A section in an Act of Parliament read: ‘and if . . the magistrate or justices shall be satisfied that such articles, or any of them, are of the character stated in the warrant and that such or any of them have been kept for any of the purposes aforesaid, it shall be lawful for the said magistrate or justices, and he or they are hereby required to order the articles so seized . . to be destroyed . .’ appearing to take away the right of certiorari. Held not to apply in the case of a total absence of jurisdiction. An order by a magistrate for the destruction of obscene books under 20 and 21 Vict. c. 83, s. 1, is bad if it merely states that the magistrate was satisfied that the books were obscene, but not that he was satisfied that the publication of them would be a misdemeanour, and proper to be prosecuted as such.
Mellor J set out the principle of the right of access to a writ of certiorari: ‘It is well established that the provision taking away the certiorari does not apply where there was an absence of jurisdiction. The consequence of holding otherwise would be that a metropolitan magistrate could make any order he pleased without question.’
The order for destruction omitted to state: ‘that the magistrate who made it was satisfied that the books ordered to be destroyed were the proper subject of a prosecution, and therefore the order on the face of it shows an absence of jurisdiction.’
Cockburn CJ said: ‘The order, therefore, does not state the existence of matter that is essential to the jurisdiction.’ Even on the assumption that a ‘no certiorari’ section was applicable a rule for certiorari was made absolute: ‘This is an objection founded upon an absence of jurisdiction appearing on the face of the order; and I am clearly of opinion that the section does not apply when the application for the certiorari is on the ground that the inferior tribunal has exceeded the limits of its jurisdiction’
Mellor J, Cockburn CJ
(1878) 3 QBD 509, (1878) 47 LJMC 105, [1878] UKLawRpKQB 56
Commonlii
England and Wales
Cited by:
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Lists of cited by and citing cases may be incomplete.
Updated: 09 September 2021; Ref: scu.442687 br>