Attorney-General v Duff [High Court.]

• Jurisdiction: Ireland
• Judgment Date: 13 June 1941
• Date: 13 June 1941
• Court: High Court

High Court.

Attorney-General v. Duff.

THE ATTORNEY-GENERAL

Complainant

and

GERALD DUFF, Defendant (1)

Emergency legislation - Emergency Order - Construction - Order having effect of imposing heavier penalties than those specified in Emergency Powers Act, 1939 - Validity of Order - Export of specified goods prohibited"otherwise than under . . . licence" - Onus of proof - Whether complainant must prove non-existence of licence - Emergency Powers Act,1939 (No. 28 of 1939), s. 2, sub-s. 2 (p), s. 5, sub-s. 6 - Scrap Iron (Control of Export) Act, 1938 (No. 6 of 1938), s. 3, sub-s. 3 - Emergency Powers Order, 1939, (Stat. R. & Or. 1939, No. 224) Art. 31 - Emergency Powers (Control of Export) Order, 1940 (Stat. R. & Or. 1940, No. 149), Art. 3 - Emergency Powers (No. 52) Order, 1940 (Stat. R. & Or. 1940, No. 282),Arts. 3 and 4 - County Officers and Courts (Ir.) Act, 1877 (40 & 41Vict. c. 56), s. 78.

Case Stated by the District Justice assigned to the District Court Area of Monaghan for the opinion of the High Court.

The Emergency Powers Act, 1939, s. 2, authorises the Government by means of Orders known as "Emergency Orders" to make provision for (inter alia) the control of supplies and of exports. Sect. 2, sub-s. 3, of the Act authorises the Government by Emergency Orders to empower a Minister to make Emergency Orders for specified purposes. Sect. 5 of the Act provides that any person who contravenes or attempts to contravene a provision in an Emergency Order shall "(a) On summary conviction thereof, be liable to a fine not exceeding one hundred pounds . . . or, at the discretion of the Court, to

imprisonment for a term not exceeding six months or to both such fine and such imprisonment."

Acting in pursuance of the provisions of s. 2, sub-s. 3, of the Act, the Government by Art. 31 of the Emergency Powers Order, 1939, authorised a Minister by Order to provide "for regulating, restricting or prohibiting" imports and exports and to "prohibit the doing of anything regulated by the Order except under the authority of a licence granted by such authority or person as may be specified in the Order." Art. 3 of the Emergency Powers (Control of Export) Order, 1940 (an Order made by the Minister of Supplies in exercise of the powers conferred upon him by Art. 31 of the Emergency Powers Order, 1939) provides that "(1) Subject to the provisions of this Article, no person shall export any scheduled articles unless —(a) such scheduled articles are exported under and in accordance with a licence issued by a Minister under this Order, and (b) such licence is prior to exportation delivered to the appropriate officer." The expression "scheduled articles" is defined by reference to a schedule to the last-mentioned Order, in which schedule "vehicles" are included. By Arts. 3 and 4 of the Emergency Powers (No. 52) Order, 1940, the provisions of s. 3, sub-ss. 2 and 3, of the Scrap Iron (Control of Export) Act, 1938, were applied to the exportation of articles in contravention of an Order made under Art. 31 of the Emergency Powers Order, 1939. Sect. 3, sub-s. 3, of the Scrap Iron (Control of Export) Act, 1938, provides that the provisions of that section relating to the prohibition of the exportation of articles "shall have effect as though those provisions were included in the Customs Consolidated Act, 1876, and that Act and any Act amending or extending that Act shall apply accordingly, and if any person shall export or attempt to export any article in contravention of this section or bring or be in the act of bringing any article to any . . . place whatsoever for the purpose of such exportation or attempted exportation, or shall aid or abet such exportation or attempted exportation, such person shall be liable to the same penalties...