Mallon v The Minister for Agriculture, Food and Forestry

• Jurisdiction: Ireland
• Judge: MR. JUSTICE BARRON,Hamilton C.J.,BLAYNEY J.,MRS. JUSTICE DENHAM
• Judgment Date: 26 April 1996
• Neutral Citation: 1996 WJSC-SC 1785
• Court: Supreme Court
• Docket Number: [S.C. No. 300 of 1994]
• Date: 26 April 1996

1996 WJSC-SC 1785

THE SUPREME COURT

HAMILTON C.J.

O'FLAHERTY J.

BLAYNEY J.

DENHAM J.

BARRON J.

300/94

MALLON v. MIN AGRICULTURE

FRANK MALLON

Appellant

and

THE MINISTER FOR AGRICULTURE, FOOD AND FORESTRY ANDOTHERS

Respondents

Citations:

EUROPEAN COMMUNITIES (CONTROL OF VETERINARY MEDICINAL PRODUCTS & THEIR RESIDUES) REGS 1990 SI 171/1990 REG 3(3)

EUROPEAN COMMUNITIES (CONTROL OF VETERINARY MEDICINAL PRODUCTS & THEIR RESIDUES) REGS 1990 SI 171/1990 REG 11(1)

EUROPEAN COMMUNITIES (CONTROL OF OESTROGENIC ANDROGENIC GESTAGENIC & THYROSTATE SUBSTANCES) REGS 1988 SI 218/1988 REG 32(6)

EUROPEAN COMMUNITIES (CONTROL OF VETERINARY MEDICINAL PRODUCTS & THEIR RESIDUES) REGS 1990 SI 171/1990 PARA 3(3)(b)

EUROPEAN COMMUNITIES (CONTROL OF VETERINARY MEDICINAL PRODUCTS & THEIR RESIDUES) REGS 1990 SI 171/1990 REG 1(2)

EUROPEAN COMMUNITIES (CONTROL OF VETERINARY MEDICINAL PRODUCTS) REGS 1986 SI 22/1986

EUROPEAN COMMUNITIES ACT 1972 S3

EEC DIR 81/602

EEC DIR 81/851

EEC DIR 85/358

EEC DIR 86/469

EEC DIR 88/146

EEC DIR 88/299

EUROPEAN COMMUNITIES ACT 1972 S3(2)

CONSTITUTION ART 15.2.1

CONSTITUTION ART 38

CONSTITUTION ART 43.2

CONSTITUTION ART 40.3

MURPHY V AG 1982 IR 242

MAHER V AG 1973 IR 140

DESMOND V GLACKIN (NO 2) 1992 2 IR 67

CONSTITUTION ART 15.4.2

COMPANIES ACT 1990 S10(5)

MEAGHER V MIN FOR AGRICULTURE 1994 ILRM 28

O'BRIEN V KEOGH 1972 IR 144

STATUTE OF LIMITATIONS 1957 S49(2)(a)(ii)

EEC DIR 83/469

EEC DIR 85/358 ART 5(3)

EEC DIR 64/433 ART 4(1)(b)

EEC DIR 86/469 ART 8

CONSTITUTION ART 38.2

TREATY OF ROME 1958

COMPANIES ACT 1990 S10(6)

EUROPEAN COMMUNITIES (CONTROL OF OESTROGENIC ANDROGENIC GESTAGENIC & THYROSTATE SUBSTANCES) REGS 1988 SI 218/1988 REG 13

EUROPEAN COMMUNITIES (CONTROL OF OESTROGENIC ANDROGENIC GESTAGENIC & THYROSTATE SUBSTANCES) REGS 1988 SI 218/1988 REG 13(2)

EUROPEAN COMMUNITIES (CONTROL OF OESTROGENIC ANDROGENIC GESTAGENIC & THYROSTATE SUBSTANCES) REGS 1988 SI 218/1988 REG 32(1)

EUROPEAN COMMUNITIES (CONTROL OF OESTROGENIC ANDROGENIC GESTAGENIC & THYROSTATE SUBSTANCES) REGS 1988 SI 218/1988 REG 13(1)

EUROPEAN COMMUNITIES (CONTROL OF OESTROGENIC ANDROGENIC GESTAGENIC & THYROSTATE SUBSTANCES) REGS 1988 SI 218/1988 REG 31(1)

EUROPEAN COMMUNITIES (CONTROL OF OESTROGENIC ANDROGENIC GESTAGENIC & THYROSTATE SUBSTANCES) REGS 1988 SI 218/1988 REG 31(2)

EUROPEAN COMMUNITIES (CONTROL OF VETERINARY MEDICINAL PRODUCTS & THEIR RESIDUES) REGS 1990 SI 171/1990 REG 5

EUROPEAN COMMUNITIES (CONTROL OF VETERINARY MEDICINAL PRODUCTS & THEIR RESIDUES) REGS 1990 SI 171/1990 REG 4(1)

Synopsis:

CONSTITUTION

Statute

Validity - Legislation - Power - Delegation - Community directive - Implementation - Statutory instrument made by Minister - Creation of criminal offence - Minister's regulations provided for alternative penalties for commission of offence - One alternative created unconstitutional penalty - Imprisonment for two years - Severity of penalty resulted in offence being excluded from category of minor offences triable summarily - Whether penalty G7TG provisions of regulation could be severed - Whether failure to expressly implement one requirement of Council Directive invalidated regulations which implemented other requirements - European Communities (Control of Veterinary Medicinal Products and their Residues) Regulations, 1988 (S.I. No. 218), article 13, 32 - European Communities (Control of Veterinary Medicinal Products and their Residues) Regulations, 1990 (S.I. No. 171), articles 3(3), 11(1) - Constitution of Ireland, 1937, Article 38 - (300/94 - Supreme Court - 26/4/96) - [1996] 1 IR 517

|Mallon v. Minister for Agriculture, Food and Forestry|

CRIMINAL LAW

Sentence

Severity - Consequence - Offence - Category - Exclusion - Statutory instrument made by Minister - Creation of criminal offence - Minister's regulations provided for alternative penalties for commission of offence - One alternative created unconstitutional penalty - Imprisonment for two years - Severity of penalty resulted in offence being excluded from category of minor offences triable summarily - Whether penalty provisions of regulation could be severed - (300/94 - Supreme Court - 26/4/96) [1996] 1 IR 517

|Mallon v. Minister for Agriculture, Food and Forestry|

STATUTE

Instrument

Validity - Challenge - Grounds - Legislation - Delegation - Minister of State - Creation of unconstitutional penalty for summary conviction of offender - Whether severance of impugned article justified - Statutory instrument intended to implement Council Directive - Requirements of all relevant Directives not treated in particular instrument - (300/94 - Supreme Court - 26/4/96) - [1996] 1 IR 517

|Mallon v. Minister for Agriculture, Food and Forestry|

WORDS AND PHRASES

"Minor offences"

Category - Test - Penalty - Severity - Statutory instrument made by Minister - Creation of criminal offence - Minister's regulations provided for alternative penalties for commission of of fence - One alternative created unconstitutional penalty - Imprisonment for two years - Severity of penalty resulted in offence being excluded from category of minor offences triable summarily - Whether penalty provisions of regulation could be severed - (300/94 - Supreme Court - 26/4/96) - [1996] 1 IR 517

|Mallon v. Minister for Agriculture, Food and Forestry|

1 Judgment delivered on the 26th day of April 1996by Hamilton C.J. [O'FLAHERTY CONC]

2 This is an appeal brought by the Appellant against portion of an order made by the High Court (Mr. Justice Costello) on the 22nd day of July1994.

3 By such order the High Court had declared that:

" Regulation 3(3) of Statutory Instrument No. 171 of 1990 being the European Communities (Control of Veterinary Medicinal Products and their Residues) Regulations, 1990 was invalid having regard to theConstitution;

4 That the following words in Regulation 11(1) ofStatutory Instrument No. 171 of 1990 being the European Communities (Control of Veterinary Medicinal Products and their Residues) Regulations, 1990 were invalid having regard to the Constitution namely the words "or to imprisonment for a term not exceeding two years or to both","

5 and had ordered that the applicant's application for an order of prohibition prohibiting the fourth named Respondent from hearing or determining a prosecution brought by the first named Respondent against the Appellant under the European Communities (Control of Androgenic Gestagenic and Thyrostate substances) Regulation 1988 as extended by the European Communities (Veterinary Medicinal Products and their Residues) Regulations 1990 doth stand refused, and had declared that the said prosecution should proceed on the basis that Regulation 32(6) of the said Statutory Instrument No. 218 of 1988 have not been repealed and is valid and that Regulation 11(1) of the said Statutory Instrument No. 171 of 1990 is to be read and enforced as if the words " or to imprisonment for a term not exceedingtwo years or to both" had been deleted therefrom.

6 The Appellant has appealed against the following parts of the order made by Mr. Justice Costello:-

7 (a) The refusal by Mr. Justice Costello to grant a prohibition restraining the last named Respondent from proceeding to hear and determine eight summonses entitled DPP .v. Frank Mallon, the subject matter of these proceedings as claimed in paragraph 4(a) of the Notice of Motion.

8 (b) The refusal by Mr. Justice Costello to grant the declarations at 4(c) and (d) of the said Notice of Motion.

9 (c) The refusal by Mr. Justice Costello to grant the Order of Certiorari claimed in the additional reliefs quashing the decision of the first named Respondent to make the European Communities (Control of Veterinary Medicinal Products and their Residues) Regulation, 1988 to 1990 being Statutory Instruments 218 - 1988 and Statutory Instrument 171 - 1990.

10 (d) The declaration by Mr. Justice Costello that thetrial could proceed.

11 (e) The order of Mr. Justice Costello severing the impugned portion of the said Regulations namely paragraphs 3(3)(b) of Statutory Instrument 191/1990 and paragraph 11(1) of Statutory Instrument 191 of 1990 and allowing the said Regulations to stand after thisseverance.

12 The Respondents have not appealed against any portion of the order made by Mr. Justice Costello.

13 The facts giving rise to these proceedings may be briefly summarised asfollows:-

14 1. Upon a complaint being made by the first named Respondent, the Minister for Agriculture, Food and Forestry, the fourth named Respondent, District Judge John P. Brophy issued summonses requiring the Appellant to appear as Defendant on the hearing of the said complaints at the District Court at Courthouse, Kells, in the County of Meath.

15 2. There were, in all, eight complaints and eight summonsesissued.

16 3. Seven of the complaints and summonses relate to the administration to farm animals of a prohibited substance, to wit, a veterinary medicine containing clenbuterol other than under and in accordance with a licence under Regulation 5 of the European Communities (Control of Veterinary Medicinal Products and their Resides) Regulations, 1988 and 1990 (S.I. 218/1988 and S.I. 171/1990) and in respect of which no product authorisation under the European Communities (Veterinary Medicinal Products) Regulations 1986 (S.I. 22/1986) was in force in contravention of Regulation 4(1) of the European Communities (Control of Veterinary Medicinal Products and their Residues), Regulations, 1988 and 1990 and contrary to Regulation 11(1) of the said Regulations of 1988 and 1990 made pursuant to Section 3 of the European Communities Act, 1970.

17 4. The said summonses were directed to Frank Mallon who was alleged to have administered or have caused to be administered the said prohibited substance.

18 5. The eighth summons alleged that the Appellant did have in his possession a prohibited substance, to wit, two by 100 ml. bottles of a...