Murphy v District Justice Wallace

• Jurisdiction: Ireland
• Judge: Mr. Justice Barron
• Judgment Date: 01 January 1993
• Docket Number: [1988 No. 11935P],No. H935p/1988
• Date: 01 January 1993
• Court: High Court

1990 WJSC-HC 2838

THE HIGH COURT

No. H935p/1988

MURPHY v. WALLACE

BETWEEN

JOHN B. MURPHY

PLAINTIFF

AND

DISTRICT JUSTICE BRENDAN WALLACE GARDA SUPERINTENDENT JAMES WALL OF AN GARDA SIOCHANA KANTURK, CO. CORK, THE COMMISSIONERS OF CUSTOMS AND EXCISE THE DIRECTOR OF PUBLIC PROSECUTIONS IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

Citations:

EXCISE MANAGEMENT ACT 1827 S86

EXCISE MANAGEMENT ACT 1827 S90

CONSTITUTION ART 50

PETTY SESSIONS (IRL) ACT 1851 S22

PETTY SESSIONS (IRL) ACT 1851 S42

COURTS (NO 2) ACT 1986 S2(1)

COURTS (NO 2) ACT 1986 S2(3)

COURTS OF JUSTICE ACT 1936 S76

INLAND REVENUE REGULATION ACT 1890 S21

FINANCE ACT 1987 S53

O'ROURKE, STATE V KELLY 1983 IR 58

DEATON V REVENUE COMMISSIONERS 1963 IR 170

RSC O.84 r26(4)

Synopsis:

DELAY

Judicial review

Leave - Application - Justification - Distress warrant - Issue - Warrant issued ~ultra vires~ District Justice - Wrong procedure adopted by Revenue authorities - (1988/11935 P - Barron J. - 17/7/90) - [1993] 2 I.R. 138 - [1991] I.L.T. 128

|Murphy v. Wallace|

REVENUE

Offence

Penalty - Recovery - Order - Enforcement - Distress warrant - Warrant issued to unauthorised person - (1988/11935 P - Barron J. - 17/7/90) - [1993] 2 I.R. 138 -[1991] I.L.T. 128

|Murphy v. Wallace|

DISTRICT COURT

Order

Enforcement - Fine - Payment - Failure - Distress warrant - Revenue matter - Warrant issued incorrectly to member of Garda Siochana - Judicial review - Delay - Remittal of proceedings - Excise Management Act, 1827, s. 90 - Inland Revenue Regulation Act, 1890, s. 21 - Courts of Justice Act, 1936, s. 76 - Finance Act 1987, s. 53 - Constitution of Ireland, 1937, Article 34 - (1988/11935 P - Barron J. - 17/7/90) - [1993] 2 I.R. 138

|Murphy v. Wallace|

JUDICIAL REVIEW

Proceedings

Remittal - Delay - District Court - Revenue matter - Distress and penal warrants - Warrants issued ~ultra vires~ District Justice - (1988/11935 P - Barron J. - 17/7/90) - [1993] 2 I.R. 138

|Murphy v. Wallace|

ORDER

Enforcement

Revenue - Offence - Penalty - Recovery - Distress warrant - Warrant issued to unauthorised person - (1988/11935 P - Barron J. - 17/7/90) - [1993] 2 I.R. 138 - [1991] I.L.T. 128

|Murphy v. Wallace|

1 Judgment of Mr. Justice Barron delivered on the 17th day of July 1990.

2 The Plaintiff was convicted on the 18th September 1986 at Millstreet District Court of 11 separate offences under the Betting Acts and was fined a total of £5,200 in respect of all such convictions. He failed to pay this sum and Warrants issued on the 19th February 1987 from the District Court directed to the Garda Superintendent authorizing distress against the Plaintiff's goods. These Distress Warrants were sent to Sergeant O'Rourke for execution. He sought payment from the Plaintiff who at that time owned a licensed premises in a small village. He was satisfied that the Plaintiff had not the means to pay the fines and endorsed the Warrants appropriately. These Distress Warrants were in accordance with Form No. 18(3) and were headed Warrant of Execution (to distrain in default of payment of fine). Each contained a printed form on the reverse side headed Indorsements. These indorsements however were appropriate to a Penal Warrant only. Nothing turns on this fact but it seems that the nature of the form should be amended to comply with what was intended.

3 Since distress had proved of no avail, the Sergeant sought to obtain Penal Warrants for the arrest of the Plaintiff. When this Application first came before the District Court the matter was adjourned because at that time a decision was pending in Graham v. District Justice William F. Connell and Ors. In that case it was being contended that the issue of Distress Warrants to the Garda authorities instead of to excise officers to recover fines in a Revenue matter was ultra vires the powers of the District Court under the provisions of Section 86 of the Excise Management Act 1827.

4 Judgment was given in Graham's case on the 9th December 1987. That Judgment upheld the submission being made by the Applicant in that case. Accordingly, it became apparent to the State authorities that the Distress Warrants which had been issued to the Garda Superintendent were invalid and it was a matter for them to reconsider their position. It was not until the 15th September 1988 that the application by the Gardai for the Penal Warrants was withdrawn. The case was taken over by the Revenue and on the 20th of October 1988 the District Justice authorized the issue of Penal Warrants. The form of the Order in each case was as follows:

"I did adjudge that the said Application be granted and I did Order that in lieu of each of the said Distress Warrants a Penal Warrant do issue".

5 On the 28th October 1988 the Plaintiff got liberty to seek Judicial Review of the proceedings before the District Court. Liberty was given to the Plaintiff to proceed by way of Plenary proceedings. The Indorsement of Claim to the Plenary Summons is as follows:

"The Plaintiff's claim is for:"

6 (a) Judicial Review of 11 Distress Warrants issued by the first named Defendant.

7 (b) Judicial Review of the Order of the first named Defendant ordering the substitution of Penal Warrants in place of Distress Warrants.

8 (c) A declaration that Section 90 of the Excise Management Act 1827 is inconsistent with the provisions of the Constitution and has not been carried over by Article 50.

9 (d) An injunction against the second third and fourth Defendants restraining them from applying for further Penal Warrants.

10 (e) An injunction restraining the second third and fourth Defendants from proceeding to execute the Order of the first named Defendant on the 20th of October 1988.

11 (f) Prohibition in respect of the second third and fourth named Respondents."

12 The procedures for the enforcement of penalties imposed by the District Court in cases of summary jurisdiction differ in relation to Revenue offences. In non-Revenue cases, the procedures which are set out in the District Court Rules are based upon the provisions of Section 22 of the Petty Sessions (Ireland) Act 1851. By Section 42 of the same Act these provisions are not applicable to Revenue matters. This separate jurisdiction has continued and is to be seen also in the Courts (No. 2) Act 1986, where the powers granted to the Court by Section 2 (1) to order imprisonment in default of payment of a fine imposed upon summary conviction do not apply to Revenue offences: Section 2 (3).

13 The procedures in Revenue offences so far as they are material to this case are set out in Sections 86 and 90 of the Excise Management Act of 1827. Section 86 provides that where a fine is imposed, the Justices may issue Distress Warrants to an Officer of Excise. Section 90 provides that in the event of there being insufficient distress a return to that effect may be made by the Excise Officer to the Justices by whom the issue of the Warrant was ordered or to any other Justices having the...