DPP v Boyle

• Jurisdiction: Ireland
• Judge: Mr. Justice Murphy
• Judgment Date: 01 January 1994
• Neutral Citation: 1992 WJSC-HC 1747
• Court: High Court
• Docket Number: [1991 No. 1063 SS],S.S. 1063/1991
• Date: 01 January 1994

DPP v. BOYLE

IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL

PROVISIONS) ACT 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

COMPLAINANT

AND

SEAMUS BOYLE

DEFENDANT

1992 WJSC-HC 1747

S.S. 1063/1991

THE HIGH COURT

Synopsis:

CRIMINAL LAW

Offence

Prosecutor - Director of Public Prosecutions - Authority - Criminal matters - Statute - Imposition of excise duty - Failure to pay duty - Imposition of excise penalty - Whether prosecution of defaulter a criminal matter - Finance Act, 1926, ss. 24, 25 - Prosecution of Offences Act, 1974, s. 3 - Finance Act, 1982, s. 69 - (1991/1063 SS - Murphy J. - 6/5/92)1994 2 IR 221 1993 ILRM 128

|Director of Public Prosecutions v. Boyle|

DIRECTOR OF PUBLIC PROSECUTIONS

Powers

Prosecution - Criminal matters - Excise duty - Payment - Failure - Excise penalty - Recovery - Authority of Director - Criminal matters - (1991/1063 SS - Murphy J. - 6/5/92) - [1994] 2 I.R. 221

|Director of Public Prosecutions v. Boyle|

REVENUE

Customs and excise

Excise duty - Payment - Failure - Excise penalty - Recovery - Prosecuiton - Authority of Director of Public Prosecutions - Criminal matters - (1991/1063 SS - Murphy J. - 6/5/92)1994 2 IR 221

|Director of Public Prosecutions v. Boyle|

WORDS AND PHRASES

"Criminal matters"

Excise duty - Payment - Failure - Excise penalty - Recovery - Prosecutor - Competence of Director of Public Prosecutions - (1991/1063 SS - Murphy J. - 6/5/92) - [1994] 2 I.R 221 1993 ILRM 128

|Director of Public Prosecutions v. Boyle|

Citations:

FINANCE ACT 1926 S24(4)

FINANCE ACT 1982 S69(1)

FINANCE ACT 1926 S25(1)

FINANCE ACT 1926 S25(2)

FINANCE ACT 1926 S24(1)

PROSECUTION OF OFFENCES ACT 1974 S3

MELLING V O MATHGHAMHNA 1962 IR 1

MCLOUGHLIN V TUITE 1986 ILRM 304

DOWNES V DPP 1987 ILRM 665

PROPRIETARY ARTICLES TRADE ASSOCIATION V AG FOR CANADA 1931 AC 310

CUSTOMS CONSOLIDATION ACT 1876 S186

DAIRY PRODUCE (PRICE STABILISATION) ACT 1935 S24(5)

INCOME TAX ACT 1967 S500

FINANCE ACT 1982 S60

FINANCE ACT 1926 S24

FINANCE ACT 1926 S25

INCOME TAX ACT 1967 S500(1)

INCOME TAX ACT 1967 S500(2)

INCOME TAX ACT 1967 S115

1 Judgment of Mr. Justice Murphy delivered the 6th day of May 1992

2 This matter comes before me by way of a Case Stated by Liam O McMenamin, a Justice of the District Court, assigned to District Number 1 sitting at a District Court in Buncrana pursuant to the provisions of Section 52 of the Courts (Supplemental Provisions) Act 1961.

3 The above-named Defendant is a registered bookmaker. On the 24th day of September 1991 14 complaints against the Defendant were brought before the learned District Justice alleging in the case of two of the Summonses a breach of Section 24 (4) of the Finance Act 1926as amended by Section 69 (1) of the Finance Act 1982and in relation to the remaining twelve complaints a breach or breaches of regulations made pursuant to Section 25 (1) of the Finance Act 1926contrary to subsection (2) of that section again as amended by Section 69 (1) of the Finance Act 1982.

4 It is Section 24 (1) which imposes on every bookmaker who "makes, lays, or otherwise enters into" any bet an excise duty at certain specified rates and then goes on in subsection (4) of that section to provide as follows:-

"(4) 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 (1) empowers the Revenue Commissioners to make regulations for securing the payment of the duty on bets and generally for the carrying out of the provisions of the Finance Act 1926and then goes on in subsection (2) of that section to provide again as follows:-

"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."

6 The penalty of £500 specified in Sections 24 and 25 aforesaid was increased by the Finance Act 1982Section 69 (1) to a sum of £800.

7 At the hearing of the complaints the objection was taken on behalf of the Defendant that the Director of Public Prosecutions was not competent to act as Complainant in the proceedings before the Court as they did not constitute "criminal matters" as had been entrusted to the Director by Section 3 of the Prosectution of Offences Act 1974.

8 It is in those circumstances that the learned District Court Judge posed the fundamental question following, namely,:-

"Is the recovery of an exise penalty under Section 25 (2) of the Finance Act 1926a criminal matter within the meaning of the Prosecution of Offences Act 1974."

9 This difficult question in turn reduces itself largely to the question whether the legislation under which the complaints in the present case were made equates more closely with the Customs Acts which were considered by the Supreme Court in Melling v. O Mathghamhna 1962 I.R. 1 or the Income Tax Acts which were considered by Miss Justice Carroll in McLoughlin v. Tuite 1986 I.L.R.M. 304 and Mr. Justice Barr in Downes v. The Director of Public Prosecutions 1987 I.L.R.M. 665.

10 In the O Mathghamhna case Kingsmill Moore J. posed the question "What is a crime?" and went on to answer that question in the following terms (page 24):-

"The anomalies which still exist in the criminal law and the diversity of expression in statutes make a comprehensive definition almost impossible to frame. "The criminal quality of an act cannot be discerned by intuition; nor can it be discovered by reference to any standard but one: Is the act prohibited with penal consequences?" said Lord Atkin in Proprietary Articles Trade Association v. Attorney-General for Canada 1931 A.C. 310, at p.324. A recent text-book, Cross and Jones, suggests as a definition: "A crime is a legal wrong the remedy for which is the punishment of the offender at the instance of the State."

11 Professor Kenny in the earlier editions of his Outlines of Criminal Law says that "crimes are wrongs whose sanction is punitive and is remissible by the Crown if remissible at all.""

12 The particular legislation under consideration in the O Mathghamhna case was the Customs Consolidation Act 1876 and in particular Section 186 thereof. That is a lengthy section which begins with the words:-

"Every person who shall import or bring, or be...