Galvin v The Director of Public Prosecutions and Another

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Edwards,McCarthy J,Kennedy J
• Judgment Date: 29 July 2024
• Neutral Citation: [2024] IECA 256
• Docket Number: Record No. 2023 297

Between/

Darragh Galvin

Appellant

and

The Director of Public Prosecutions, The Attorney General, and Ireland

Respondents

and

The Irish Human Rights and Equality Commission

Notice Party

[2024] IECA 256

Edwards J.

McCarthy J.

Kennedy J.

Record No. 2023 297

THE COURT OF APPEAL

Constitutionality – Undue complexity – Strict liability – Appellant seeking a declaration that s. 78(3) of the Finance Act 2005 is unconstitutional – Whether the High Court judge erred in finding that s. 78(3) of the Finance Act 2005 was not complex or unclear

Facts: The appellant, Mr Galvin, appealed to the Court of Appeal against the judgment of the High Court dated the 24th of October 2023 and consequent order thereto, perfected on the 25th of October 2023, by which judgment and consequent order the appellant’s claim for certain reliefs sought by way of judicial review was dismissed. The reliefs which the appellant sought included inter alia declarations to the effect that s. 78(3) of the Finance Act 2005, as well as s. 126 of the Finance Act 2001 and/or s. 78 of the Finance Act 1984 are unconstitutional and are incompatible with certain provisions of the European Convention of Human Rights (ECHR). By a Notice of Appeal dated the 21st of November 2023, the appellant advanced sixteen grounds of appeal: that the High Court judge erred in finding that s. 78(3) of the 2005 Act was not complex or unclear (ground nos. 1 to 6); that the High Court judge erred in finding that the appellant’s fair trial rights under the Constitution and the ECHR would not be infringed by the strict liability nature of the offence and absence of a requirement on the prosecution to demonstrate mens rea (ground nos. 7 to 10); that the High Court judge erred in finding that the removal of the applicability of s. 1(1) of the Probation of Offenders Act 1907 was not irrational or disproportionate and that its inapplicability or otherwise would not have a material difference to a conviction in the circumstances of the case (ground nos. 11, 12, 15 and 16); and that the High Court judge erred (i) in failing to take account of all the evidence adduced by or on behalf of the applicant in relation to the possibility that a conviction for an offence contrary to s. 78(3) of the 2005 Act could lead to the applicant’s dismissal from his employment, and (ii) in failing to acknowledge or accept that a sentencing court need only be satisfied in relation to this potential consequence that there was a reasonable doubt that the appellant’s employment might be at risk as a result of a conviction (ground nos. 13 and 14).

Held by the Court that, in asserting constitutional inoperability of s. 78(3) of the 2005 Act on the basis of complexity and/or vagueness and/or confusion, the appellant had been attempting to assert a jus tertii, something that he could not do - per Cahill v Sutton [1980] I.R 269. The Court was satisfied that the offence created by s. 78(3) of the 2005 Act must be regarded as an offence of strict liability. The Court was satisfied that there was nothing unconstitutional about the fact that such an offence was a strict liability offence. So much of the appellant’s claim as was based on inability to obtain a trial in due course of law, and which was being attributed to the absence of a mens rea component to the offence, was in the Court’s view nothing more than an attempt to assert a jus tertii. The Court was satisfied that there was nothing irrational or disproportionate and nothing unconstitutional, or comprising a breach of the appellant’s rights under the ECHR, in the Oireachtas providing that a person guilty of an offence under s. 78(3) of the 2005 Act should not be able to rely on the provisions of s. 1(1) of the 1907 Act. The Court accepted the submissions of counsel for the respondents as to the untenability of the arguments advanced by the appellant with respect to alleged disproportionate interference with, and potential prejudice to, his right to work.

The Court dismissed the appeal.

Appeal dismissed.

Approved Judgment

No Redaction Needed

JUDGMENT of Mr. Justice Edwards delivered on the 29 ^th of July 2024 .

Introduction

1 . The subject of the present judgment is an appeal brought by Mr. Darragh Galvin (i.e., “the appellant”) against the judgment of the High Court (Quinn J.) dated the 24 ^th of October 2023 and consequent order thereto, perfected on the 25 ^th of October 2023, by which judgment and consequent order the appellant's claim for certain reliefs sought by way of judicial review was dismissed.

2 . The reliefs which the appellant sought included inter alia declarations to the effect that s. 78(3) of the Finance Act 2005 (i.e., “the Act of 2005”), as amended, as well as s. 126 of the Finance Act 2001 (i.e., “the Act of 2001”) and/or s. 78 of the Finance Act 1984 (i.e., “the Act of 1984”) are unconstitutional and are incompatible with certain provisions of the European Convention of Human Rights (i.e. “ECHR”). The precise reliefs which the appellant sought will be described in greater detail in the course of this judgment.

Factual Background

3 . The factual background giving rise to the present proceedings may be ascertained from the sworn affidavit of Mr. Galvin dated the 16 ^th of February 2018, the evidence of Mr. Galvin tendered in the court below on the 19 ^th of October 2023, as well as the various statements of evidence which were disclosed by the prosecution on the 1 ^st of December 2017, the amended Statement of Grounds filed the 26 ^th of February 2018, and the Replies to Notice for Particulars filed the 3 ^rd of September 2021. The facts of the case are as such:

4 . The appellant is a postal operative and employee of An Post since in or around April 2017. In or around July 2016, a friend of the appellant had returned from a trip to Turkey and had brought with him tobacco product, to wit fifteen packets or pouches of Golden Virginia fine cut rolling tobacco, which he provided to the appellant in exchange for €150 (on average €10 per packet). The appellant, having opened one of the fifteen said packets and being dissatisfied with the smell of the tobacco (he stated in his oral testimony before the court below on the 19 ^th of October 2023 that the tobacco smelt like “ chocolate”), sought to dispose of the remaining fourteen packets and recoup the money that he had paid. On the 19 ^th of July 2016, he placed an advertisement on an online marketplace page or group on Facebook, which page was entitled “ Ballyfermot, buy, sell or swap goods”. The appellant marketed the goods on this page by way of a post advertising same, attached a photograph of the tobacco packets and added the following comment thereto:

“ Golden Virginia 50 grams got them as a present but got the wrong tobacco 140 for 14 packs pm me if interested”.

5 . The advertisement was responded to by way of private message by a Facebook user operating under the alias of “ Jade Brady” on the 19 ^th of July 2016. Unbeknownst to the appellant at this remove, this “ Jade Brady” was in fact a Mr. John Carolan, Officer of Customs and Excise. In his statement of evidence dated the 21 ^st of July 2016, which has been furnished to this Court, Mr. Carolan stated that he was acting in his capacity as an Authorised Officer of the Revenue Commissioners, within the meaning of s. 858 of the Taxes Consolidation Act 1997, at the material time. He stated that he became aware of the appellant's advertisement on Facebook on the “ Ballyfermot, Buy Sell or Swap Goods” page on the 19 ^th of July 2016. At approximately 07:55 on that date he contacted the appellant under the false alias of “ Jade Brady” purporting to express interest in purchasing the tobacco. At approximately 12:49 that same day, he arranged with the appellant to purchase the tobacco from a McDonalds premises in Tallaght at midday on the 20 ^th of July 2016. He passed on the details of this arrangement to his colleagues, a Ms. Jennifer Wall, and a Mr. Michael Costello, both Officers of Customs & Excise, who agreed to carry out the test purchase.

6 . Ms. Wall, in her statement of evidence dated the 22 ^nd of July 2016, which has been furnished to this Court, stated that on the 20 ^th of July 2016 she attended at the McDonalds premises in Tallaght on foot of an arrangement made by her colleague Mr. Carolan to meet the appellant to purchase 14 pouches of tobacco for €140. She stated that she was acting in her capacity as an Authorised Officer of the Revenue Commissioners within the meaning s. 858 of the Taxes Consolidation Act 1997 at the material time. She stated that she was asked by Mr. Carolan to carry out a test purchase. At approximately 12:00 on the 22 ^nd of July 2016 she was approached by the appellant who was carrying a beige material bag marked with the word “ Emirates”. She asked him if he had the tobacco, to which he replied in the affirmative and handed her the beige bag. Ms. Wall said that she checked the contents of the bag and found fourteen by 50 grammes pouches of Golden Virginia inside. She confirmed the agreed price of the tobacco which was €140 in total. Ms. Wall stated that at this remove in time she produced her Revenue identity card and identified herself to the appellant as an Authorised Officer of the Revenue Commissioners and an Officer of Customs and Excise. Ms. Wall was joined by her colleague Mr. Costello who also produced his Revenue identity card and informed the appellant that he too was an Authorised Officer of the Revenue Commissioners. Mr. Costello also provided a statement of evidence, of which this Court has had sight, and its content is supportive of Ms. Wall's account. Ms. Wall stated that she asked the appellant if he would like to accompany the two officers to their vehicle and he made no objection. The appellant was cautioned, and the following notes were compiled by Ms. Wall from the exchange that subsequently ensued:

“[Ms. Wall:] Why did...