DPP v Galvin

• Jurisdiction: Ireland
• Judge: Ms Justice Ní Raifeartaigh
• Judgment Date: 19 November 2020
• Neutral Citation: [2020] IECA 319
• Docket Number: [2019 352]
• Court: Court of Appeal (Ireland)
• Date: 19 November 2020

Between/

Darragh Galvin

Appellant

and

Director of Public Prosecutions, The Attorney General & Ireland

Respondents

[2020] IECA 319

Edwards J.

Ní Raifeartaigh J.

Collins J.

[2019 352]

THE COURT OF APPEAL

Plenary action – Judicial review – Constitutional challenge to legislation – Applicant appealing against a High Court decision to convert the form of the applicant’s proceedings from a judicial review to a plenary action – Whether the trial judge erred in directing a plenary hearing of the judicial review proceedings

Facts: The applicant, Mr Galvin, stood charged with an offence under finance legislation and wished to challenge its constitutionality. The appellant commenced his constitutional challenge by way of judicial review proceedings. The High Court decided to convert the proceedings to a plenary action on foot of a motion issued by the respondents, the Director of Public Prosecutions, the Attorney General and Ireland, after the judge heard the respondents’ submission that they wished to cross-examine the applicant. The applicant appealed to the Court of Appeal against that order under two separate headings. The first was set out in the following terms: “Whether the trial judge erred in directing a plenary hearing of the judicial review proceedings, in circumstances where the standing of the appellant to bring the proceedings is accepted, for the express purpose of permitting the applicant to be cross-examined in relation to the credibility of his potential defence which, if permitted, would usurp the function of the trial judge and/or sentencing judge on any remittal of the matter once a determination of the constitutional challenge has been made, contrary to the applicant’s right to trial in due course of law under Article 38.1 of the Constitution.” The second issue was described as whether the trial judge erred in directing a plenary hearing of the judicial review proceedings under Ord. 84, rule 27(7) of the Rules of the Superior Courts (as amended) prior to an exchange of the substantive pleadings between the parties to determine the factual and/or legal issues in dispute, in light of Ord. 84, rules 18(1), 22(1) and 27(1) and the applicant’s right to fair procedures under Article 40.3 of the Constitution.

Held by the Court that it should not interfere with the decision of the High Court that the case should continue as a plenary action. The Court held that a plenary proceeding is the default position concerning constitutional challenges to legislation and that this was not a case where the primary focus was a particular administrative or judicial decision accompanied by a constitutional challenge. The Court held that the challenge to the legislation constituted the entirety of the challenge and that the trial judge was entirely correct to rule as she did.

The Court held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of Ms Justice Ní Raifeartaigh delivered on the 19th day of November, 2020

Introduction

1 This is an appeal in respect of a High Court decision to convert the form of the applicant's proceedings from a judicial review to a plenary action. The overall context is that the applicant stands charged with an offence under finance legislation and wishes to challenge its constitutionality. Among his grounds of complaint are that the legislation fails to provide a defence to a defendant even if he establishes that he did not know what he was doing was wrong; he also complains that a judge imposing sentence would not have the option of applying the Probation Act upon conviction even if satisfied that the defendant did not know he was doing something wrong at the time of the offence. There are other grounds of challenge also, but these two feature prominently. The appellant commenced his constitutional challenge by way of judicial review proceedings, and his complaint in this appeal concerns the decision of the High Court to convert the proceedings to a plenary action on foot of a motion issued by the respondents, after the judge heard the respondents' submission that they wished to cross-examine the applicant.

Background facts

2 The appellant was charged with the offence of offering for sale a specified tobacco product otherwise than in a pack which a valid tax stamp was affixed, contrary to s.78(3) and (5) of the Finance Act 2005 as amended. A summons charging the applicant with the offence issued against him on the 20 September 2017.

3 The appellant's verifying affidavit says that in 2016 he asked a friend who was travelling to Turkey to buy fifteen packets of a certain type of tobacco. He says that when his friend returned from Turkey and gave him the tobacco, he decided it was not to his liking and decided to dispose of the remaining fourteen packets by way of selling them. He said that on the 16 November 2018 he placed an advertisement in an online Facebook group called “Ballyfermot, buy, sell or swap goods”. His attempted sale of the goods was intercepted by a customs officer posing as a customer. In his affidavit in these proceedings, he says: “I voluntarily accompanied them to their vehicle and answered all of their questions. I explained how it arose that I was selling the tobacco products. I told them that I didn't realise that I was doing anything wrong and so confirm in this affidavit.”

4 At the time of the offence the appellant was unemployed. Subsequently, he started a job with An Post, and he is currently employed as a postal operative and from time to time as a postman delivering parcels. He has no previous convictions. He averred on affidavit that he was very concerned that An Post would terminate his employment if he received a conviction for an offence of this nature.

5 By these proceedings, the applicant challenges the constitutionality of the provision under which he was prosecuted (s.78(3) of the Finance Act 2005 as amended – offering for sale specified tobacco products otherwise than in a pack to which a tax stamp is affixed) and/or its compatibility with the European Convention on Human Rights. He also brings a challenge to s.126(6) of the Finance Act 2001, which removes from the trial judge the option of applying the provisions of s.1 of the Probation of Offenders Act 1907 in circumstances where a person is found guilty of the offence in question. Further, he seeks prohibition of his prosecution.

6 After some initial dates in the District Court, a hearing date in respect of the criminal charge was set down for the 21 February 2018. Leave to bring judicial review proceedings was obtained on the 19 February 2018. No statement of opposition has yet been filed. The respondents brought a motion seeking the reliefs set out below, as a result of which the High Court made an order converting the proceedings to plenary proceedings. It is that order which is under appeal.

The relief sought by the appellant in the substantive proceedings and the grounds identified in respect of those reliefs

7 The primary reliefs sought by the appellant are as follows:

The statement of grounds is quite lengthy, and it may be helpful to divide the grounds into three broad categories. The first category contains grounds where the relief is sought on the ground of alleged vagueness and/or complexity of the offence-creating provisions. In this category, the arguments appear to be more focussed upon an objective matter, namely the alleged impenetrability of the offence-creating provisions for an ordinary citizen (but not the appellant in particular). The argument appears to be primarily that a reasonable person would not know that the conduct in question constituted an offence. The following grounds appear to fall within this category:-

1. Section 78(3) of the Finance Act 2005 is unconstitutional in that it is inconsistent with Articles 38.1, 40.4.1, 40.1, 40.3 and 40.6.1° of the Constitution because its vagueness and its dense legal nature together with the requirement to read or interpret it in conjunction with other equally dense and complex provisions of the same Act is such as to fail basic requirements for the creation of a criminal offence.

2. It fails to give fair and adequate notice of the type of conduct prohibited thereby breaching the fundamental value that a person subject to the criminal law should know, or at least be able to find out, with some considerable measure of certainty, what precisely is prohibited and what is lawful.

3. It purports to create a criminal offence that is void by reason of its vagueness and/or its legal uncertainty and/or its dense legal nature.

…

6. Despite its complexity and/or its legally dense nature, it does not contain a safeguard in the form of a requirement that individuals be adequately informed of the existence of this regulatory offence.

…

8 (iv). Unlike reg. 32 of the Irish Mineral Oil Tax Regulations 2012, in respect of the keeping of marked oil, there is no requirement on the Revenue Commissioners to publish notices informing the general public that it is an offence to sell tobacco products which, while bearing a tax stamp of another country does not bear an Irish tax stamp; (emphasis added)

…

8 (vu). There is no clear and accessible source to which citizens may go to determine the elements of regulatory offences in force;

…

9. Section 78(3) of the Finance Act 2005 is incompatible with articles 6, 7 and 10 of the European Convention on Human Rights because its vagueness is such as to fail basic requirements for the creation of a criminal offence. As drafted it gives rise to arbitrariness and legal uncertainty. There is no safeguard in the form of a requirement that individuals be adequately informed of the existence of this regulatory offences. It also amounts to a disproportionate interference with the right to communicate and the right to freedom of expression.

• 1. A declaration that the provisions of section 78(3) of the Finance Act 2005 as amended are...