Cartmill v Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice Murphy
• Judgment Date: 01 January 1988
• Neutral Citation: 1987 WJSC-HC 186
• Docket Number: [1985 No. 5968P],No. 5968P/1985
• Court: High Court
• Date: 01 January 1988

1987 WJSC-HC 186

THE HIGH COURT

No. 5968P/1985

CARTMILL v. IRELAND & ORS

BETWEEN

ROBERT A. CARTMILL

PLAINTIFF

AND

IRELAND AND OTHERS

DEFENDANTS

Citations:

CONSTITUTION ART 38.2

GAMING & LOTTERIES ACT 1956 S4(1)(c)

GAMING & LOTTERIES ACT 1979

GAMING & LOTTERIES ACT 1956 S44

GAMING & LOTTERIES ACT 1956 S47

ROLLINSON, STATE V KELLY 1984 IR 248

CONROY V AG 1965 IR 411

MINNESOTA V MOSENG

PHEASANTRY, STATE V DONNELLY 1982 ILRM 512

INTOXICATING LIQUOR ACT 1927 S28

Synopsis:

CONSTITUTION

Trial of offences

Criminal charge - Minor offence - Test - Penalty - Severity - Defendant charged with providing facilities for gaming by means of a slot machine - On summary conviction s.44 of the Act of 1956 authorised a fine not exceeding #100 or imprisonment not exceeding three months, and also authorised both such fine and imprisonment - In addition, s.46 authorised the court of trial to revoke gaming licence of convicted person - In addition, the court of trial was authorised by s.47 to order the forfeiture of any gaming instrument used in the commission of the offence - The plaintiff was charged in the District Court with the commission of such offence contrary to s.4(1)(c) of the Act of 1956 - He obtained a conditional order of prohibition preventing the further prosecution of the charge, and then claimed in the High Court a declaration that the offence charged was not a minor offence which was triable summarily in the District Court - The plaintiff accepted that the penalties authorised by s.44 did not remove the offence charged from the category of minor offences, but he contended that the further discretionary penalties which could be imposed pursuant to ss.46 and 47 removed the offence from that category - Held, in dismissing the plaintiff's claim, that the secondary penalties authorised by ss.46 and 47 should not be taken into account in assessing the severity of the offence charged for the purpose of deciding whether or not it was a minor offence within the meaning of Article 38, s.2, of the Constitution - Held that, in any event, the value of the property to be forfeited under s.47 (and, therefore, the severity of the penalty under that section) could only be determined in the light of relevant evidence adduced in the court of trial - ~Conroy v. The Attorney General~ [1965] I.R. 411 and ~The State (Rollinson) v. Kelly~ [1984] I.R. 248 considered - Gaming and Lotteries Act, 1956, ss.4, 44, 46, 47 - Article 38 - (1985/5968 P - Murphy J. - 27/2/87) [1987] IR 192 [1988] ILRM 430

|Cartmill v. Ireland|

CRIMINAL LAW

Offence

Minor offence - Test - Penalty - Severity - Gravity of offence charged to be assessed in the light of the primary authorised penalties - Secondary discretionary penalties not relevant to issue - Provision of facilities for gaming by means of a slot machine - ~See~ Constitution, trial of offences - Gaming and Lotteries Act, 1956, ss.4, 44, 46, 47 - Constitution of Ireland, 1937, Article 38 - (1985/5968 P - Murphy J. - 27/2/87) 1987 IR 192

|Cartmill v. Ireland|

1 Judgment of Mr. Justice Murphy delivered the 27th day of February 1987.

2 This case raises once more the question as to what consitutes a "minor offence" within the meaning and for the purposes of Article 38 section 2 of the Constitution.

3 The quesion arises in this way. The Plaintiff describes himself as an amusement caterer carrying on business at Swilly Road, Buncrana, Co. Donegal. He has been prosecuted by the Director of Public Prosecutions in the District Court at Buncrana, Co. Donegal on foot of certain summonses issued between the months of June and October 1984. It is alleged that he has committed offences under sections 4 (1) (c) of the Gaming and Lotteries Act 1956. The relevant provisions of that Act are (as amended by the Gaming and Lotteries Act 1979) as follows:-

"section 4 (1)	No person shall promote or assist in promoting or provide facilities for any kind of gaming:-
	---
	(c) by means of any slot-machine".

4 On the 15th of July 1985 an interim Order was made restraining the Director of Public Prosecutions from prosecuting the charges aforesaid and that Order, or an undertaking in lieu thereof, was continued up to the date of the present hearing. No evidence was called on the hearing of the issue in the present matter but instead the Plaintiff relied upon the affidavit sworn by him grounding the applicaton for the Order of Prohibition and dated the 9th of July 1985. No evidence was tendered on behalf of the Defendants.

5 It was the contention of the Plaintiff that the offences with which he was charged did not constitute minor offences and as such could not be tried by a Court of summary jurisdiction. He further contended that section 4 aforesaid was necessarily unconstitutional insofar as it conferred upon the District Court - and the District Court only - the jurisdiction to try such offences.

6 The Plaintiff contended that the severtiy of the penalty which the Court was empowered to impose was the most significant factor in determining whether or not an offence was a minor one or otherwise. Accordingly attention was drawn to section 44 of the 1956 Act which rendered a person found guilty liable to a fine not exceeding £100 or to improsonment for a term not exceeding three months or to both such fine and imprisonment. However in addition to that penalty and the further sanction that a person might, having been convicted of an offence under the Act, lose the licence or permit permitting him to carry on certain other activities not rendered unlawful by the Act, was also subject to the provisions to section 47 of the 1956 Act which provides as follows:-

7 2 "47 (1) On a conviction for an offence against this Act the Court may order the forfeiture to the Minister of any gaming instrument used in the commission of the offence or, in case of a conviction under section 5, any gaming instrument found on the premises or at the place concerned.

8 (2) The Minister may deal with or dispose of as he thinks fit any thing so forfeited.

9 (3) The net proceeds of any thing sold by the Minister in pursuance of this section shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Finance shall direct".

10 It was not suggested that the monetary or custodial penalty would of themselves have justified the inference that the alleged offences were otherwise than minor offences. It was said that the power of the Court to forfeit the gaming instruments, not only those which were used in the offence but also those found on the premises or at the place concerned, involved a very serious punishment indeed. In the particular...