Hand v Dublin Corporation

• Jurisdiction: Ireland
• Judge: Griffin J.
• Judgment Date: 07 March 1991
• Neutral Citation: [1991] IESC 1
• Court: Supreme Court
• Docket Number: (394/88),[S.C. No. 394 of 1988]
• Date: 07 March 1991

[1991] IESC 1

THE SUPREME COURT

Finlay C.J.

Griffin J.

Hederman J.

McCarthy J.

O'Flaherty J.

(394/88)

HAND v. DUBLIN CORPORATION

BETWEEN

PATRICIA HAND AND OTHERS

Plaintiffs/Appellants

and

THE LORD MAYOR ALDERMEN AND BURGESSES OF THE CITY OF DUBLIN, THE MINISTER FOR INDUSTRY COMMERCE AND TOURISM, IRELAND AND THE ATTORNEY GENERAL

Defendants/Respondents

Citations:

CASUAL TRADING ACT 1980 S4

CASUAL TRADING ACT 1980 S5

CASUAL TRADING ACT 1980 S2(1)

CASUAL TRADING ACT 1980 S7

CASUAL TRADING ACT 1980 S3

CASUAL TRADING ACT 1980 S3(1)

CASUAL TRADING ACT 1980 S3(2)

CASUAL TRADING ACT 1980 S3(3)(a)

CASUAL TRADING ACT 1980 S3(5)(a)

CASUAL TRADING ACT 1980 S3(5)(b)

CASUAL TRADING ACT 1980 S 4(1)

CASUAL TRADING ACT 1980 S4(3)(a)

CASUAL TRADING ACT 1980 S4(3)(b)

CASUAL TRADING ACT 1980 S4(3)(c)

CASUAL TRADING ACT 1980 S4(5)

CASUAL TRADING ACT 1980 S4(6)

CASUAL TRADING ACT 1980 S6(1)

CASUAL TRADING ACT 1980 S6(2)

CASUAL TRADING ACT 1980 S6(3)

CASUAL TRADING ACT 1980 S11(1)(b)

CASUAL TRADING ACT 1980 S11(3)

CASUAL TRADING ACT 1980 S11(4)(a)

CASUAL TRADING ACT 1980 S15

CONROY V AG & ANOR 1965 IR 411

CASUAL TRADING ACT 1980 S3(4)

CONSTITUTION ART 40.3.2

ROAD TRAFFIC ACT 1961 S49

R V BARNSLEY METROPOLITAN BOROUGH COUNCIL, EX PARTE HOOK 1976 I WLR 1052

BARNSLEY CORPORATION ACT 1969 (UK)

MIN INDUSTRY V QUINN UNREP SUPREME 23.1.81 1981/6/966

PRICES (AMDT) ACT 1972 S8

CONSTITUTION ART 40.3.1

AG V PAPERLINK LTD 1984 ILRM 373

MOYNIHAN V GREENSMITH 1977 IR 55

ROAD TRAFFIC ACT 19611961 PART 111

ROAD TRAFFIC ACT 19611961 SCHED 11

CONSTITUTION ART 40.3

Synopsis:

CONSTITUTION

Personal rights

Livelihood - Means - Removal - Street trader - Licence - Refusal - Relevant legislation - Previous infringements - (394/88 - Supreme Court - 7/3/91) - [1991] 1 I.R. 409, [1991] ILRM 556

|Hand v. Corporation of Dublin|

CONSTITUTION

Statute

Validity - Street trader - Licence - Refusal - Livelihood - Means - Removal - Statutory provisions - Previous infringements - Personal rights - Curtailment - Exigencies of the common good - (394/88 - Supreme Court - 7/3/91) 1991 1 I.R. 409, 1991 ILRM 556

|Hand v. Corporation of Dublin|

CRIMINAL LAW

Offence

Street trading - Licence - Applicant - Disqualification - Licence refused - Statutory provisions - Previous infringements - Means of livelihood removed - Proportionality of penalty imposed - Personal rights - Exercise - Curtailment - Exigencies of the common good - Casual Trading Act, 1980, s. 4 - Constitution of Ireland, 1937, Articles 40, 43 - (394/88 - Supreme Court - 7/3/91) - [1991] 1 I.R. 409, [1991] ILRM 556

|Hand v. Corporation of Dublin|

LICENCE

Grant

Entitlement - Street trader - Disqualifications - Statute - Terms - Infringements - Application refused - Loss of means of livelihood - Personal rights - Validity of statute - (394/88 - Supreme Court - 7/3/91) - [1991] 1 I.R. 409, [1991] ILRM 556

|Hand v. Corporation of Dublin|

STATUTE

Terms

Infringement - Penalty - Proportionality - Street trader - Enactment - Breach - Entitlement to licence - Disqualification - (394/88 - Supreme Court - 7/3/91) - [1991] 1 I.R. 409 1991 ILRM 556

|Hand v. Corporation of Dublin|

1 DECISION OF THE COURT pronounced by Griffin J. in accordance with the provisions of Article 34.4.5 of the Constitution on the 7th day of March 1991

2 This appeal is taken by the plaintiffs against the Order of the High Court made by Barron J. on the 28th October, 1988 dismissing the plaintiffs" claim for a declaration that such of the provisions of ss. 4 and 5 of the Casual Trading Act, 1980("the Act") as purport to empower the first and second-named defendants to refuse to grant respectively to the plaintiffs (a) a Casual Trading licence and (b) a Casual Trading permit are repugnant to the provisions of the Constitution, and for ancillary relief by way of injunction and damages.

THE STATUTORY PROVISIONS

3 In its Long Title the object of the Act is described as being "TO PROVIDE FOR THE CONTROL AND REGULATION OF CASUAL TRADING AND TO PROVIDE FOR CONNECTED MATTERS". "Casual trading" is defined in s. 2(1) as meaning selling goods by retail at a place (including a public road) to which the public have access as of right or at any other place that is a casual trading area. "Casual trading area" is defined as meaning land standing designated [by a local authority in its functional area] under s. 7 of the Act as an area where casual trading may be carried on.

4 Restrictions on casual trading are provided for in s. 3, the relevant provisions of which are:

5 2 "S. 3(1) A person shall not engage in casual trading in a casual trading area unless he is, or is the servant or agent acting as such of, a person who holds a casual trading licence and a casual trading permit that are for the time being in force and the casual trading is in accordance with the licence and the permit.

6 (2) A person shall not engage in casual trading in an area other than a casual trading area unless he is, or is the servant or agent acting as such of, a person who holds a casual trading licence and the casual trading is in accordance with the licence.

7 (3) (a) Where there is a casual trading area in the functional area of a local authority, a person shall not engage in casual trading-

8 (i) in that functional area other than in that casual trading area...

9 (4) A person who contravenes this section shall be guilty of an offence.

10 (5) (a) In a prosecution for an offence under subsection (1) of this section, it shall be presumed until the contrary is shown that, at the time of the casual trading to which the offence relates, the defendant, or any person of whom he was at that time acting as a servant or agent in relation to such trading, was not the holder of a casual trading licence for the time being in force or of a casual trading permit for the time being in force.

11 3 (b) In a prosectuion for an offence under subsection (2) of this section, it shall be presumed until the contrary is shown that, at the time of the casual trading to which the offence relates, the defendant, or any person of whom he was at that time acting as servant or agent in relation to such trading, was not the holder of a casual trading licence for the time being in force."

12 The grant of casual trading licences is provided for in s. 4, which is central to this case. The relevant subsections are as follows:

13 2 "4(1) Subject to the subsequent provisions of this section the Minister shall, on the application in writing of a person therefor and on payment of a fee of £100, grant to the person a licence (referred to in this Act as "a casual trading licence"), in such form and specifying such matters as the Minister may determine, authorising the person to engage in casual trading.

14 a (3) (a) A casual trading licence may contain such conditions (if any) as the Minister determines and specifies in the licence.

15 (b) A person who holds a casual trading licence shall comply with the conditions of the licence.

16 (c) A person who contravenes paragraph (b) of this subsection shall be guilty of an offence.

17 (5) The Minister may refuse to grant a casual trading licence to a person who has been convicted of an offence in relation to the importation, possession or sale of goods committed while he was the holder of a casual trading licence or an offence under this Act.

18 (6) The Minister shall not grant a casual trading licence to a person who was convicted of two or more offences (each offence being either an offence in relation to the importation, possession or sale of goods committed while the person was the holder of a casual trading licence or an offence under this Act) if the latest conviction occurred less than five years before the first day on which the person proposes to engage in the casual trading to which the application for the licence relates and, two, at least, of the convictions occurred after the expiration of the last period (if any) of disqualification by virtue of this subsection for being granted a casual trading licence."

19 A casual trading licence remains in force for a period of twelve months and then expires.

20 S. 5 provides for the grant of casual trading permits. The effect of this section is that where there is a casual trading area in its functional area, a local authority shall, on the application in writing of a person who is the holder of a casual trading licence for the time being in force, grant a casual trading permit authorising such person to engage in casual trading at one place only in one specified casual trading area in its functional area on specified days. The local authority has, therefore, no power to grant such a permit unless the applicant is at that time the holder of a licence granted under s. 4.

21 S. 6(1) requires a person engaging in casual trading in a casual trading area to display the casual trading permit relating to the trading in such a position as to be clearly visible and easily legible to members of the public at that place. S. 6(2) has a similar provision requiring the display of the licence where the casual trading is being carried on other than in a casual trading area. It is to be noted that these provisions are for the benefit of members of the public.

22 S. 6(3) provides that a person who contravenes the section shall be guilty of an offence.

23 S. 11(1)(b) enables a local authority to appoint officers of the authority to be " authorised officers" for the purpose of the Act and such an authorised officer or any member of the Gardai may, in the functional area of the authority, exercise the powers conferred by s. 11. The powers granted by that section are very wide but for the purposes of this appeal it is not necessary to set them out. It is sufficient to say that under s. 11(3) and (4) (a) a person shall not obstruct or interfere with or give false information to...