Health Service Executive (HSE) v PJ Carroll & Company Ltd

JurisdictionIreland
JudgeKearns P.
Judgment Date29 March 2012
Neutral Citation[2012] IEHC 147
CourtHigh Court
Docket Number[2011 No. 2108 SS]
Date29 March 2012

[2012] IEHC 147

THE HIGH COURT

[No. 2108 SS/2011]
Health Service Executive (HSE) v PJ Carroll & Co Ltd
IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT, 1857, AS EXTENDED BY SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961

BETWEEN

THE HEALTH SERVICE EXECUTIVE
APPELLANT

AND

P.J. CARROLL & COMPANY LIMITED
RESPONDENT

PUBLIC HEALTH (TOBACCO) ACT 2002 S36

PUBLIC HEALTH (TOBACCO) (AMDT) ACT 2004 S7

TOBACCO PRODUCTS (CONTROL OF ADVERTISING SPONSORSHIP & SALES PROMOTION) ACT 1978

EEC DIR 2003/33 ART 2

PUBLIC HEALTH (TOBACCO) ACT 2002 S36(1)

PUBLIC HEALTH (TOBACCO) ACT 2002 S36(2)

HOWARD & ORS v CMRS OF PUBLIC WORKS IN IRELAND 1994 1 IR 101

DIRECT UNITED STATES CABLE CO LTD v ANGLO-AMERICAN TELEGRAPH CO LTD 1876-77 2 APP CAS 394

CRAIES & EDGAR CRAIES ON STATUTE LAW 7ED 1971 65

B (D) v MIN FOR HEALTH & HEPATITIS C COMPENSATION TRIBUNAL 2003 3 IR 12 2003/4/812

MIN FOR JUSTICE v DUNDON 2005 1 IR 261 2005 2 ILRM 149 2005/39/8021 2005 IESC 13

MAHER v BORD PLEANALA 1999 2 ILRM 198 1999/17/5078

O'BRIEN v MORIARTY (NO 2) 2006 2 IR 415

RAHILL & GOODE v BRADY 1971 IR 69

CRILLY v T & J FARRINGTON LTD & O'CONNOR 2001 3 IR 251 2000 1 ILRM 548 1999/6/1332

DODD & CUSH STATUTORY INTERPRETATION IN IRELAND 2008

PUBLIC HEALTH (TOBACCO) ACT 2002 S36(2)(C)

COMPANIES ACT 1963 S60(1)

CH (IRL) INC (IN LIQUIDATION) v CREDIT SUISSE CANADA 1999 4 IR 542 1998/13/4314

CHARTERHOUSE INVESTMENT TRUST LTD v TEMPEST DIESELS LTD 1985 1 BCC 99544 1986 BCLC 1

BRITISH & COMMONWEALTH HOLDINGS PLC v BARCLAYS BANK PLC & ORS 1996 1 WLR 1 1996 1 AER 381 1995 BCC 1059 1996 1 BCLC 1

COMPANIES ACT 1985 S151 (UK)

OXFORD ENGLISH DICTIONARY 2ED 1989 VOL 1

TOBACCO PRODUCTS (CONTROL OF ADVERTISING SPONSORSHIP & SALES PROMOTION) REGS 1991 SI 326/1991 REG 18

PUBLIC HEALTH (TOBACCO) ACT 2002 S36(4)

STATUTORY INTERPRETATION

Construction

Case stated - Statute - Interpretation - Statute prohibiting giving of financial assistance in consideration for promotion of tobacco products - Words and phrases - "Financial assistance" - Role of courts in statutory interpretation - Intention of legislature - Natural and ordinary meaning - Legislative history - Statutory interpretation in penal statutes - British & Commonwealth plc v Barclays Bank (CA) [1996] 1 WLR 1; Charterhouse Investment Trust Ltd v Tempest Diesels Ltd (1986) BCLC 1; CH (Ireland) Inc (in liquidation) v Credit Suisse Canada [1999] 4 IR 542; Crilly v T & J Farrington Ltd [2001] 3 IR 251; DB v Minister for Health [2003] 3 IR 12; Direct United States Cable Co v Anglo-American Telegraph Co (1877) 2 App Cas 394; Howard v Commissioners for Public Works [1994] 1 IR 101; Minister for Justice v Dundon [2005] IESC 13, [2005] 1 IR 261; Maher v An Bord Pleanála [1999] 2 ILRM 198; O'Brien v Moriarty (No 2) [2005] IEHC 343 & [2006] IESC 6, [2006] 2 IR 415; Rahill v Brady [1971] IR 69 and R v Secretary of State for the Environment, ex p Spath Holme Ltd [2001] 2 WLR 15 considered - Public Health (Tobacco) Act 2002 (No 6), s 36 - Public Health (Tobacco) Amendment Act 2004 (No 6), s 7 - Questions answered in affirmative (2011/2108SS - Kearns P - 29/3/2012) [2012] IEHC 147

Health Service Executive v P J Carroll and Co Ltd

Facts The Health Service Executive (appellant) had taken a prosecution against the respondent company over alleged breaches of the Public Health (Tobacco) Act, 2002. It had been contended that the respondent had been involved in providing financial assistance with the aim of promoting a tobacco product contrary to the 2002 Act. In the District Court it was held that the dispute activity (which partly consisted of giving cash vouchers to shop assistants) did not constitute financial assistance and dismissed the prosecution. A case was then stated to the High Court for its opinion. On behalf of the appellant it was contended that the payment of a cash voucher to the shop assistant in consideration of the promotion of a particular brand of cigarettes was as part of an overall scheme in the promotion of the tobacco brand. Furthermore it was not necessary for the court to give s. 36 of the 2002 an extremely wide interpretation in order to convict the respondent, and that a literal interpretation of the wording of the statutory provision would ground a conviction. On behalf of the respondent it was contended that the statutory provision applied where assistance was given which enabled an event to take place and that financial assistance was separate and distinct from a financial contribution. It was also contended that it was impossible to see how the Oireachtas could validly impose a restriction on private communications in a manner consistent with the Constitution or the European Convention on Human Rights.

Held by Kearns P in stating that the District Court was correct in dismissing the case: It was clear that the activity did constitute a promotion within the natural and ordinary meaning of that term. However the words "financial assistance" were ambiguous in their meaning in the context of the particular subsection. The creation of criminal offences must be by language which was clear and certain. The very uncertainty surrounding the term "financial assistance" suggested that one could only infer that the Oireachtas had intended to create an additional form of criminal offence by interpreting those words as meaning "any kind of payment" which might assist the promotion of the particular product. This would indeed be a very wide interpretation. The words "financial assistance" did not sit logically or sensibly with a once-off prize or reward of a small sum. The District Judge was also correct in law in holding that the activity the respondent was engaged amounted to a "promotion" for the purposes of Section 36 of the Public Health (Tobacco), Act 2002.

1

JUDGMENT of Kearns P. delivered the 29th day of March, 2012.

2

This is an appeal by way of case stated arising from a prosecution taken by the Health Service Executive (hereafter referred to as 'the appellant') in the Dublin Metropolitan District Court against the respondent company which alleges breaches by the latter of s. 36 of the Public Health (Tobacco) Act 2002, as amended by s. 7 of the Public Health (Tobacco) (Amendment) Act 2004 (hereafter referred to as 's. 36 of the Act of 2002, as amended').

3

Section 36 of the Act of 2002, as amended, provides:-

4

2 "(1) A person who engages in sponsorship in contravention of the Directive of 2003 shall be guilty of an offence.

5

(2) It shall be an offence for a person to give financial or other assistance, or cause financial or other assistance to be given, to or for the benefit of a person, or for or in relation to an event or activity, in consideration of the-

6

(a) use, display or advertising by the person, or at the event or activity concerned,

7

(b) association with the person, event or activity, or

8

(c) promotion,

9

of a tobacco product, the name of a tobacco manufacturer or importer, the name of a brand of tobacco product or a trademark, emblem, marketing image or logo used in the marketing of a tobacco product.

10

(3) It shall be an offence for a person to receive financial or other assistance to which subsection (2) applies.

11

(4) In this section 'sponsorship' has the same meaning as it has in the Directive of 2003."

12

The long title to the Act of 2002 states inter alia that it is:-

"an Act.... to provide for a prohibition on the advertising of tobacco products, a prohibition on sponsorship by manufacturers and importers of tobacco products and prohibitions on certain marketing practices in relation to tobacco products..."

13

The 'original' section 36 of the Act of 2002 in unamended form provided:-

14

2 "(1) It shall be an offence for a person to give financial or other assistance, or cause financial or other assistance to be given, to or for the benefit of a person, or for or in relation to an event or activity, in consideration of the-

15

(a) use, display or advertising by the person, or at the event or activity concerned,

16

(b) association with the person, event or activity, or

17

(c) promotion, of a tobacco product...."

18

That section was wholly replaced with the 'new' section 36 by section 7 of the Act of 2004 (which, like its predecessor, contained a marginal note to the section which described it as constituting a "prohibition of sponsorship") and was expressed to have been passed to give effect to Directive 2003/33/EC of the European Parliament and of the Council of the 26 th May, 2003, on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products, O.J. L 152/16 20.6.2003. In reality the substituted section simply grafted on to the old section an express prohibition on sponsorship as defined in the Directive.

" Sponsorship" was not defined in the Act of 2002 but was defined in the Tobacco Products (Control of Advertising, Sponsorship and Sales Promotion) Act, 1978 as:-

"...the giving, or the causing to be given, of financial or other assistance to or for a person or for or in relation to an event or activity, in consideration of the use, display, advertising or association with, or by the person or at or in connection with the event or activity (or with the name or title of the event or activity) of a tobacco product (or of the name of a brand of tobacco product)..."

19

However, " Sponsorship" was defined quite differently in Article 2 of the Directive as:-

"any form of public or private contribution to any event, activity or individual with the aim or direct or indirect effect of promoting a tobacco product..."

20

As noted above this definition of sponsorship was imported into Irish law by section 7 of the Act of 2004.

BACKGROUND FACTS
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