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BEFORE THEIR LORDSHIPS:
LORD MORRIS OF BORTH-Y-GEST
APPEAL IN REG. v. METROPOLITAN POLICE COMMISSIONER.
Ex parte HAMMOND.
Fugitive Offender – Ireland, Republic of – Warrant issued by justice in Ireland – Person named in warrant Englishman – Endorsed in Ireland for execution in England – Endorsement by deputy commissioner of Garda Siochana – Automatic endorsement by English magistrate on production of warrant and proof of signature of issuing justice – Whether discretion in magistrate – Whether proof of compliance with statutory requirements and prima facie case necessary – Whether signature by deputy commissioner of Garda Siochana sufficient – Indictable Offences Act, 1848 (11 & 12 Vict. c. 42), s. 12 – Petty Sessions (Ireland) Act, 1851 (14 & 15 Vict. c. 93), s. 27 (3) – Irish Free State (Consequential Provisions) Act, 1922 (13 Geo. 5, c. 2), s. 6 – Irish Free State (Consequential Adaptation of Enactments) Order, 1923 (S.R. & O., 1923, No. 405), art. 8 – Magistrates’ Courts Act, 1952 (15 & 16 Geo. 6 & 1 Eliz. 2, c. 55), Sch. 5.
A warrant was issued by a justice of a district court in the Republic of Ireland for the arrest of the respondent, an Englishman, charged with an indictable misdemeanour in Ireland contrary to a statute which had been superseded in England before the warrant was issued. The warrant was endorsed in Ireland by a deputy commissioner of the Garda Siochana for execution in England, and was accompanied by proof of the signature of the issuing justice in the form provided by the Petty Sessions (Ireland) Act, 1851. An English magistrate, having before him nothing but the warrant and proof of signature, automatically endorsed the warrant for execution and the respondent was arrested by the metropolitan police. He applied for, and was granted, a writ of habeas corpus directed to the Commissioner of Metropolitan Police, and, on the return to the writ, contended that the arrest was unlawful since the English magistrate had a discretion, which he had not exercised, under section 12 of the Indictable Offences Act, 1848, 1,2 whether or not to endorse the warrant, and also to invite the respondent to appear and give reasons why the warrant should not be endorsed. For the Commissioner it was contended that the English magistrate had no jurisdiction to inquire into the facts or to do other than endorse the warrant. The Divisional Court ordered the respondent’s discharge from custody.
On appeal to the House of Lords:-
(1) that notwithstanding section 12 of the Act of 1848 (as amended), the provisions of section 27 (3) of the Act of 1851 must be complied with (post, pp. 830A-C, 833G, 839B).
(2) That, accordingly, the arrest of the respondent could not be ordered in the absence of the endorsement of the warrant by the inspector general, notwithstanding that that office had disappeared with the Royal Irish Constabulary in 1922, since there was no provision in English law for indorsement in Ireland by a deputy commissioner of the Garda Siochana (post, pp. 832B, C, 839F). Accordingly, the respondent was entitled to his discharge from custody.
2 Petty Sessions (Ireland) Act, 1851, s. 27: “… (3) … Whenever it shall appear” [that the person named on the warrant is] “to be found in some place in England … it shall be lawful for the … inspector general, or for either of the … deputy inspectors general … to indorse the warrant … and it shall thereupon be lawful for any justice … having power to issue any warrant … in” [England] … “upon proof on oath of the handwriting either of the inspector or deputy inspector general … or of the justice by whom the warrant shall have been issued, to indorse the same …”
Per curiam. A magistrate in England has no power under these provisions to inquire whether a prima facie case is made out against the alleged offender (post, pp. 837B-C, G, 838A), in contrast to the procedure provided by the Fugitive Offenders Act, 1881 (post, pp. 827B-D, 838B).
Decision of the Divisional Court  2 Q.B. 385;  2 W.L.R. 777;  1 All E.R. 821, D.C. affirmed.
APPEAL from the Divisional Court of the Queen’s Bench Division (Finnemore, Paull and Widgery JJ.).
On December 23, 1963, the following warrant was issued at Dublin in the Republic of Ireland: “The district court. Warrant to arrest. The Attorney-General at the suit of Superintendent Patrick Mullaney, Garda Siochana, Howth, complainant v. Peter David Hammond,” [the respondent], “defendant. District court area of Howth. District No. 10. Whereas a complaint has been made on oath and in writing that” the respondent, “being a person over the age of 17 years, and having the custody of two children, Kimberley Hammond and Joan Hammond, both under the age of 17 years, did, within the six months preceding December 16, 1963, at No. 14, Railway Avenue, Sutton, County Dublin, in the said court area and district, wilfully neglect said children in such a manner likely to cause them unnecessary suffering or injury to their health, contrary to section 12 of the Children Act, 1908, as amended by section 4 of the Children (Amendment) Act, 1957. This is to command you to whom this warrant is addressed to arrest” the respondent, “of Maida Car Hire, 1, Fernhead Road, London, W.9, and to bring him without any delay before me or another justice or some peace commissioner to be dealt with according to law. Donnchadg Ua Donnchadha, justice of the district court. To the superintendent of the Garda Siochana at Howth and his assistants.” The warrant was attached to a form headed “Petty Sessions Act, 1851, 14 & 15 Vict. c. 93,” and the signature of Donnchadg Ua Donnchadha on the warrant was verified on oath on the form by a sergeant of the Garda Siochana on January 22, 1964. On January 28, 1964, the superintendent of the Garda Siochana, by endorsement on the warrant, certified that he had reason to believe that the person against whom the warrant was issued was to be found at the address stated in England. On January 30, 1964, the deputy commissioner of the Garda Siochana endorsed the warrant for execution in the London metropolitan police district. London, in England, and forwarded it and the attachment to the Metropolitan Police Commissioner, New Scotland Yard.
On February 7, 1964, a station police sergeant of the metropolitan police brought the warrant and attachment before the Marylebone magistrate, Walter Frampton, who endorsed the warrant in the following terms: “Whereas proof upon oath hath this day been given to me, one of the magistrates of the magistrates’ courts of the metropolis sitting at the Marylebone magistrates’ court and within the metropolitan police district that the name of Donnchadg Ua Donnchadha to the within warrant subscribed, is of the handwriting of the district justice within mentioned; I do therefore hereby authorise the station police sergeant who bringeth me this warrant and all other persons to whom this warrant was originally directed, or by whom it may lawfully be executed, and also all constables of the metropolitan police force, to execute the same within the said metropolitan police district.” At 3 p.m. on February 7, 1964, the respondent was arrested and taken to Harrow Road police station, where he was kept in custody.
On February 8, 1964, the respondent applied for a writ of habeas corpus, and deposed as follows: “I was married on November 19, 1955, at a church in Scottow, Norfolk, to Sheila Anne Hammond, who, I believe, resides now at 14, Railway Avenue, which is the home of her parents; Kimberley Anne, born on September 25, 1957, is a child of my marriage, but I have never admitted, and dispute, paternity of Joan, born on March 17, 1960; I believe the children are living with my wife; I ceased to cohabit with my wife at the end of 1959, when she left with the child from our house in Rochester, Kent, to return to Eire to her parents; there have been no proceedings in any court concerning my marriage or the children or either of them; I intend to bring divorce proceedings against my wife on the ground of adultery; until approximately February, 1961, my wife was receiving my navy allowance of £6 a week, but that ceased in that month; at the end of the year 1960 my wife received my gratuity of £90 on my discharge from the navy on medical grounds; I have written to my wife but received no reply, and sent £15 in 1963 to her; I was last in Eire in March, 1960, when I saw my wife and tried to effect a reconciliation; at this time my wife told me that Kimberley was very well; I have received no letters, complaints or requests from my wife or any one for money for the children and thought that my wife was caring for them from her earnings from employment; no particulars of the offence alleged against me appear on the warrant, and I am unable to know the nature of the complaint made against me.” There was no challenge to the facts so deposed to. On February 8, 1964, Streatfeild J., in chambers, ordered that a writ of habeas corpus issue, directed to the Metropolitan Police Commissioner, to have the body of the respondent before the court. On February 10, 1964, the writ was issued. The return to the writ was made by the appellant, Joseph Simpson, Metropolitan Police Commissioner.
On February 18, 1964, a Divisional Court, by a majority (Finnemore and Paull JJ., Widgery J. dissenting), ordered that the respondent be forthwith discharged.
An application for leave to appeal was refused.
On March 19, 1964, the Appeal Committee of the House of Lords granted the appellant leave to appeal.
Backing procedure rests on the Indictable Offences Act, 1848, an English statute, and the Petty Sessions (Ireland) Act, 1851, an Irish Act, which, save in respect of the backing provisions contained therein, does not apply to England.
Originally, magistrates in England only had local jurisdiction and a warrant was only maintainable in the jurisdiction of the issuing magistrate. There grew up administratively a practice, where the accused had left the jurisdiction of the issuing magistrate and gone to another part of England, for a justice, who had jurisdiction over the territory where the accused was known to be, to back or indorse the warrant so that it could be executed there. From the reign of King George II the position as between counties in England was governed by statute and subsequently the same statutory procedure was adopted as between England and Scotland and Scotland and Ireland. Backing is a purely administrative act and the magistrate was not called upon to follow any form of judicial inquiry. Where Parliament intends that a judicial inquiry shall take place before a warrant is backed, it expressly so provides: see, for example, the Extradition Act, 1870, and the Fugitive Offenders Act, 1881.
For the pre-statutory position regarding the backing of warrants, see Blackstone’s Commentaries on the Laws of England, 8th ed. (1778), Vol. 4, pp. 291, 292.
The first English statute to authorise the practice of backing warrants as between counties was 23 Geo. 2, c. 26 (1750), s. 11. This was limited to escapes, that is, where the offender had physically gone out of the county where it was desired to charge him into another county. The words “shall and may be lawful” in that section also occur in section 11 of the Act of 1848, and therefore the pre-1848 authorities on those words are applicable in considering that Act. The preamble to 24 Geo. 2, c. 55 (1751), recites the substantive part of 23 Geo. 2, c. 26, s. 11, and the statute thereupon authorises the backing of warrants in respect of offenders who “escape, go into, reside or be in any other county …” out of the jurisdiction of the magistrate granting the warrant. Sections 2 and 3 make it plain that the indorsing magistrate is not liable in respect of his action in indorsing the warrant and therefore shows that his act is a purely ministerial act: see Clark v. Woods3 Section 4 repeals section 11 of the Act of 1750.
13 Geo. 3, c. 31 (1773), applies the backing proceeding between England and Scotland and vice versa in respect of offenders who from one kingdom “escape, go into, reside or be in” the other. 44 Geo. 3, c. 92 (1804), is the first of these statutes which relates to Ireland. Section 1 brought into force in respect of counties in Ireland the same procedure as had previously been enacted in relation to counties in England. By section 2 magistrates who endorsed warrants were made not liable to actions in respect thereof. Sections 3 and 4 made provision respectively for offenders escaping from Ireland into Great Britain to be apprehended and conveyed to Ireland and for offenders escaping from Great Britain into Ireland to be apprehended and conveyed back in like manner.
45 Geo. 3, c. 92 (1805), which amended 13 Geo. 3, c. 31, and 44 Geo. 3, c. 92, by section 1 introduced a provision for admitting persons to bail if the offence was bailable by law. By section 6, where a warrant was to be acted upon in any part of the United Kingdom, apart from that in which it was originally issued, proof was required that the signature of the issuing magistrate was genuine. 54 Geo. 3, c. 186 (1814), applied 13 Geo. 3, c. 31, generally as between England, Scotland and Ireland: see sections 1 and 2.
The above was the statutory position until the enactment of the Indictable Offences Act, 1848, section 34 of which repealed the previous Acts except 24 Geo. 2, c. 55, which was repealed by the Statute Law Revision Act, 1867. Section 11 of the Act of 1848 prescribes the procedure to be followed in backing warrants and it expressly provides that the endorsing magistrate need only be satisfied of the genuineness of the handwriting of the magistrate issuing the warrant before endorsing it. The form of the warrant is set out in Form K of the Schedule to the Act. The section has a wider ambit than the earlier enactments, for it relates to offenders who shall “escape, go into, reside or be, or be supposed or suspected to be, in any place in England or Wales out of the jurisdiction” of the issuing magistrate.
Section 12 provides, inter alia, for the backing of Irish warrants in England, and a warrant endorsed in England by a magistrate as prescribed by section 11 is sufficient authority to the persons whose duty it is to execute it (however bad the warrant may be), provided the endorsing magistrate is satisfied of the authenticity of the signature of the issuing magistrate. Any question of invalidity is for the Irish courts to decide. The words in section 12 “it shall and may be lawful” show that it is a ministerial duty that a magistrate carries out in endorsing a warrant. The Act of 1848 shows that the procedure of backing was to make more effective the process of bringing the person charged to the place where the issuing magistrate sits. The place of endorsement is not the place where the validity of the warrant or the strength of the charges preferred against the offender named in the warrant should be investigated.
In 1922 the Irish Free State came into existence. By paragraph 8 (1) (a) of the Irish Free State (Consequential Adaptation of Enactments) order, 1923 (S.R. & O. 1923, No. 450), made pursuant to section 6 of the Irish Free State (Consequential Provisions) Act, 1922 (Session 2), it was provided that the provisions of any enactments applicable to the endorsement and execution in England of warrants issued by justices’ courts or judges of courts in Ireland should apply to warrants issued by justices’ courts or judges of courts in the Irish Free State. Section 49 and the Third Schedule of the Criminal Justice Act, 1925, repealed section 11 of the Indictable Offences Act, 1848, except so far as it was applied by any other provision of the Act or by any other enactment.
In 1949 the Irish Free State, then known as Eire, became a republic. By section 3 (1) (a) (iii) of the Ireland Act, 1949, it was provided that the operation of orders in Council “made under sections 5 and 6 of the Irish Free State (Consequential Provisions) Act, 1922 (Session 2) is not affected by the fact that the Republic of Ireland is not part of His Majesty’s dominions.”
Section 132 and the Sixth Schedule of the Magistrates’ Courts Act, 1952, repealed for all purposes section 11 of the Act of 1848, for it repeals the whole of that Act save sections 12 to 15, sections 30 to 32 and Form K. Section 12 itself was slightly amended by section 131 and the Fifth Schedule of the Act. It will be seen, therefore, that section 12 of the Act of 1848 is still in force as a self-contained provision and that the legislature has preserved it and went to the trouble of amending it in 1952 despite the changed status of Ireland. It is submitted that the provisions of section 12 are applicable to the present warrant. It may be that there is no longer a statutory requirement, which was fulfilled here, for the endorsing magistrate to be satisfied on oath of the genuineness of the signature of the issuing magistrate, but see Form K, which is preserved by the Act of 1952.
It is submitted, however, that the endorsing magistrate has only to satisfy himself that the warrant is a warrant and, if he is so satisfied and thereupon endorses it, that constitutes a sufficient return to an application for a writ of habeas corpus. This contention is reinforced by an examination of the language of section 39 of the Criminal Justice (Scotland) Act, 1963, for in relation to the execution of Scottish warrants in England and vice versa it provides that a warrant may be executed by virtue of this section whether or not it has been endorsed under section 14 or section 15 of the Indictable Offences Act, 1848, which shows that Parliament cannot have considered that backing constituted anything in the nature of a judicial inquiry but rather that it is considered as an alternative to service.
If the above argument be rejected then the appellant relies on the Petty Sessions (Ireland) Act, 1851. This is a consolidating Act. It would be surprising if it altered English law, since it relates to Irish provisions: see the long title. Section 47 provides that the Act shall extend and be construed to extend to Ireland only, save as regards the provisions concerning the backing and execution of warrants.
Sections 10 and 11 authorise any justice in Ireland to issue a warrant on information that any person has committed or is suspected of having committed an offence, inter alia, within the jurisdiction of such justice. By section 25 (2) the warrant is to be addressed for execution to the sub-inspector or head constable of constabulary of the petty sessions district concerned. Section 26 (3) provides that if the offender is “not to be found in the county” to which such sub-inspector shall belong this officer shall transmit the warrant to the inspector general of constabulary for backing. Section 27 (3) provides that when the warrant has been received by the inspector general and it shall appear that the person against whom it has been issued is “to be found in some place in England … it shall be lawful for the said inspector general … to endorse the warrant … and it shall thereupon be lawful for any justice … in any of the said places” (which include England) “upon proof on oath of the handwriting either of the inspector general by whom the same shall have been endorsed or of the justice by whom the warrant shall have been issued to endorse the same …” The terms of the subsection are quite general and it is not limited to offenders who “escape.” Sections 31 and 39 show that the legislature is not laying down a mandatory procedure but is prescribing the steps necessary to authorise an arrest and detention.
The Act of 1851 cannot be taken to repeal by implication section 12 of the Act of 1848, for in 1952 Parliament amended section 12, showing that Parliament treated the section as still being in force. An earlier statute is repealed by a later statute if it is inconsistent with it, but the courts will lean against an implied repeal. Where there are two affirmative enactments they will be construed side by side and the courts will not consider the earlier of the two Acts as repealed by the later. The repealing provision of the Act of 1851, section 47, is expressly related to statutes relating to Ireland and it does not refer to the Act of 1848. This is a strong indication against any implied repeal of the Act of 1848. There is no inconsistency between the two Acts in relation to the powers and duties of English magistrates. On repeal by implication, see Maxwell on the Interpretation of Statutes, 11th ed., p. 156 et seq.
Section 27 (3) of the Act of 1851 gives an option, since the warrant may be lawfully executed in England if the English magistrate is satisfied on oath of the handwriting either of the inspector general who endorsed it or of the justice who issued it. If the latter option is taken then the backing of the warrant by the inspector general is idle and this supports the contention that in passing the Act of 1851 the legislature was mindful that the
Act of 1848 was still operative and therefore provision was made for alternative procedures.
The majority of the Divisional Court held (1), that before endorsing the warrant the English magistrate ought to have satisfied himself that there was a prima facie case against the respondent that he had committed an offence in Ireland. (2) That the statutes only apply where there is an element of escape and that before making his endorsement the magistrate must satisfy himself that such an element exists. (3) That the procedure required to be followed had not been followed.
(1) It is conceded that the magistrate did not conduct an inquiry in this case. His function is ministerial and once he is satisfied of the authenticity of the warrant he is bound to endorse it: see Clark v. Woods4; Murphy v. Brooks.5 The proceedings before the magistrate are ex parte and it is not considered necessary to have a hearing inter partes.
The Fugitive Offenders Act, 1881, prescribes an entirely different procedure from the present: see Part I, sections 2, 3, 5, 6 and 10. Part II is more akin to the backing procedure: see sections 12, 13 and 19. The Extradition Act, 1870, is also entirely distinct and there the Act only applies if a treaty has been made with the extraditing power.
(2) Paull J.6 placed reliance on the sidenote to section 12 of the Act of 1848 as showing that the section is concerned with offenders who escape from one country to the other. But sidenotes cannot be used as an aid to construction: see per Lord Reid in Chandler v. Director of Public Prosecutions.7 This very question of escape was expressly raised in relation to the Act of 1804 (44 Geo. 3, c. 92) in the case of the Hon. Mr. Justice Johnson8 where it was contended on behalf of the applicant that the scope of that Act was limited to persons who had been corporally present in the jurisdiction of the country seeking the warrant, but this argument was rejected in all three Irish courts. The judgment of Daly J.9 in the Court of King’s Bench in Ireland is adopted as part of this argument. There is nothing in that judgment relating to the construction of the preamble to the Act of 1804, namely, that where the enacting words are unambiguous they cannot be cut down by the preamble, which is contrary to what was held in Attorney-General v. Prince Ernest Augustus of Hanover10 concerning the assistance to be obtained from the preamble to a statute.
4 2 Ex. 395.
5 1935 S.C. (Court of Justiciary) 11.
6  2 Q.B. 385, 394.
7  A.C. 763, 789;  3 W.L.R. 694;  3 All E.R. 142, H.L.
8 (1805) 29 St. Tr. 81.
9 Ibid. 180 et seq.
Under the Extradition Act, 1870, a person can be extradited for committing a crime in another country even although he has never been physically present in that country: Reg. v. Nillins11 which was approved in Rex v. Godfrey.12 On these authorities it is plain that Finnemore J.’s view13 that the basis of the present procedure is one for the return of fugitive offenders, and, therefore, that there must be an element of escape before the procedure can be put into operation, is wrong even in relation to an alleged crime of omission.
(3) If the House holds that the Act of 1848 is to be operated as limited by the Act of 1851 the question arises whether the procedure laid down by the latter Act was followed. It is submitted that under section 27 (3) of the Act of 1851 the inspector general’s duty is equally ministerial with that of the justice. It would be very strange if the inspector general had a discretion in a matter initiated by a judicial process. The Petty Sessions (Ireland) Act, 1867, amended the Act of 1851 by providing that in the absence of the inspector general and deputy inspector general warrants may be backed by any one of the assistant inspectors general. A further extension of powers was given by section 6 of the Constabulary (Ireland) Act, 1882.
In 1922 the Royal Irish Constabulary was disbanded: the Constabulary (Ireland) Act, 1922, s. 1, by S.R. & O. 1922, No. 1441, the date of disbandment was fixed at August 31, 1922, and thereafter there was no longer an inspector general, deputy inspector general or assistant inspector general and, accordingly, the procedure prescribed by the Act of 1851 could not be followed. But see paragraph 8 of the Irish Free State (Consequential Adoption of Enactments) Order, 1923 (S.R. & O. 1923, No. 405), which was confirmed by the Ireland Act, 1949.
It may be said that the Order of 1923 was in this connection a dead letter from the start. This conclusion can be circumvented by holding (a) that the Act of 1848 was always a separate procedure and that when the Act of 1851 could no longer be operated the Act of 1848 came into operation again, or (b) that the provision in the Act of 1851 that a warrant was to travel to the English magistrate via the inspector general was a matter of local machinery in Ireland and that if the appropriate legislative authority in Ireland substituted a different form of machinery that that was sufficient for an English magistrate proceeding under the Act of 1851.
10  A.C. 436;  2 W.L.R. 1;  1 All E.R. 49, H.L.
11 (1884) 53 L.J. (M.C.) 157.
12  1 K.B. 24; 39 T.L.R. 5, D.C.
13  2 Q.B. 385, 399.
The present police force in Ireland is governed by the Irish Free State Constitution Act, 1922, and the Garda Siochana Act, 1924 (No. 25 of 1924): see sections 2, 3 (1), 19 and Schedule 1 of the latter Act. The Courts of Justice Act, 1924 (No. 10 of 1924) provided by sections 90, 91 and 92 for the making of rules for the District Court. Rule 41 of the District Court Rules, 1926, prescribed the procedure to be followed when a warrant was addressed to a superintendent or inspector of the Garda Siochana for execution, and when the offender could not be found within the state but might be found within another state under whose laws the warrant was capable of being executed. The matter is now governed by the District Court Rules, 1948, rr. 1 (3) and 74, under which a superintendent or inspector is to certify according to a prescribed form and is to certify that he believes the signature to the warrant to be genuine, and the warrant is then to be transmitted to the “Commissioner of the Garda Siochana” who in turn (or a deputy commissioner, or, in their absence, an assistant commissioner), is to endorse the warrant according to a prescribed form, for execution in such other state. The prescribed forms are in substantially the same form except in regard to the persons who are to sign them, as the forms prescribed by the Act of 1851 (Forms Gb and Gc).
The Act of 1851 only applies to England in so far as it is necessary for the purpose of backing warrants. It cannot be a matter of English law how the warrant is dealt with in Ireland – the local Irish machinery is part of Irish law, and this was properly amended by the Irish statutes on the advent of the Irish Free State which substituted new ranks for the old Irish constabulary. Finally, there is a well-known distinction between mandatory and directory provisions in statutes. A consideration of the subject-matter of section 27 of the Act of 1851 shows that it is a directory and not a mandatory provision. Here, the duty is given to the magistrate and if he is satisfied that there has been compliance with the provisions of the Act that is sufficient for present purposes: The King v. Commissioner of Metropolitan Police, Ex parte Nalder14 [Reference was also made to The State (Dowling) v. Brennan and Kingston 15.]
14  1 K.B. 251, 255; 63 T.L.R. 591;  2 All E.R. 611, D.C.
15  I.R. 483.
Dick Taverne for the respondent. There are two submissions: (1) the Act of 1851 as it stands cannot be applied in England without amending legislation, and the Act of 1851 is the relevant Act since it modifies the operation of the Act of 1848. (2) The endorsing magistrate has a limited discretion.
(1) When the Act of 1851 was passed a new safeguard was provided and unless the 1851 procedure is substituted for the 1848 procedure the additional provisions would be quite otiose. An additional safeguard was that the inspector general or his deputy had a discretion in respect of the signing of the warrant. Under section 27 (3) the inspector general was required to be satisfied that the person named in the warrant was abroad. A warrant is to be endorsed either by the inspector general or by one of his two deputies: section 27 (3). If the appellant be right, a different officer could be substituted by Irish legislation, with quite different powers and possibly subject to no control, which might affect a person in England. It is unthinkable that the Irish Parliament could legislate for England. It is submitted that the Irish provisions relating to commissioners do alter the law. Under rule 74 (3) of the District Court Rules, 1948, no discretion is given to the officer concerned with this particular task; the words “shall be endorsed” leave no right of discretion.
The difficulties mentioned in The State (Dowling) v. Brennan and Kingston16 apply even more cogently to the position of an English magistrate who is requested to endorse a warrant, for he does not know the Irish law, and there is no English provision comparable to section 11 of the Adaptation of Enactments Act, 1922 (No. 2 of 1922) and therefore the appellant is in an even more difficult position than was the respondent in that case.17
In paragraph 8 of the Irish Free State (Consequential Adaptation of Enactments) Order, 1923, provision is made that references to Ireland shall be read as references to the Irish Free State, but nowhere in that order is there a provision that the commissioner is to be substituted where there are references to the inspector general. The Act of 1851 has not been repealed but at the present time its provisions cannot be complied with. Further, the Fugitive offenders Act, 1881, has no application to the present case.
(2) Under the Act of 1848 magistrates were given a limited discretion. In earlier statutes there is a significant difference
16  I.R. 483, 502, 505.
17  I.R. 483.
in language between those provisions relating to the backing of warrants as between counties and those relating to backing as between different parts of the United Kingdom. Thus 24 Geo. 2, c. 55 (1751) states that the endorsing magistrate or magistrates “is and are hereby required, upon proof being made upon oath, of the handwriting” of the issuing magistrate to endorse the same. It is quite plain that under that Act the endorsing magistrate is performing a purely ministerial act for all that he has to be satisfied of is the handwriting of the magistrate granting the warrant. It was that statute which was construed in Clark v. Woods18 and, accordingly, the authority of that decision is limited to between-counties procedure.
13 Geo. 3, c. 31 (1773) relates to Scotland. The preamble makes it plain that it concerns persons who escape from one jurisdiction to the other. This Act provides that “it shall and may be lawful” for a magistrate to back a warrant in the prescribed circumstances. There is no provision of the magistrate being required to endorse it. Further, there is no provision akin to section 2 of 24 Geo. 2, c. 55, that the endorsing magistrate shall not be liable to an action for trespass or false imprisonment.
44 Geo. 3, c. 92 (1804) concerns Ireland. Section 1 relates to backing as between counties in Ireland. The endorsing magistrate or magistrates “is and are hereby required” to endorse the same on proof upon oath of the handwriting of the issuing magistrate. Section 2 provides that the magistrate endorsing the warrant shall not be liable to an action for trespass or false imprisonment, and plainly this provision only refers to warrants covered by section 1 where the endorsing magistrate performs a purely ministerial act. There is a significant change of language in section 3 which relates to the backing of warrants in England: “it shall and may be lawful.” This is discretionary and there is no provision exempting the endorsing magistrate from actions.
In the Act of 1848 there is again a contrast in the language used in the different sections of the Act. Thus, section 3, which relates to the issuing of warrants to apprehend a party against whom an indictment is found, states that the magistrate or magistrates “he and they are hereby required” to issue his or their warrant to apprehend the person indicted. In section 11, however, which relates to the backing of warrants as between counties in England the phrase used is, “it shall and may be lawful,” which is discretionary. The same phrase occurs in section 12, which is the relevant section. The words in section 12
18 2 Ex. 395.
“in the manner hereinbefore mentioned” do not relate solely to the proof of the signature of the issuing magistrate. Reliance is placed on the form that the amendment of section 12 took in the Fifth Schedule to the Magistrates’ Courts Act, 1925.
[Reference was made to section 16 of and Form K in the Schedule to the Indictable Offences Act, 1848.]
In the scheme of this series of Acts section 12 of the Act of 1848 would seem to presuppose the person named in the warrant residing in England after his departure from the place where the offence was alleged to have been committed. In other words, it presupposes that at some time the person charged was residing in Ireland. For the purposes of the section an actual escape is not necessary, but the person charged must have been physically present in Ireland and thereafter there occurred his departure for England. If that be so then the requirements of section 12 have not been complied with here. The warrant must show on its face that the person named therein was physically present in Ireland at the time when the offence was alleged to have been committed.
Under section 12 the English magistrate has a discretion whether or not to endorse the warrant. Here, the magistrate did not exercise that discretion and, accordingly, habeas corpus lies. Further, section 11 of the Act of 1851 requires the warrant to “state shortly the cause of complaint.” There was here a lack of particularity. The magistrate was under a duty to ascertain whether the warrant sufficiently showed that during the specified period the respondent was in Ireland wilfully neglecting his children as alleged.
Fisher Q.C. in reply. As to discretion, under the Act of 1848 any difference in backing procedure between warrants relating to different counties and those relating to different countries has gone: see sections 11, 12, 13, 14 and 15. There is no difference in the language in these sections on the question relevant here. In all cases a warrant is to be backed in the manner prescribed in Form K, which only requires the endorsing magistrate to be satisfied on oath of the handwriting of the issuing justice. For what appears to be the granting of a real discretion by this Act, see the opening words of section 16, which is a provision empowering magistrates to summon witnesses to attend and give evidence.
There is no method by which a magistrate can satisfy himself of matters apart from those questions which arise on the face of the warrant. In view of the terms of section 12 and Form K
As to escape, this argument is completely answered by the Johnson case19 which relied on the argument that plain enacting words are not cut down by the preamble – a principle of construction approved by this House in the Prince of Hanover case.20 It is to be remembered that the Johnson case21 was a decision on the pre-1848 statutes relied on by the respondent here.
Further, in relation to the Act of 1851, sections 26 and 27 relate to goods as well as to persons and, therefore, those provisions cannot be limited to cases involving an element of escape.
As to whether the cause of complaint is sufficiently set out in the warrant, the judgment of Widgery J.22 is adopted.
Their Lordships took time for consideration.
An application by the appellant for leave to appeal was granted by this House. Assurances have been given by the authorities in the Republic of Ireland that in the event of this appeal succeeding no further warrant in this matter would be forwarded for execution here, so the respondent has no substantial personal interest. But the appeal raises a very important general question. It appears that the procedure followed in this case has been regularly followed for many years and we were informed that under it on the average nearly a hundred persons per annum have been sent in custody from this country to the Republic of Ireland.
19 29 St.Tr. 81.
20  A.C. 436.
21 29 St.Tr. 81.
22  2 Q.B. 385, 402, 403.
The question for your Lordships’ decision does not depend on the facts of this case, but they give a useful illustration of the problem. We have an affidavit of the respondent sworn the day after he was arrested, and we have the terms of the warrant. The warrant states that a complaint had been made on oath that the respondent, having the custody of two children, did at an address in County Dublin “wilfully neglect said children in such a manner likely to cause them unnecessary suffering or injury to their health.” The facts as stated by the respondent are that he was married in this country in 1955, that he works in London, that his wife left him at the end of 1959 and returned to her parents in Ireland, and that he admits paternity of one of the children but disputes paternity of the other, and intends to bring divorce proceedings. He says that he was last in Ireland in March, 1960, when he tried to effect a reconciliation, that he has sent money on various occasions since that time, that he has written to his wife but received no reply, that he has never received from her any letters, complaints or requests for money and that he was unaware of any proceedings in any court.
We do not know that this story is true and probably the facts put before the district judge at Howth were different. But the appellant argues that, even if the respondent’s story is accurate in every detail, the law allowed him no opportunity of putting his case to anyone in this country and no opportunity of applying for bail: the magistrate in this country has no right to make any inquiry or to grant bail but must back any warrant sent from the Republic of Ireland by an appropriate officer of the Garda Siochana, at least unless it is plainly bad on its face; and the police must forthwith arrest any person named in the warrant and send him in custody to the Republic of Ireland. Plainly it is of the utmost importance that there should be an authoritative decision whether this really is the law because cases of great hardship can easily arise if it is. I wish to make it quite clear that I do not doubt for a moment that justice would be done in the court of the Republic if the accused is able to bring his witnesses from England and pay for his defence. I do not know whether legal aid is available in the Republic. But it is a serious matter if, in a case of this kind, a person can be sent under arrest out of Her Majesty’s dominions without any warning or any opportunity of preparing or stating his defence or of applying for bail or of representing the hardship which that will involve for him.
Normally persons resident in this country who are accused of an offence in a foreign country are dealt with under the Extradition Act, 1870, which contains elaborate safeguards. And if they are accused of an offence in another part of Her Majesty’s dominions they are dealt with under the Fugitive Offenders Act, 1881, which contains very considerable safeguards. Even under the modified scheme for contiguous groups of British possessions under Part II of the Act of 1881 the accused must be brought before a magistrate in the place where he is arrested, and section 19 allows the court to take into account the trivial nature of the case or whether it would be unjust or oppressive to put the warrant into operation immediately or at all. I realise that the Republic of Ireland has always been treated as a special case, and it is quite clear that neither the Extradition Act nor the Fugitive offenders Act can be applied as they stand to cases like the present. So it would seem that if your Lordships agree that the present appeal must be dismissed it will be necessary to give urgent consideration to the whole matter of sending accused persons from this country to the Republic of Ireland, and in particular to the case of British subjects who have never resided in that part of Ireland or caused anything to be done there.
I have had an opportunity of reading the speech prepared by my noble and learned friend Lord Morris of Borth-y-Gest and I agree that this appeal must be dismissed with costs to the respondent.
LORD MORRIS OF BORTH-Y-GEST. My Lords, the system under which a warrant to arrest issued by a justice in one jurisdiction could be backed by a justice in another jurisdiction within which an alleged offender was said to be, has doubtless been necessary in the interests of justice. It has, therefore, been a desirable system. In earlier times a warrant issued by a justice of the peace in England could only be executed within the area of his local jurisdiction. If, however, after a county justice in one county in England had issued a warrant to arrest an alleged offender such person had been able with impunity to avoid arrest by going to or being in another county, the law would have been mocked and frustrated. Various legislative enactments were therefore introduced which provided for the indorsement of warrants so that they could be acted upon within the area of and by virtue of the authority of the indorsing justice. It is not necessary for present purposes to trace the history of these enactments nor the steps by which the system became applicable, not only as between and in reference to places in England and Wales but also as between England and Wales and Scotland, Ireland, the Isle of Man and the Channel Islands. Prior to 1848 there were such statutes as 23 Geo. 2, c. 26, 24 Geo. 2, c. 55, 13 Geo. 3, c. 31, 44 Geo. 3, c. 92, 45 Geo. 3, c. 92 and 54 Geo. 3, c. 186. In 1848 the Indictable offences Act (11 & 12 Vict. c. 42) was passed. It was an “Act to facilitate the performance of the Duties of Justices of the Peace out of Sessions within England and Wale with respect to Persons charged with indictable Offences. It was primarily an English Act and nothing in the Act was to be deemed or taken to extend to Scotland or Ireland or to the Isles of Man, Jersey or Guernsey save and except the provisions in respect of the backing of warrants (see section 32). Those provisions were contained in sections 12, 13, 14 and 15.
Three years later (in 1851) the Petty Sessions (Ireland) Act (14 & 15 Vict. c. 93) was passed. That was primarily an Irish Act. It was provided (see section 47) that save and except the several provisions respecting the backing and execution of warrants and the taking of examinations it only applied to Ireland.
By section 12 of the Act of 1848 there were mutual provisions for the backing of warrants as between England or Wales on the one hand and Ireland on the other. It was provided that if a warrant should be issued in England or Wales by any justice of the peace or by any judge of Her Majesty’s Court of Queen’s Bench or justice of oyer and terminer or gaol delivery for any indictable offence “against the laws of that Part of the United Kingdom,” and if the person against whom the warrant was issued should “escape, go into, reside, or be, or be supposed or suspected to be” in Ireland, then it should be lawful for any justice of the peace in or for the county or place into which such person should “escape or go, or where he shall reside or be, or be supposed or suspected to be” to indorse the warrant. The endorsement was according to a form known as Form K. The warrant so endorsed was authority to arrest. The arrested person was then to be conveyed before the justice who granted the warrant, or before some other justice in the same county or place. In the same section there were corresponding provisions to deal with the cases of persons against whom a warrant was issued in Ireland (by any justice of the peace or by any judge of Her Majesty’s Court of Queen’s Bench there) if such persons should “escape, go into, reside, or be, or be supposed or suspected to be” in England or Wales.
The Act of 1851 introduced certain changes. Section 25 dealt with the question of the persons to whom warrants should be addressed. In proceedings as to offences punishable either by indictment or upon summary conviction warrants issued in any petty sessions district were to be addressed to the sub-inspector or head constable of constabulary acting for the place where the petty sessions for such district were held. Then if (see section 26) the person against whom the warrant was issued could not be found in the county to which the sub-inspector or head constable belonged but was to be found elsewhere out of the county, the sub-inspector or head constable was required to certify on the warrant in a prescribed form (Form G b) and to transmit the warrant to the inspector general of the constabulary force to be backed by him. Then by section 27 the manner of backing by the inspector general for execution elsewhere was prescribed. By section 27 (3) it is provided that whenever it shall appear that the person is “to be found in some place in England or Scotland, or in the Isles of Man Guernsey, Jersey, Alderney, or Sark, it shall be lawful for the said inspector general, or for either of the said deputy inspectors general, in like manner as before, to indorse the warrant, according to Form (G c), and it shall thereupon be lawful for any justice or officer having power to issue any warrant, or process in the nature of a warrant, for the arrest of offenders in any of the said Places, upon proof on oath of the handwriting either of the inspector or deputy inspector general by whom the same shall have been indorsed or of the justice by whom the warrant shall have been issued, to indorse the same, according to the Form (G c), authorising its execution within the jurisdiction of the said justice or officer by the person bringing the same, or by any constable or other peace officer of the county or place where it shall be so indorsed.” Section 31 gave authority to execute warrants so endorsed.
It will be seen that though these provisions (contained in sections 25, 26 and 27 of the Act of 1851) introduced the requirement that in certain cases (including the case where the wanted person was in England) warrants could be backed by the inspector general (or one of the deputies), there was no repeal of section 12 of the Act of 1848. Indeed, that section, as I will later mention, remains in force. It does not, however, seem reasonable to suppose that after the passing of the Act of 1851 the procedure for the backing of warrants by the inspector general (or one of the deputies) could have been ignored or neglected. The procedure amounted to a safeguard which ensured that statutory conditions were being observed. I consider, therefore, that the position was that regard could not after 1851 have been paid solely to the terms of the Act of 1848 and that the requirements of the Act of 1851 had to be satisfied. When section 27 (3) provided, as recited above, that it should “thereupon be lawful” for the English justice to back a warrant so that an arrest could be made, the word “thereupon” denoted the prior backing by the inspector general or one of the deputies. I cannot, therefore, regard section 12 of the Act of 1848 as being a self-contained provision which could be operated in disregard, after 1851, of the provisions of the Act of 1851.
By the year 1867 the number of deputy inspectors general of constabulary had been reduced to one, but there were three assistant inspectors general, and an Act of 1867 (30 & 31 Vict. c. 19) amended the Act of 1851 so as to give power to one of such assistant inspectors general, in the absence of the inspector general and deputy inspector general, to back warrants and to transmit them for execution in the same way as the latter were authorised to do. By section 6 of the Constabulary (Ireland) Amendment Act, 1882 (45 & 46 Vict. c. 63) it was provided that any acts which might be done by the deputy inspector general (acting instead of the inspector general) might be done by any other officer of the force, not being below the rank of assistant inspector general, who was authorised by writing under the hand of the Lord Lieutenant.
In 1922 came the Act to provide for the Constitution of the Irish Free State (13 Geo. 5 (Session 2), c. 1). By article 73 of the Constitution of the Irish Free State it was provided that subject to the Constitution and to the extent to which they were not inconsistent therewith, the laws in force in the Irish Free State at the time of the coming into operation of the Constitution should continue to be of full force and effect until the same or any of them should have been repealed or amended by the Parliament of the Irish Free State. Thereafter, by section 6 of the Irish Free State (Consequential Provisions) Act, 1922, it was provided that by Orders in Council there could be made such adaptations of any enactments so far as they related to any of the Dominions other than the Irish Free State as were necessary or proper as a consequence of the establishment of the Irish Free State. By the Irish Free State (Consequential Adaptation of Enactments)
Order, 1923 (S.R. & O. 1923, No. 405) it was provided (inter alia) (see paragraph 8 (1) (a)) that the provisions of any enactments applicable to the endorsement and execution iu England of warrants issued by justices’ courts or judges of courts in Ireland should apply to warrants issued by justices’ courts or judges of courts in the Irish Free State. The effect of that provision was to substitute “Irish Free State” for “Ireland,” but the procedural requirements of the Act of 1851 remained unaffected.
After the disbandment of the Royal Irish Constabulary there was legislation in the Irish Free State to make permanent provision for the maintenance and regulation of the force of police called the Garda Siochana. At a later date the rule-making authority established under legislation in the Irish Free State made rules which governed the procedure to be followed when a warrant was addressed to a superintendent or inspector of the Garda Siochana for execution, and when the person against whom the warrant was issued could not be found within the State but might be found within another State under whose laws the warrant was capable of being executed. Under the District Court Rules of the Irish Free State of 1948 a superintendent or inspector is to certify according to a prescribed form and is to certify that he believes the signature to the warrant to be genuine and he is to transmit the warrant to “the Commissioner of the Garda Siochana” who in turn (or a deputy commissioner or, in their absence, an assistant commissioner) is to endorse the warrant, according to a prescribed form, for execution in such other State. The prescribed forms (Forms 15 and 16) seem substantially to correspond save in regard to the persons who are to sign them, with the forms prescribed by the Act of 1851 (Forms G b and G c).
Though the legislative provisions made in the Irish Free State to which I have referred were brought to our attention, and though the endorsements which in this case were made upon the warrant to arrest would appear to have been made by the persons referred to in the Irish Free State District Court Rules and would appear to have been made in accordance with the prescribed forms, it is to be observed that the only authority which an English justice can possess is that which is given to him by the provisions of the English Acts to which I have referred. It is to be remembered also that in practice a justice in England would not have knowledge of Irish enactments and would not have the opportunity to consider whether endorsements were in fact made by those who are designated by Irish enactments as being the proper persons to make them, and would not know what person or persons should now be substituted for the inspector general or his deputy. Quite apart, however, from this consideration, if the authority which is by statute granted to an English justice for authorising an arrest is made conditional upon his having presented to him a warrant to arrest which has been backed by a specified person, he cannot act unless a warrant is produced to him which is so backed. It cannot avail to say that the warrant has been backed by someone else nor to say that the substitute should be deemed to be the equivalent of or the successor of the specified person. In a matter of such consequence as authorising an arrest pursuant to statutory power no statutory prerequisite can be ignored. If the statute provides that an arrest can be ordered by endorsing a warrant which has the prior endorsement of a designated officer of the Royal Irish Constabulary, and if such prior endorsement does not exist and cannot be forthcoming, then arrest cannot be ordered.
By the Ireland Act, 1949 (12 & 13 Geo. 6, c. 41), it was recognised and declared that the part of Ireland theretofore known as Eire (in any later Act to be referred to as the Republic of Ireland) ceased as from April 18, 1949, to be part of His Majesty’s dominions, but it was declared that the Republic of Ireland is not a foreign country.
The Act of 1848 has been affected in important respects by recent Acts. The Criminal Justice Act, 1925 (15 & 16 Geo. 5, c. 86), repealed section 11 (which dealt with the backing by a justice of the peace in one county of England or Wales of a warrant issued by a justice of the peace in another county) except so far as that section was applied by any other provision of the Act or by any other enactment. Section 31 (3) effected the ending of the necessity for backing as between counties in England and Wales. (As between England and Scotland, see now the Criminal Justice (Scotland) Act, 1963 (11 & 12 Eliz. 2, c. 39).) By the Magistrates’ Courts Act, 1952 (15 & 16 Geo. 6 & 1 Eliz. 2, c. 55), the whole of the Indictable Offences Act, 1848, was repealed except sections 12 to 15 and 30 to 32 and Form K: certain words in section 30 were also repealed. A consequential amendment was also made to section 12. For the words “indorse (K) such warrant in manner hereinbefore mentioned” there were substituted the words “make an indorsement (K) on the warrant, signed with his name, authorising the execution of the warrant within the jurisdiction of the justice making the indorsement.”
The position is, therefore, that since 1848 the provisions of section 12 of the Act of 1848 have remained in force (subject to the amendment made in 1952) and (subject to that amendment) still remain in force. So also the relevant provisions of the Act of 1851 (notably sections 25, 26 and 27) have remained and still remain in force. It was submitted on behalf of the appellant that the effectiveness of the backing by the magistrate in London could be supported by having regard solely to section 12 of the Act of 1848 and by depending upon that section. That, however, would involve disregarding the provisions of the Act of 1851 which continue to possess legislative validity. Those provisions (requiring the backing of the inspector general) gave an extra safeguard to ensure that all was in order. They could not have been ignored in the years after 1851. The mere passing of time does not warrant their being ignored now. It was further submitted that matters might proceed on the basis that section 27 of the Act of 1851 prescribed certain local machinery and that there had been legislative changes effected in the Republic of Ireland in regard to such local machinery and to those parts of the procedure which are to be followed in the Republic of Ireland, and that the English magistrate should be content to recognise that changes have been made. Apart from the practical difficulties of ascertaining what changes may have been made in the Republic of Ireland, that would again involve a disregard of the provisions of the Act of 1851 which give authority to the English magistrate to act. It would mean that the English magistrate was being invited to treat the Act of 1851 as though it had been amended. He clearly could not proceed on such a basis. It was additionally submitted that if in present circumstances the provisions of the Act of 1851 have become of no avail because they cannot be operated without amending legislation, regard might be paid in England solely to the provisions of section 12 of the Act of 1848. This is but another way of submitting that the Act of 1851 should be quietly ignored. The submission cannot be accepted. As a result, I consider that the respondent was entitled to succeed on his application for a writ of habeas corpus on the ground that the statutory prerequisites for the backing by the magistrate in London were not satisfied.
It can truly be said that as section 12 of the Act of 1848 remains in force (subject to the minor amendments effected as recently as 1952) and as sections 25, 26 and 27 (inter alia) of the Act of 1851 remain in force, there is a recognition both in this country and in the Republic of Ireland of a continuing confidence in each other’s institutions. Indeed, I have no doubt that, though the system of backing warrants began when there was a common legislature for the two countries, some appropriate machinery for the backing of warrants is still desirable in the interests of justice in both countries. This circumstance however, does not (and particularly in matters affecting the liberty of the subject) justify proceeding other than strictly. If amending legislation is thought to be desirable the features of the present case point to the necessity of devising some procedure to deal with the sort of situation which confronted the respondent. He has sworn an affidavit in which he states that he ceased to cohabit with his wife at the end of 1959. There was then one child of the marriage. He says that his wife then left their home in England and returned to her parents in the Republic of Ireland where another child was born (in March, 1960) whose paternity he does not admit. He states that he intends to bring divorce proceedings against his wife on the ground of her adultery. He says that he was last in the Republic of Ireland in March, 1960, and that he then saw his wife and tried to effect a reconciliation; that until approximately February, 1961, she received his navy allowance of £6 per week and at the end of 1960 received his gratuity of £90 on his discharge from the navy on medical grounds; that he had written to his wife but had received no reply; that he had sent her £15 in 1963 but had received no letters or complaints or requests for money either from her or from anyone else and that he thought that she was caring for the children from her earnings from employment.
If these facts are correct it is startling to think the next episode should be the arrest of the respondent in London without any prior awareness on his part of the issue of a warrant for his arrest in the Republic of Ireland or any knowledge of a suggestion that he had committed in Dublin the offence of wilfully neglecting the two children in a manner likely to cause them unnecessary suffering or injury to their health. Equally startling, if the facts sworn to by the respondent be true, is it to contemplate that without being heard in England and without any opportunity to make any representations to anyone, unless upon application for a writ of habeas corpus and without inquiry by the magistrate and without his necessarily possessing knowledge of the circumstances under which a warrant to arrest could be issued in the Republic of Ireland or as to the jurisdiction of a particular court there, the respondent would be detained by the police in London to await escort from the Garda Siochana and would then be taken in custody to Dublin. He would doubtless there be treated fairly and in accordance with law, but even so it seems open to question whether, if the respondent’s affidavit is correct, a system would be satisfactory which would in the circumstances of the present case inevitably bring about an arrest which would be followed by inevitable removal in custody across the Irish Sea. The submission of the appellant was that the magistrate in London had no other course open to him than to order the respondent’s arrest and that thereafter no consequence could follow other than that the London police should detain and that the Garda Siochana should transport him.
The respondent submitted that no particulars of the offence alleged against him appeared on the warrant issued on December 23, 1963, by the justice of the District Court in the area of Howth and that he was unable to know the nature of the complaint made against him. Reference was made to the requirement of section 11 of the Act of 1851 that a warrant shall state shortly the cause of complaint. I do not think that it was on this ground that the respondent was entitled to succeed on his application for a writ of habeas corpus. The warrant does sufficiently state what was the cause of complaint. Nor do I think that the respondent’s entitlement to succeed was on the suggested ground that the procedure of backing warrants only applies where there has been an evasion of arrest amounting in effect to an escape. It was said that the magistrate should not only have considered whether the warrant sufficiently described the alleged offence or sufficiently set out that it had been committed in the Republic of Ireland but that he should have considered whether the respondent had been in the Republic of Ireland. It was submitted that a warrant could only be backed in a case where there had been a physical presence in the one country followed by a departure to the other even though such departure would not in the strictest sense be regarded as an escape. I am unable to take this view. If an offence is alleged to have been committed (and it may be recognised that in some circumstances an offence may be committed in a place without physical presence there) a warrant could under the Acts of 1848 and 1851 be backed, if the alleged offender is in England, without considering whether or not he had sought to evade arrest or had made any journey to evade arrest. The language of section 12 of the Act of 1848 is very wide. It covers persons who escape or go into England. so also does it cover persons who reside in England or who are or are supposed or suspected to be in England. The language of section 27 of the Act of 1851 is equally wide; it covers persons who are to be found in England.
It would appear from a consideration of the documents in the present case that matters proceeded in the Republic of Ireland on the basis that the Act of 1851 was being followed but subject to the amendments to that Act which have been made in the Republic of Ireland. The warrant to arrest was addressed to the Superintendent of the Garda Siochana at Howth. The endorsement that he made on the warrant appears to have been made in compliance with rule 74 (3) of the District Court Rules where it is provided that in the stated events the superintendent “shall certify” and “shall forthwith transmit the warrant to the Commissioner of the Garda Siochana.” The endorsement was in the form prescribed (Form 15). The next endorsement (as prescribed by Form 16) appears to have been signed by a deputy commissioner of the Garda Siochana. The wording of rule 74 (3) shows that after transmission of an endorsed warrant to the commissioner “the warrant shall be indorsed (Form 16) by the Commissioner” … (or by certain others as specified) … “for execution in such other State.” This wording is to be compared with the wording in section 27 of the Act of 1851. It had in that Act first been provided by section 26 (3) that if a person against whom a warrant had been issued was not to be found in the county but was to be found elsewhere out of the county “the said sub-inspector or head constable shall, as before, certify on the warrant, according to the Form (G b), and forthwith transmit the same to the Inspector General of the Constabulary Force, to be backed as herein-after mentioned.” In contrast to that language, when section 27 laid down the manner in which a warrant was to be backed for execution elsewhere, it was provided by subsection (3) that if the person was to be found in England (or in Scotland or in the Isle of Man, Guernsey, Jersey, Alderney or Sark) “It shall be lawful for the said Inspector General, or … in like manner as before, to indorse the warrant, according to Form (G c) …” The contrast in the Act between the word “shall” when transmitting to the inspector general and the words “it shall be lawful” in reference to an endorsement to be made by him may suggest that the inspector general had a measure of discretion which was something that went beyond being satisfied that the warrant and its endorsement were genuine. If this were so then it is to be noted that the words that follow in subsection (3) are that “it shall thereupon be lawful for any justice … having power to issue any warrant … for the arrest of offenders in any of the said places, upon proof on oath of the handwriting either of the inspector or … or of the justice by whom the warrant shall have been issued to indorse the same, according to the Form (G c). …” The use again of the words “shall thereupon be lawful” in contrast to the earlier use of the word “shall” may likewise suggest that there is some measure of discretion in the English (or other) justice. It is to be observed, however, that no procedure is established under which a magistrate in England can inquire into the alleged offence or can inquire as to the circumstances under which the person against whom the warrant was issued has come to be within the jurisdiction of the English magistrate. The magistrate must in accordance with the section be satisfied by proof upon oath in regard to handwriting, but he has no opportunity to inquire whether a prima facie case is made out against the alleged offender. It may be, therefore, that the duties of the magistrate are no more than ministerial (compare Murphy v. Brooks1 It is, however, unnecessary to explore further this aspect of the matter or to express a final opinion in regard to it. For the reasons which I have earlier set out I consider that the writ of habeas corpus was properly granted and I would dismiss the appeal.
LORD HODSON. My Lords, the decision in this appeal depends on a very short point which, though technical, is decisive in favour of the respondent if well founded, since where the liberty of the subject is concerned the formalities required must be strictly observed.
The warrant for the arrest of the respondent was signed by a justice of the District Court of Howth and was indorsed by the deputy commissioner of the Garda Siochana upon a certificate signed by a superintendent of the Garda Siochana that the person against whom the warrant was issued is to be found at Maida Car Hire, 1 Fernhead Road, London, W.9, England.
Upon proof upon oath of the signature of the Howth justice, one of the Metropolitan magistrates authorised the execution of the warrant within the Metropolitan Police District.
There can be no doubt that in so doing the magistrate was performing a merely ministerial act, and was not acting judicially in the sense that he was performing a duty to ascertain whether there was a prima facie case for the arrest of the respondent.
1 1935 S.C. (Court of Justiciary) 11.
There is nothing in any of the statutes which deals with the backing of warrants as between countries and as between the component parts of the United Kingdom to support the contention that the power conferred on an English magistrate through an Irish warrant is other than a power which he is under a duty to exercise if the warrant is in order and duly authenticated. This procedure, which is essentially domestic in character, is in marked contrast to that provided by the Fugitive Offenders Act, 1881, which though also of a semi-domestic character takes into account the hardship which would be involved in executing warrants in this country issued in a distant part of the world without any check on the process in this country.
The short point which is, I think, fatal to the contention of the Commissioner of Police is to be found by reference to section 27 (3) of the Petty Sessions (Ireland) Act, 1851, which applies only to Ireland except for the provision for the backing and execution of warrants and the taking of examinations. This subsection provides “whenever it shall appear [to the sub-inspector of Constabulary to whom the warrant has been addressed that the person named on the warrant is] to be found in some place in England … it shall be lawful for the inspector general, or either of the deputy inspectors general, … to indorse the warrant … and it shall thereupon be lawful for any justice … having power to issue any warrant, … in England upon proof on oath of the handwriting of the inspector general or deputy inspector general … or of the justice by whom the warrant shall have been issued to indorse the same.”
It is true that proof on oath of the handwriting of the inspector general or deputy inspector general and of the justice by whom the warrant was issued are stated as alternatives, but it is not possible to regard the backing by the inspector general or his deputy as an idle formality although the signature need not be verified. The requirement of endorsement by this officer must have been inserted in the Act of 1851 as a safeguard, and in the absence of subsequent amending legislation it cannot be ignored. The Indictable Offences Act, 1848 (11 & 12 Vict. c. 42), which also provides for the backing of warrants is an English Act, and, so far as the backing of warrants is concerned, has not been repealed, contains no corresponding requirements of the intervention of the inspector general. The Magistrates’ Courts Act of 1952, which repealed the greater part of the 1848 Act, preserved sections 12 to 15 and sections 30 to 32, both inclusive, and also Form 1c (the form of endorsement or backing a warrant). Hence it was argued for the Commissioner of Police that the procedure adopted in this case was valid, being in compliance with the unrepealed provisions of the Act of 1848 which could be operated as an alternative to the Act of 1851.
I do not think this contention can be accepted and that it is possible to ignore the mandatory provision for endorsement by the inspector general contained in section 27 of the Act of 1851 (14 & 15 Vict. c. 93), which had to be transmitted to him for backing as provided by the preceding section 26 of the same Act.
Although there have been amending Acts, to which I need not refer, extending the number of those who could endorse a warrant as alternates of the inspector general, there has been no legislation which amends the 1848 and 1851 Acts so as to enable the deputy commissioner or other officer of the Garda Siochana to endorse the warrant. The Royal Irish Constabulary ceased to exist in 1922 and the office of inspector general disappeared. There has been no substitution of any other officers for the inspector general and his alternates, and it may have been thought that none was necessary, for a Statutory Rule and Order 405 of 1923, to which your Lordships’ attention was drawn, provides for the procedure of backing of warrants as if no substitution were necessary. It does not, however, by its terms have the effect of making such parts of the 1848 Act as have not been repealed take effect as if the 1851 Act had never been passed. The latter Act provided machinery which no longer exists and the appropriate legislative authority, the Government of Eire, has put in its place a different form of machinery, but one which in my opinion cannot be operated without the appropriate legislation being passed in this country.
The inspector general and his alternates are in my view personae designatae to whom authority was given, and this designation has never been effectively displaced. I would dismiss the appeal.
LORD PEARCE. My Lords, for the reasons set out in the opinion of my noble and learned friend, Lord Morris of Borth-y-Gest, I agree that this appeal should be dismissed. I also agree with the observations of my noble and learned friend Lord Reid.
LORD DONOVAN. My Lords, I have had the advantage of reading the opinion prepared by my noble and learned friend, Lord Morris of Borth-y-Gest. I agree with it, and do not desire to add anything to it.
Solicitors: J. S. Williams; Howard, Kennedy & Co.