Meagher v O'Leary

• Jurisdiction: Ireland
• Judge: Moriarty J.
• Judgment Date: 01 January 1998
• Neutral Citation: [1997] IEHC 158
• Court: High Court
• Date: 01 January 1998

[1997] IEHC 158

THE HIGH COURT

No. 143 JR/1997

MEAGHER v. O'LEARY & ORS

JUDICIAL REVIEW

BETWEEN

JOHN MEAGHER

APPLICANT

AND

HIS HONOUR JUDGE SEAN O'LEARY, DISTRICT JUDGE MICHAELPATWELL, MINISTER FOR AGRICULTURE AND FOOD AND THE ATTORNEYGENERAL

RESPONDENTS

Citations:

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

EUROPEAN COMMUNITIES (CONTROL OF VETERINARY MEDICAL PRODUCTS & THEIR RESIDUES REGS 1990 SI 171/1990

EUROPEAN COMMUNITIES ACT 1972 S3(2)

MALLON V MIN FOR FOOD & FORESTRY 1996 1 IR 517

CRIMINAL JUSTICE ACT 1951 S5

CRIMINAL JUSTICE ACT 1984 S12(1)

COURTS OF JUSTICE ACT 1928 S18(1)

MCELDOWNEY, STATE V KELLIHER 1982 ILRM 568, 1985 ILRM 10

LYNCH, STATE V COONEY 1982 IR 337

GALLAGHER SHATTER & CO, STATE V DE VALERA 1987 IR 55

CONSTITUTION ART 38.2

CONSTITUTION ART 34.3.4

MELLING V O MATHGHAMHNA 1962 IR 1

HEANEY & MCGUINNESS V IRELAND & AG 1996 1 IR 580

O'REILLY, STATE V DELAP UNREP GANNON 20.12.1985 1986/4/1341

TOUHY V COURTNEY 1994 3 IR 1

REGULATION OF INFORMATION (TERMINATION OF PREGNANCIES) BILL 1995, IN RE 1995 1 IR 1

ASSOCIATED PROVINCIAL PICTUREHOUSE LTD V WEDNESBURY CORP 1948 1 KB 223

KEEGAN, STATE V STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642

DPP V ROWLEY UNREP BARRON 14.7.1997

Synopsis

Constitutional

Pre-1937 legislation; constitutional validity; jurisdiction of District Judge; fair procedures; equality; whether District Judge can adjudicate constitutionality of pre-1937 law; young person's character taken into consideration by court considering summary trial of indictable offence; whether evidence of character tendered pre-trial prejudicial; whether young persons treated unequally or in accordance with constitutional regard to differences of capacity; s.5(1) Summary Jurisdiction Over Children (Ireland) Act, 1884 Held: Legislation constitutional; District Judge has jurisdiction; judge's oath bulwark against prejudice; evidence of character simply for assessing quality of assent to summary trial High Court: Moriarty J. 08/10/1997

Meagher v. O'Leary

- [1998] 4 IR 33 - [ 1998] 1 ILRM 211

1 JUDGMENT delivered 8th day of October 1997,by Moriarty J.

2 A sequence that has to date entailed substantive hearings in the Supreme Court, the High Court (twice), the Circuit Court and the District Court (twice) relates to events that transpired at the Applicant's farm on the 27th March, 1991. The largely undisputed facts may be summarised asfollows:

3 On that date a party of officials from the Department of Agriculture and Food together with two local Gardai attended at the Applicant's farm near Clonmel in the County of Tipperary on foot of a duly issued search warrant. Significant quantities of veterinary preparations were found in various locations in or close to the farmhouse, including the sitting room, hall, kitchen, back bedroom, bedroom of the Applicant's son, shed and two motor cars, registration numbers 90-TS-1456 and 770-IP. These items were seized and sent for analysis. Thereafter, on 24th August, 1992, the Applicant was served with twenty summonses alleging separate breaches of the European Communities (Control of Oestrogenic, Androgenic, Gestagenic and Thyrostatic Substances) Regulations, 1988, and theEuropean Communities (Control of Veterinary Medical Products and their Residues) Regulations, 1990 (Statutory Instruments Numbers 218/88 and171/90).

4 All the matters complained of related to offences of possession of illegal growth promoters including that colloquially known as "Angel Dust", and related items at the Applicant'sfarm.

5 Upon taking legal advice the Applicant brought High Court proceedings impugning the validity of the said Regulations and the constitutionality of Section 3 subsection (2) of the European Communities Act, 1972. The grounds of such challenge need not be noted, and it will suffice to state that the Applicant succeeded in the High Court but, upon an appeal being brought by the Minister for Agriculture and Food, the Supreme Court, by judgment and order of 18th November, 1995 reversed that finding, thereby entitling the Minister to have relisted the District Court prosecution which had been adjourned pending the outcome of the challenge.

6 Accordingly, a special sitting of Clonmel District Court was held on the 6th April, 1984 to hear the summonses before the second-named Respondent, both sides being represented by Solicitor and Counsel. No evidence was offered in relation to three summonses, and evidence was adduced by the Prosecution in regard to the remaining seventeen. The Applicant by his Counsel cross-examined the Prosecution witnesses, and argued certain procedural and other legal infirmities, but no evidence was offered by or on behalf of the Applicant. Rejecting the Applicant's submissions, the second-named Respondent convicted on all seventeen summonses, indicated that he took a most serious view of the offences in the context of their likely repercussions on the Irish beef industry, and sentenced him on fifteen of the summonses to concurrent two year terms of imprisonment, the then maximum custodial sanction, in addition to providing for fines and expenses on the remaining two summonses. From these Orders the Applicant appealed, and by the time theappeal came to be heard, the Supreme Court had given judgment in the separate but related case of Mallon -v- Minister for Agriculture Food & Forestry & Others 1996 1 I.R.517, on foot of which it had in effect been determined that the maximum custodial sanction provided upon conviction on any of the relevant summonses was not two years, but one years imprisonment. The Applicant's hearing before the first named Respondent took place on the 13th March, 1997. Having some knowledge of the weight of Criminal Appeal Lists in Clonmel, I make no criticism of the date chronology, and obviously recognisances staying sanctions pending appeal had been set, but it is regrettable that in excess of six years elapsed between the search and the appeal hearing. At that latter hearing, the Prosecution conceded the appeals on three of the seventeen summonses, and the Applicant, through his legal advisors, indicated that the remaining fourteen convictions were no longer in issue, and that only the severity of the sanctions was being contested. Having heard the matter on this basis, the first-named Respondent indicated that he considered the offences in themselves of sufficient gravity to merit the maximum sentence of imprisonment, but that he was disposed to make allowance both for the Applicant's hitherto unblemished character, and his pleas of guilty upon the appeal.

7 Accordingly, on eleven of the summonses, he imposed terms of imprisonment of eight months, directing that these should be concurrent terms, save in respect of the first two summonses heard, namely 490 and 491, in regard to which he ordered that the eight month terms should operate consecutively. Three remaining summonses were taken intoconsideration.

8 The commencement of what thus appeared a final Order that the Applicant be imprisoned for an aggregate term of sixteen months was deferred for some weeks by the first-named Respondent to enable the Applicant to arrange his affairs. On 22 April, 1997, within that period of grace, the Applicant sought and obtained from Kelly J. leave to apply byway of Judicial Review for Orders of Certiorari quashing such portions of the respective Orders of the first-named and second-named Respondents as imposed respectively sixteen months and two years imprisonment, on the basis that the provisions of Section 5 of the Criminal Justice Act, 1951, as amended by Section 12 subsection (1) of the Criminal Justice Act, 1984were unconstitutional.

9 Detailed and informative written submissions and extracts from relevant legal authorities were exchanged between the parties prior to the one and a half days of legal argument which constituted the hearing. The availability of the former appreciably facilitated a narrowing and defining of the ambit of controversy at the hearing, so that certain aspects alluded to in the submissions no longer require ruling.

10 a (a). Aside from the repercussions of the Mallon Judgment Supra delivered by the Supreme Court between the respective Orders of the first-named and second-named Respondents, it is abundantly clear from Section 18 subsection (1) of the Courts of Justice Act, 1928that in undertaking the appeal from the second named Respondent, the first-named Respondent was exercising de novo an appellate jurisdiction for the trial of minor offences that was in principle fully subject to all or any limitations applicable at first instance to the second-named Respondent. Mr Hogan, on behalf of the Applicant, intimated that...