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On the appeal, however, the Court held that the section was clearly directed
to the protection of persons from infection, and not only to the protection of
the infected person himself, and that the Justices ought to have made an order
for the removal of the boy.
Queen v. Davey.
In the case of the Queen v. Davey,* a further point was decided, namely, that
an order for removal may be made by a Magistrate ex parte as urgent, provided it
is made upon a certificate or certificates in proper form. This case was heard in
the Queen's Bench Division, before Mr. Justices Darling and Channell, on 2nd
May, 1899, on a rule for a mandamus to Justices of Glamorganshire to state a case
for the opinion of the Court, upon the hearing of an information preferred by the
Inspector of Nuisances to the Margam Urban District, against Mary Hannah
Skryne, for obstructing the execution of an order, based on the certificate of a
duly certified medical practitioner, for the removal of Ada Olive Skryne, suffering
from a dangerous infectious disorder—to wit, scarlet fever, and being then without
proper lodging or accommodation—to a suitable hospital. Section 124 of the
Public Health Act, 1875, provides that if it shall appear on the certificate of a
medical man that a child is labouring under an infectious disorder, and that the
parents are in want of proper accommodation, a Magistrate may make an order for
removing the child to a hospital.
Mr. S. T. Evans appeared to show cause against the rule, and said it was
contended on the other side that an order made ex parte without the parents of the
child having been heard could not be impeached, and that a magistrate on a formal
Report, without any personal examination of the accommodation in the house and
without hearing any evidence thereon, could make an order for removal. Such a
proposition was contrary to the general principles of law. There was a decision
that diseased meat could be condemned on an ex parte application, but when it
came to condemning the butcher who had it it was then necessary to hear what he
had to say. Following the analogy it was possible that, though the child might
be removable at once on the ex parte order, yet that the parent could not be
convicted without a hearing. The facts of this particular case showed how hardly
the system might work.
Mr. Ryde, appearing in support of the rule, relied on the case of "Booker
v. Taylor" (reported in "The Times," November 21, 1882), and contended that
the Justices could not inquire into the facts on which the order was made. The
following cases were also referred to:—"White v. Redfern" (5 Q.B.D., 15),
"Vintner v. Hind" (10 Q.B.D., 63), "Waye v. Thompson" (1 Q.B.D., 342).
The Court, in the result, upheld the principle that the Justices could not go
behind the order, but, in their discretion, discharged the rule for the case to be
stated.
Mr. Justice Darling said that in this case it appeared that the mother of a
child ill with scarlet fever had allowed the child to be taken to a hospital. After
* "The Times," 3rd May, 1899.