Deaton v The Attorney General and the Revenue Commissioners

• Jurisdiction: Ireland
• Judgment Date: 01 January 1964
• Court: Supreme Court
• Year: 1963
• Date: 1963

Supreme Court

Deaton v. The Attorney General and the Revenue Commissioners.

REGINALD DEATON

Plaintiff

and

THE ATTORNEY GENERAL and THE REVENUE COMMISSIONERS

Defendants.

Constitution of Ireland - Customs offence - Statutory power of Revenue Commissioners to elect for penalty - Validity of power - Power repugnant to the Constitution - Customs (Consolidation) Act, 1876 (39 & 40 Vict., c. 36),s. 188.

Plenary Summons.

The plaintiff, Reginald Deaton, was charged in the District Court on two summonses, dated the 6th March, 1959, with two offences as follows:—(a) knowingly keeping certain goods on the 27th June, 1958, at 136 Emmet Road, Inchicore, Dublin, to wit, 541 pounds of butter, the importation of which at that time was prohibited by s. 24 of the Dairy Produce (Price Stabilisation) Act, 1935, as amended by s. 8 of the Dairy Produce (Price Stabilisation) (Amendment) Act, 1938, contrary to s. 186 of the Customs Consolidation Act, 1876, and (b) being knowingly concerned in dealing with certain goods on the same date and at the same place, to wit, 541 lb. of butter the importation of which at that time was prohibited by s. 24 of the Dairy Produce (Price Stabilisation) Act, 1935, as amended by s. 8 of the Dairy Produce (Price Stabilisation) (Amendment) Act, 1938, contrary to the provisions of s. 186 of the Customs Consolidation Act, 1876.

The plaintiff sought in the High Court a declaration that such of the provisions of the Customs Acts, and in particular s. 186 of the Customs Consolidation Act, 1876, as purported to confer on the Revenue Commissioners the right to elect on the hearing of a criminal charge the punishment by way of penalty or otherwise to be imposed by the Court were inconsistent with the provisions of the constitutions both of Saorstát Éireann éireann and Ireland and were therefore invalid. He also claimed an injunction to restrain the defendant, the Attorney General, from proceeding, or attempting to proceed, with the said summonses.

Section 186 of the Customs (Consolidation) Act, 1876, which confers on the Revenue Commissioners power to elect which of the two penalties there prescribed the Court is to impose for a customs offence, is repugnant to the Constitution to the extent that the said power is an integral part of the administration of justice, and, as such, cannot be committed to the hands of the Executive.

So held by the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Lavery, Kingsmill Moore, Haugh and Walsh JJ.), reversing Kenny J.

Cur. adv. vult.

Kenny J. :—

Sect. 42 of the Customs Consolidation Act, 1876, provided that the goods enumerated and described in the table of prohibitions and restrictions in that section were thereby prohibited to be imported or brought into the United Kingdom: it also provided that any such goods imported or brought into the United Kingdom were to be forfeited.

Sect. 186 of the same Act, so far as material to the issues in this action, provided that every person who should knowingly harbour, keep or conceal any prohibited, restricted or uncustomed goods or who should be in any way knowingly concerned in carrying, removing, depositing, concealing or in any manner dealing with any such goods with intent to evade any prohibition or restriction of or applicable to such goods, "shall for each such offence forfeit either treble the value of the goods, including the duty payable thereon, or one hundred pounds, at the election of the Commissioners of Customs; and the offender may either be detained or proceeded against by summons."

The references in the Act of 1876 to the United Kingdom are now to be read as references to the Republic of Ireland and the effect of the Revenue Commissioners Order, 1923 (S.R. & O., 1923, No. 2), is that references to the Commissioners of Customs are to be read as references to the Revenue Commissioners.

Sect. 24, sub-s. 1, of the Dairy Produce (Price Stabilisation) Act, 1935, provided that it should not be lawful for any person to import into Saorstát Éireann éireann any butter save under licence. Sub-sect. 5 of that section provided that every person who imported any butter in contravention of the section was guilty of an offence under the section, and sub-s. 6 provided that s. 42 of the Customs Consolidation Act, 1876, should be construed and have effect as if butter were added to the table of prohibitions and restrictions in that section. Subsect. 6 of s. 24 of the Act of 1935 was repealed by s. 13 and the Schedule to the Customs (Temporary Provisions) Act, 1945, but its effect was reproduced by s. 2 of that Act. The Customs (Temporary Provisions) Act, 1945, was repealed by s. 12 of the Customs Act, 1956, but s. 2 of that Act provided that any goods the importation of which was, for the time being, prohibited or restricted by any enactment or statutory instrument, should be deemed to be included amongst the goods enumerated and described in the table of prohibitions and restrictions contained in s. 42 of the Act of 1876 and the provisions of the Act of 1876 were to apply accordingly.

As butter is an article whose importation was prohibited by s. 24, sub-s. 1, of the Dairy Produce (Price Stabilisation) Act, 1935, it comes within s. 2 of the Act of 1956 which added it to the list of goods prohibited from importation by s. 42 of the Customs Consolidation Act of 1876. The provisions of that Act in relation to persons dealing in prohibited goods accordingly became applicable to butter.

On the 20th October, 1958, the Revenue Commissioners ordered legal proceedings to be instituted against the plaintiff in this action under s. 186 of the Act of 1876 for being knowingly concerned in dealing with 541 lb. of butter the importation of which was prohibited by s. 24 of the Dairy Produce (Price Stabilisation) Act, 1935, with intent to evade such prohibition and the Commissioners elected to proceed for a penalty of £327 17s. 3d., being treble the value of the goods. On the same date the Revenue Commissioners ordered legal proceedings to be instituted against the plaintiff in this action under s. 186 of knowingly keeping 541 lb. of butter the importation of which was prohibited by the sections which I have quoted with intent to evade such prohibition and the Commissioners elected to proceed for a penalty of £327 17s. 3d., being treble the value of the goods.

In March, 1959, the plaintiff was served with two summonses in the District Court, in each of which the Attorney General was plaintiff. The first of these recited that a complaint had been made that the plaintiff in this action on the 27th June, 1958, at 136 Emmet Road, Inchicore, knowingly kept 541 lb. of butter the importation of which at that time was prohibited by s. 24 of the Dairy Produce (Price Stabilisation) Act, 1935, as amended by s. 8 of the Dairy Produce (Price Stabilisation) (Amendment) Act, 1938, contrary to s. 186 of the Customs Consolidation Act, 1876, and it was stated in the summons that the Revenue Commissioners elected to proceed for a penalty of £327 17s. 3d., being treble the value of the goods. The second summons recited that a complaint had been made that the plaintiff in this action on the 27th June, 1958, was knowingly concerned in dealing with 541 lb. of butter the importation of which at that time was prohibited by the sections referred to in the first summons and it was stated in the summons that the Revenue Commissioners elected to proceed for a penalty of £327 17s. 3d., being treble the value of the goods. These summonses were adjourned from time to time. On the 8th February, 1961, the Supreme Court gave judgment in Melling v. O Mathghamhna and the Attorney General(1) in which it was decided that proceedings by the Attorney General or the Revenue Commissioners under s. 186 of the Act of 1876 are criminal proceedings and are minor offences which may be tried summarily provided that a sum of not more than £100 is claimed as a penalty. By two documents, dated the 13th March, 1961, the Revenue Commissioners withdrew their election made on the 20th October, 1958, and, instead, elected to proceed for a penalty of £100 in each of the two summonses against the plaintiff in this action. I express no opinion on the validity of these two elections made after the summonses were issued as this matter is not relevant to any of the matters which have to be decided in this action.

On the 30th May, 1961, the plaintiff began this action against the Attorney General and the Revenue Commissioners, claiming a declaration that such of the provisions of the Customs Acts, and in particular s. 186 of the Act of 1876 which purported to confer on the Revenue Commissioners the right on the hearing of a criminal charge to select the punishment by way of penalty or otherwise to be imposed by the Court, are inconsistent with the Constitution and an injunction to restrain the Attorney General from proceeding with the two summonses issued in March, 1959. In this Court the...