Attorney General v Healy

• Jurisdiction: Ireland
• Judgment Date: 01 January 1928
• Date: 01 January 1928
• Court: High Court (Irish Free State)

High Court.

Attorney-General v. Healy.

ATTORNEY-GENERAL

Complainant

MOIRA HEALY

Defendant.

Customs Acts - Offence - Procedure in the District Court - Whether an information in writing necessary - Complainant - Whether Attorney-General or officer of Customs and Excise - Preliminary objection to jurisdiction of District Justice - Not taken by defendant but by District Justice - Whether objection waived - Power to make rules for the District Court - Extent of powers conferred - Customs Consolidation Act, 1876 (39 & 40 Vict. c. 36), sect. 186 - Customs and Inland Revenue Act, 1879 (42 & 43 Vict. c. 21), sect. 11 - Courts of Justice Act, 1924 (No. 10 of 1924), sects. 21, 22, 77, 78, 90, and 91 - Criminal Justice (Administration) Act 1924 (No. 44 of 1924), sect. 9, sub-sect. 2 -District Court Rules, 1926, rr. 8, 58, and 60.

Case Stated by Edward J. Little, Esq., one of the Justices assigned to the District Court Area of Dublin Metropolitan District (No. 31), for the purpose of obtaining the opinion of the High Court, pursuant to sect. 83 of the Courts of Justice Act, 1924 (No. 10 of 1924), on questions of law, which arose before him as hereinafter stated. The following is the case stated:—

"At a sitting of Court No. 1 of the District Court for the said area at Inns Quay, Dublin, on the 3rd February, 1927, and by subsequent adjournments to the 3rd March, 1927, the respondent, Moira Healy, appeared before me as District Justice, then and there sitting, charged upon a complaint by proceedings instituted by issue of a summons, which said summons is in the words and figures following:—

'Complainant: The Attorney-General of Saorstát Éireann éireann.

Defendant: Moira Healy.

District Court Area of Dublin

Metropolitan District (No. 31).

Whereas a complaint has been made to me that you, on the 15th day of September, 1926, at Carlisle Pier, Dun Laoghaire, within said District, did illegally import goods liable to duty, to wit: five ladies' dresses, valued at nine pounds eighteen shillings and sixpence, which had not been paid or secured, contrary to sect. 186 of the Customs Consolidation Act, 1876, and were knowingly concerned in dealing with said goods with intent to defraud the State of the duties due thereon; whereby, and by force of the said Act, you are liable in respect of such offence to forfeit either treble the value of the goods, including the duty payable thereon, or £100, at the election of the Revenue Commissioners:

This is to command you to appear as defendant on the hearing of the said complaint at the Metropolitan District Courthouse, Inns Quay, Court No. 1 in said District, on the 3rd day of February, 1927, at 2 o'clock p.m., before one of the Justices for the time assigned to the said District.

Dated this 14th day of January. 1927.

(Signed) Thomas F. Stack, Chief Clerk of the District Court for said District.

'To the above-named defendant,

of 126 Stephen's Green, W., Dublin.'

"The substance of the above charge had been duly entered in the appropriate column in the Justices' Minute Book, as required by sect. 70 of the Dublin Police Act, 1842 (5 & 6 Vict. c. 24). Mr. Charles Bewley K.C. appeared for the complainant, the Attorney-General; the defendant, Moira Healy, who was not represented by either counsel or solicitor, appeared in person.

On reading the summons it appeared to me that the proceedings were wholly misconceived, and that certain preliminary objections to my jurisdiction to hear the charge existed; and, in the absence of any legal representation on behalf of the defendant, I felt bound to take, and accordingly did so take, the several objections as understated; and as a result of the determinations to which I came, as set out below, I decided that, until I had first referred the questions of law arising on the procedure adopted by issue of the summons, its form and contents, to the High Court for determination, I could not assume seisin of the case. Three other summonses at the suit of the said complainant against various different defendants, framed in like terms, and in respect of similar offences under sect. 186 of said Customs Consolidation Act, 1876, and sect. 16 of the Finance Act, 1925 (No. 28 of 1925), as amended by sect. 13 of the Finance Act, 1926 (No. 35 of 1926), alleged to have been committed at various dates at Carlisle Pier, Dun Laoghaire, aforesaid, were also listed before me for hearing at the same time and place; and it was agreed that, as the same questions of law arose in respect of all the summonses, those latter should stand adjourned pending the decision of the High Court on this case stated. [Short particulars of these summonses were set out in the schedule to the case stated.]

1. The first objection appeared to me to be that no information had been exhibited before a Justice to ground the issue of the summons. I referred Mr. Bewley to sects. 218 to 242 (inclusive) of the Customs Consolidation Act, 1876 (39 & 40 Vict. c. 36), being the procedure sections contained in the Customs Code for recovering penalties, enforcing forfeitures, and punishing offenders under the Customs Acts.

I pointed out that the exhibiting of the information formed the basis of the procedure in Customs prosecutions, and that all subsequent steps are determined by reference to the information, the charge contained therein, and the parties named therein. In particular, I referred to sects. 218, 223, and 224 of the said Customs Consolidation Act, 1876. As to sect. 218, I pointed out that, whilst it was repealed by sect. 14 of the Customs and Inland Revenue Act, 1879 (42 & 43 Vict. c. 21), and sect. 11 of this latter Act was incorporated in the Customs Consolidation Act, 1876, so as to take the place of sect. 218 of the Act of 1876, yet the provision which was contained in the Act of 1876, whereby the institution of all prosecutions before Justices is to be based upon information, remains undisturbed under sect. 11 of the Act of 1879; that sect. 223 of the Customs Consolidation Act, 1876, is precise as to the use of the several forms contained in Schedule C to the said Act in Customs prosecutions before Magistrates, including the forms of information, summons, convictions, condemnations, and warrants; and that sect. 224 provides that, in those cases in which procedure by summons is prescribed, no time limit shall affect the right to issue the summons, provided that within three years next after the commission of the offence the information has been duly exhibited, as prescribed by sect. 257 of the said Act; that, by the provisions of sect. 35 of the Summary Jurisdiction (England) Act, 1848 (11 & 12 Vict. c. 43), applicable to England, and sect. 42 of the Petty Sessions (Ireland) Act, 1851 (14 & 15 Vict. c. 93), applicable, outside the Dublin Metropolitan Police District, to Ireland generally, and sect. 78 of the Dublin Police Act, 1842 (5 & 6 Vict. c. 24), applicable to the area comprised in the Dublin Metropolitan Police District, offences justiciable before a Court of summary jurisdiction under the Customs and Excise Codes were expressly excluded from the summary procedure prescribed by these Acts; that by sect. 53 of the Summary Jurisdiction Act, 1879 (42 & 43 Vict. c. 49), it was, however, expressly enacted that, as respects England, the Acts of 1848 and 1879— Summary Jurisdiction Acts—and any Acts amending these Acts respectively, should, notwithstanding any special provision to the contrary contained in any statute relating to the Customs and Excise revenue, apply to all informations, complaints, and other proceedings before a Court of summary jurisdiction; and accordingly, as respects England, the procedure before Justices for Customs offences is mainly now regulated by these Acts, as amended by the Criminal Justice Administration Act, 1914 (4 & 5 Geo. 5, c. 58); but that, as respects Ireland, the procedure under the Customs Consolidation Act, 1876, as above indicated, was still in force in Ireland, and so remained up to the date of the signing of the Treaty between Great Britain and Ireland, on the 6th December, 1921. See R. (M'Barron) v. Fermanagh Justices(1), and Highmore on Customs, 3rd edit. (1922), p. 262.

For the law, practice, and procedure in relation to the revenue of Customs and Excise from and after the date of the setting up of the Constitution of the Irish Free State, I referred to the Constitution of the Irish Free State (Saorstát Éireann éireann)Act, 1922 (No. 1 of 1922), Schedule 1, Art. 73, whereby it is enacted that:—'The laws in force in the Irish Free State at the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas.' It further seemed to me that the sole repeals or amendments by enactments made by the Oireachtas affecting the law, practice, and procedure in relation to the revenue of Customs and Excise are to be found in the following provisions, viz.:—

Section 6 of the Adaptation of Enactments Act, 1922 (No. 2 of 1922), prescribing that the powers of Justices of the Peace and Resident Magistrates were to be exercised by District Justices; sect. 7 of the same Act, prescribing the powers of the Executive Council to establish Commissioners to function in the Saorstát Éireann; éireann; and sect. 12 of the same Act, whereby the Executive Council is empowered from time to time by Order to make all such general or specific adaptations of or modifications in any British statute as should be necessary to enable such statute to have full force and effect in Saorstát Éireann; éireann;and in reference to the exercise of these powers, I refer to the Revenue Commissioners Order, 1923 (Stat. R. and Or. No. 2 of 1923), being an Order of the Executive Council establishing

the Revenue Commissioners; and Art. 8 of the Inland Revenue (Adaptation of Taxing Acts) Order, 1923 (Stat. R. and Or. No. 4 of 1923),

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