Charlton v Ireland

• Jurisdiction: Ireland
• Judge: Justice Murphy
• Judgment Date: 01 January 1984
• Neutral Citation: 1983 WJSC-HC 82
• Docket Number: No. 4342P/1978
• Court: High Court
• Date: 01 January 1984

1983 WJSC-HC 82

No. 4342P/1978

CHARLTON v. IRELAND

BETWEEN:

JOSEPHINE CHARLION

Plaintiff

- and -

IRELAND, THE ATTORNEY GENERAL, THE DIRECTOR Of PUBLICPROSECUTIONS AND DISTRICT JUSTICE OLIVER MACKLIN

Defendant

1 Judgment delivered by Mr. Justice Murphythis 7th day of February 1983

2 The Plaintiff is a licensed bookmaker within the meaning of the Betting Act 1931and carries on business at a number of premises in the State including 39A Connell Street Athlone in the county of Westmeath. The Plaintiff is an Irish Citizen.

3 Between June 1977 and January 1978 a total of 64 summonses were issued by the Director of Public Prosecutions against the Plaintiff alleging a variety of offences under Section 24 of the finance Act 1926and the Betting Duty (Certified Returns) Regulations 1934 ( S.I. 1934 No. 113) made under Section 25 of the 1926 Act (the 1934 Regulations).

4 The Finance Act 1926Section 24 provides there shall be charged levied and paid on and by every bookmaker who makes, lays, or otherwise enters into any bets on or after the 1st day ofNovember, 1926 am excise duty (in that Act referred to as the duty on bets) at the rates therein mentioned on the amount of every bet entered into by him on or after the said 1st day of November, 1926 in respect of the events therein specified. Sub-section 4 of that section then goes on to provide as follows:-

"Every person who fails or neglects to pay any sum payable by him in respect of the duty imposed by this section shall be guilty of an offence under this section and shall be liable on summary conviction thereof to an excise penalty of £500".

5 Section 25 of the 1926 Act empowered the Revenue Commissioners to make regulations for securing the payment of the duty on bets and generally for carrying the provisions of the 1926 Act in relation to such bets into effect. The 1934 Regulations were made in pursuance of that Statutory power. The Summonses or some of them allege offences by the Plaintiff under Section 24 of the 1926 Act and regulations 8, 18, 23 and 29 of the 1934 regulations. Those specified regulations provide asfollows:-

"8, Every bet accepted by the bookmaker in the Registered Bookmaking Office shall be included in the returns to befurnished under number 29 of these regulations."

6 18. The amount of every bet, other than a bet made by means of a telephone message, accepted in the Registered Bookmaking Office, together with the date of acceptance and the consecutive number of the relative ticket shall, not later than noon on the day following the date of acceptance, be entered separately in a book which shall be kept specially for the purpose.

7 23. The bookmaker shall furnish a return in the form prescribed by the Commissioners of all bets to which the arrangement is applicable, accepted by him on each day of the week.

8 29. Not later than the Thursday next following the week ending Saturday to which the daily returns required by number 27 of these regulations relate, the bookmaker shall forward to the Collector of Customs and Excise designated by the Commissioners for thatpurposes:

9 (a) A summary of such daily returns in the form prescribed by the Commissioners, duly certified by him or by the personauthorised by him who has been approved by the Commissioners for thatpurpose;

10 (b) all such daily returns; and,

11 (c) the amount of the duty in respect of the bets to which the arrangement is applicable accepted by him during the week to which the returns relate"

12 The Finance Act 1926Section 25 (2) provides that:-

"Every person who contravenes or fails to comply with a regulation made under this section shall be guilty of an offence under this section and shall be liable on summary conviction thereof to an excise penalty of £500".

13 It is contended on behalf of the Plaintiff that:-

14 2 1.that none of the offences of which she is charged is a minor offence within the meaning of Article 38 (2) of the Constitution and accordingly may not be tried by a Court of Summary jurisdiction.

15 (2) that if the offences do constitute minor offences triable summarily that the Plaintiff is entitled by virtue of the Constitution and the fair procedures thereby guaranteed to be furnished by the Director ofPublic Prosecutions in advance of the hearing with a statement of the evidence intended to be called by the Director on the hearing of each of the said summonses.

16 (3) that an Order of Prohibition should be granted against the fourthly named Defendant prohibiting him from hearing the Summonses at all on the basis that the offences do not constitute minor offences or alternatively prohibiting the hearing of the summonses until the Plaintiff has received the Statements of Evidence as aforesaid

17 What constitutes a "minor" offence within the meaning and for the purposes of Article 38 (2) of the Constitution has been the subject matter of a number of decided cases which were opened in the helpful arguments addressed to the Court. For convenience of reference I have listed these cases in an appendix hereto and I will refer to the relevant cases by the title of the plaintiff or defendant whereappropriate.

18 It seems to me that in reviewing the decided cases a clear distinction must be made between those in which the Court was reviewing by way of Certiorari, Consultative Case Stated or otherwise the power or discretion of a District Justice to deal withan offence which la a "Scheduled Offence" within the meaning of Section 2 of the Criminal Justice Act 1951as amended by Section 19 of the Criminal Procedure Act 1967and that those cases where the review whether by way of constitutional challenge or otherwise relates to the jurisdiction of the District Justice to deal with . a matter where the legislature purports to confer jurisdiction in positive terms on the District Justice in relation to such offences. In the 1951 Act cases, if I may so describe them, the alleged offence is by definition an Indictable one and may be tried by the District Justice only if he is of opinion that the facts proved or alleged constitute a minor offence "fit to be tried summarily" and the other conditions contained in Section 2 of the Criminal Justice Act 1951are complied with. The order in the Cunningham case and the short note of the unreserved Judgment therein (to which I was referred) may have given rise to some...