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Majistret Yang Menipu Semasa Perbicaraan di Mahkamah Terbuka

[1985] 1 AC 528, [1984] 3 All ER 908, [1984] 3 WLR 1227, 81 Cr App Rep 54, 149 JP 225

McC v Mullan and others
HOUSE OF LORDS
[1985] 1 AC 528, [1984] 3 All ER 908, [1984] 3 WLR 1227, 81 Cr App Rep 54, 149 JP 225
HEARING-DATES: 8, 9, 10 OCTOBER, 22 NOVEMBER 1984
22 November 1984
CATCHWORDS:
Magistrates — Civil liability — Excess or absence of jurisdiction — Sentence — Imposing sentence which magistrates had no power to impose — Extent of magistrates’ civil liability for acting without jurisdiction — Magistrates’ Courts Act (Northern Ireland) 1964, s 15.

Magistrates — Civil liability — Malicious action within jurisdiction — Whether magistrates under civil liability for acting within jurisdiction but maliciously and without reasonable and probable cause — Justices of the Peace Act 1979, s 44.

HEADNOTE:
The respondent was convicted by magistrates in Northern Ireland of the offence of failing to comply with an order to attend an attendance centre which had been imposed on him as the result of a previous offence.  The magistrates ordered him to be detained at a young offenders centre allegedly without first informing him of his right to apply for legal aid, as required by art 15(1) of the Treatment of Offenders (Northern Ireland) Order 1976.  On an application by the respondent for judicial review, the detention order was quashed by the Northern Ireland Divisional Court on the grounds of that irregularity, and he was released from detention.  He then brought an action against the magistrates claiming damages for false imprisonment.  Since s 15 of the Magistrates’ Courts Act (Northern Ireland) 1964 provided that no action would lie against a magistrate unless he had acted ‘without jurisdiction or in excess of jurisdiction’, the question whether the magistrates had acted within their jurisdiction was tried as a preliminary issue.  The judge at first instance held that they had, but on appeal the Court of Appeal in Northern Ireland held that they had not.  The magistrates appealed to the House of Lords.  At the hearing of the appeal before the House the questions arose (i) whether an action lay against magistrates if they acted within their jurisdiction but maliciously and without reasonable and probable cause and (ii) as to the extent to which magistrates were liable to an action for damages if they did not have jurisdiction or exceeded their jurisdiction, such a cause of action being expressly recognised by s 15 of the 1964 Act.

Held — (1) In Northern Ireland, as in England and Wales, magistrates, or any other court of summary jurisdiction, were not liable in damages for the consequences of an unlawful sentence imposed by them which could be quashed for irregularity, if they had jurisdiction to enter on the proceedings and acted within their jurisdiction when imposing sentence.  However, magistrates were liable for the consequences of imposing a sentence which they had no power to impose on the offender for the offence, because they were then acting without or in excess of jurisdiction (see p 910 j, p 912 f to h, p 916 to p 917 d, p 920 d to f, p 922 a b d e, p 923 d to f, p 924 j to p 925 a f g, p 926 a to c and p 928 j to p 929 d and f g, post) Groome v Forrester (1816) 5 M & S 314, M’Creadie v Thomson1907 SC 1176 and O’Connor v Isaacs [1956] 2 All ER 417 applied Sirros v Moore [1974] 3 All ER 776 explained.
(2) The quashing of a magistrates’ decision or order by certiorari for excess or want of jurisdiction was not conclusive against the magistrates on the issue of their civil liability for acting without jurisdiction, since an excess of jurisdiction affording sufficient grounds for judicial review was not to be equated with an excess of jurisdiction for the consequences of which magistrates were personally liable (see p 910 j, p 917 f g j, p 918 j, p 920 g to j, p 924 j and p 929 a to d, post) Johnston v Meldon (1891) 30 LR Ir 15 applied Case (1612) 10 Co Rep 68b and Anisminic Ltd v Foreign Compensation Commission [1969] 1 All ER 208 considered.
(3) Although, on the facts, the magistrates had had power to try the respondent, to convict him and to impose a detention sentence for the offence for which they convicted him, they had had no power to impose that sentence on the respondent because he had not been informed of his right to legal aid as required by art 15 of the 1976 order.  That requirement was a statutory condition precedent to the magistrates’ having jurisdiction to pass an otherwise appropriate sentence.  Their failure to observe that condition precedent was not a mere procedural irregularity but amounted to their acting ‘without jurisdiction or in excess of jurisdiction’ within the meaning of s 15 of the 1964 Act.  The appeal would therefore be dismissed (see p 910 j, p 920 c d and j to p 921 b, p 924 c to j p 929 b to d, post).
Per Lord Elwyn-Jones, Lord Bridge and Lord Templeman.  In England and Wales the former common law cause of action against a magistrate for acting within his jurisdiction but maliciously and without reasonable and probable cause, referred to in s 44 of the Justice of Peace Act 1979, is now obsolete and no longer lies (see p 910 j, p 916 f g and p 929 g h, post).

NOTES:
For the civil liability of magistrates, see 1 Halsbury’s Laws (4th edn) paras 206–215 and 29 ibid paras 278–279, and for cases on the subject, see 1(1) Digest (Reissue) 183–195, 1901–163.
For the Justices of the Peace Act 1979, s 44, see 49 Halsbury’s Statutes (3rd edn) 836.
As from 25 December 1981 s 15 of the Magistrates’ Courts Act (Northern Ireland) 1964 was replaced by art 5 of the Magistrates’ Courts (Northern Ireland) Order 1981, SI 1981/1675.
Article 15 of the Treatment of Offenders (Northern Ireland) Order 1976 corresponds to s 21 of the Powers of Criminal Courts Act 1973.  For s 21 of the 1973 Act, see 43 Halsbury’s Statutes (3rd edn) 314.
Section 45 of the Justices of the Peace Act 1979 makes provision for the liability of justices of the peace in England and Wales in respect of acts done without or in excess of jurisdiction.  For s 45 of the 1979 Act, see 49 Halsbury’s Statutes (3rd edn) 837.

CASES-REF-TO:

Anderson v Gorrie [1895] 1 QB 668, CA.
Anisminic Ltd v Foreign Compensation Commission [1969] 1 All ER 208, [1969] 2 AC 147, [1969] 2 WLR 163, HL.
Calder v Halket (1840) 3 Moo PCC 28, [1835–42] All ER Rep 306, 13 ER 12.
Groome v Forrester (1816) 5 M & S 314, 105 ER 1066.
Gwinne v Poole (1692) 2 Lut 1560, 125 ER 858.
Houlden v Smith (1850) 14 QB 841, 117 ER 323.
Johnston v Meldon (1891) 30 LR Ir 15.
M’Creadie v Thomson 1907 SC 1176.
Marshalsea Case (1612) 10 Co Rep 68b, 77 ER 1027.
Morgan v Hughes (1788) 2 Term Rep 225, 100 ER 123.
O’Connor v Isaacs [1956] 2 All ER 417, [1956] 2 QB 288, [1956] 3 WLR 172, CA.
Pease v Chaytor (1863) 3 B & S 620, 122 ER 233.
Polley v Fordham (No 2) (1904) 91 LT 525, [1904–7] All ER Rep 651, DC.
R v Cockshott [1898] 1 QB 582, [1895–99] All ER Rep 253, DC.
R v Kettering Justices, ex p Patmore [1968] 3 All ER 167, [1968] 1 WLR 1436, DC.
R v McGinlay (1976) 62 Cr App R 156, CA.
R (Martin) v Mahony [1919] 2 IR 695.
R v Nat Bell Liquors Ltd [1922] 2 AC 128, [1922] All ER Rep 335, PC.
Sirros v Moore [1974] 3 All ER 776, [1975] QB 118, [1974] 3 WLR 459, CA.
Willis v Maclachlan (1876) 1 Ex D 376, CA.

INTRODUCTION:
Appeal

The defendants, Charles Mullan, Bruce Hill and Marjorie Porter, appealed with leave of the Appeal Committee of the House of Lords granted on 1 March 1984 against the order of the Court of Appeal in Northern Ireland (Lord Lowry LCJ, Jones and O’Donnell LJJ) dated 21 December 1983 ordering that the judgment and order of Hutton J made on 29 June 1983 on a preliminary point of law, namely whether the plaintiff, McC (a minor) (the respondent), had a cause of action against the appellants for the making of the training school order dated 31 August 1978 and his detention thereunder, be reversed and directing that the action proceed to trial.  The facts are set out in the opinion of Lord Bridge.

COUNSEL:
W A Campbell QC, Patrick Coghlin and C R Trimble (all of the Northern Ireland Bar) for the appellants.

Richard Ferguson QC and T T Ferriss (both of the Northern Ireland Bar) for the respondent.

JUDGMENT-READ:
Their Lordships took time for consideration.

22 November.  The following opinions were delivered.

PANEL: LORD KEITH OF KINKEL, LORD ELWYN-JONES, LORD BRIDGE OF HARWICH, LORD BRANDON OF OAKBROOK AND LORD TEMPLEMAN

JUDGMENTBY-1: LORD KEITH OF KINKEL

JUDGMENT-1:
LORD KEITH OF KINKEL.  My Lords, I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend Lord Bridge.  I have some reservations on 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.

JUDGMENTBY-2: LORD ELWYN-JONES

JUDGMENT-2:
LORD ELWYN-JONES.  My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Bridge.  For the reasons he has given I would dismiss the appeal.

JUDGMENTBY-3: LORD BRIDGE OF HARWICH

JUDGMENT-3:
LORD BRIDGE OF HARWICH.  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 LCJ, Jones and O’Donnell LJJ) 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 art 15(1) of the Treatment of Offenders (Northern Ireland) Order 1976, SI 1976/226, which provides:

‘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 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 LCJ and Jones LJ) accepted the clerk’s evidence, but held that this was insufficient to satisfy the requirements of art 15(1) of the 1976 order 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 concerning whether this fact, if proved, would satisfy the requirements of art 15(1) of the 1976 order 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 s 15 of the Magistrates’ Courts Act (Northern Ireland) 1964 (which I shall call ‘the 1964 Northern Ireland Act’), the provision in force when the writ was issued which has since been re-enacted as art 5 of the Magistrates’ Courts (Northern Ireland) Order 1981, SI 1981/1675.  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 concerning 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 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 1964 Northern Ireland Act 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 s 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 Coke CJ when he said in Marshalsea Case (1612) 10 Co Rep 68b at 76a, 77 ER 1027 at 1038:

‘. . . 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 process of the Court, no action lies against them.  But when the Court has not jurisdiction of the cause, there the whole proceeding is coram non judiceand actions will lie against them without any regard of the precept or process . . .’

The Court of the Marshalsea in that case acted without jurisdiction because, its jurisdiction being limited to members of the King’s household, it entertained a suit between two citizens neither of whom was a member of the King’s household.  Arising out of those proceedings a party arrested ‘by process of the Marshalsea’ could maintain an action for false imprisonment against, inter alios, ‘the Marshal who directed the execution of the process’.  This is but an early and perhaps the most quoted example of the application of a principle illustrated by many later cases where the question whether a court or other tribunal of limited jurisdiction has acted without jurisdiction (coram non judice) can be determined by considering whether at the outset of the proceedings that court had jurisdiction to entertain the proceedings at all.  So much is implicit in Coke CJ’s phrase ‘jurisdiction of the cause’.
At the other end of the spectrum, jurisdiction meant something entirely different to the majority of your Lordships’ House who, in Anisminic v Foreign Compensation Commission [1969] 1 All ER 208, [1969] 2 AC 147, decided that the commission, having misconstrued the Order in Council which it was required to apply, and therefore asked itself the wrong question, had so far exceeded its jurisdiction that a purported decision of the commission was a nullity which escaped the statutory prohibition imposed by s 4(4) of the Foreign Compensation Act 1950 that ‘The determination by the Commission of any application made to them under this Act shall not be called in question in any court of law’.
Your Lordships’ task is to try to discern somewhere within this wide spectrum a sensible line to be drawn by which to determine whether or not justices are acting ‘without jurisdiction or in excess of jurisdiction’ within the meaning of s 15 of the 1964 Northern Ireland Act.  The question on which side of the line the instant case falls is one we are obliged to answer.  I understand all your Lordships to agree that the answer to this question is not seriously in doubt.  But this is, so far as I know, the first case ever to come before this House related specifically to the civil liability of justices arising from the performance or purported performance of their duties as such.  It is obviously desirable, so far as it may be possible, that the House, beyond deciding the appeal on its particular facts, should make some attempt, however daunting the prospect may seem, to discover and pronounce any principles of general application in relation to justices’ civil liability and, if essentially the same principles apply both in Northern Ireland on the one hand and in England and Wales on the other, to say so.
I do not find it necessary to consider any legislation before the Justices Protection Act 1848 (which I shall call ‘the 1848 English Act) and the Justices Protection (Ireland) Act 1849 (which I shall call ‘the 1849 Irish Act).  The first two sections of the 1849 Irish Act reproduced, if not quite verbatim, for present purposes with identical effect, the first two sections of the 1848 English Act.  Sections 1 and 2 of the 1849 Irish Act provide as follows:

‘[1.] Every Action hereafter to be brought against any Justice of the Peace in in any of Her Majesty’s Superior Courts of Law at Dublin for any Act done by him in the Execution of his Duty as such Justice, with respect to any Matter within his Jurisdiction as such Justice, shall be an Action on the Case as for a Tort and in the Declaration it shall be expressly alleged that such Act was done maliciously, and without reasonable and probable Cause and if at the Trial of any such Action, upon the General Issue being pleaded, the Plaintiff shall fail to prove such Allegation, he shall be nonsuit, or a Verdict shall be given for the Defendant.

2. For any Act done by a Justice of the Peace in a Matter of which by Law he has not Jurisdiction, or in which he shall have exceeded his Jurisdiction, any Person injured thereby, or by any Act done under any Conviction or Order made or Warrant issued by such Justice in any such Matter, may maintain an Action against such Justice in the same Form and in the same Case as he might have done before the passing of this Act, without making any Allegation in his Declaration that the Act complained of was done maliciously, and without reasonable and probable Cause: Provided nevertheless, that (in any Case where a Conviction may be quashed either upon Appeal or upon Application to Her Majesty’s Court of Queen’s Bench) no such Action shall be brought for anything done under such Conviction or Order until after such Conviction or Order shall have been quashed, either upon Appeal or upon Application to Her Majesty’s Court of Queen’s Bench nor shall any such Action be brought for anything done under any such Warrant which shall have been issued by such Justice to procure the Appearance of such Party, and which shall have been followed by a Conviction or Order in the same Matter, until after such Conviction or Order shall have been so quashed as aforesaid or if such last-mentioned Warrant, shall not have been followed by any such Conviction or Order, or if it be a Warrant upon an Information for an alleged indictable Offence, nevertheless if a Summons were issued previously to such Warrant, and such Summons were served upon such Person, either personally or by leaving the same for him with some Person at his last or most usual Place of Abode, and he did not appear according to the Exigency of such Summons, in such Case no such Action shall be maintained against such Justice for anything done under such Warrant.’

These two sections remained in force in Northern Ireland until repealed by the 1964 Northern Ireland Act.  The long title to the 1964 Northern Ireland reads as follows:

‘An Act to amend and consolidate the law relating to the offices of justice of the peace, resident magistrate and clerk of petty sessions, the jurisdiction of, and the practice and procedure before, magistrates’ court, and to matters connected therewith.’

In this Act the provisions of s 1 of the 1849 Irish Act disappeared altogether, but, in substance, the provisions of s 2 of the 1849 Irish Act were re-enacted by s 15, which I have already set out, and by s 16, which provides:

‘(1) Where the conviction or order of a magistrates’ court may be quashed either on appeal or upon application to the High Court, no action by reason thereof or by reason of any warrant issued in the proceedings which resulted in the conviction or order or issued to enforce it, shall be commenced against the resident magistrate or justice of the peace who made it until it has been so quashed.
(2) No action shall be brought as the result of the issue of a warrant which is issued in default of appearance in answer to a summons and after the service of such summons has been proved.’

The 1964 Northern Ireland Act also introduced the following important new provision contained in s 20:

‘(1) The Ministry [of Home Affairs], with the approval of the Ministry of Finance, may defray the whole or part of any expenses incurred by a resident magistrate or other justice of the peace or by a clerk of petty sessions in or in connection with any proceedings or claim brought as a result of the execution, or purported execution, of his office if and in so far as it appears to the Ministry to be reasonable, having regard to the circumstances, that such expenses, or part thereof should not be borne by him personally.
(2) In this section ”expenses” includes damages or costs and any sums payable in connection with a settlement of proceedings or of a claim.’

Sections 15, 16 and 20 of the 1964 Northern Ireland Act, which were in force at the date of the issue of the writ in the instant proceedings, have since been repealed and replaced by arts 5, 6 and 10 respectively of the Magistrates’ Courts (Northern Ireland) Order 1981, SI 1981/1675.  The only material change is that, in art 10 of the 1981 order, the Lord Chancellor is substituted for the Ministry of Home Affairs and the Treasury is substituted for the Ministry of Finance.
Sections 1 and 2 of the 1848 English Act remained in force until repealed by the Justices of the Peace Act 1979.  The relevant part of the long title of the 1979 Act reads as follows:

‘An Act to consolidate certain enactments relating to justices of the peace . . . with amendments to give effect to recommendations of the Law Commission.’

In the 1979 Act ss 1 and 2 of the 1848 English Act are replaced by the following sections:

’44. If apart from this section any action lies against a justice of the peace for an act done by him in the execution of his duty as such a justice, with respect to any matter within his jurisdiction as such a justice, the action shall be as for a tort, in the nature of an action on the case and–(a) in the statement or particulars of claim it shall be expressly alleged that the act in question was done maliciously and without reasonable and probable cause, and (b) if that allegation is not proved at the trial of the action, judgment shall be given for the defendant, if it is in the High Court, or, if it is in the county court, the plaintiff shall be non-suited or judgment shall be given for the defendant.

45.–(1) This section applies–(a) to any act done by a justice of the peace in a matter in respect of which by law he does not have jurisdiction or in which he has exceeded his jurisdiction, and (b) to any act done under any conviction or order made or warrant issued by a justice of the peace in any such matter and in the following provisions of this section ”the justice”, in relation to any act falling within paragraph (a) above, means the justice of the peace by whom it is done, and, in relation to a conviction, order or warrant falling within paragraph (b) above, means the justice of the peace by whom the conviction or order is made or the warrant issued.
(2) Any person injured by an act to which this section applies may maintain an action against the justice without making any allegation in his statement or particulars of claim that the act complained of was done maliciously and without reasonable and probable cause.
(3) In respect of any act done under any such conviction or order as is mentioned in subsection (1)(b) above no action shall be brought against the justice until the conviction or order has been quashed, either on appeal or upon application to the High Court.
(4) In respect of any act done under any such warrant as is mentioned in subsection (1)(b) above which was issued by the justice to procure the appearance of a person (in this subsection referred to as ”the complainant”)–(a) where the issue of the warrant has been followed by a conviction or order in the same matter, no action shall be brought by the complainant against the justice until the conviction or order has been quashed, either on appeal or upon application to the High Court, and (b) where the issue of the warrant has not been followed by any such conviction or order, or the warrant was issued upon an information for an alleged indictable offence, no action shall be brought by the complainant against the justice if, before the issue of the warrant, a summons was issued and was served on the complainant (either personally or by leaving it for him with some person at his last or most usual place of abode) and he did not appear in accordance with the summons.’

The English provision analogous to s 20 of the 1964 Northern Ireland Act transferring the financial burden of civil liability, in appropriate cases, from justices to the public purse was introduced by s 27 of the Administration of Justice Act 1964, now re-enacted by s 53 of the 1979 Act.  The machinery is different from that in Northern Ireland and the burden is transferred to local, not central, funds, but the principle intended to be applied is, I believe, the same.  The English statute provides that a justice of the peace ‘shall be entitled to be . . . indemnified’ in respect of costs reasonably incurred by him, damages and costs awarded against him, or sums reasonably paid in settlement ‘if, in respect of the matters giving rise to the proceedings or claim, he acted reasonably and in good faith’.  In like circumstances I would certainly expect that justices would be effectively indemnified under the provisions applicable in Northern Ireland.
The language of s 15 of the 1964 Northern Ireland Act plainly abolishes the old common law ‘action on the case as for a tort’ against a justice in respect of anything done by him maliciously and without reasonable and probable cause within his jurisdiction.
It was not open to the draftsman of the 1979 Act to take the same course in England.  In the process of consolidation (there being no relevant Law Commission recommendation: see Law Commission no 94) he was constrained to reproduce the previous statutory provisions, which are purely procedural in character, but was entitled by using the opening words: ‘If apart from this section any action lies etc . . .’ to manifest his doubt as to the survival of the old common law cause of action.
My Lords, I am fully conscious that anything I say on this topic is obiter, since no question of malice, either within or without jurisdiction, arises in this appeal.  But when the whole subject of justices’ liability arising out of the execution or purported execution of their office is under consideration by this House for the first time, even though this aspect of the subject was not argued, I should be sorry to pass it by without comment.  It is, of course, clear that the holder of any judicial office who acts in bad faith, doing what he knows he has no power to do, is liable in damages.  If the Lord Chief Justice himself, on the acquittal of a defendant charged before him with a criminal offence, were to say, ‘That is a perverse verdict,’ and thereupon proceed to pass a sentence of imprisonment, he could be sued for trespass.  But, as Lord Esher MR said in Anderson v Gorrie [1895] 1 QB 668 at 670:

‘. . . the question arises whether there can be an action against a judge of a Court of Record for doing something within his jurisdiction, but doing it maliciously and contrary to good faith.  By the common law of England it is the law that no such action will lie.’

The principle underlying this rule is clear.  If one judge in a thousand acts dishonestly within his jurisdiction to the detriment of a party before him, it is less harmful to the health of society to leave that party without a remedy than that nine hundred and ninety-nine honest judges should be harassed by vexatious litigation alleging malice in the exercise of their proper jurisdiction.
If the old common law rule was different in relation to justices of the peace, I suspect the different rule has its origins in society’s view of the justice, reflected in Shakespeare’s plays, as an ignorant buffoon.  How long this view persisted and how long there was any justification for it, I am not a good enough legal or social historian to say.  But it clearly has no application whatever in today’s world either to stipendiary magistrates or to lay benches.  The former are competent professional judges, the latter citizens from all walks of life, chosen for their intelligence and integrity, required to undergo some training before they sit, and advised by legally qualified clerks.  They give unstinting voluntary service to the community and conduct the major part of the criminal business of the courts.  Without them the system of criminal justice in this country would grind to a halt.  In these circumstances, it would seem to me a ludicrous anachronism that, whilst a judge sued for an act within his jurisdiction alleged to have been done maliciously is entitled to have the proceedings dismissed in limine, a magistrate, in the like case, should have to go to trial to defend himself against the accusation of malice.  It follows that, in my opinion, the old common law ‘action on the case as for a tort’ against justices acting within their jurisdiction maliciously and without reasonable and probable cause no longer lies.
By contrast with s 1, the position is entirely different in relation to the re-enacted provisions of s 2 of the 1848 English Act and the 1849 Irish Act.  Whether or not the language used was, as Hutton J in my opinion rightly held it was, declaratory of the common law, the words ‘may maintain an Action against such Justice in the same Form and in the same Case as he might have done before the passing of this Act’ gave statutory force, which survives in s 15 of the 1964 Northern Ireland Act and s 45 of the 1979 Act, to the old common law rule that justices were civilly liable for actionable wrongs suffered by citizens pursuant to orders made without jurisdiction.  It follows that it is now a statutory rule expressed in positive terms in s 45(2) of the 1979 Act.  I have already indicated my opinion that the negative form in which the rule is expressed in s 15 of the 1964 Northern Ireland Act has a similar positive effect.  It must follow from this that both courts below were right to reject the argument based on the judgment of Lord Denning MR in Sirros v Moore [1974] 3 All ER 776, [1975] QB 118, which sought to equate the immunity from suit of those purporting to exercise the limited jurisdiction of inferior courts, including justices, with that of judges of the superior courts.  Whatever the juridical basis for the distinction between superior and inferior courts in this regard, and however anomalous it may seem to some, the distinction unquestionably remains part of the law affecting justices and will continue to do so as long as the language of either s 15 of the 1964 Northern Ireland Act or s 45 of the 1979 Act remains in legislative force in the two jurisdictions.
The provisions introduced in 1964, which have the effect of indemnifying justices against personal liability in appropriate circumstances, have two significant consequences.  First, they must contemplate that a justice may be liable for having acted ‘without jurisdiction or in excess of jurisdiction’ even though he was in no way blameworthy, and the statutory phrase must be so construed as to cover this possibility.  Second, they go far to meet Lord Denning MR’s concern expressed in the passage from his judgment in v Moore [1974] 3 All ER 776 at 785, [1975] QB 118 at 136 where he said:

‘Each should be protected from liability to damages when he is acting judicially.  Each should be able to do his work in complete independence and free from fear.  He should not have to turn the pages of his books with trembling fingers, asking himself: ”If I do this, shall I be liable in damages?” ‘

Finally, I can find nothing in the language of s 15 of the 1964 Northern Ireland Act which suggests that it set out to amend, as opposed to consolidate, the previous law or, in particular, that the phrase ‘he acted without jurisdiction or in excess of jurisdiction’ should convey any different meaning than the words in s 2 of the 1849 Irish Act ‘For any Act done by a Justice of the Peace in a Matter of which by Law he has not Jurisdiction, or in which he shall have exceeded his Jurisdiction’.  This is an a fortiori conclusion in relation to s 45 of the 1979 Act, which reproduces verbatim in sub-s (1)(a) the language of s 2 of the 1848 English Act.
Lord Lowry LCJ, giving the judgment of the Court of Appeal in the instant case, seems to take the view that the fact of the training school order having been quashed by certiorari was conclusive that it was made ‘without jurisdiction or in excess of jurisdiction’ for the purpose of establishing civil liability against the appellants.  He said:

‘. . . there is no ground, in a case like the present, on which certiorari could be granted except want of jurisdiction or excess of jurisdiction.’

I assume that by the words ‘in a case like the present’ he meant to exclude cases of certiorari granted for errors of law on the face of the record.  But he went on to refer to the Anisminic case [1969] 1 All ER 208, [1969] 2 AC 147 in a sense which would seem to imply that the extended concept of acting without jurisdiction or in excess of jurisdiction which that landmark decision of your Lordships’ House introduced must be applied to extend the range of justices’ potential civil liability under s 15 of the 1964 Northern Ireland Act.  If that was indeed his meaning, I must respectfully but emphatically dissent from it.
I would observe in passing that from 1848 down to the present time there have been innumerable cases where orders of justices have been quashed for want of jurisdiction, but remarkably few where they have been successfully sued for damages.  It would be wrong, however, to attach much, if any, significance to this, since no cause of action against justices lies merely in respect of a conviction recorded, a fine imposed or other order made without jurisdiction.  The conviction, fine or order will be quashed, with or without costs against the justices, the fine if paid will be repaid, and that will be the end of it.  The only cause of action which can arise is for trespass to the person (unlawful arrest or imprisonment) or trespass to goods (unlawful distress): see Polley v Fordham (No 2) (1904) 91 LT 525, [1904–7] All ER Rep 651, O’Connor v Isaacs [1956] 2 All ER 417, [1956] 2 QB 288.
But I think the equiparation by Lord Lowry LCJ of an excess of jurisdiction which will afford a sufficient ground to quash an order by certiorari with an excess of jurisdiction sufficient to deprive the justices who made the order of their statutory protection under s 15 of the 1964 Northern Ireland Act is refuted by authority.  In Johnston v Meldon (1891) 30 LR Ir 15 the plaintiff had been convicted by justices of a statutory offence of unlawful fishing, fined and imprisoned in default of payment of the fine.  The conviction was quashed on the ground that by his defence the plaintiff, having set up a bona fide claim of title to fish where he did, had raised an issue as to the ownership of the several fishery in the waters where the act complained of took place, which, being a question of title, the justices had no jurisdiction to decide.  The plaintiff sued the justices for false imprisonment.  The Exchequer Division (Palles CB, Andrews and Murphy JJ) held that, despite the quashing of the conviction, there being no allegation of malice, the action would not lie.  Giving the leading judgment, Palles CB said (at 28–29):

‘I hold then, that upon the now plaintiff claiming . . . to be entitled to fish, the jurisdiction of the justices to inquire terminated, and that their subsequent conviction was without jurisdiction and consequently null.  The plaintiff next contends that this fact per se, and irrespective of any knowledge or belief in the minds of the justices is sufficient to sustain the action this position is however wholly unsustainable.  There is, as pointed out by Lord Blackburn, in Pease v. Chaytor ( (1863) 3 B & S 620, 122 ER 233) a distinction between questioning the validity of a judgment of a court of limited jurisdiction, for the purpose of preventing the enforcement of that judgment, and questioning it for the purpose of maintaining an action against the judges of that court . . .  In the first class of cases–certiorari, prohibition, and habeas corpus–the rule is that no court of limited jurisdiction can give itself jurisdiction by a wrong decision upon a point upon which the limits of its jurisdiction depends, and which point is collateral to the merits of the case and I agree with Lord Blackburn when he says ”that such would be the rule in any proceeding taken by one party for the purpose of enforcing the judgment of an inferior court, or by the other for resisting it.”  In the present case, upon the construction which I have put upon the statute, the limit to the jurisdiction of the justices depended upon the bona fides of the claim of title, which point was collateral to the merits, and so the conviction was rightly quashed.  In the second class of cases, actions brought against the persons who, acting with a limited jurisdiction, have by mistake exceeded their jurisdiction, the rule of law is different.  According to the decision of the Privy Council in Calder v. Halket ((1840) 3 Moo PCC 28, [1835–42] All ER Rep 306), such a person is not liable to an action of trespass for want of jurisdiction, ”unless he knew or ought to have known of the defect.”  Whether we should hold upon the evidence, that the defendants had knowledge that the claim of title was bona fide, or such means of knowledge as will sustain an action against them without the existence of malice and the absence of reasonable and probable cause, appear to me to be the real questions on which the decision of this case must depend.’

Having thus formulated the tests to be applied and following an extensive review of the authorities, the Chief Baron expressed his reasons for deciding in favour of the justices in two rather different ways, of which I find the second easier to follow and more convincing than the first.  He points out (at 36) that, once a claim of title is raised, the justices must at least examine its bona fides and that, in this sense, their jurisdiction continues.  He concludes (at 36–37):

‘Having, then, this jurisdiction and bona fide intending to act in it, they proceeded inverso ordine.  They erroneously thought the bona fides of the claim to be immaterial.  Instead of determining it, they erroneously determined the title, and thus convicted upon insufficient and erroneous grounds but still their act was a judicial one, in a matter in which, as against the plaintiff in the present action, they had a continuing jurisdiciton to inquire, and the act complained of, the arrest, was one which, if a certain state of facts had been proved before them, it would have been within their authority to have ordered in the exercise of that continuing jurisdiction.’

This case shows that the quashing of a decision or order by certiorari for want of jurisdiction cannot be conclusive against the justices on the issue of their civil liability, at all events where they have erred, even by misdirecting themselves, in deciding some collateral issue which it is necessary for them to decide in order to determine whether they have jurisdiction to proceed in the matter.
A safer guide then than the innumerable certiorari cases will be found in the few cases since 1848 where persons exercising a limited jurisdiction have been held liable in damages for consequences flowing from a purported exercise of the jurisdiction held to be beyond the relevant limit.
In Houlden v Smith (1850) 14 QB 841, 117 ER 323 the defendant was the judge of the Spilsby County Court in Lincolnshire.  His jurisdiction was limited to a geographical area which did not include Cambridge.  The plaintiff was sued to judgment in the Spilsby County Court for a cause of action arising within its geographical area.  The judge then ordered the issue of a judgment summons against the plaintiff who lived and carried on business in Cambridge and when he failed to appear committed him for contempt.  The plaintiff was held entitled to recover damages for false imprisonment.  Giving judgment Patteson J said (14 QB 841 at 851–853, 117 ER 323 at 327):

‘That this commitment was without jurisdiction is plain that the defendant ordered it under a mistake of the law and not of the facts is equally plain for it is impossible that he could be ignorant that the plaintiff dwelt and carried on his business in Cambridgeshire, the service of all the processes having been proved to have been made there, and the defendant having originally specially allowed the plaint to be made in his Court, within the jurisdiction of which the cause of action accrued, the defendant (the now plaintiff) residing in Cambridgeshire . . .  Here the defendant had not only no jurisdiction to commit the plaintiff to the gaol of Cambridgeshire, but he had no jurisdiction to summon him to shew why he had not paid the debt.  That summons ought to have been issued out of the County Court of Cambridge.’

The next case is Wills v Maclachlan (1876) 1 Ex D 376.  The defendant was exercising the function of a revising barrister under the County Voters Registration Act 1865.  The statute empowered him ‘to order any Person to be removed from his Court who shall interrupt the Business of the Court, or refuse to obey his lawful Orders in respect of the same’.  He ordered the removal of the plaintiff from his court on the ground that, in the previous year whilst the defendant was sitting as a revising barrister, the plaintiff had wrongfully withheld certain documents and had thereby caused a person who claimed to be registered as a voter to be deprived of his vote.  The plaintiff sued for damages for trespass and was nonsuited in the county court.  On appeal to the Exchequer Division a new trial to assess damages was ordered on the ground that the defendant, though he honestly believed he had the power to do what he did, on the facts and on a proper application of the statutory language had no such power.

Polley v Fordham (No 2) (1904) 91 LT 525, [1904–7] All ER Rep 651 is an important decision.  A summons against the plaintiff for failing to have his child vaccinated within six months of her birth was heard by the defendant, a metropolitan police magistrate, who convicted and imposed a fine.  When the fine was not paid the defendant issued a warrant of distress which was levied on the goods of the defendant.  The statutory offence was complete when the child attained the age of six months.  An information charging the offence was required by statute to be laid within 12 months of the offence.  The summons on its face showed that the child was more then 18 months old when the information was laid and thus that the proceedings were out of time.
The Divisional Court held on appeal from the county court that the plaintiff was entitled to recover damages for trespass to goods.  Giving the leading judgment, Lord Alvestone CJ said (91 LT 525 at 527, [1904–7] All ER Rep 651 at 654):

‘I can quite imagine that if on the face of the summons the jurisdiction of the court appeared, it was not necessary to negative the existence or to make any statements with regard to any matters which might subsequently become important when any particular defence was raised.  But I cannot help pointing out that this is not a case in which the summons showed it to be possible that the magistrate would have jurisdiction, but it is a case which on the face of it the summons showed that the time had gone by, and that the court had no jurisdiction.’

It will be seen that certainly Houlden v Smith and Polley v Fordham (No 2) were true cases of the court, in Coke CJ’s phrase, not having ‘jurisdiction of the cause’.  The ’cause’ in v Smith was that commenced by the issue of the judgment summons.  In Polley v Fordham it was that commenced by the information for the vaccination offence.  In both it was apparent from the facts before the court that the court had no jurisdiction to entertain the proceedings at all.  As in Marshalsea Case (1612) 10 Co Rep 68b, 77 ER 1027 the court had no jurisdiction over the person, so in Houlden v Smith it had no jurisdiction over the place, in Polley v Fordham (No 2) it had no jurisdiction over the subject matter (an offence which as charged was no longer cognisable) to which in each case ‘the cause’ related.
In Willis v Maclaghlan there really was no ’cause’.  The revising barrister simply made an order for which his statutory power afforded no authority and which resulted in a trespass to the person.
Lord Lowry LCJ in giving the judgment of the Court of Appeal referred to R v Cockshott [1898] 1 QB 582, [1895–9] All ER Rep 253 and R v Kettering Justices, ex p Patmore [1968] 3 All ER 167, [1968] 1 WLR 1436.  These are both cases where convictions following summary trials by justices were quashed because the mandatory statutory requirement to inform the defendants of their right to elect trial by jury had in neither case been complied with.  In such a case, if the conviction had led to imprisonment or seizure of goods, I think the justices would have been liable in an action for trespass, for the good reason that a statutory condition precedent to the justices having ‘jurisdiction of the cause’ was never satisfied.
But once justices have duly entered on the summary trial of a matter within their jurisdiction, only something quite exceptional occurring in the course of their proceeding to a determination can oust their jurisdiction so as to deprive them of protection from civil liability for a subsequent trespass.  As Johnston v Meldon (1891) 30 LR Ir 15 shows, an error (whether of law or fact) in deciding a collateral issue on which jurisdiction depends will not do so.  Nor will the absence of any evidence to support a conviction: see R (Martin) v Mahony [1910] 2 IR 695, R v Nat Bell Liquors Ltd [1922] 2 AC 128, [1922] All ER Rep 335.  It is clear, in my opinion, that no error of law committed in reaching a finding of guilt would suffice, even if it arose from a misconstruction of the particular legislative provision to be applied, so that it could be said that the justices had asked themselves the wrong question.  I take this view because, as I have intimated earlier, I do not believe that the novel test of excess of jurisdiction which emerges from the Anisminic case [1969] 1 All ER 208, [1969] 2 AC 147, however valuable it may be in ensuring that the supervisory jurisdiction of the superior courts over inferior tribunals is effective to secure compliance with the law and is not lightly to be ousted by statute, has any application whatever to the construction of s 15 of the 1964 Northern Ireland Act or s 45 of the 1979 Act.
Justices would, of course, be acting ‘without jurisdiction or in excess of jurisdiction’ within the meaning of s 15 if, in the course of hearing a case within their jurisdiction, they were guilty of some gross and obvious irregularity of procedure, as for example if one justice absented himself for part of the hearing and relied on another to tell him what had happened during his absence, or of the rules of natural justice, as for example if the justices refused to allow the defendant to give evidence.  But I would leave for determination if and when they arise other more subtle cases one might imagine in which it could successfully be contended in judicial review proceedings that a conviction was vitiated on some narrow technical ground involving a procedural irregularity or even a breach of the rules of natural justice.  Such convictions, if followed by a potential trespass to person or goods, would not, in my opinion, necessarily expose the justices to liability in damages.
I have felt it appropriate in this first consideration by your Lordships’ House of the subject matter of justices’ liability in damages for acts done in execution or purported execution of their office to examine at some length the principles on which such liability can be founded on want of jurisdiction invalidating the proceedings ab initio or alternatively, given initial jurisdiction, on ouster of jurisdiction during a trial.  But the instant case arises in a narrower and in some sense distinct field.  Here there is no question but that the appellants had jurisdiction to entertain the proceedings against the respondent for failure to comply with the attendance centre order, to conclude that he was guilty of such failure, which appears never to have been in dispute, and to pass an appropriate sentence.  The only defect relied on to deprive the appellants of jurisdiction to make the training school order was the failure in those proceedings (considered as distinct from the earlier proceedings which led to the making of the attendance centre order) to inform the respondent of his right to apply for legal aid, as we must assume they were required to do by art 15 of the 1976 order, whether or not he had been informed of that right on his first appearance before the Belfast Juvenile Court on 5 December 1977.
This directs attention to another line of authority more precisely in point.  In Groome v Forrester (1816) 5 M & S 314, 105 ER 1066 the plaintiff, a former overseer of the parish, had been convicted by the defendant justices of the statutory offence of refusing to hand over to his successors in that office a certain book belonging to the parish called the Bastardy Ledger.  He was thereupon committed to prison ‘until he should have yielded up all and every the books concerning his said office of overseer belonging to the parish’.  He sued for and recovered damages for false imprisonment.  The defendants having obtained a rule nisi to enter a nonsuit, Lord Ellenborough CJ discharged the rule.  He held the committal to be void and in excess of jurisdiction in that the committal in terms requiring delivery up of an unspecified and unidentified number of books was not supported by the conviction for failure to hand over a single specified book.
In this respect it would appear to me that the law of Scotland in 1907, although not governed by statute, was entirely in line with the common law of England, Wales and Ireland, as declared in s 2 of the 1848 English Act and the 1849 Irish Act and later re-enacted in s 15 of the 1964 Northern Ireland Act and s 45 of the 1979 Act.  M’Creadie v Thomson 1907 SC 1176 was the case of a lady who sued for damages for false imprisonment the magistrate in a burgh police court who, having duly convicted her of an offence which carried a maximum penalty of a fine or imprisonment in default of payment, sentenced her to 14 days’ imprisonment without the option.  Omitting reference to the Scottish technicalities of pleading, I content myself by saying that, in effect, the Inner House affirmed the Lord Ordinary ( Johnston) in holding that the action lay without any averment of malice.  A passage from the judgment of the Lord Justice-Clerk (Macdonald) expresses the principle so clearly that I cite it in full.  Having discussed the immunity of magistrates acting within their jurisdiction and without malice, he continued as follows (at 1183–1184):

‘But while this is so, it is a totally different question whether a magistrate who when sitting as such does official acts which he has no power to do under a statute in accordance with which he is bound to act, and which judicial acts have the effect of restraining the liberty of the subject, and subjecting him to penalty in his person, is immune from civil consequences for the wrong he has done.  I do not think that this has ever been held, and the opposite has been held in many cases.  Where a magistrate, professing to sit as such, and dealing with a case which he has no jurisdiction to deal with at all, commits what is an undoubted wrong upon a citizen, both by principle and practice he is held liable for the wrong done.  If that is so, can it be said that a magistrate who has before him a case which he can competently try under an Act of Parliament on which the complaint is founded, and who, instead of dealing with the case as it is before him, and on conviction awarding such punishment as the Act prescribes and allows, proceeds knowingly to pronounce a sentence which is not competent under the Act of Parliament, and thereby sends a person to prison contrary to the Act of Parliament,–I say, can it be said that he is in any more favourable position than a magistrate trying a case in circumstances where he has no jurisdiction?  In the one case his sentence is illegal, because he has no complaint before him on which he can pronounce a sentence at all.  In the other he has a complaint before him, on which he cannot pronounce the sentence which he does pronounce.  The wrong is as great in the latter case as in the former.  For as well might he have no jurisdiction at all as step outside the jurisdiction which he does possess, to do something which he could not do if he held himself within the limits prescribed to him by the law under which he was called to exercise his jurisdiction.  The case of Groome v. Forrester ( (1816) 5 M & S 314, 105 ER 1066), decided in England, is a forcible illustration of the fact that there may be liability in a magistrate, not merely for acting without jurisdiction, but for doing an act in excess of the jurisdiction he was called upon to exercise.’

With the single exception of the word ‘knowingly’ in the phrase ‘proceeds knowingly to pronounce a sentence which is not competent under the Act of Parliament’, I would adopt and indorse this passage as expressing the law applicable throughout the United Kingdom of Great Britain and Northern Ireland (assuming it has not changed in Scotland since 1907) with complete accuracy.  I dissent from the word ‘knowingly’ because I do not see how ignorance of the terms of the statute regulating their powers of sentence in any particular case could afford justices any defence.

O’Connor v Isaacs [1956] 2 All ER 417, [1956] 2 QB 288 was an action for damages against justices for false imprisonment tried by Diplock J.  The plaintiff failed both before the judge and in the Court of Appeal on the ground that the cause of action was statute-barred.  The Court of Appeal did not examine the question whether the justices exceeded their jurisdiction but the opinion is implicit in the judgment of Diplock J that the justices exceeded their jurisdiction by ordering the plaintiff to pay maintenance to his wife without making any finding, which under the relevant legislation was the necessary foundation for such an order, that the plaintiff had been guilty of persistent cruelty to his wife.  The plaintiff having been more than once imprisoned for failure to make the payments ordered, it followed, as I understand the judgment, that apart from the limitation point his action for damages would have succeeded.
These three cases establish the clear principle that justices, though they have ‘jurisdiction of the cause’ and conduct the trial impeccably, may nevertheless be liable in damages on the ground of acting in excess of jurisdiction if their conviction of the defendant before them or other determination of the complaint against him does not provide a proper foundation in law for the sentence imposed on him or order made against him and in pursuance of the sentence or order he is imprisoned or his goods are seized.
I should mention in passing the decision of the Court of Appeal, Criminal Division in R v McGinlay (1976) 62 Cr App R 156.  There the defendants had been sentenced to borstal training by the Crown Court in default of compliance with the requirements of s 21(1) of the Powers of Criminal Courts Act 1973 which enacts provisions applicable in England and Wales indistinguishable in effect from the provisions of art 15(1) of the 1976 order applicable in Northern Ireland.  The defendants appealed against sentence.  Giving the judgment of the court, Scarman LJ said (at 158):

‘[Counsel for the defendants’] submission can be very shortly stated.  He says that when the Crown Court was dealing with these offences, it did not have the power to pass a sentence of Borstal training because it had failed to comply with the obligations laid upon it by section 21(1) of the Act of 1973.  We do not so read the statutory provision.  Undeniably the Crown Court did have power, upon a committal by magistrates for sentence, to pass a sentence of Borstal training for these offences.  It acted unlawfully because it failed to offer the defendants the opportunity of legal aid and representation that was their right.  But in our judgment that unlawful act of the Court did not deprive it of its character as a Court which had power to pass a sentence of Borstal training.’

The court proceeded to allow the appeals and to substitute probation orders for the sentences of borstal training, not on any technical legal ground, but purely on the merits of the two cases.  I am not prepared to give any weight, in relation to the question in issue in this appeal, to the obiter dictum of Scarman LJ which I have quoted above, in delivering the extempore judgment of the court, whose mind cannot have been focused on any such issue.
I turn, at long last, to consideration of the decision in Sirros v Moore [1974] 3 All ER 776, [1975] QB 118, on which Hutton J relied for his decision in favour of the appellants.  It was a very unusual case.  The plaintiff, a Turkish citizen, had been convicted by a stipendiary magistrate for breach of the Aliens Order 1953, SI 1953/1671.  He was fined and recommended for deportation.  Pending a decision by the Home Secretary whether or not to implement that recommendation, he would have been liable to be detained unless the magistrate made a direction to the contrary, which in fact he did.  The plaintiff appealed to the Crown Court.  That court, although a superior court of record when trying cases on indictment, is a court of limited jurisdiction when exercising its appellate jurisdiction from magistrates’ courts, which it inherited from the previous courts of quarter sessions, at least in this sense, that its proceedings are subject to judicial review by the High Court as were the proceedings of quarter sessions.
In the course of the appeal to the Crown Court, the plaintiff, unrepresented, made clear that he was only challenging the recommendation for deportation, not the fine.  The judge of the Crown Court, erroneously thinking that he had no jurisdiction to entertain an appeal against the recommendation for deportation, dismissed the appeal.  As the plaintiff was leaving the court, or just after, the judge ordered that he should be detained.  Later the same day the judge refused an application made on the plaintiff ‘s behalf by counsel for bail.  On the following day the plaintiff was released pursuant to an order of habeas corpus made by the Divisional Court.
The plaintiff sued the judge and the police officers who had detained him pursuant to the judge’s order for damages for false imprisonment.  The issue came before the Court of Appeal on appeal from an order to strike out the plaintiff ‘s writ and statement of claim, which the Court of Appeal affirmed.  I have already indicated my view that, in the light of the statutory provisions relating to the liability of justices acting without jurisdiction or in excess of jurisdiction, the sweeping judgment of Lord Denning MR in favour of abolishing the distinction between superior and inferior courts in this respect cannot possibly be supported in relation to justices.  The narrower question whether other courts of limited jurisdiction can and should be given the same immunity from suit as the superior courts, in which Lord Denning MR was supported in his view by Ormrod LJ, is one on which I express no concluded opinion, though my inclination is to think that this distinction is so deeply rooted in our law that it certainly cannot be eradicated by the Court of Appeal and probably not by your Lordships’ House, even in exercise of the power declared in the Practice Statement (Note [1966] 3 All ER 77, [1966] 1 WLR 1234) made by the House.  So fundamental a change would, in my present view, require appropriate legislation.
The decision to strike out the writ and statement of claim in Sirros v Moore was, however, supported on a much narrower ground by Buckley LJ and, as an alternative to his main grounds, by Ormrod LJ.  It was their reasoning which was applied in the instant case by Hutton J.  The essence of this approach is expressed in the judgment of Buckley LJ, which Hutton J cited and on which he relied, in the following terms ( [1974] 3 All ER 776 at 791, [1975] QB 118 at 143):

‘If it was within the powers of the judge to determine whether Mr Sirros should or should not be detained in custody consequent on hearing the appeal, the fact that he may have followed an irregular course in doing so would not render the judge personally liable to a claim such as Mr Sirros seeks to prosecute in this action.  If the judge had jurisdiction to procure Mr Sirros’s detention, any irregularity of procedure may afford good grounds for appeal but cannot deprive the judge’s act of its judicial character, so as to render it coram non judice.  It is suggested that when the judge gave his direction to ”stop him” he was already functus officio, as the hearing of the appeal had then been concluded, with the consequence that the direction was not a judicial act at all.  I feel unable to accept this argument.  The judge, in my opinion, clearly thought and intended that the order which he had made would result without more in the detention of Mr Sirros in custody.  The direction to ”stop him” was not a new and distinct decision.  It was an implementation of the consequence which the judge believed and intended to follow from the order which he had made.  This would, in my opinion, hold good, whether the judge gave the direction at the moment when he saw Mr Sirros disappearing through the door of the court or some minutes later.  I would, however, accept the learned judge’s evidence that the former was the truth.  If the learned judge was mistaken, as I think he was, in thinking that it would follow from his order without more that Mr Sirros should be detained in custody, but he could have produced that result by an order in some other form, his error was one of form or procedure, not of jurisdiction.’

In my opinion, the decision in Sirros v Moore can be supported on this very narrow ground.  The Crown Court judge was seised of the appeal.  He had jurisdiction to determine the case de novo.  If he thought it appropriate to affirm the recommendation for deportation but to overrule the magistrate’s direction that, pending the Home Secretary’s decision, the plaintiff should not be detained, he was authorised to do so.  By refusing bail after the plaintiff ‘s detention, he demonstrated that this was indeed his intention.  He implemented this intention by a hopelessly irregular procedure, which properly resulted in the plaintiff ‘s release by order of habeas corpus the next day.  But the irregularity of procedure was not shown to deprive him, for the purpose of his immunity from civil liability, of the protection attaching to acts done within his jurisdiction, when the order he had made irregularly had produced exactly the same result as the order which he could and, by inference, would have made if the procedure adopted had followed its regular course.
Can it be said that the appellants’ omission to inform the respondent of his right to apply for legal aid was a mere procedural irregularity?  I have reached the conclusion that it cannot.  The language of art 15(1) of the 1976 order, in any case in which it applies, prohibits in the clearest terms the imposition of any of the custodial sentences mentioned unless one or other of the conditions referred to in sub-paras (a) and (b) of the paragraph has been satisfied.  As already mentioned, s 21(1) of the Powers of Criminal Courts Act 1973 has the same effect.  Parliament plainly attached importance to ensuring that none of these custodial sentences should be imposed for the first time on a defendant not legally represented unless the defendant’s lack of representation was of his own choice.  The philosophy underlying the provision must be that no one should be liable to a first sentence of imprisonment, borstal training or detention, unless he has had the opportunity of having his case in mitigation presented to the court in the best possible light.  For an inarticulate defendant, as so many are, such presentation may be crucial to his liberty.  It is impossible to say in this or any other case that, if the requirements of art 15(1) had been satisfied, it would have made no difference to the result.  For these reasons I am of opinion that the fulfilment of this statutory condition precedent to the imposition of such a sentence as the appellants here passed on the respondent is no less essential to support the justices’ jurisdiction to pass such a sentence than, for example, in the case of a sentence of immediate imprisonment, a prior conviction of an offence for which a sentence of imprisonment can lawfully be passed.  There is an analogy here between fulfilment of this statutory condition precedent necessary to give justices jurisdiction to pass an otherwise appropriate sentence and the fulfilment, at an earlier stage, of the statutory condition precedent, where applicable, requiring the defendant to be informed of his right to elect trial by jury which is necessary to give the justices ‘jurisdiction of the cause’, i e to try the case summarily.  In neither case can the omission to fulfil the condition precedent be considered a mere procedural irregularity.
It follows that the appellants acted ‘without jurisdiction or in excess of jurisdiction’ within the meaning of the 1964 Northern Ireland Act and I would accordingly dismiss the appeal with costs.

JUDGMENTBY-4: LORD BRANDON OF OAKBROOK

JUDGMENT-4:
LORD BRANDON OF OAKBROOK.  My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Bridge.  In so far as the specific question raised for decision by this appeal, namely the civil liability of justices for acts done without or in excess of jurisdiction is concerned, I agree with his analysis of the relevant law.  It follows that I agree with him that the appeal should be dismissed with costs.
In the course of his speech my noble and learned friend has dealt with a further question, namely the common law liability of justices for acts done within their jurisdiction but with malice and without reasonable cause.  He has expressed the view that such liability is now obsolete not only in Northern Ireland but also in England.  Neither question arises for decision in the present appeal, but, so far as Northern Ireland is concerned I agree with his view for the reasons which he gives.  So far as England is concerned, the question is not wholly free from doubt it was not argued, save incidentally, before your Lordships and I would, therefore, prefer to reserve my opinion on it.

JUDGMENTBY-5: LORD TEMPLEMAN

JUDGMENT-5:
LORD TEMPLEMAN.  My Lords, the respondent was convicted of a criminal offence by a juvenile court and was ordered to attend an attendance centre.  He failed to attend regularly and was tried and convicted by the appellant magistrates of the offence of failing to attend the attendance centre.  For that offence the respondent was ordered to be detained at a training school.  By art 15(1) of the Treatment of Offenders (Northern Ireland) Order 1976, SI 1976/226:

‘A magistrates’ court . . . shall not pass a sentence of . . . 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 . . . 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.’

None of the conditions required to be satisfied before a sentence of detention could be imposed was satisfied in the case of the respondent.  The sentence imposed on the respondent was therefore an unlawful sentence.  The respondent was detained in the training centre pursuant to the order made by the magistrates but his sentence was subsequently quashed and he was released.  In the present proceedings the respondent seeks against the appellant magistrates who imposed the sentence of detention damages for false imprisonment in respect of his detention for two and a half months in the training school prior to his release.
The magistrates’ courts which sentenced the respondent to detention was properly constituted and convened and the proceedings were properly instituted.  The respondent was properly tried and convicted.  The magistrates fell into error by an innocent mistake: they thought the respondent had previously been offered and had declined legal aid and that it was unnecessary to give him a further opportunity of applying for legal aid.  If, when the magistrates sentenced the respondent to detention they were acting within their jurisdiction, then although the sentence was rightly quashed the magistrates are not personally liable for the consequences.  If the magistrates acted outside their jurisdiction they are personally liable if they knew or ought to have known of the defect.  The question to be determined on this appeal is whether the magistrates acted within their jurisdiction or without jurisdiction.
On behalf of the magistrates it was submitted that they were entitled to try the respondent for the offence of failing to attend an attendance centre, they had jurisdiction to convict the respondent of that offence and did so.  They were entitled to impose a sentence of detention for the offence of which the respondent was convicted.  Therefore they had jurisdiction to impose that sentence on the respondent.  They made an error of law in not ensuring that the conditions of art 15 of the 1976 order were complied with and, in particular, in not inviting the respondent to apply for legal aid but this was an error in the course of the proceedings which they had jurisdiction to entertain and was therefore an error within jurisdiction.  For that error the sentence was quashed but the magistrates are not liable for damages for false imprisonment resulting from the sentence.  On behalf of the respondent it was said that, though the magistrates had jurisdiction to try and to convict the respondent and to sentence him for the offence of failing to attend an attendance centre, they had no jurisdiction to impose a sentence of detention on the respondent who had not been accorded his legal aid rights.  A magistrate, it is said, acts without jurisdiction if he imposes a sentence which the magistrate is not entitled to impose on the accused for the offence.
The authorities define and illustrate the circumstances in which a judge of an inferior court may be said to act without jurisdiction so as to make him personally liable for his actions.  A magistrate is only granted limited powers.  He must act as a member of a properly constituted court, held in the proper place and duly convened.  He can only try certain offenders.  He can only try certain offences.  If in the course of conducting an authorised trial the magistrate for any reason falls into error and convicts a person who ought to have been acquitted the magistrate acts within jurisdiction although the conviction is liable to be reversed on appeal or quashed on a case stated.  Similarly, a magistrate is only given certain specific and limited powers of sentencing.  If he has conducted an authorised trial but does not convict, then he will have no power to sentence.  If he has conducted an authorised trial and made an authorised conviction but imposes a sentence which he has no power to impose either on the defendant or for the offence for which the defendant has been convicted, then the magistrate acts without jurisdiction or in excess of jurisdiction.  In all other circumstances the sentence will be within jurisdiction even if it is liable to be quashed or reduced.

Marshalsea Case (1612) 10 Co Rep 68b, 77 ER 1027 decided that, in order to ascertain whether a court has jurisdiction, it is necessary to examine three questions, namely in what actions the court has jurisdiction, to what places that jurisdiction is confined and to what persons the jurisdiction extends.  The Court of Marshalsea only had jurisdiction to entertain pleas of the Crown, its jurisdiction did not extend more than 12 miles from the King’s lodgings and in civil litigation both parties must be members of King’s household save in question of trespass, where it sufficed that one of the parties was of the King’s household.  It followed that an order made by the Marshalsea Court for the committal of one party to proceedings in which neither party was a member of the King’s household was an order without jurisdiction and the committal constituted false imprisonment.  The court had no jurisdiction over the offender.

Gwinne v Poole (1692) 2 Lut 1560, 125 ER 858 decided that the liability of magistrates as judges of inferior courts for acts done in a judicial capacity but without jurisdiction was limited to cases where the magistrates knew or ought to have known that they were acting outside their jurisdiction.  In the present case the magistrates did not know that the sentence that they were imposing on the respondent was unlawful but the respondent alleges they ought to have known.

Morgan v Hughes (1788) 2 Term Rep 225, 100 ER 123 decided that magistrates, as judges of inferior courts, could be made liable in damages for wrongful judicial actions within their jurisdiction if the plaintiff could show that the magistrates acted maliciously and without probable cause.  No question of malice arises in the present case.  The respondent is not entitled to damages unless the magistrates in sentencing him to detention acted without jurisdiction.
In Groome v Forrester (1816) 5 M & S 314, 105 ER 1066 the plaintiff, who had been convicted of refusing to deliver up a particular book, was committed to prison ‘until he shall have yielded up all and every the books concerning his said office of overseer, belonging to the said parish . . .’  The committal was held to be void and in excess of jurisdiction.  The committal required delivery up of an unspecified and unidentified number of books but the plaintiff had only been convicted of failure to hand over one single specified book.  The committal was therefore a sentence for offences for which the plaintiff had not been convicted.  The court had no jurisdiction.
In Calder v Halket (1840) 3 Moo PCC 28, [1835–42] All ER Rep 306 a magistrate who had jurisdiction over Indians but not Europeans was held to act outside his jurisdiction when he ordered a British subject to be detained.  He had no jurisdiction over the offender.  But it did not appear from the evidence that the magistrate ‘was at any time informed of the European character of the Plaintiff, or knew it before, or had such information as to make it incumbent on him to ascertain that fact’ (see 3 Moo PCC 28 at 78, [1835–42] All ER Rep 306 at 310).  Following Gwinne v Poole the action against the magistrate failed because ‘a Judge is not liable in trespass for want of jurisdiction, unless he knew, or ought to have known, of the defect and it lies on the Plaintiff, in every such case to prove that fact’.  In the present case, if the magistrates acted without jurisdiction, the respondent will contend that they ought to have known, or ought to have ascertained, that it was necessary to afford him an opportunity to apply for legal aid before they sentenced him to detention.
In 1848 the principles of the common law with regard to the liability of magistrates were recognised and modified by the Justices Protection Act 1848 and by the Justices Protection (Ireland) Act 1849.  Section 1 of the 1849 Irish Act directed that every action against a magistrate ‘for any Act done by him in the Execution of his Duty as such Justice, with respect to any Matter within his Jurisdiction as such Justice’, must allege ‘that such Act was done maliciously, and without reasonable and probable Cause’.  Section 2 provided:

‘For any Act done by a Justice of the Peace in a Matter of which by Law he has not Jurisdiction, or in which he shall have exceeded his Jurisdiction, any Person injured thereby . . . may maintain an Action against such Justice in the same Form and in the same Case as he might have done before the passing of this Act, without making any Allegation in his Declaration that the Act complained of was done maliciously, and without reasonable and probable Cause . . .’

But it was provided that any unlawful conviction must first be quashed before a civil action could be brought against the magistrate for damages.
In Houlden v Smith (1850) 14 QB 841, 117 ER 323 a judge of a county court, an inferior court for present purposes, whose jurisdiction was limited to Lincolnshire tried and sentenced a resident of Cambridge and was held to have acted without jurisdiction and to be liable to damages for false imprisonment.  The judge had no jurisdiction over the offender.
In Pease v Chaytor (1863) 1 B & S 658, 121 ER 859 a magistrate had jurisdiction to commit for non-payment of rates but the Act conferring jurisdiction provided that–

‘if the validity of such rate or the liability of the person from whom it is demanded to pay the same be disputed, and the party disputing the same give notice thereof to the justices, the justices shall forbear giving judgment thereupon.’

Wightman and Blackburn JJ decided that the jurisdiction conferred on the magistrates by statute was by the same statute taken away once the accused bona fide disputed liability for rates but that the magistrates were not liable for continuing and convicting if there were grounds on which they could reach the conclusion that the defendant was not bona fide disputing liability.  Mellor J held that the magistrates knew or ought to have known that the liability for rates was bona fide disputed and therefore the magistrates proceeded thereafter without jurisdiction.  All the judges were agreed that the magistrates by reason of the express words of the statute ceased to have jurisdiction over an offender who bona fide disputed liability for rates.
In Willis v Maclachlan (1876) 1 Ex D 376 a revising barrister under the County Voters Registration Act 1865 was authorised ‘to order any Person to be removed from his Court who shall interrupt the Business of the Court, or refuse to obey his lawful Orders in respect of the same’.  The barrister ordered removal of the plaintiff from his court on the grounds that the previous year the plaintiff had wrongfully withheld certain documents and had thereby caused a person who claimed to be registered as a voter to be deprived of his vote.  The barrister had no power to try or sentence the plaintiff for the offence for which he was ordered to be removed from the court and it was held that the removal order was made without jurisdiction and that the revising barrister was liable in damages to the plaintiff although he honestly believed that he had power to do what he did.  In this case the court had no jurisdiction over the offence.
In Johnston v Meldon (1891) 30 LR Ir 15 the accused should have been acquitted of a criminal offence of unlawful fishing if he bona fide believed that he was lawfully exercising a right to fish because he held title to a several fishery in the waters.  The magistrates convicted the accused and sentenced him to prison because they decided that the accused did not in fact have a good title in the fishery.  The Exchequer Division held that in the absence of any allegation that the magistrates had acted maliciously, the accused could not make the magistrates liable for damages for false imprisonment even though the conviction had been quashed.  The trial, conviction and sentence were within jurisdiction because the court had power to try the offence and the offender.  The judgments are however confused by expressions which fail to distinguish between an unlawful act in excess of jurisdiction and an unlawful act within jurisdiction.
In R v Cockshott [1898] 1 QB 582, [1895–9] All ER Rep 253, followed in R v Kettering Justices, ex p Patmore [1968] 3 All ER 167, [1968] 1 WLR 1436, convictions following summary trial by justices were quashed because the mandatory requirement to inform the defendants of their right to elect trial by jury had not been complied with.  These decisions did not concern the personal liability of the magistrates but in my view the magistrate had no jurisdiction to try the particular accused until the prior requirements had been satisfied.  The magistrates had no jurisdiction over the defendants.
In Polley v Fordham (No 2 ) (1904) 91 LT 525, [1904–7] All ER Rep 651 the plaintiff was summoned and fined and his goods seized for failure to vaccinate his child within six months after the birth of that child.  The Vaccination Acts 1867 to 1898 which created this offence stipulated that the complaint must be made within 12 months of the offence.  The summons showed that at the date of the complaint the child was more than 18 months old.  It was held that the magistrate had no jurisdiction to convict and had notice of the defect and was therefore rightly ordered to pay damages in a civil action brought by the plaintiff against the magistrate who had sentenced him to prison for a breach of the Acts.  The magistrate had no jurisdiction over the offence if the complaint was out of time.
In M’Creadie v Thomson 1907 SC 1176 a magistrate who had power to fine and to imprison if the fine were not paid sentenced the plaintiff to 14 days without giving her the option of a fine.  The plaintiff served 12 days in prison and the magistrate was held liable in damages for false imprisonment.  The trial and conviction had been within jurisdiction but the magistrate had no jurisdiction to impose a sentence of imprisonment on the offender.
By the Magistrates’ Courts Act (Northern Ireland) 1964 the liability of a magistrate in Northern Ireland for acts within his jurisdiction which had been preserved by s 1 of the Justices Protection Act (Ireland) 1849 ceased to have effect.  Section 2 of the 1849 Irish Act which preserved an action against magistrates who acted without jurisdiction was replaced by s 15 of the 1964 Act (now art 5 of the Magistrates’ Courts (Northern Ireland) Order 1981, SI 1981/1675) in these terms:

‘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.’

Hence the question in this case is whether in making a detention order the appellant magistrates ‘acted without jurisdiction or in excess of jurisdiction’ because the respondent had not applied or been invited to apply for legal aid.
In O’Connor v Isaacs [1956] 2 All ER 417, [1956] 2 QB 288 magistrates had power to order a husband to pay maintenance if he had been guilty of persistent cruelty.  It was held that the magistrates acted without jurisdiction, where, having found that persistent cruelty had not been proved, they nevertheless ordered the husband to pay maintenance.  There can be no jurisdiction to sentence unless there is first a conviction.
Finally, in Sirros v Moore [1974] 3 All ER 776, [1975] QB 118, where a magistrate had power to direct the detention of an alien recommended for deportation but followed an irregular course in doing so, it was held that the magistrate was not liable in damages for false imprisonment. Buckley LJ said ( [1974] 3 All ER 776 at 791, [1975] QB 118 at 143):

‘If the judge had jurisdiction to procure Mr Sirros’s detention, any irregularity of procedure may afford good grounds for appeal but cannot deprive the judge’s act of its judicial character, so as to render it coram non judice.’

The magistrate had jurisdiction over the offence and the offender and jurisdiction to detain.
In my opinion the authorities disclose that a magistrate is not liable in damages for the consequences of an unlawful sentence passed by him in his judicial capacity in a properly constituted and convened court if he has power to try the offence and the offender, duly convicts the offender of the offence and imposes a sentence which he has power to impose for the offence and on the offender.  If the magistrate fails to convict the offender of the offence or if he imposes a sentence which he has no power to impose on the offender for the offence he acts without jurisdiction and, if the sentence results in imprisonment, is liable to the accused in a civil action for damages for false imprisonment.
If, in the course of a trial which a magistrate is empowered to undertake, the magistrate misbehaves or does not accord the accused a fair trial, or is guilty of some other breach of the principles of natural justice or reaches a result which is vitiated by any error of fact or law, the decision may be quashed but the magistrate acting as such acts within jurisdiction.  Similarly, if the magistrate after a lawful trial imposes a sentence which he is authorised to impose on the defendant for the offence, but follows a procedure which is irregular, the sentence may be quashed but the magistrate acts within jurisdiction.
In the present case the magistrates were given power to try and to convict the respondent for the offence of which he was in fact convicted.  The magistrates were given power to impose a sentence of detention for the offence.  But the magistrates were not given power to impose a sentence of detention on the respondent because art 15(1) of the 1976 order expressly prohibited the imposition of such a sentence on the respondent.  The magistrates accordingly acted without jurisdiction.
For these reasons and for the reasons advanced by my noble and learned friend Lord Bridge, I would dismiss the appeal.
This appeal demonstrates that the time is ripe for the legislature to reconsider the liability of a magistrate and the rights of a defendant if an unlawful sentence results in imprisonment.  There is no liability on a judge of the High Court acting as such and no right for a defendant to damages for an unlawful sentence imposed by a High Court judge harm may be prevented or cut short by bail and an appeal procedure which results in the sentence being quashed.
Buckley LJ said in Sirros v Moore [1974] 3 All ER 776 at 788, [1975] QB 118 at 139–140, in which case the principles and the authorities are fully discussed:

‘The High Court constitutes the sole arbiter (though subject to correction on appeal) as to what matters fall within its own jurisdiction.  In my judgment, it should now be taken as settled both on authority and on principle that a judge of the High Court is absolutely immune from personal civil liability in respect of any judicial act which he does in his capacity as a judge of that court.  He enjoys no such immunity, however, in respect of any act not done in his capacity as a judge.’

On the other hand a magistrate is personally liable where an innocent error of law or fact results in an unlawful sentence of imprisonment imposed without jurisdiction.  A magistrate is not personally liable for an innocent error of law or fact which results in an unlawful sentence or imprisonment within jurisdiction.  So far as the defendant is concerned imprisonment produces the same suffering whether the unlawful sentence is defective but within jurisdiction or defective and made without jurisdiction.  I agree with my noble and learned friend Lord Bridge, that the former cause of action against a magistrate for acting within jurisdiction but maliciously and without reasonable and probable cause is obsolete or obsolescent.  The principles which protect High Court judges from harassment by civil suits alleging malice apply equally to magistrates.  Magistrates are better selected, better trained and better advised than they were in the days when Palmerston tried poachers.  A possible solution is to extend to magistrates the immunity which protects the High Court judge acting as such.  An appellate court or an independent tribunal could be accorded a discretionary power to award compensation to a defendant who suffers an unlawful sentence of imprisonment whether the court acted within or without jurisdiction in imposing the sentence.

Y

DISPOSITION:
Appeal dismissed.

SOLICITORS:
Treasury Solicitor, agents for Crown Solicitor, Belfast (for the appellants); Saunders & Co, agents for Francis Keenan, Belfast (for the respondent).

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