Dervisa Osmanovic and Celebija Osmanovic v DPP, Ireland and Attorney General

• Jurisdiction: Ireland
• Judge: Murray C.J.,Mr. Justice Geoghegan
• Judgment Date: 25 July 2006
• Neutral Citation: [2006] IESC 50
• Date: 25 July 2006
• Court: Supreme Court
• Docket Number: [S.C. Nos.

OSMANOVIC & SWEENEY v DPP & ORS

BETWEEN

DERVISA OSMANOVIC

Appellant/Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND AND THE ATTORNEY GENERAL

Respondents

BETWEEN

CELEBIJA OSMANOVIC

Appellant/Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND AND THE ATTORENEY GENERAL

Respondents

BETWEEN

SAMANTHA SWEENEY

Applicant/Appellant

and

IRELAND AND THE ATTORNEY GENERAL

Respondents

and

THE DIRECTOR OF PUBLIC PROSECUTIONS AND JUDGE CATHERINE MURPHY

Notice Parties

[2006] IESC 50

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Kearns J.

440/2004

441/2004

300/2004

THE SUPREME COURT

Abstract:

Criminal law - Customs - Constitutionality - Proportionality - Finance Act, 1997, section 89(b) Whether the applications for judicial review were premature in view of the fact that the applicants had not been convicted of any offence - Whether section 89(b) of the Finance Act, 1997 was unconstitutional.

The applicants appealed against the decision of Mr Justice O Caoimh, whereby having determined that the applications were premature, he refused to grant a declaration that section 89(b) of the Act of 1997 was unconstitutional and declined to grant an order of prohibition restraining the further prosecution of the applicants in respect of alleged excise offences. The applicants submitted that insofar as section 89(b) provided for the imposition of a fine, that fine was a fixed penalty contrary to the principle of the separation of powers under the constitution. Furthermore, the applicants submitted that there was inherent in s.89(b) a wealth based discrimination and the section infringed the constitutional principle of proportionality.

Held by the Supreme Court (Murray C.J., Denham, Geoghegan, Fennelly, Macken JJ) in dismissing the appeal: That the applications were not premature.

Murray C.J. delivered the judgment in relation to the constitutional issue and held that section 89(b) did not breach the principle of the separation of powers by providing for the imposition of a fine. Furthermore, s.89(b) did not discriminate against an accused on the basis of wealth and did not infringe the principle of proportionality.

Reporter: L.O'S.

FINANCE ACT 1997 S89(b)

OSMANOVIC v DPP UNREP O CAOIMH 30.7.2004 2004/41/9393

SWEENEY v IRELAND & AG UNREP O CAOIMH 27.5.2004 2004/48/10967

CUSTOMS CONSOLIDATION ACT 1876 S186

FINANCE ACT 1963 S34

FINANCE ACT 1983 S72

FINANCE ACT 1997 S89

FINANCE ACT 1997 S90

FINANCE (EXCISE DUTY ON TOBACCO PRODUCTS) ACT 1977 S9(1)

FINANCE ACT 1963 S34(6)(c)

FINANCE ACT 1997 S90

CRIMINAL PROCEDURE ACT 1967 S13

CRIMINAL JUSTICE ACT 1999 S10

FINANCE ACT 1997 S89(b)

CAHILL v SUTTON 1980 IR 269

NORRIS v AG 1984 IR 36

DESMOND v GLACKIN (NO 2) 1993 3 IR 67

CURTIS v AG 1985 IR 458

C (C) & G (P) v IRELAND & ORS UNREP SUPREME 12.7.2005 2005/7/1439

DEATON v AG 1963 IR 170

MCILHAGGA, RE UNREP SUPREME 29.7.1971

REDMOND v MIN ENVIRONMENT 2001 4 IR 64

DPP v C (W) 1994 1 ILRM 321

DPP v KELLY 2005 1 ILRM 19

O'MALLEY LEADING CASES OF THE TWENTIETH CENTURY

1 JUDGMENT of the Court delivered the 25th day of July 2006 by Murray C.J.

Constitutional Challenge

2 Each of the above-named appellants has challenged the constitutionality of s. 89(b) of the Finance Act, 1997. The said s. 89 reads as follows:

"In s. 186 of the Customs Consolidation Act, 1876, there shall be substituted, in lieu of the penalty for each such offence specified therein (being forfeiture of either treble the value of goods including the duty payable thereon, or one hundred pounds, whichever is the greater) —"

3 (a) on summary conviction, a fine of £1,000, or at the discretion of the court, to imprisonment for a term not exceeding 12 months or to both the fine and the imprisonment,

4 (b) on conviction on indictment, a fine of treble the value of the goods, including the duty payable thereon, or £10,000, whichever is the greater, or at the discretion of the court, to imprisonment for a term not exceeding 5 years or to both the fine and the imprisonment.

Separation of Powers

5 It is suggested on behalf of the appellants that in so far as a fine may be imposed, that fine is a fixed penalty contrary to the principles of separation of powers under the Constitution. In making this submission the appellants rely on Deaton v. Attorney General [1963] I.R. 170. The Deaton case concerned a prosecution under s. 186 of the 1876 Act. That section conferred on the Revenue Commissioners power to elect which of two penalties there prescribed the court was to impose for a customs offence. This court held that that was repugnant to the Constitution to the extent that the said power was an integral part of the administration of justice and as such could not be committed to the hands of the executive. The judgment of the court was delivered by Dálaigh C.J. Contrary to the submissions made by the appellants, that judgment does not support the particular separation of powers argument which is being made on behalf of the appellants on these appeals. In the Deaton case, the court was considering a piece of legislation which had provided for alternative penalties for a revenue offence already declared to be criminal and which went on to confer on an executive authority the power to choose the penalty in any given case. It will be pointed out later on in this judgment that the penalty complained of in this case is not in fact a fixed penalty but, even if it was, nothing in the judgment of the court in the Deaton case would support any constitutional attack on it. At p. 181 of the report Ó Dálaigh C.J. had this to say:

"It is common ground that it is for the Legislature, when it creates an offence, to prescribe what punishment shall attach to the commission of such offence. It is also common ground that the Legislature may for a particular offence prescribe a single or fixed penalty, or a maximum penalty or a minimum penalty, or alternative penalties, or a range of penalties."

6 The court went on to hold that once there was a choice of penalty prescribed by the legislature, the exercise of that choice was the administration of justice and had to be carried out by a court.

7 In this case, s. 89(b) does not fix a penalty. It is not proposed to enter into any consideration therefore of what would be the position if it had. On the contrary, s. 89(b) provides for a choice of penalty that is to say, a fine of treble the value of the goods including the duty payable thereon or £10,000 whichever is the greater or "at the discretion of the court" imprisonment for a term not exceeding five years or to both the fine and the imprisonment.

8 There is clearly a multiple choice here. Even within the power to impose a prison term there is clearly the implied power to suspend all or part of that term. The prison sentence whether custodial or suspended or partly custodial and partly suspended may be the only sentence or may be combined with the fine. The selection is entirely to be made by the court. There is no question, therefore, of either the legislature or the executive fixing the punishment. Only the court exercising its judicial power does that. This court cannot accept that because there is a legislative prescription in relation to the fine option there is a breach of the principle of separation of powers. It is quite clear from the judgment of Ó Dálaigh C.J. in the Deaton case that the Oireachtas does have powers to lay down general parameters within which a sentence is to be imposed. There is no necessity in this judgment and indeed it would be wholly undesirable to consider what the limits might be (if any) on the power of the Oireachtas to provide for either fixed sentences or mandatory sentences. One could postulate extreme situations where the sentencing powers of judges were removed altogether and every offence had a mandatory sentence. The constitutionality of such a law would obviously be questionable. But it has always been accepted and indeed was accepted in Deaton that, within reason at least, the Oireachtas has power to lay down those parameters.

9 Revenue offences have traditionally attracted a somewhat different kind of sentencing culture. Penalties relating to the value of goods were not uncommon. There is nothing in the structure or content of s. 89(b) which infringes the principles of separation of powers. The Oireachtas was performing a fairly normal function in relation to a revenue offence and on the other hand in relation to the choice of sentences, the courts were to perform their normal function. Any argument that s. 89(b) is invalid having regard to the Constitution by reason of a breach of the separation of powers principle has to be rejected.

Wealth Discrimination

10 The next argument put forward in support of alleged unconstitutionality of s. 89(b) is that there is inherent in that provision a wealth based discrimination. Crudely put, the argument more or less runs that the rich are fined and the poor are sent to prison. There are several fallacies in this argument. First of all, there is nothing at all unusual about statutory offences of any kind providing for a prison sentence and / or fine. In this instance what is provided for is a fine and/or prison sentence. There is that slight difference of juxtaposition but that would be normal in a revenue offence. In the case of an ordinary offence a judge might well be dealing with somebody who had no money and would, therefore, form the view that some kind of custodial or suspended sentence would be more appropriate as otherwise there would be no punishment. If, on the other hand, the person he is sentencing has...