Stephen Brady v The Revenue Commisioners, The Commissioner of an Garda Siochána, DPP, Ireland and The Attorney General

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Edwards
• Judgment Date: 18 January 2021
• Neutral Citation: [2021] IECA 8
• Docket Number: Record No: CA 2018/406
• Date: 18 January 2021

Stephen Brady

Applicant/Appellant

and

The Revenue Commisioners, The Commissioner of an Garda Siochána, The Director of Public Prosecutions, Ireland and The Attorney General

Respondents

2021] IECA 8

Edwards J.

Haughton J.

Pilkington J.

Record No: CA 2018/406

THE COURT OF APPEAL

Judicial review – Conviction – Possession of an unregistered vehicle for the purpose of vehicle registration tax – Appellant seeking leave to bring judicial review proceedings – Whether the appellant had established an arguable case that a relief of certiorari lay in respect of the order of conviction

Facts: The appellant, Mr Brady, applied to the High Court seeking leave to bring judicial review proceedings relating to his conviction before Monaghan Circuit Court on 29th November 2016 for an offence, contrary to s. 139 of the Finance Act 1992, of being in possession, on 25th November 2011, as an unauthorised person, of an unregistered vehicle for the purpose of vehicle registration tax, when the said vehicle was not an exempted vehicle. The appellant argued that s. 139 was incompatible with Article 63 TFEU and that a full defence, suggested to be available to him pursuant to a decision of the CJEU in Staatssecretaris van Finnancien v van Putten, Mook and Frank (van Putten and others) (Cases C-578/10, C-579/10 and C-580/10, 26th April, 2012), was not considered by the Circuit Court Judge. It was further claimed that the Circuit Court Judge should have stated a case to the Court of Appeal in relation to this issue. On 28th September 2018, the High Court held that the appellant had not established an arguable case that a relief of certiorari lay in respect of the order of conviction which the Circuit Court Judge made. The High Court dismissed the application and refused the appellant leave to bring judicial review proceedings for the reliefs sought: [2018] IEHC 540. The appellant appealed to the Court of Appeal against the judgment and order of the High Court.

Held by the Court that as the evidential and legal foundation required to support a van Putten and others type defence had not been properly laid, and as the proceedings were clearly inappropriately constituted, it would not be appropriate to grant the appellant leave to apply to seek certiorari, and the other relief he sought. The Court held that the unfairness of which he complained, even if it was sustained, could have had no bearing on the outcome of his trial in circumstances where the evidence before the court was insufficient in any event to show that Article 63 TFEU was engaged.

The Court dismissed the appeal. The Court’s provisional view with regard to costs was that since the respondents, the Revenue Commissioners, the Commissioner of An Garda Síochána, the Director of Public Prosecutions, Ireland and the Attorney General, who were on notice at the direction of the High Court, and who participated in the appeal, had been entirely successful, they should be entitled to the costs of the appeal.

Appeal dismissed.

FOR ELECTRONIC DELIVERY

UNAPPROVED

Judgment of the Court delivered on the 18 ^th of January, 2021 by Mr. Justice Edwards

Introduction

1 This appeal is against the Order of the High Court (Burns (T) J.) dated the 28th of September 2018 dismissing the applicant/appellant's (“the appellant's”) application for leave to apply for various reliefs, including declaratory relief and certiorari, by way of judicial review; and against the related judgment of the same date, the neutral citation for which is [2018] IEHC 540, giving the court's reasons for the said refusal.

2 The background to the application resides in the conviction of the appellant before Judge Sean McBride sitting at Monaghan District Court on the 14th of October 2013 for being in possession on the 25th of November 2011 at Planation, Co Monaghan, of an unregistered Mercedes Benz vehicle, registration mark, WEZ5923, such vehicle not being lawfully exempted under s. 135 of the Finance Act 1992 (“the Act of 1992”), or being used in accordance with any conditions, restrictions or limitations referred to in that section contrary to s.139(3)(a) and s.139(4) of the Act of 1992 as amended by s.240 of the Finance Act 2001 and s.77 of the Finance Act 2008 and to the form of the statute made and provided. The appellant was sentenced at first instance to a fine of €5,000 to be paid within six months, or 3 months imprisonment in default of the payment thereof.

3 The appellant's said conviction and sentence was subsequently appealed to Monaghan Circuit Court (Her Honour Judge Berkeley presiding) and came on for hearing on the 29th of November 2016. The appeal against conviction was dismissed on the merits, but the appellant was partly successfully in his appeal against sentence in that the Circuit Court judge was disposed to vary the amount of the fine from €5000 to €3000.

4 The basis on which the appellant unsuccessfully sought to defend the case before both the District Court and the Circuit Court was that the vehicle in question, on which it was admitted no VRT had been paid in this jurisdiction, was registered in the ownership of the appellant's wife in Northern Ireland, and was on temporary loan to him at the time that he was stopped by a member of An Garda Siochána on the 25th of November 2011. He contended that under EU law, and specifically Article 63 TFEU (formerly Article 56 EC), a directly effective provision which prohibits restrictions on movements of capital between Member States, a citizen of one EU Member State may borrow for temporary use from another EU citizen in another Member State a motor vehicle registered in that other Member State and drive the borrowed vehicle on the road network of the borrower's Member State, and that any domestic law which suggests the contrary is invalid and must be disregarded in circumstances where Article 63 TFEU is directly effective.

5 In support of this argument the appellant relied upon the decision of the CJEU in the conjoined cases of Staatssecretaris van Financien v. van Putten, Mook and Frank (“ van Putten and others”) ( Cases C-578/10, C-579/10 and C-580/10) which involved a request from the Supreme Court of the Netherlands to the CJEU for a preliminary ruling on the question (identical in all three cases): “does Community law govern a situation in which a Member State levies a tax on the first use on the road network in its territory of a vehicle which is registered in another Member State, which has been borrowed from a resident of that other Member State and has been driven by a resident of the first Member State in the territory of that Member State?”

6 The CJEU answered the question posed in the affirmative, stating:

[56] … Article 56 EC must be interpreted as meaning that it precludes legislation of a Member State which requires residents who have borrowed a vehicle registered in another Member State from a resident of that State to pay, on first use of that vehicle on the national road network, the full amount of a tax normally due on registration of a vehicle in the first Member State, without taking account of the duration of the use of that vehicle on that road network and without that person being able to invoke a right to exemption or reimbursement where that vehicle is neither intended to be used essentially in the first Member State on a permanent basis nor, in fact, used in that way.”

7 The transcript of the proceedings before the Circuit Court was reviewed at length by the High Court judge, and it is unnecessary to do so again in as much detail, although later in this judgment we will need to refer to some of the evidence that was before the Circuit Court. We adopt the High Court judge's review and it should be read in conjunction with this judgment. Beyond that, it is sufficient at this point to state that the transcript reveals significant engagement between counsel and the bench in regard to this argument, and that the relevant authority was handed up, and was opened to, the Circuit Court judge.

8 It is clear from the transcript that the Circuit Court judge considered that she understood the argument that was being made, but that she ultimately rejected it, firstly on the basis that she had no jurisdiction to declare a domestic statute to be invalid as contravening EU law, and secondly in so far as any possible disapplication of the domestic statute was concerned on the basis that she believed the case of van Putten and others was in any event distinguishable from the appellant's case. She expressly stated that in her view, the van Putten and others ruling was “on the basis of a first use of the vehicle on a national [roads] network” and that “that is not the case made by the defence in this case. Quite the contrary. That's not the issue in this case at all. Mrs Brady's evidence was that she regularly gave her husband the car to use and had done so; not so much at this time because he had been very unwell.”

9 There had been evidence in the case that the appellant had previously been stopped while driving the same vehicle in this jurisdiction in February 2011, following which the vehicle was seized and was only released after the appellant's wife had paid a financial penalty and had signed a declaration that the vehicle would either be registered within the State or permanently exported. Subsequent to this the vehicle was observed by Customs officials, being driven by the appellant, in this jurisdiction, on three further occasions prior to the occasion the subject matter of the prosecution at issue, and specifically in July, August and September 2011. Further, there was evidence that a thirty-day period of grace is given by the Revenue Commissioners to the importer of a foreign registered car to register it in this jurisdiction. The appellant had clearly not acted to bring himself into compliance with the law within that grace period. The Circuit Court...