essential
finding to a conviction, and that it had invariably overruled objections that,
according to orthodox English principle, it had no jurisdiction on certiorari to
exercise such intervention.33 It seems that the understanding of what
constituted an excess of jurisdiction in the Irish Queen’s Bench Division was
far more extended than that in England, and that it included a power to
invalidate a conviction based on a misunderstanding of the legal constituents
of the offence. The fragility, however, in the position of the Queen's Bench
was that it had never offered a legal justification for its disregard of orthodox
common law principle; in 1888 it came under intense pressure to do so.
31
(1880) 14 Cox CC 434.
32
5 & 6 Vict., c.24.
Per O'Brien J in Re Sullivan, The Freeman's Journal, 30 Jan. 1888.
33
11
' A REVOLUTION IN THE LAW': DOCTRINAL INNOVATION IN THE
IRISH COURT OF EXCHEQUER, 1888
The Criminal Law and Procedure (Ireland) Act 1887
In 1888, in the proceedings in Re Sullivan,34 the Queen’s Bench Division,
which had been previously unobtrusively ignoring the doctrine of nonintervention, re-aligned itself with the orthodox English position. The
Exchequer Division, on the other hand, developed its own, independent
theory of the character of certiorari and habeas corpus, a theory under which
the courts were held entitled to exercise comprehensive review. The
background to the legal controversy was the Plan of Campaign, a mass
agrarian rent strike organised by the National League during the late 1880s.35
The Plan was accompanied by widespread and vicious boycotting of persons
alleged to be supporting landlord interests. As part of its response to the Plan
of Campaign the government enacted exceptional legislation, the Criminal
Law and Procedure (Ireland) Act 1887.36 It was the anti-boycotting offence
created under section 2(1) which was considered the most direct instrument
34
(1888) 22 LR Ir 98.
35
L.M. Geary, The Plan of Campaign, 1886-1891, Cork, 1986. L.P. Curtis Coercion and
Conciliation in Ireland 1880 -1892; A Study in Conservative Unionism, Princeton, New Jersey,
1963. Neither of these studies, however, treat the certiorari/habeas corpus controversy of 1888.
36
50 & 51 Vict., c.20. The legislation, in addition to its anti-bocotting measures, also gave the
Crown the entitlement to change the place of trial from a 'proclaimed district' to a court of assize in
some alternative district (s.4), and provided for the proscription of dangerous associations (s.6). It
outlawed assemblies by dangerous associations and participation in the branches of such
associations (s.7).
12
for targeting the Plan of Campaign. Section 2(1) provided for prosecution
before a court of summary jurisdiction of any person
who shall take part in a criminal conspiracy now punishable by law to
compel or induce any person or persons either not to fulfil his or their
legal obligations, or not to let, hire, use or occupy any land, or not to
deal with, work for, or hire any persons in the ordinary course of trade,
business, or occupation; or to interfere with the administration of the
law.
Section 2(1) was quite limited in its scope. Participation in a boycott alone
was not made an offence: it was not an offence simply to join in a campaign
not to let, hire, use or occupy land or not to deal with any persons. The
wording required participation in a 'criminal conspiracy now punishable by
law to compel or induce' others to boycott. The species of 'criminal
conspiracy now punishable by law' referred to in section 2(1) was that
defined by Bramwell B in R v Druitt37 as involving a conspiracy to direct by
pressure another’s 'liberty of mind'. In Druitt Bramwell B said that: 'if any set
of men agreed among themselves to coerce that liberty of mind and thought
by compulsion and restraint, they would be guilty of a criminal offence
namely that of conspiring against the liberty of mind and freedom of will of
those towards whom thy so conducted themselves'.38 The elements of the
37
(1867) 10 Cox CC 592; the judgment of Brett J in R v Bunn (1872) 12 Cox CC 316 confirmed
this doctrine.
38
Ibid., 601.
13
1887 offence, therefore, were: (i) participation in a conspiracy to affect the
liberty of action of others, where (ii) the object of that conspiracy was to
compel or induce those others 'not to fulfil their legal obligations, or not to
let, hire, use or occupy any land, or not to deal with, work for, or hire any
persons in the ordinary course of trade, business, or occupation; or to
interfere with the administration of the law'. The legislation was directed not
against the artisans and shopkeepers who implemented the campaign, but at
its leadership.39
Re Sullivan (1888)
The origins of Re Sullivan40 lay in one of the most vicious boycotts of the
mid-1880s, that of the Curtin family in the Castleisland district of County
Kerry. In 1885 John O’Connell Curtin, a gentleman farmer, had been
murdered during the burglary of his home by a gang looking for weapons.
Curtin’s children gave evidence at the subsequent trial and, in retaliation, the
family were subjected to a campaign of boycotting and social intimidation.
John Curtin’s widow detailed the campaign41:
39
In a contemporary analysis of s.2 (1), 'The Law of Criminal Conspiracy in Ireland and England'
6 Law Quarterly Review (1890), 129, KE Digby wrote: 'The section does not strike directly at
conspiracies not to fulfil legal obligations, or not to deal with, work for or hire other persons, etc.,
but only at conspiracies ‘to compel or induce,’ etc.'
40
(1888) 22 LR Ir 98 (judgments in the Exchequer); (1888) 22 LR Ir 504; Judgments of the
Superior Courts 132 (judgment of the Queen’s Bench Division).
41
Deposition of Agnes Curtin, 17 Jan. 1888; National Archives of Ireland (NAI) CSORP 1888/
5041.
14
We have been booed and hooted at on the public road and also in the
chapel yard when going to and returning from service. The pew which
was the property of me and my family was broken up. Another one
which was brought to replace that was broken at the chapel gate.
Persons in my employment left me before the Assizes. I have not since
been able to procure the assistance of labourers except a few who
remained with me.
The Curtin boycott had received extensive publicity in the English
press and in Parliament,42 and it is not surprising that the Curtin campaign
was amongst the first targeted by the section 2 prosecution. In January 1888
two blacksmiths, Thomas Hartigan and John Sullivan, were prosecuted under
section 2. The case prepared against them demonstrated that the Crown had
completely misunderstood the provision. Evidence was given by the
deceased’s widow and by the police that the two accused had refused to
accept business from the Curtins, and that they were participants in the
boycott.43 But that was not what the provision required: there was no
evidence that they had participated in a criminal conspiracy to 'compel or
induce' others into complying with the boycott. Despite the absence of the
required evidence the resident magistrates convicted the defendants and
sentenced them to one month’s imprisonment, a sentence which had the
42
HC Debs, vol. 303, col. 1791, 25 Mar. 1886; vol.319, col.69, 11 Aug. 1887.
43
(1888) 22 LR Ir 98; A. MacDermott to A.J. Balfour, 9 Feb. 1888, NAI CSORP 1888/5041.
(McDermott was one of the convicting Resident Magistrates; Balfour was Chief Secretary of
Ireland).
15
effect of frustrating the opportunity for an appeal to Quarter Sessions. Under
section 24 of the Petty Sessions (Ireland) Act 185144 an appeal to Quarter
Sessions lay only in the case of a 'term of imprisonment exceeding one
month'. When the accused’s solicitor requested a case stated under the
Summary Jurisdiction Act 1857 the court exercised its jurisdiction under
section 4 to decline to state a case in cases in which it considered the request
frivolous. This technique, which appears to have been relatively common,
restricted the defendant to proceedings by way of certiorari which, even if
successful, were likely to be fruitless when the sentence expired before the
certiorari had concluded. In 1885 one Irish MP and barrister (who was to
have a prominent role in the subsequent certiorari dispute), TM Healy MP,
claimed in the House of Commons to be personally aware of five recent
certiorari applications which had been made following refusal of a case
stated, and which had ultimately succeeded, but only after the one month
sentence had expired.45
44
45
14 & 15 Vict.c.93.
'If a prisoner sentenced to one month’s imprisonment applies for a certiorari the term of
imprisonment is over before the application can be decided. As there is no appeal from one
month’s imprisonment in out-of the way villages the magistrates are often induced to act illegally. I
have under my notice no less than five convictions by magistrates, in each of which, if it had not
been that the convicted parties had taken French leave, the term of imprisonment would have
expired before the cases could have come before the Queen’s Bench. The Queen’s Bench had
quashed the convictions ultimately.' Parliamentary Debates, series 3, vol.299, col.273, 13 July
1885 (House of Commons).
16
The papers in the Sullivan case were sent to T.M. Healy, who
offering his services without fee46 then initiated certiorari proceedings in the
Queen’s Bench Division.47 The Crown did not seriously dispute the assertion
that there was no evidence to sustain each of the required constituents of the
offence. Instead counsel for the Crown, Stephen Ronan,
48
argued that the
court on certiorari had no power to review the merits of the adjudication, and
rehearsed the conventional doctrine that on certiorari the courts could only
review error of law conditional to, and not, within, the jurisdiction of the
court, not matter how egregious the degree of error might be. English
authority, principally R v Bolton49 and Colonial Bank of Australasia v
Willan,50 was opened to the court. The impression that the Queen’s Bench
Division of Ireland had been operating a scope of review on certiorari
radically more extensive than that in England is confirmed by the
expressions of astonishment from the bench with which these fairly routine
propositions of law were initially received. O’Brien J expressly
acknowledged that the rule in Bolton had never been adopted by the courts in
Ireland: 'For twenty years the settled practice of the courts has been the other
way. The same objection has been made many times and has always been
46
Dublin Evening Telegraph, 8 Feb. 1888.
47
(1888) 22 LR Ir 504; Judgments of the Superior Courts 132.
Stephen Ronan was one of the leading Irish government counsel of the 1880s; he was made a
48
Lord Justice of Appeal in 1915; See TC Kingsmill Moore, 'Ronan, Stephen, 1848-1925,' DNB,
vol.47, 684. The Crown's other counsel was the 'attorney general's devil', Edward Carson.
49
(1841) 1 QB 66.
50
(1874) LR 5 PC 417.
17
overruled.'51 But under the weight of the authority presented by the Crown
the Queen's Bench Division, which earlier that morning had appeared hostile
to the proposition, began to retreat, and to indicate that it was bound to
accept the conventional Bolton line. When counsel for the prisoner pointed
out to the Chief Justice that he was in danger of committing a volte face
Morris CJ responded somewhat defensively 'I am at liberty to change my
mind.' The likelihood is that, in the absence of any substantial supporting
legal argument or authority, the court simply found itself unable to defend its
former position. In its judgment, the Queen's Bench Division expressly
acknowledged that it was now revising the position it had previously
maintained. Morris CJ said:52
At first we were under the impression that if the case could be brought
into the category of those in which it could be said that there was no
evidence it would be a case for granting a certiorari. But Mr Ronan
asserts and, in our opinion, establishes clearly by authorities that we
have no right to grant a certiorari, because he alleges that the summons
was one clearly within the jurisdiction of the magistrates … they
clearly had jurisdiction to enter upon it. Consequently, when the
conviction recites and states affirmatively that the defendant was guilty
of the offence charged, this court, not being a Court of Appeal, has no
power, merely on the ground that the evidence if examined into would
not support such a conviction, to enter upon such an enquiry.
51
The Freeman's Journal, 30 Jan. 1888.
52
(1888) 22 LR Ir 504; Judgments of the Superior Courts 132.
18
As in the Baker case, the applicant, following defeat on certiorari in
the Queen's Bench Division, exercised the privilege of renewing an
application for habeas corpus, which had been refused by the Queen's Bench,
before the Exchequer.53 The following Monday, Sullivan’s counsel walked
across the floor of the Four Courts into the Exchequer Division.54 The
Exchequer Division was presided over by Palles CB, whose concern that the
administration of the Criminal Law and Procedure (Ireland) Act 1887 Act be
subjected to strict judicial review had already becoming a source of irritation
to the government.55 The Exchequer Division accepted jurisdiction holding
53
Ex p. Fernandez (1861) 10 CBNS 3; 142 ER 349.
54
(1888) 22 LR Ir 98.
In Ex p. Brosnan (1888) 22 LR Ir 334 a few weeks earlier, Palles CB, sitting as a judge of the
55
Court of Appeal, had delivered a dissenting judgment to the effect that an appeal lay to the Court
of Appeal against a decision of the Queen’s Bench Division declining to direct justices to submit a
case stated following a conviction by them under the Criminal Law and Procedure Act 1887. On
22 Dec. 1887, the Irish Chief Secretary, AJ Balfour, wrote, with reference to the Brosnan case, to
the Prime Minister, Lord Salisbury, that 'things are going pretty well here-though Ch. B. Palles’
decision is annoying'. RH Williams ed., Salisbury-Balfour correspondence: letters exchanged
between the third marquess of Salisbury and his nephew Arthur James Balfour, 1869-1892
(Hertfordshire Record Publications 4), Hertfordshire, 1988, 227. At the beginning of the year
Palles CB had rebuked the executive for its failure to support sheriffs executing High Court writs
for possession. See 'Observations made by the Lord Chef Baron, previous to sentencing the
prisoners found guilty of wilfully obstructing the sheriff in the execution of his duty, Connaught
Winter Assizes, 1886-Jan. 5, 1887' in Judgments of the Superior Courts in Ireland in Cases under
the Criminal Law and Procedure (Ireland) Act, 1887, Dublin, 1889, repr. Dublin, 1903, 23. For an
account of this incident see WN Osborough, 'Executive failure to enforce judicial decrees,' in JF
19
that the right to renew an application for habeas corpus following a refusal of
habeas corpus in the Queen's Bench equally applied when an applicant
applied for habeas corpus following a refusal of certiorari in the Queen's
Bench.
On the argument for habeas corpus Edward Carson, who appeared for
the Crown, continued to assert orthodox certiorari doctrine. When Dowse B
asked him 'I want to know how far you press your argument?' Carson, in an
uncompromising formulation of the Bolton principle, replied:56
to the full extent that unless the defendant is able to point out on
affidavit that there is something in the constitution of the court which
took away jurisdiction or that there was some preliminary point
necessary to be proved which was not proved, and which would enable
jurisdiction to attach to them, the magistrates being within their
jurisdiction, the court has no power whatever to interfere with their
decision.
Dowse B was persuaded by Carson’s argument that the Irish courts were
bound to follow the conventional common law position. A majority of the
court, Palles CB and Andrews B, however, did not find Carson’s
abstentionist version of the scope of review on the prerogative writs
McEldowney and P O'Higgins ed The Common Law Tradition Essays in Irish Legal History
(Dublin, 1990), 85.
56
Freeman’s Journal, 2 Feb. 1888.
20
tolerable. The leading judgment was delivered by Palles CB. His thirty-page
judgment in the Sullivan case, written on the night following the conclusion
of argument, and delivered the next morning, was made up of three
propositions: (i) prior to the enactment of the Summary Jurisdiction Act 1848
in England
(and the Petty Sessions Act 1851 in Ireland) a criminal
conviction was required to set out the findings of fact on the face of the
conviction. Where the findings of fact did not correspond to the findings
legally required to be established by the legislation the conviction was liable
to be quashed on certiorari on the ground that such a defect rendered the
order void; (ii) when the court on certiorari quashed a conviction on grounds
of lack of evidence it was enforcing the 'constitutional right' of an individual
to have a conviction or order quashed on certiorari on the ground that it was
not sustained by the underlying findings; (iii) the 1848 legislation, which
removed the requirement to set out the evidence on the face of the conviction
or order, did not affect the individual’s constitutional right to challenge a
decision which was not sustained by the underlying findings. The 1848
reforms, which removed the obligation to set out the evidence, 'made
changes in matters of form and procedure only'; the legislation did 'not touch
constitutional rights previously existing in the subject'. 57 The effect of the
reform of magisterial documentation was merely to alter the technique by
which this constitutional right was exercised. Prior to 1848 defects were
demonstrated on the face of the order; after the legislative reforms such
57
Re Sullivan (1888) 22 LR Ir 98, 119; the same formulation was repeated by Palles CB in Re
Heaphy (1888) 22 LR Ir 500, 510.
21
defects were still examinable, but by affidavit, rather than by their
appearance on the conviction:
The statutes 12 & 13 Vict. c.70 and 14 & 15 Vict., c.93, which render
it unnecessary to set out the evidence on the face of the conviction,
made changes in maters of form and procedure only and did not touch
constitutional rights previously existing in the subject…as before those
statutes the Queen’s Bench had authority to quash on certiorari, as
being without jurisdiction, convictions made without evidence
sufficient to sustain them, the same authority continues since those
statutes to exist in that tribunal, with this one difference in its exercise,
that the evidence which, before the statute, was ascertained from the
conviction itself, should, since the statute, be proved by affidavit.
Having established that a court reviewing a conviction by certiorari
had jurisdiction to provide redress where there was no evidence to sustain a
required component, Palles CB went on to find that there was no evidence to
sustain the conviction for entering 'into a criminal conspiracy now punishable
by law to compel or induce any person or persons' not to deal with the Curtin
family. Sullivan had not been proven to be a participant in the conspiracy on
which the offence was predicated; he was, accordingly, formally discharged
by habeas corpus.
Re Sullivan’s re-working of the scope of review on the prerogative
writs was enormously embarrassing to the government. The judgment of
22
Palles CB was praised extravagantly in the Irish nationalist and English
liberal press.58 From the other side, the decision was regarded as a disaster by
the government. On the day of the judgment the Under Secretary for Ireland,
Sir Joseph Ridgeway, wrote:59 'The Chief Baron has today given us a bad fall
in the Curtin case, and the worst it is the Exchequer pretend to be able to
revise the proceedings of all our Resident Magistrates. The result may be
disastrous but I hope there is an appeal against the Chief Baron’s decision.'60
58
The Daily News, 8 Feb. 1888, referring to the Exchequer Division, commented that 'there is at
least one court in Ireland where nationalists can get justice'. The Freeman’s Journal, 8 Feb. 1888,
commented that the judgment 'may curb in some measure the spirit of the gentlemen who preside
in the coercion courts. It brings home to them that, in spite of the sweeping sections of the
Coercion Act, of the supreme powers it confers upon them and of the approval which their most
unjustifiable sentences meet in high quarters, there is still a limit beyond which they cannot
proceed. Their lordships hardly bargained for the Exchequer Division when they set out on their
grand career.'
59
J. Ridgeway to A.J. Balfour, 6 Feb. 1888 (British Library, Balfour papers, Additional MS 49808,
fo. 49).
60
On the other side, Sullivan's counsel, TM Healy, was naturally jubilant at this personal and
political victory. On the day of the Exchequer judgment Healy wrote to his brother, Maurice: 'John
Sullivan's habeas corpus case, and the prisoner's release, is a bad stick for the Crown. Every
barrister in the Library advised me that it was hopeless but I went on and won. My descent on the
Castle today fluttered the dovecots'; TM Healy, Letters and Leaders of My Day, 2 vols., London,
1928, vol. 1, 278. TM Healy's most recent biographer comments on Re Sullivan that 'the
aggrandisement of the jurisdiction to review judicially the decisions of magistrates furthered
Healy's long-espoused ulterior purpose of checking the power's of the magistrature, which he
considered the spine of Unionist power in Ireland'; Frank Callanan, TM Healy Cork, 1996, 217.
23
On the following day, Peter O’Brien, the new Attorney General, attempted to
assuage the government with this rather over-confident analysis: 61
The Chief Baron with [Baron] Andrews decided in [the] Court of
Exchequer, and differs from the Queen's Bench and Baron Dowse, that
where a month's imprisonment is given, there is power to examine the
case to see whether there is evidence sufficient to warrant a conviction.
This may lead to the bringing up of a good many cases but you need
not trouble yourself about it -you will no doubt be content with the law
whatever it is. If there be what, in effect, is an appeal when the
sentence does not exceed a month. we must only bow to the majesty of
the law which always was, is, and always be, an ass…
Within weeks the English High Court had moved to repudiate the
innovation propounded by Palles CB. In R v Northumberland JJ62 counsel
for the respondent, in the course of argument, pointed out that it was not
permissible on certiorari to review errors of law committed by justices acting
with original jurisdiction. Huddleston B took the opportunity to disapprove
of the theory of certiorari which had just been articulated by the Irish
61
P. O'Brien to A.J. Balfour, 7 Feb. 1888 (BL, Add. MS 49814, fo. 10). In the same
correspondence O’Brien described how he had reassured the resident magistrates: ‘ The
magistrates in Curtin’s case were here with me and were nervous because they thought they had
mismanaged matters- I made them happy by telling them that though there may be accidental slips
now and again .as long as they… did their duty they might have the most absolute confidence in
being supported by you. They went away rejoicing, prepared for further action.’
62
The Times, 13 Mar. 1888, 3, col. c.
24
Exchequer Division, remarking: 'That certainly has always been taken to be
the law in this county, and though there is a recent decision in Ireland the
other way, I do not think I could have concurred in it.'
The Attorney General, Peter O'Brien, also advised was that the
Exchequer Division had misconceived the scope of review on the prerogative
writs. It was not the case that a convicted person had the right 'in every case
[to have] the evidence … examined by proceeding for a writ of habeas
corpus.' 63 An appeal was necessary to correct the Exchequer's error:
The true view of the law must be given effect to but you must be
careful not to say what in my opinion the true view is, as the judges are
5-2 against the Chief Baron’s decision- Madden
64
will speak to him
about this- I will appeal if I see my way to it- my present impression is
that I will appeal for certain reasons. I may mention names but I cannot
have it appear that I acquiesce in the conclusion that the Court of
Queen’s Bench is wrong-the Court of Queen’s Bench would be rather
mortified at this. It, however, seems questionable whether an appeal
lies.
Section 50 of the Judicature (Ireland) Act 187765 had provided that no
appeal should lie from any judgment of the High Court 'in any criminal cause
or matter'. On a plain reading of section 50 the criminal conviction sought to
63
64
65
P. O'Brien to A.J. Balfour, 7 Feb. 1888 (BL, Add. MS 49814, fo. 10).
DH Madden, Solicitor General for Ireland, 1888-1889.
40 & 41 Vict., c.57.
25
be reviewed on appeal was a 'criminal cause or matter'. A way around that
was to argue that the character of 'the cause or matter' was determined by the
nature of the remedy independent of the character of the order which was the
subject of the habeas corpus; accordingly, habeas corpus, being a noncriminal process, was not excluded by the restriction on appeals in a 'criminal
cause or matter'. Morris CJ, the Chief Justice of the Queen’s Bench Division
(whose reputation had been damaged by the reversal by the Exchequer
Division of his decision in Sullivan)66 advised the government that an appeal
would lie. However, at least one member of the Court of Appeal, Fitzgibbon
LJ, appears to have indicated that the Court of Appeal would not have
jurisdiction to admit an appeal. Sir Joseph Ridgeway, the Irish UnderSecretary, who had developed a violent antipathy towards Palles CB, was
furious at what he perceived as the Attorney General’s appeasement of the
Exchequer Division: 67
We must be prepared for the Chief Baron giving us a bad fall
whenever he can. He and his jester Andrews hate the present
government. It might be as well if you were to ask the Attorney
General whether he does not mean to appeal against the Chief Baron's
decision in the Curtin case. Their decision gives the Exchequer the
right of interfering with the decision of all our Resident Magistrates
and much harm will be done. It could probably be upset on appeal. The
66
The Times, 30 Jan. 1888, observed that the proceedings in Re Sullivan had reflected badly ‘upon
the fairness and authority as a constitutional court of the Queen’s Bench Division'.
67
J. Ridgeway to A.J. Balfour, 22 Feb. 1888 (BL, Add. MS 49808, fo. 61).
26
question is whether or not there is an appeal. The Chief Justice and
most of the lawyers hold, I understand, that there is, while Fitzgibbon,
the Attorney General tells me, takes the opposite view. But what I fear
is that the Attorney General is hesitating because he thinks it
inexpedient to offend the Chief Baron. I am utterly opposed to that
policy. Mere trimmers should be beaten, not conciliated, and I would
go for the Chief Baron and expose him whenever there is an
opportunity.
However, in May 1888 the English Court of Appeal in its decision in
Ex p. Woodhall68 rejected the argument that habeas corpus should be
characterised as a purely civil proceeding, independent of the original cause
of the imprisonment. Lord Esher MR held that:69
if the proceedings before the magistrate was a proceeding the subject
matter of which was criminal then the application in the Queen’s
Bench Division for the issue of a writ of habeas corpus, which, if
issued would enable the applicant to escape from the consequence of
the proceeding before the magistrate, was a proceeding the subject
matter of which was criminal.
Woodhall put an end to the Government's strategy of suppressing the
Sullivan doctrine by an appeal.
68
(1888) 20 QBD 832.
69
Ibid., 836.
27
Re Heaphy (1888)
Three weeks after the Woodhall decision had ensured that the decision in Re
Sullivan was immune from review by the Court of Appeal Palles CB agreed
to re-examine his decision in Sullivan. The opportunity to revisit Sullivan
was presented by a habeas corpus application Re Heaphy,70 where an error
identical to that in Sullivan’s case had been committed: the defendant, a
shopkeeper had been convicted of an offence under section 2(1) of the
Criminal Law and Procedure (Ireland) Act 1887 for refusing to supply
provisions to policemen engaged in operations on a troubled estate in County
Cork. The deposition of the boycotted police witness recorded the very
stilted exchanges in Heaphy's shop:
I afterwards went into Thomas Heaphy's shop. I saw his wife in the
shop, and asked her to sell me a pair of bread. She said 'we have no
bread'. I then asked her to sell me a cup and saucer. She said 'no'. I saw
ware exposed for sale in the shop. The husband was not present at the
time. She afterwards refused to sell me a pennyworth of matches.
Section 2(1) was not (as William Gladstone explained in a subsequent
Commons debate on the Heaphy case) concerned with 'the common law of
conspiracy which drives its criminal character from its being intended to
injure a person or a class…The offence charged by the [Criminal Law and
70
(1888) 22 LR Ir 500; Judgments of the Superior Courts 129.
28
Procedure] Act is to compel or induce persons not to do certain things'. 71 As
in the Sullivan case there was no evidence that Heaphy was participating in a
conspiracy to persuade others into complying with a boycott; he had simply
refused to treat with the police.
The Exchequer Division, in light of the absence of a right of appeal to
the Court of Appeal and in light of the remarks of Huddleston B in R v
Northumberland JJ, conceded the request of the Crown that it should be
allowed to re-argue the principle propounded in Sullivan.72 Palles CB again
rehearsed the argument that he had devised in Sullivan: he argued (in a
deduction famously ridiculed73 by a twentieth century commentator as 'an
unmistakably Irish syllogism') that: certiorari only lay to correct defects of
jurisdiction; that prior to the Summary Jurisdiction Act 1848 a conviction
which failed to set out the necessary evidential findings was liable to be
quashed on certiorari; that since certiorari only lay to correct jurisdictional
defects, the ground of quashing was that a conviction without evidence was
'without jurisdiction'.74 This, he contended, proved that a conviction without
71
Parliamentary Debates, series 3, vol.327, cols.1329-30, 26 June 1888 (House of Commons).
72
Freeman's Journal, 13 June 1888.
73
A. Rubinstein, Jurisdiction and Illegality, Oxford, 1965, 93. The alleged error, Rubinstein
contended, lay in the first proposition of the deduction. It was not correct, as Palles CB argued,
that certiorari operated only to correct errors compromising jurisdiction; it also lay to correct intrajurisdictional defects; when, before the Summary Jurisdiction Act 1848 the King's Bench exercised
its power to quash convictions which did not display the necessary evidential minima it corrected
an intra-jurisdictional defect.
74
(1888) 22 LR Ir 500, 511.
29
evidence was a breach of jurisdiction. Having established that a conviction
without evidence was a breach of jurisdiction he characterised the
entitlement to have a conviction without evidence quashed on certiorari as a
'constitutional right'. From this derived the conclusion that the capacity to
exercise that constitutional right could not be affected by the procedural
reforms in the Summary Jurisdiction Act 1848. The decision of the resident
magistrates was held to be unlawful, and Heaphy was released on habeas
corpus.
Palles CB's judgment was overshadowed by a stunning contribution
from Dowse B.75 Dowse B, although aligning himself with the Queen's
Bench Division on the question of the scope of review on certiorari, devoted
his judgment to a contemptuous attack upon the competence of the Resident
Magistrates who administered the Criminal Law and Procedure (Ireland) Act
1887:
There are several things I have never been able to understand in the
course of my life, and one of them is the mind of local justices, or how
they bring their minds to bear upon a case; and I am less able to
understand very often the state of minds of the justices of whose legal
competence the Lord Lieutenant has been satisfied.'
Dowse B proceeded provocatively; quoting a passage from George Finlay’s
History of Greece,76 he reminded the magistracy of their constitutional
accountability for acts of maladministration:
75
Richard Dowse had served as Attorney General in 1872. CL Falkiner, ' Dowse, Richard, 18241890' DNB vol. 16, cols 816-817.
76
G. Finlay, A History of Greece from its Conquest by the Romans to the Present Time, ed. HF
Tozer, 7 vols, Oxford, 1877, vol. 1, 214, fn 2.
30
'Where true liberty exists every agent of the administration from the
gendarme to the Finance Minister'- I suppose that will include a
resident Magistrate of whose legal knowledge the Lord Lieutenant is
satisfied’-'must be rendered personally responsible to the citizen whom
his act affects for the legality of every act he carries into action. This is
the real foundation of English liberty, and the great legal principle
which distinguishes the law of England from the laws of the
continental nations of Europe, and that of Rome from which they are
derived.'
Dowse B's condemnation on the personnel who administered the 1887 Act (a
theme which he continued in later cases)77 furnished very serviceable antigovernment propaganda, and featured in newspaper
78
and parliamentary79
attacks on the operation of the 1887 Act. Peter O'Brien, the Irish Attorney
General, attributed Dowse B’s embarrassing behaviour to poor mental health
and an attention-seeking personality. He wrote to AJ Balfour, (who had had to
endure passages from Dowse B's judgment being quoted at him by John
Morely80 in the House of Commons) that 'he is in a very excitable condition
from failing health -he had an stroke of apoplexy on the continent last
October- and between an enfeebled brain and a desire for popularity and an
77
A few weeks later Dowse B remarked that magistrates' inability to draft a case was so hopeless
that 'you might as well ask them to compose a Greek ode'; Freeman's Journal, 2 July 1888.
78
The Pall Mall Gazette, 22 June 1888, 4, reproduced an extract from Dowse B’s judgment and
commented 'So says Baron Dowse in the Dublin Court of Exchequer. Mr Gladstone will not have
to go far for legal proof of his case against the Removables.'
79
See fn 80 below.
80
Parliamentary Debates, series 3, vol.327, cols.1163-65, 25 June 1888 (House of Commons).
31
inveterate habit of joking he is not in a condition to be regarded as of any
authority or to command any respect’81
The reaction to the decisions of the Exchequer Division
The decision in the Heaphy case was widely commented upon in the press82
and became an instrument of attack in the Liberal campaign against
Salisbury's government. The decision of the Exchequer Division prompted a
debate in the House of Commons on the administration of the Act which
carried on for two days,83 and the case was adopted in the public addresses of
William Gladstone.84 The reaction amongst the legal periodicals was divided.
When, the Sullivan decision was handed down in February 1888 The Law
Journal had been positively hostile. In a piece entitled 'The survival of the
81
82
P. O’Brien to A.J. Balfour, 3 July 1888 (BL, Add. MS 49814, fo. 99).
The decision was discussed editorially in The Times, 26 June 1888; The Daily Telegraph, 26
June 1888; The Morning Post, 21 June 1888; The Daily News, 21 & 22 June 1888, and The
Manchester Guardian, 22 & 23 June 1888. The Times, Telegraph, and Morning Post pointed out
that the defendants, even if innocent of the charge prosecuted, were still involved in a campaign of
boycotting. From a different political perspective, The Daily News and The Manchester Guardian
argued that the decision exposed the poor administration of the legislation; an editorial in The
Manchester Guardian stated that 'the contempt which was expressed of the way in which resident
magistrates administer the law - and expressed by really great lawyers like Chief Baron Palles,
Baron Andrews and Baron Dowse- could hardly have been more scathing'.
83
Parliamentary Debates, series 3, vol.327, cols.1146-49, 25 June 1888; cols.1290-1418, 26 June
1888 (House of Commons).
84
Speeches of the Right Honourable W.E. Gladstone, London, 1902, 79-80; The Liberal Yearbook
1889, repr. Brighton, 1971, 18-19.
32
Exchequer Court in Ireland'85 the paper even hinted that, as a result of its
counter doctrinal decision in Sullivan, the Exchequer Division had forfeited
its entitlement to exist as a separate Division within the High Court:
The decision appears to be a revolution in the law as to release by
habeas corpus of convicted prisoners which has hitherto been confined
to cases in which the conviction is either irregular in form or exceeds
jurisdiction … to hold that jurisdiction is exceeded when the court is of
opinion that the evidence acted upon was insufficient is to use the word
in a sense which it does not bear in law in this or any other connection.
But other strands of government-inclined legal opinion welcomed the
decision on the ground that it provided a measure of legitimacy to the
legislation. In 1890 in the pages of The Law Quarterly Review the barrister
(and future Conservative MP) GJ Butcher referred approvingly to the
doctrine of enhanced judicial control on habeas corpus effected by the
Exchequer division: 'Its importance cannot be over-estimated. It establishes a
method of appeal from the decisions of magistrates which is unknown in
England, and furnishes the Irish prisoner with a method of asserting the
liberty of the subject which the Englishman in similar circumstances cannot
assert.'86
85
'The Survival of the Exchequer Court in Ireland' 23 Law Journal (1888)
83; reprinted in 22 Irish Law Times (1888), 79.
86
J. G Butcher, 'The Law of Conspiracy in England and Ireland (2)', 6 Law Quarterly Review
(1890), 247, 258.
33
CERTIORARI IN IRELAND, 1888-1910
The internal dispute within the High Court as to the scope of review on
certiorari continued unresolved for the next twenty-two years, and the
argument was further sustained as personalities close to the government in
the Sullivan dispute were promoted to judicial office. In 1889 one of the
principal participants in the dispute, the Conservative Attorney General Sir
Peter O’Brien, was promoted to the office of Chief Justice.87 Six years later
the Queen’s Bench Division took the opportunity to re-assert orthodox
doctrine. In R v Roscommon JJ88 the accused, a landlord’s agent who had set
fire to an improvised shelter constructed from thatch by an evicted tenant,
and who had been sent forward on a charge of setting fire to a 'dwelling
house',89 sought to challenge the legality of the order sending him forward
for trial on the ground that the thatched construction could not in law be said
to constitute a 'dwelling house'. In the Queen’s Bench Division O’Brien CJ
dismissed the Exchequer Division approach and held that the court was
bound by the earlier decision of the Queen's Bench in Sullivan’s case:
87
The Government, determined to defend 'Peter's claims' against strong political opposition had
initially wished to appoint O'Brien to the office of Lord Chancellor. Balfour had to concede that
was 'impossible' and O'Brien was appointed Chief Justice instead; AJ Balfour to J. Ridgeway, 23
Nov. 1889, The Public Record Office, National Register of Archives 6957.
88
[1893] 2 IR 81. The decision in Blakeney re-surfaced in the House of Lords in Neill v North
Antrim JJ [1992] 1 WLR 1220 where it was at the heart of the authorities relied upon by the
respondents' in unsuccessfully attempting to disprove the right to review by certiorari an order of
committal for trial.
89
The charge had been brought under Malicious Injuries Act 1861 (24 & 25 Vict., c.97).
34
I was not a party to the decision in that case but of course I am bound
by its authority. The then Lord Chief Justice, now Lord Morris, in
giving the judgement of the Court in that case, which was one in which
a writ of certiorari was moved for in order to remove a conviction,
shortly stated the principle upon which it rested, that where a charge
had been "well laid before a magistrate, and it is an offence within his
jurisdiction, this court will not inquire into the grounds of the
decision."
The other three members of the court agreed.90
Subsequently, however, the Chief Justice moderated his strategy,
preferring to overturn the decision by means of a full conference of all the
judges of the High Court rather than by a running battle with the Exchequer.
In 1900 in R (Waters) v Kerry JJ91 O’Brien CJ even applied the wider
Exchequer theory of the scope of review on certiorari, saying 'if certiorari
lies the Court will consider whether the judges had jurisdiction (i) to enter on
the inquiry at all; (ii) whether, having jurisdiction, they pursued it according
to the common law'. He then intimated that 'should the matter arise in a
definite form, he would summons the Judges to consider the matter'. Ten
years later the Chief Justice had his opportunity.
90
O’Brien, Holmes and Madden JJ.
91
(1910) 35 ILTR 10. In R v Meath JJ [1896] 2 IR 1 the Court had declined to follow the decision
of the Queen’s Bench Division in Sullivan.
35
R (Martin) v Mahony (1910)
Judicature rationalisation facilitated a resolution of the controversy. In 1897
the Exchequer Division was absorbed into the Queen's Bench Division.92
There was no longer an independent, co-ordinate Exchequer Division free to
pursue its own line, and Palles CB ranked inferior in precedence to Peter
O'Brien, Balfour's former Attorney General, who, by way of reward for his
services during the administration of the 1887 Act, was now Lord Chief
Justice and president of the Division.
The occasion to settle the internal dispute within the Irish judiciary
arose in 1910. The application for certiorari made to the High Court in R
(Martin) v Mahony93 arose out of the conviction by Dublin magistrates of a
messenger boy called Henry Martin who had been caught handing over a
betting slip to another man called Perry at a premises in the Temple Bar area
of Dublin. Martin had been summonsed and convicted of 'using' premises for
the purpose of 'betting with persons resorting thereto 'contrary to section 3 of
the Betting House Act 1853.94 The objection raised by Martin was that as a
matter of the correct construction of the provision 'using' meant 'using as a
proprietor' and not 'using' as a customer.
92
93
S. 1(1) of the Supreme Court of Judicature (Ireland) (No. 2) Act 1897 (60 & 61 Vict., c.66).
[1910] 2 IR 695.
94
16 & 17 Vict., c. 119.
36
Two members of the Court of 1910 had been officers within the
Conservative administration of the late 1880s: O'Brien CJ, and his
predecessor as Attorney General, Gibson J. O'Brien CJ was determined to
expunge the theory of certiorari devised by Palles CB during the Plan of
Campaign. After the granting of the conditional order of certiorari O'Brien
CJ directed that the full High Court be assembled to sit in banc. As a
precaution against the Court deciding the case without finally settling the
underlying doctrinal controversy O'Brien CJ circulated a memorandum
which expressly required the court to address the division of opinion between
the Queen's Bench and Exchequer Divisions in 1888.95 In what may have
been an attempt to bring the other members of the Court into line with the
orthodox position, Gibson J, while the other members of the court
deliberated, distributed a detailed judgment in support of the Bolton doctrine,
based on a thorough analysis of English case law from the late eighteenth
century.
Judgment was delivered in June 1910. Nine of the ten judges held
that the Exchequer had been in error in 1888. O'Brien CJ rehearsed the
principle in R v. Bolton: jurisdiction was determinable at the commencement
of the case; to hold that a magistrate exceeded jurisdiction by a wrongful
construction of the law 'confounds want of jurisdiction with error in the
course of it'.96 Gibson J provided a more detailed description of the grounds
of intervention:97
95
The memorandum, which does not survive, is referred to in the judgments: [1910] 2 IR 695, at
718
96
Ibid., 707.
37
(a) certiorari lies where there is want or excess of jurisdiction when the
enquiry begins or during its progress; (b) when in the exercise of
jurisdiction there is error on the face of the adjudication; (c) where
there has been abuse of jurisdiction (as by misstating the complaint,
&c, or disregard of the essentials of justice and the conditions
regulating the functions and duty of the tribunal); (d) where the Court
is shown to be disqualified by likelihood of bias or interest; (e) where
there is fraud.
Outside of these categories, 'to miscarry occasionally in the ordinary
exercise of jurisdiction' was not a ground of certiorari. This did not mean that
the individual did not have a remedy against error of law. He had a remedy
either by appeal or by case stated; if an accused departed from the proper
remedy 'he must blame himself and not the law'. It could not be permitted to
allow the use of certiorari to avoid these direct methods of appeal since 'for
the protection of magistrates and others, the statutes have attached special
restrictive conditions'.98
Palles CB, whose judgments in the Sullivan and Heaphy cases
O'Brien CJ and Gibson J targeted, was the other survivor of the 1880s. But
Palles CB had now abandoned his earlier approach. Even he no longer
believed that an error of law, unless it was apparent on the face of the record,
97
Ibid., 731.
98
Ibid., 729.
38
was a ground of certiorari. He was prepared to defend the Sullivan case
solely on the ground that under the Criminal Law and Procedure Act 1887
the evidence was required to be contained on the face of the record returned
to the court; accordingly review was justified by reference to the error on the
face of the record principle. Insofar as he had asserted in 1888 that there was
a general right to challenge a conviction on the ground of error of law, even
where not apparent on the record, he now conceded that he had been
'inaccurate'. His revised account of the capacity of certiorari was completely
orthodox: 'Where a statute authorizes a form of conviction which does not
state or refer to the evidence upon which it is founded, and does not impose
an obligation upon the Justice to record it, such evidence is not examinable
upon certiorari.' This was very far from what Palles CB had been saying in
1888 when he elaborated his principle of the 'constitutional right' of the
subject to have convictions quashed by certiorari which were 'without
evidence sufficient to sustain them'.
What Peter O'Brien had, as Attorney General, described as 'the true
view of the law'99 he had now, as Chief Justice, ensured was restored.
However, the Martin decision had diminished a famous nationalist triumph,
and it was not well received in all quarters. On the morning after the
judgment in R (Martin) v Mahony was handed down the leading Irish
nationalist newspaper, the Freeman's Journal, responded with an editorial
99
P. O’Brien to A. J. Balfour, 7 Feb.1888 (BL, Add MS 49814, fo 10).
39
which fiercely denounced the reception in Irish law of the principle in
Bolton:100
The decision of the Exchequer in Sullivan's and Heaphy's case appears
to have annoyed the Queen's Bench since 1897-the desire to have the
question reconsidered by the full court has been gathering force. At last
in year of grace 1910, the indiscretion of a youthful Dublin citizen of
Dublin, and the mistake in point of law of a very capable divisional
magistrate, brought together the necessary elements to enable the
question to be re-opened. The matter was discussed at length last April,
and judgment has at length been delivered. The Queen's Bench
triumphs; the decision of the Exchequer has been wiped out; and the
result, it seems to us, is unfortunate from every point of view. One
hundred years ago Lord Kenyon said: 'It is necessary for Courts of
Justice to hold a strict hand over summary proceedings before
magistrates, and I will never agree to relax any of the rules by which
they have been bound.' The decision in Martin's case is a distinct
relaxing of that rule that was laid down twenty-two years ago in
Sullivan's case, and magistrates now in this country have an authority
over the property and liberty of the subject which is not possessed by
even the judges of the High Court.
Though R (Martin) v Mahony continues to be cited,101 the background
to the decision is never referred to. Yet R (Martin) v Mahony concluded a
100
Freeman's Journal, 1 July 1910.
40
highly divisive constitutional and political controversy, which had spread
beyond Ireland, over the proper scope of review on certiorari. That
controversy was one episode in the wider history of public and judicial
attitude towards a principle - a rule which was only eventually revised in the
late twentieth-century -102 which had restricted the capacity of the Queen's
Bench to supervise by certiorari the activities of magistrates' courts.
101
H.W.R. Wade and C. Forsyth, Administrative Law, 9th ed., Oxford, 2004, 274; P.P. Craig,
Administrative Law, 5th ed, London, 2003, 493, 503; S. De Smith, H. Woolf, J. Jowell, Judicial
Review of Administrative Action, 5th ed., London, 1995, 228.
102
R v Hull University Visitor, ex p. Page [1993] AC 682.
41
Dr Kevin Costello is a lecturer in the School of Law, University College Dublin.
42