The Queen’s Bench Division deals with all civil
matters which do not fall within the jurisdiction of the
other divisions. They include civil actions arising out of
common-law liability, mainly actions in contract and tort,
for example negligence, nuisance and defamation.
There are two special courts within the Queen’s Bench
Division:
The Admiralty Court, which deals with such
matters as disputes arising out of collisions at sea and salvage
claims:
The Commercial Court, which specialises in
dealing with commercial cases. For example, cases arising
out of disputes in connection with insurance contracts are
dealt within this court by judges who have a specialised knowledge
of commercial matters.
An ordinary court of the division has power to deal with appeals
from certain tribunals such as VAT tribunals which deal with
disputes as to whether, in given circumstances, value added
tax is payable.
The Divisional court of the Queen’s Bench Division deals
with appeals from magistrates’ courts by way of case
stated. This is criminal rather than civil jurisdiction, and
so will be dealt with more fully later. It also deals with
appeals from some of the more important tribunals, appeals
from the less important tribunals being dealt with by the
ordinary court, as already indicated.
The Divisional Court has important supervisory jurisdiction
which has no parallel in either of the other two divisions.
This jurisdiction is given to the division to enable it to
prevent abuse of power by inferior courts, government departments,
administrative and domestic tribunals, other organisations,
and individuals, and is probably the most important safeguard
which a person can invoke to protect himself against injustice.
The court has authority to issue the prerogative writ of habeas
corpus, and the prerogative orders of mandamus, prohibition,
and certiorari.
Habeas corpus.
The purpose
of the writ of habeas corpus is to secure the release of a
person who has been unlawfully detained. The proceedings may
relate to either a criminal or a civil matter. In a criminal
matter a single judge can issue the writ or refer the case
to a Divisional Court of three judges. The Divisional Court
can issue or refuse the writ, and if it refuses there may
be an appeal to the House of Lords. In a civil case in which,
for example, it is alleged that a husband or father is unlawfully
detaining a wife or child, a single judge may grant or refuse
the application. If he refuses, appeal lies to the Court
of Appeal – Civil Division, and thence to the House
of Lords.
Mandamus.
A person seeking an order
of mandamus must show that the person or body against whom
he is seeking the order is failing to carry out a statutory
duty. For example, a local authority has a statutory duty
to produce accounts and to make them available for public
inspection, and if it failed to do so any ratepayer could
apply for an order of mandamus. Such an order is a command
by the court to the person or body concerned to carry out
its duty. Mandamus may also be used to compel an inferior
court or tribunal to try a case if it wrongfully refuses to
do so. The order of mandamus is a discretionary remedy, and
it is not used if there is a satisfactory alternative.
Certiorari.
The order of certiorari
is a device to bring before the Queen’s Bench Division
a case heard by, or in the process of being heard by, an inferior
court or a body, such as an administrative tribunal, which
is not a court but which is under a duty to act judicially,
where it is alleged that the inferior court or other body
had either acted outside its jurisdiction or has not had proper
regard to the principles of natural justice. What constitutes
natural justice is something which has exercised the minds
of lawyers, philosophers, and theologians for at least three
thousand years, but for present purposes the rules of natural
justice are as follows:
-No man may be a judge in his own cause. This means that if
a judge or magistrate had any personal interest in the outcome
of a case, he must play no part in hearing it. So strictly
is this rule applied that in Dimes v. Grand Junction Canal
Proprietors (1852), for example, a decision of the Lord Chancellor
was set aside because it was discovered that he held shares
in the canal company.
-The audi alteram partem rule must be observed. This means
that both parties to a case have a right to be heard, but
does not mean that both parties must in fact be heard. In
criminal cases, for example, it is for the prosecution to
prove beyond reasonable doubt that the defendant is guilty,
and there is no requirement on the defendant to prove his
innocence. The defendant is therefore at liberty to refrain
from saying anything if that is what he wishes, and his ‘right
of silence’ is equally as important as his right to
be heard. There is not necessarily a right to an oral hearing:
written evidence may be acceptable. A person has a right to
notice of the case which is to be brought against him and
a right to cross-examine witnesses. There is no inherent right
to legal representation, but if a case involves difficult
points of law it should be heard before the ordinary courts,
rather than, for example, an administrative or domestic tribunal,
and legal representation should be allowed.
In Ridge v. Baldwin (1963), the plaintiff, a chief constable,
was acquitted on a criminal charge, but the Watch Committee
subsequently dismissed him under a power which they had to
dismiss ‘any constable whom they think negligent in
the discharge of his duty or otherwise unfit for the same’.
It was held that the dismissal was void, as the plaintiff
had not been given the opportunity to answer the charges brought
against him or to appear before the Watch Committee.
-In arriving at a decision, a court or tribunal must not act
in bad faith or from some wrong motive. It must be strictly
impartial. In R. v. Bingham Justices, exparte Jowitt (1974)
the chairman of the justices, in finding a person guilty of
a speeding offence, said: ‘Quite the most unpleasant
cases which we have to decide are those where the evidence
is a direct conflict between a police officer and a member
of the public. My principle in such cases has always been
to believe the evidence of the police officer….’
On an appeal to the Divisional Court for certiorari it was
held that the attitude of the chairman was clearly biased
and the conviction was quashed.
Prohibition. As the name suggests,
prohibition is an order to prevent something being done, and
thus is the converse of mandamus. It is, however, significantly
different from mandamus in that it can be used only against
inferior courts and bodies with quasi-judicial functions.
Thus it can be used to prevent courts, tribunals, and other
bodies exceeding their judicial powers.
If the Queen’s Bench Division finds that the inferior
court or tribunal has acted outside its jurisdiction, or has
not observed the principles of natural justice, the decision
will be quashed or, where a case is still being heard, the
proceedings will be discontinued.
See also:
High
Court Judges
High Court
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