Abbey Films v Attorney General

• Jurisdiction: Ireland
• Judgment Date: 01 January 1981
• Date: 01 January 1981
• Docket Number: [1976 No. 5281P]
• Court: Supreme Court

Abbey Films v. The Attorney General

Abbey Films Limited

Plaintiff

and

The Attorney General, Ireland and Austin Kennan

Defendants

[1976 No. 5281P]

High Court

Supreme Court

Constitution - Statute - Validity - Restrictive trade practices - Exercise of examiner's powers - Whether vitiated by bias - Obstruction of examiner an offence unless his requirements not warranted by exigencies of the common good - High Court to decide whether requirements warranted - Separation of powers - Onus of proof on accused - Time at which offence committed - Restrictive Practices Act, 1972 (No. 11), ss. 14, 15 - Constitution of Ireland, 1937, Articles 6, 15, 38, 40.

Section 14 of the Act of 1972 empowers the Examiner of Restrictive Practices to investigate any aspect of the supply or distribution of goods, or the provision of a service, and to investigate any aspect of the operation of fair trading rules. Section 15 provides that an authorised officer may enter and inspect business premises and require the person carrying on the business to produce documents relating to the business and to give to the officer such information as he may reasonably require. Sub-section 4 of s. 15 states that, subject to sub-s. 3, a person who obstructs or impedes an authorised officer or who does not comply with such requirement shall be guilty of an offence. Sub-section 3 of s. 15 states that where a person refuses access to such officer, or refuses to comply with a request, he shall within seven days apply to the High Court for a declaration that "the exigencies of the common good" do not warrant the exercise of the examiner's powers; the sub-section further states that, if such declaration is made, the examiner shall withdraw the relevant requirement.

The examiner received complaints that independent cinema owners were unable to obtain a fair share of the best films for exhibition in their cinemas. He discovered that the plaintiff company was a distributor of cinematograph films and that two of its directors were directors of a company which controlled 40 cinemas. During the course of his investigations, the examiner took part in newspaper and radio interviews in which he stated his intention to include in his report to the Restrictive Practices Commission a recommendation that an enquiry be held under the provisions of the Act of 1972. On the 23rd November, 1976, an authorised officer called at the plaintiff's business premises and requested to see the plaintiff's records relating to the distribution of three specified cinema films. The plaintiff refused to allow that inspection and brought an action in the High Court seeking a declaration that the provisions of s. 15 of the Act of 1972 were invalid having regard to the provisions of the Constitution or a declaration pursuant to s. 15, sub-s. 3, of that Act that the exigencies of the common good did not warrant the exercise of the examiner's powers.

Held by McWilliam J., in giving judgment for the plaintiff, 1, that no offence is committed under sub-s. 4 of s. 15 of the Act of 1972 where the procedure under sub-s. 3 of that section is adopted and that, accordingly, the provisions of s. 15 did not contravene Article 15, s. 5, of the Constitution which states that the National Parliament shall not declare acts to be infringements of the law which were not so at the date of their commission.

2. That, assuming the plaintiff company to be a citizen and its business premises to be a dwelling within the meaning of Article 40 of the Constitution, the statutory power given to an authorised officer by sub-s. 1(a) of s. 15 of the Act to enter and inspect premises, without a court order or a warrant, did not contravene the provisions of Article 40 of the Constitution.

3. That the exigencies of the common good did not warrant the exercise by the examiner of the powers conferred on him by s. 15 of the Act of 1972 as he had not conducted his investigation in an impartial manner.

On appeal by the defendants it was

Held by the Supreme Court, 1, that an offence under sub-s. 4 of s. 15 of the Act of 1972 is committed when the relevant act or omission occurs, unless a declaration is made subsequently pursuant to sub-s. 3 of that section, and so the provisions of sub-ss. 3 and 4 of that section do not contravene the provisions of Article 15, s. 5, of the Constitution.

2. The provisions of sub-s. 3 of s. 15 which impose on the applicant the onus of establishing that the exigencies of the common good do not warrant the exercise of the examiner's powers are not an infringement of the personal rights mentioned in Article 40, s. 3, of the Constitution.

3. The conferment on the High Court, by sub-s. 3 of s. 15, of a jurisdiction to assess the exigencies of the common good does not contravene Article 6 of the Constitution which recognises the general principle of the separation of the powers of the legislature, the executive and the judiciary; and the exercise of that jurisdiction does not result in the creation by the court of an offence.

4. The powers conferred by s. 15 of the Act of 1972 do not infringe the rights relating to private property which are guaranteed by Article 43 of the Constitution.

Held further by the Supreme Court (O'Higgins C.J., Henchy, Griffin, Kenny and Parke JJ.), in allowing the appeal, that the matters discovered by the examiner before the 23rd November, 1976, in relation to the renting or distribution of cinematograph films in Ireland disclosed a position which required further investigation and that, on that date, the exigencies of the common good warranted the exercise of the examiner's powers, and that that fact was not affected by the manner in which the examiner had conducted his investigation.

Cases mentioned in this report:—

¹ East Donegal Co-Operative v. The Attorney General [1970] I.R. 317.

² McDonald v. Bord na gCon [1965] I.R. 217.

³ The State (Healy) v. Donoghue [1976] I.R. 325.

⁴ In re Haughey [1971] I.R. 217.

⁵ Pigs Marketing Board v. Donnelly (Dublin) Ltd. [1939] I.R. 413.

⁶ Attorney General v. Southern Industrial Trust Ltd. (1957) 94 I.L.T.R. 161.

⁷ The State (C.) v. The Minister for Justice [1967] I.R. 106.

⁸ Buckley and Others (Sinn Féin) v. The Attorney General [1950] I.R. 67.

⁹ Foley v. Irish Land Commission [1952] I.R. 118.

¹⁰ Cowan v. The Attorney General [1961] I.R. 411.

¹¹ Deaton v. The Attorney General [1963] I.R. 170.

¹² Central Dublin Development Association v. The Attorney General (1969) 109 I.L.T.R. 69.

¹³ McGee v. The Attorney General [1974] I.R. 284.

¹⁴ O'Brien v. Keogh [1972] I.R. 144.

¹⁵ Byrne v. Ireland [1972] I.R. 241.

¹⁶ Moynihan v. Greensmyth [1977] I.R. 55.

Plenary Summons.

The facts have been summarised in the head-note and they appear in the judgments, infra. At all material times the third defendant was the Examiner of Restrictive Practices. By plenary summons issued on the 29th November, 1976, the plaintiffs claimed (a) a declaration that the provisions of s. 15 of the Restrictive Practices Act, 1972, were, in whole or in part, repugnant to the Constitution and invalid; (b) in the alternative, a declaration that the purported exercise, in relation to the plaintiffs or their business, by the third defendant and his authorised officers on the 23rd November, 1976, of the powers conferred on them by s. 15 was void by reason of their failure to comply with sub-s. 2 of that section; (c) in the further alternative, a declaration pursuant to sub-s. 3 of s. 15 that the exigencies of the common good did not require the exercise by the third defendant of the said power in relation to the plaintiffs or their business.

Sections 14 and 15 of the Restrictive Practices Act, 1972, provide:—

"14.—(1) The Examiner may and, at the request of the Minister, shall—

• (a) investigate any aspect of the supply or distribution of goods or of the provision of a service,

• (b) investigate any aspect of the operation of an order under this Act,

• (c) investigate in the State any aspect of the supply or distribution of goods or the provision of a service by a person outside the State.

(2) The Examiner may investigate any aspect of the operation of fair practice rules.

15.—(1) For the purpose of obtaining any information necessary for the exercise by the Examiner of any of his functions under this Act, an authorised officer may, on production of his authorisation if so required—

• (a) at all reasonable times enter and inspect premises at which any activity in connection with the business of supplying or distributing goods or providing a service, or in connection with the organisation or assistance of persons engaged in any such business, is carried on,

• (b) require the person who carries on such activity and any person employed in connection therewith to produce to the authorised officer any books, documents or records relating to such activity which are in that person's power or control, and to give to the authorised officer such information as he may reasonably require in regard to any entries in such books, documents and records,

• (c) inspect and copy or take extracts from any such books, documents and records,

• (d) require a person mentioned in paragraph (b) to give to the authorised officer any information he may require in regard to the person carrying on such activity (including in particular, in the case of an unincorporated body of persons, information in regard to the membership thereof and its committee of management or other controlling authority) or employed in connection therewith,

• (e) require a person mentioned in paragraph (b) to give to the authorised officer any information which the officer may reasonably require in regard to such activity.

(2) Before exercising any powers conferred on him by virtue of this section, an authorised officer shall inform the owner of premises referred to in subsection (1) (a) or a person mentioned in subsection (1) (b) (as the case may be)—

• (a) of the powers of an...