Re Clarke

• Jurisdiction: Barbados
• Judge: Williams, J.
• Judgment Date: 04 June 1971
• Neutral Citation: BB 1971 HC 5
• Docket Number: No. 150 of 1971
• Court: High Court (Barbados)
• Date: 04 June 1971

High Court

Williams, J.

No. 150 of 1971

Re Clarke

Appearances:

Mr. E. Alleyne for the applicant.

Judicial reviewi - Certiorari — Whether an order of certiorari should be granted to quash the decision of a magistrate.

Constitutional Law - Civil Rights — Whether Public Order Act ultravires the Constitution.

Practice and Procedure - Courts — Magistrate's Court.

Facts: The applicant was convicted by a magistrate of contravening section 34 of the Public Order Act, 1970 — The applicant's appeal to the High Court was dismissed — The issue was whether the magistrate exceeded his jurisdiction in not referring the question to the High Court pursuant to section 24 (3) of the Constitution.

Facts: The applicant was charged with unlawfully making a statement capable of inducing one person to kill another contrary to section 34 of the Public Order Act — The issue was whether the Public Order Act was unconstitutional in that it contravened the provisions of the Constitution for the protection of the fundamental rights and freedoms of the individual.

Facts: The issue was whether the applicant was correct in bringing an action for judicial review of the magistrate's action.

Held: That certiorari is a discretionary remedy and one of the matters to be taken into consideration is whether there is a satisfactory alternative remedy available — That since the point was not raised on appeal to the Court, the application could not succeed.

Held: Section 34 of the Act was designed for the promotion of public safety and order and its provisions are contemplated by section 20 (2)(a) of the Constitution — The section did not contravene the Constitution.

Held: That by virtue of section 110 of the Magistrate's Jurisdiction and Procedure Act, 1956, the applicant could not now complain in his action for judicial review that the magistrate acted without jurisdiction since it did not appear that he objected at the trial to the magistrate's so doing.

Williams, J.

1 The applicant, Robert Clarke, was convicted by a magistrate of District “A” for an offence under s. 34 of the Public Order Act, 1970, No. 15. He had been charged that on June 25, 1970 at a public meeting he unlawfully made a statement capable of inducing one person to kill another. He was fined $240 payable in 3 months with the alternative of 3 months imprisonment.

2 He appealed against his conviction to the Divisional Court but his appeal was unsuccessful. He now seeks leave to apply for an Order of Certiorari for the purpose of having the decision of the magistrate quashed. His application was heard in Chambers but because of the importance of the matter involved I thought I should give my decision and state my reasons therefor in open court.

3 The grounds on which he seeks leave are these. He relies fundamentally on s. 24(3) of the Constitution which reads as follows –

“If in any proceedings in any court subordinate to the High Court any question arises as to the contravention of any of the provisions of sections 12 to 23, the person presiding in that court shall refer the question to the High Court unless, in his opinion, the raising of the question is merely frivolous or vexatious.”

4 In his affidavit he has affirmed that before the magistrate his counsel submitted that the Public Order Act under which he was charged was unconstitutional in that it infringed s. 20 of the Constitution and that this raised the question of the contravention of one or more of the provisions of ss. 12 to 23 of the Constitution.

5 He went on to state that he was present throughout the entire trial before the magistrate and that at no time during the period did the magistrate say that the raising of the contravention of s. 20 of the Constitution was merely frivolous or vexatious.

6 He further stated that at no time did the magistrate indicate that he was referring the question of the contravention of s. 20 to the High Court and the submission is that the magistrate exceeded his jurisdiction in adjudicating on that question.

7 The existence of s. 24(3) in the Constitution emphasises the overwhelming importance which is and must be attached to the provisions concerning the fundamental rights and freedoms of the individual which have been incorporated in the Constitution. And I interpret the subsection as a deliberate measure to entrust the administration of those provisions to the High Court.

8 Magistrates should therefore seek to make it clear when a matter such as this is raised before them that they have considered the provision and, if the question is not being referred to the High Court, to state the reason.

9 In dealing with the application now before me, three matters arise for consideration.

• (1) Is there any semblance of substance in the claim of the applicant that the Public Order Act 1970, No. 15 constitutes an infringement of s. 20 of the Constitution?

• (2) If there is, how material is it to the present application that the magistrate's alleged neglect of duty and erroneous assumption of jurisdiction was not raised on the applicant's appeal to the Divisional Court?

• (3) In any case, can the applicant now raise the utter of the wrongful assumption of jurisdiction by the magistrate in view of the provisions of s.110 of the...