Forde v Her Honour Judge Alice Doyle
 IEHC 714
THE HIGH COURT
Murphy Deirdre J.
[2015 No. 151 JR]
Crime & Sentencing – The Finance Act 2002 – S. 119 of the Finance Act 2001 – Evasion of excise tax duty – Courts Service Act 1998 – Non-payment of statutorily mandated fine – Imprisonment – Certiorari – Legitimus contradictor – Breach of fair procedures
Facts: The applicant sought an order of certiorari for quashing the warrant issued by the nominee of the second respondent for imprisonment of the applicant. The applicant contended that the said nominee, being the administrative body, could not exercise judicial power to issue that warrant. The notice party contended that the nominee had issued the warrant on foot of the Court's order in relation to the applicant's default in making payment of the statutorily mandated fine.
Ms. Justice Murphy granted an order of certiorari to the applicant and thus, quashed the impugned warrant. The Court held that the representative of the second respondent did not have statutory power to issue a warrant under s. 119(3) of the Finance Act 2001. The Court further held that the power to issue a warrant rested solely with the Courts and no Court order had been in existence when the impugned warrant was issued.
This is an application for an order of certiorari quashing a warrant issued by a nominee of the County Registrar of Carlow Circuit Court directing the imprisonment of the applicant for non-payment of a statutorily mandated fine of €39,527.32 and for ancillary declaratory relief.
The applicant, Ignatius Forde is the subject of a warrant of imprisonment issued on 8th September, 2014. The first respondent is the Circuit Court judge by whom he was sentenced on 19th March, 2013. The second respondent is an independent statutory body created by the Courts Service Act 1998 whose function is to manage the courts, provide support services for the judges, provide information on the courts system to the public, provide, manage and maintain court buildings, and provide facilities for users of the courts.
The impugned warrant was issued by an employee of the second respondent. At the hearing of this application the Director of Public Prosecutions, acting as a notice party, purported to defend the actions of both respondents in the role of legitimus contradictor. It is a well established practice that where a judicial decision is sought to be impugned the Director of Public Prosecutions, as a notice party, defends the order of the court. This practice is a by-product of judicial independence. The core value of judicial independence makes it undesirable that a judge would step into the arena as a litigant to defend a judgment or decision made. Thus the practice of permitting the Director of Public Prosecutions to defend the order of a court evolved.
Such a consideration does not arise where the respondent is an independent statutory body, which is specifically authorised by statute to sue and be sued (s. 4(2) of the Courts Service Act 1998). The Court can see no reason in circumstances where the Courts Service is the respondent, that that body should not be responsible and answerable for its own actions. In this case, the Court has no evidence from either the County Registrar of Carlow Circuit Court, nor from his nominee as to the basis for and the process by which a warrant for the applicant's imprisonment was issued by that office. The Court is thus forced to rely on the hearsay evidence of an officer of the notice party who had no direct involvement in the issuing of the warrant which is now sought to be impugned. While no specific objection was taken by the applicant to the role of the Director of Public Prosecutions in defending the actions of the respondents, he did complain of the absence of direct evidence from those who had issued the warrant of imprisonment. The Court observes that in circumstances such as obtained in this case it is not appropriate for the Director to seek to defend the actions of another independent statutory body, the Courts Service. Having chosen to do so, the Director, as a minimum, should have ensured that direct evidence from the court officials who issued the impugned warrant was placed before the Court.
On 7th May, 2008, officials of the Office of Customs Investigations attended at the premises of Sleaty Distribution Limited, a company of which the applicant was company director, to carry out an inspection on excisable products on the premises pursuant to s. 136(3) of the Finance Act 2001. During the inspection, one of the officers noted large quantities of beer in one warehouse and additional beer and wine in an adjacent warehouse. When asked to produce the relevant documentation for these items, the applicant stated that the beer in question, which amounted to 7484.4 litres, had been obtained from a local supplier. Contact with the named supplier revealed to the customs officer that it had not supplied the beer to Sleaty Distribution Limited. When confronted with this information, the applicant admitted that the beer had been purchased in Holland and had come into the State without payment of the relevant excise duty. Similarly, a large quantity of wine, amounting to 661.5 litres, had been supplied by a Spanish trader without payment of the relevant excise duty. The wine and beer were seized and the applicant was charged with evasion of excise duty contrary to s. 119(2) and s. 119(3) of the Finance Act 2001 as amended by s. 138 of the Finance Act 2002.
The applicant came before Carlow Circuit Court on 11th December, 2012, where he was arraigned and pleaded guilty to count no. 2 on the indictment. The particulars of the offence were as follows:-
‘That you, Ignatius Forde on the 7th day of May 2008 at Barrowside Business Park, Sleaty Road, Graiguecullen in the county of Carlow were concerned in the evasion of excise duty on excisable products, namely 7,484.4 litres of beer and 661.5 litres of wine upon which a duty of excise was for the time being payable, with intent to defraud, either directly or indirectly, the State of such duty.’
He was remanded on bail for sentencing on 19th March, 2013.
The applicant was sentenced in the Circuit Court on 19th March, 2013, pursuant to s. 119 of the Finance Act 2001 which provides:-
‘(1) It is an offence under this subsection for any person to take possession, custody or charge of, or to remove, transport, deposit or conceal, or to otherwise deal with, excisable products in respect of which any duty of excise is for the time being payable, with intent to defraud, either directly or indirectly, the State of such duty.
(2) It is an offence under this subsection for any person to be concerned in the evasion or attempted evasion of a duty of excise on excisable products with intent to defraud either directly or indirectly the State of such duty.
(3) Without prejudice to any other penalty to which a person may be liable, a person convicted of an offence under this subsection is liable–
(a) on summary conviction, to a fine of £1,500, or, at the discretion of the court, to imprisonment for a term not exceeding 12 months or to both,
(b) on conviction on indictment, to a fine of 3 times the value of the excisable products concerned, including any duty or tax chargeable 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.’
While s. 119(3) sets out a formula for assessing the fine payable by a convicted person, s. 130(3) of the same act confers on the Court a discretion to mitigate the fine or penalty imposed by a maximum of 50%. In the instant case, the value of the excisable products concerned came to a total of €26,351.55, three times the value of same being €79,054.65, which if mitigated to the maximum 50%, provided for a statutorily mandated minimum fine of €39,527.32.
During the sentencing hearing on 19th March, 2013, counsel for the applicant specifically requested that the court impose a fine rather than a custodial sentence. In his plea in mitigation, submissions were made on behalf of the applicant to the court requesting that the minimum permissible fine be imposed. Counsel for the applicant referred to the applicant's income and to the fact that his wife was entirely reliant on him. It was brought to the attention of the court that the applicant was a self-employed accountant. There was reference to the applicant's previous fraud convictions and to the irrelevance for the purpose of sentencing, of a conviction subsequent to these events. It was submitted a fine was more appropriate than a term of imprisonment. Based on his income and his age, being 60 at the time of sentencing, counsel for the applicant specifically requested the court to allow twelve months for payment of the fine and to exercise its discretion to reduce the mandatory statutory fine by 50%. Taking into account his financial and personal circumstances, the Circuit Court judge adopted the course proposed by counsel for the applicant and imposed the following sentence:-
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