Galvin v The Director of Public Prosecutions and Others

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Ms. Justice Donnelly,Mr. Justice Gerard Hogan
• Judgment Date: 17 July 2025
• Neutral Citation: [2025] IESC 35
• Docket Number: Record No.: S:AP:IE:2024:000141 High Court Record No.: 2018 No. 144 JR

Between/

Darragh Galvin

Appellant

and

The Director of Public Prosecutions, The Attorney General and Ireland

Respondents

and

The Irish Human Rights and Equality Commission

The Notice Party

[2025] IESC 35

Dunne J.

Woulfe J.

Hogan J.

Murray J.

Donnelly J.

Record No.: S:AP:IE:2024:000141

Court of Appeal Record No.: A:AP:IE:2023:000297

High Court Record No.: 2018 No. 144 JR

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Constitutionality – Finance Act 2001 s. 126 – Prematurity – Appellant challenging the validity of s. 126(6) of the Finance Act 2001 having regard to the provisions of the Constitution – Whether the constitutional challenge was premature

Facts: The appellant, Mr Galvin, on being charged with an offence contrary to s. 78(3) of the Finance Act 2005 and prior to trial, launched judicial review proceedings challenging, inter alia, the validity of s. 126(6) of the Finance Act 2001 having regard to the provisions of the Constitution, in so far as it prevented a judge from making an order under s. 1 of the Probation of Offenders Act 1907 in his trial. He submitted that an individual has a constitutional right to a sentencing process that is capable of taking into account the type of matters that are referred to in s. 1(1) of the 1907 Act including its potential effect on his employment, and that the process would have the potential to result in no conviction being recorded against him. The appellant claimed that an accused person who is found to have committed a criminal offence has a constitutional right not to have a conviction recorded against them if certain conditions exist. Those claims were presented and adjudicated upon in the High Court and Court of Appeal in advance of the trial court making any findings of fact. The High Court and Court of Appeal also rejected two other grounds on which the appellant challenged the validity of s. 78(3) of the 2005 Act having regard to the provisions of the Constitution. Leave to appeal was not granted on those points. The Supreme Court granted leave to appeal on whether the blanket removal of the ‘probation option’ effected by s. 126 of the 2001 Act was compatible with the Constitution and the European Convention of Human Rights. The Supreme Court also raised the issue of prematurity and stated that the resolution of that issue “will require consideration, amongst others, of matters such as the separation of powers, the entitlement to make this argument prior to a court concluding that but for s. 126 of the 2001 Act it would have dismissed the charge against the applicant and whether a decision not to record a conviction can ever be considered part of the judicial sentencing sphere”.

Held by the Supreme Court that it was entitled of its own motion to hold that the constitutional challenge was premature in the absence of any fact-finding exercise having been carried out by the District Court. The Supreme Court held that there was no principled reason why its decision or the Court of Appeal’s decision to find a plaintiff’s appeal against the refusal of a declaration of invalidity premature or otherwise inappropriate on a standing ground, would prevent the Supreme Court from proceeding either to pronounce the decision of the court below obiter dicta or to allow the appeal and remit the case on the basis that the decision and judgment of the appellate court would be applied in the relevant court. In circumstances where there was a clear precedent for the latter rather than the former approach, the Supreme Court preferred the approach in Cahill v Sutton [1980] IR 269.

The Supreme Court allowed the appeal and remitted the matter to the High Court where it would follow that the appellant’s application for judicial review would be refused.

Appeal allowed.

JUDGMENT of Ms. Justice Donnelly delivered on the 17 ^th day of July 2025 .

1 . Section 1(1) of the Probation of Offenders Act, 1907 permits a judge of the District Court, having heard a criminal trial and who considers the charge proved, not to proceed to conviction but instead to dismiss the charge or discharge the offender conditionally. A judge may do so if they consider that it is inexpedient to inflict any punishment or anything other than a nominal punishment, or that it is expedient to release the offender on probation, having had regard to the character, antecedents, age, health, or mental condition of the person charged, or to the trivial nature of the offence, or to any extenuating circumstances under which the offence was committed. Through subsequent legislative intervention, this power was removed as an option when sentencing in respect of certain offences.

2 . Offences relating to the duties of excise or to the management of such duties are amongst the excluded offences; section 126(6) of the Finance Act, 2001 (“the 2001 Act”) disapplies s. 1 of the Probation of Offenders Act, 1907 (“the Probation Act”) to them. Therefore, the power to discharge under that Act has been disapplied to the offence of offering for sale certain tobacco products to which a tax stamp has not been attached (s. 78(3) of the Finance Act, 2005).

3 . On being charged with such an offence contrary to s. 78(3) of the Finance Act, 2005 (“the 2005 Act”) and prior to trial, the appellant launched judicial review proceedings challenging, inter alia, the validity of s. 126(6) having regard to the provisions of the Constitution, in so far as it prevented a judge from making an order under s. 1 of the Probation Act in his trial. He submitted that an individual has a constitutional right to a sentencing process that is capable of taking into account the type of matters that are referred to in s. 1(1) including its potential effect on his employment, and, crucially, that the process would have the potential to result in no conviction being recorded against him. Although framed by the appellant in a slightly different manner, this is a claim that an accused person who is found to have committed a criminal offence, has a constitutional right not to have a conviction recorded against them if certain conditions exist.

4 . These claims were presented and adjudicated upon in the High Court and Court of Appeal in advance of the trial court making any findings of fact. The High Court and Court of Appeal also rejected two other grounds on which the appellant challenged the validity of s. 78(3) having regard to the provisions of the Constitution. Leave to appeal was not granted on these points.

5 . In its determination ( [2025] IESCDET 10), this Court granted leave to appeal on whether the blanket removal of the ‘probation option’ effected by s. 126 of the 2001 Act was compatible with the Constitution and the European Convention of Human Rights (“the ECHR”). This Court also raised the issue of prematurity and stated that the resolution of that issue “… will require consideration, amongst others, of matters such as the separation of powers, the entitlement to make this argument prior to a court concluding that but for s. 126 of the 2001 Act it would have dismissed the charge against the applicant and whether a decision not to record a conviction can ever be considered part of the judicial sentencing sphere” ( emphasis added). In this judgment I find that this Court is entitled of its own motion to hold that the constitutional challenge was and is premature in the absence of any fact-finding exercise having been carried out by the District Court.

Background

6 . It was the appellant's case that in 2016 a friend of his purchased fifteen pouches of tobacco in Turkey as a favour for him, for which he paid his friend €150. The appellant says that having opened one pouch, he was dissatisfied with the taste of the product and decided to place an advertisement on a local Facebook group/page in order to sell the remaining fourteen pouches for €10 each. An individual responded to the advertisement and made an arrangement with the appellant to purchase the tobacco. The individual in question was an authorised officer of customs and excise who was operating under an alias as part of a ‘sting’ operation. On 20 July 2016, two other customs officers completed the ‘test purchase’ and seized the remaining tobacco. The officers then cautioned and interviewed the appellant who stated that he did not realise that he had done anything wrong by reselling the tobacco. For the purposes of the present proceedings, the parties submitted to the Court that it was accepted by both sides that the appellant was unaware that what he was doing was wrong.

7 . The appellant was charged with the offence of offering for sale specified tobacco products to which a valid tax stamp was not affixed, contrary to s. 78(3) and (5) of the 2005 Act. A summons charging the appellant with the offence was issued against him on 20 September 2017.

8 . The appellant was unemployed at the time of the offence but has been a postal operative of An Post since April 2017. The appellant has no previous convictions. The appellant says that he is concerned that if he is convicted for the above offence that his employment with An Post may be terminated.

9 . Pursuant to s. 78(5)(a) of the 2005 Act, if convicted, the appellant is potentially facing a fine of €5,000 (which may be mitigated to €2,500) and/or a custodial sentence of up to 12 months. As already noted, a sentencing court does not have the option to apply s. 1(1) of the Probation Act to make an order dismissing the charge or discharging the offender conditionally. The appellant argues that this ‘probation option’ would allow a court to “fashion an appropriate penalty” which would be more proportionate to the appellant's culpability.

10 . On 19 February 2018, the appellant obtained leave to bring judicial review proceedings and his hearing before the District Court, scheduled for 21 February 2018, was stayed. The respondents (the DPP, the Attorney General and Ireland) applied...