Minister for Social Welfare v Bracken
| Jurisdiction | Ireland |
| Judge | Mr. Justice Lavan |
| Judgment Date | 01 January 1994 |
| Neutral Citation | 1992 WJSC-HC 3858 |
| Docket Number | 91 SS/1991,[1991 No. 91 SS] |
| Court | High Court |
| Date | 01 January 1994 |
1992 WJSC-HC 3858
THE HIGH COURT
BETWEEN
AND
Citations:
COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52
SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S114(3)
SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S114(4)(a)
SOCIAL WELFARE ACTS 1981 – 1983
SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S143A
SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S143A(5)
SOCIAL WELFARE ACT 1985 S13
SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S114
SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S143(3)
DPP V MCCREESH UNREP SUPREME 7.3.91 1991/2/421
MORRIS V BEARDMORE 1980 2 AER 753
CRIMINAL LAW ACT 1967 S2(6)
DAVIS V LISLE 1936 2 AER 213
R V WATERFIELD 1963 3 AER 569
ENTICK V CARRINGTON 1765 19 STATE TR 1029
DPP V GAFFNEY 1987 IR 173
SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S114(5)
SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S143(5)
SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S114(4)
SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S143
SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S49(5)
SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S264(7)
MIN FOR AGRICULTURE V CLEARY 1988 ILRM 299
SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S143(6)
Synopsis:
SOCIAL SERVICES
Inspector
Powers - Statute - Premises - Entry - Permission - Request - Necessity - Certificate of appointment - Production - Entry on private property - Trespass at common law - Trespass not authorised by statute - Social Welfare (Consolidation) Act, 1981, ss. 114, 143A - Social Welfare Act, 1985, s. 13 - (1991/91 SS - Lavan J. - 29/7/92)
|Minister for Social Welfare v. Bracken|
TRESPASS
Official
Premises - Entry - Statute - Powers - Exercise - Permission - Request - Necessity - Certificate of appointment - Production - Entry on private property - Trespass at common law - Trespass not authorised by statute - (1991/91 SS - Lavan J. - 29/7/92)
|Minister for Social Welfare v. Bracken|
Judgment of Mr. Justice Lavan delivered the 29th day of July 1992.
This is a consultative Case Stated by District Justice James O'Sullivan, as he then was, being a reference (without request) pursuant to the provisions of Section 52 of the Courts (Supplemental Provisions) Act 1961for the opinion of the High Court on three points of law.
The Case Stated arises out of the following proceedings.
(1) At a sitting of the District Court held at Moate on the 3rd day of March 1989 Denis Bracken (hereinafter called "the Defendant") appeared before the Court on eight summonses brought on the complaint of the Minister for Social Welfare (hereinafter called "the Complainant") and whereby it was charged in four of the summonses that
(a) The Defendant on the 12th day of October 1987 being the occupier of the premises or place at Boheenagrisna, Ballycumber in the County of Offaly within the court area and district of Moate liable to inspection under section 114 (3) of the Social Welfare (Consolidation) Act 1981in contravention of section 114 (4) (a) of the said act wilfully delayed and obstructed an individually named inspector in each of the four summonses to wit Valerie McKeown, Philip Cox, Michael Cryan and Jerome P. O'Connell being in each instance an inspector duly appointed under the said act in exercise of the power under the said section contrary to the Social Welfare Acts 1981to 1983. and
(2) That the Defendant was further summonsed on four individual summonses issued on foot of the complaint of the Complainant alleging that on the 12th day of October 1987 being the occupier of premises at Boheenagrisna, Ballycumber in the County of Offaly within the court area and district as aforesaid liable to inspection under section 143A of the Social Welfare (Consolidation) Act 1981in contravention of section 143A (5) of the act wilfully delayed and obstructed four individually named persons to wit Philip Cox, Valerie McKeown, Michael Cryan and Jerome P. O'Connell being in each instance a social welfare officer duly appointed under the said act in exercise of the said section contrary to the said Social Welfare Acts 1981to 1983.
At the hearing of the said complaints it was proved or admitted that;
(a) Philip Cox, Michael Cryan, Valerie McKeown and Jerome P. O'Connell attended at a premises occupied by the Defendant at Boheenagrisna, Ballycumber in the County of Offaly on the 12th day of October 1987.
(b) In entering the premises they did not receive any permission from the occupier of the premises or any person acting on his behalf nor were they invited to enter the premises.
(c) Having entered upon the premises they commenced to interview persons present on the premises until interrupted by the Defendant who ordered each named persons off the premises.
(d) The authority upon which each of the persons named purported to act was on the basis of their identity card which was proffered to the Defendant by Messrs Cryan O'Connell and Cox and a copy of which is attached to this Case Stated.
(e) Prior to being ordered off the premises each of the persons when identifying themselves had not given any form of caution to the Defendant in accordance with the provisions of section 114 of the Social Welfare Act 1981subsection 4.
I seek the opinion of the High Court on the following points of law;
(1) Is it a requirement on the inspectors (Social Welfare Officers) (hereinafter called the Officers) to apply for permission from the Defendant before entering the premises.
(2) Where the identity cards which were proffered adequate proof of the Officers authority.
(3) Should the Officers have cautioned the Defendant as a condition precedent to any evidence been given of what the Defendant said and did during the episode.
The Social Welfare (Consolidation) Act 1981(hereinafter called the Act) provides the statutory basis for the payment of an extensive range of benefits to beneficiaries properly qualified thereunder including employed persons in certain circumstances.
A statutory duty is placed on employers to keep insurance cards and other documents relating to their employees. A failure by employers to keep such insurance cards or other documents may well preclude employees from claiming their right to benefit under the Act.
In view of the substantial moneys voted by the Oireachtas for the giving affect to these benefits it was deemed necessary that the Minister for Social Welfare should appoint inspectors whose duties would include the right to enter defined premises and to carry out certain examinations.
At the hearing before me it was agreed by Counsel for both parties that there was no difference between an inspector appointed pursuant to Section 114 of the Act and the Social Welfare Officer as appointed pursuant to the provisions of Section 13 of the 1985 Act. Section 114 of the Act provides:
(1) The Minister may, with the sanction of the Minister for the Public Service, appoint such and so many persons as he thinks proper to be inspectors for the purposes of this Part.
(2) An inspector shall, for the purposes of the execution of this Part, have power to do all or any of the following things -
(a) to enter at all reasonable times any premises or place liable to inspection under this section;
(b) to make such examination and inquiry as may be necessary for ascertaining whether the provisions of this Part are being or have been complied with in any such premises or place;
(c) to examine, either alone or in the presence of any other person, as he thinks fit, in relation to any matters under this Part on which he may reasonably require information, every person whom he finds in any such premises or place, or whom he has reasonable cause to believe to be or to have been an insured person and to require every such person to be so examined and to sign a declaration of the truth of the matters in respect of which he is so examined;
(d) to exercise such other powers as may be necessary for carrying this Part into effect.
(3) The occupier of any premises or place liable to inspection under this section, and any person who is or has been employing any person in insurable employment or insurable (occupational injuries) employment, and the servants and agents of any such occupier or other person, and any insured person, claimant for benefit or person in respect of whom benefit is claimed, shall furnish to an inspector all such information and produce for inspection all such registers, cards, wages sheets, records of wages and other documents as the inspector may reasonably require for the purpose of ascertaining whether contributions are or have been payable, or have been duly paid in respect of any person, or whether benefit is or was payable to or in respect of any person.
(4) If any person -
(a) wilfully delays or obstructs an inspector in the exercise of any power under this section, or
(b) refuses or neglects to answer any question or to furnish any information or to produce any document when required to do so under this section, or
(c) conceals or prevents or attempts to conceal or prevent any person from appearing before or being examined by a person appointed under this section.
he shall be guilty of an offence under this section and shall be liable -
(i) on summary conviction, to a fine not exceeding £500 or (at the discretion of the court) to imprisonment for a term not exceeding one year, or to both such fine and such imprisonment, or
(ii) on conviction on indictment, to a fine not exceeding £2,000 or (at the discretion of the court) to imprisonment for a term not exceeding two years, or to both such fine and such imprisonment,
but no one shall be required under this section to answer any question or to give any evidence tending to incriminate himself.
(5) Every inspector shall be furnished with a certificate of his...
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