DC Sanctions

Cases

Meagher v. O’Leary

[1997] IEHC 158; [1998] 2 IR 33; [1998] 1 ILRM 211 (8th October, 1997)

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

2. 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 the European Communities (Control of Veterinary Medical Products and their Residues) Regulations, 1990 (Statutory Instruments Numbers 218/88 and 171/90).

3. 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’s farm.

4. 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.

5. 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 the appeal 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.

6. 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 into consideration.

7. 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 by way 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, 1984 were unconstitutional.

8. 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.

(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, 1928 that 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 certain old authorities suggested that if the first-named Respondent’s Orders of imprisonment fell, the more adverse Orders of the second-named Respondent might in some fashion revive, so that he had felt it prudent on this basis to join the second-named Respondent: I fully accept this, but in the context of the Mallon decision, the second-named Respondent’s custodial determination could not in any event now stand, and I have no doubt that in these circumstances it is unnecessary to proceed beyond addressing the lawfulness and constitutionality of the first-named Respon
dent’s custodial Orders.

(b). Although it was contended in the Respondents’ written submission that the Applicant, having acquiesced in and pleaded to the several summonses in both District and Circuit Courts, was estopped and precluded from now contending that no more that a single generic criminal transaction was disclosed, Mr Charleton has rightly not sought to rely on this argument: if a penal statutory provision that is applicable to particular facts is found repugnant to the Constitution, the consequences inter partes must not be negatived by reason of how those parties have conducted themselves procedurally. Nor would it be at all warranted to even infer any element of criticism in this regard against any of the practitioners who appeared for the Applicant before both first and second-named Respondents.

(c) In any event, Mr Hogan has for his part with equal propriety conceded that, notwithstanding matters set forth in the written submissions, he cannot realistically dispute that summonses number 490 and 491 constitute separate offences in law. I would have had little difficulty in coming to a like conclusion; given well settled authorities and practice in criminal pleading, allied to the range of items found and venues at which found, it would have been entirely inappropriate for the Prosecution to have sought to combine all matters in a single summons. If a consensual basis for a plea of guilty had been explored between the parties, it would have been open to them to proffer an amended and extended representative summons and/or to have had certain of the summonses ” taken into consideration” , but a proper framing of the matters of complaint at the outset clearly required the issue of separate summonses along lines such as were adopted.

9. The case accordingly turns on the issue of the constitutionality of Section 5 of the Criminal Justice Act, 1951 as amended by Section 12 subsection (1) of the Criminal Justice Act, 1984, in providing for the imposition of consecutive terms of imprisonment by the District Court, or, as already indicated, by the Circuit Court on appeal. It is well settled that the Applicant is entitled to maintain his constitutional argument in the existing Judicial Review proceedings, and is not obliged to institute Plenary proceedings seeking declaratory relief. The State (McEldowney) v. Kelliher High Court unreported 5 February 1982; The State (Lynch) v. Cooney 1982 I.R. 337; The State (Gallagher Shatter & Company) v. De Valera 1987 I.R. 55.

10. For clarity it is well to set forth the respective provisions under review. Article 38.2 of the Constitution provides that:-

“Minor offences may be tried by Courts of summary jurisdiction”.
11. Article 34.3.4 further provides that:-

“The Courts of First Instance shall also include Courts of local and limited jurisdiction with a right of appeal as determined by law”.
By Section 5 of the Criminal Justice Act, 1951 it is provided that:-

“Where a sentence of imprisonment is passed on any person by the District Court, the Court may order that the sentence shall commence at the expiration of any other term of imprisonment to which that person has been previously sentenced, so however that where two or more sentences passed by the District Court are ordered to run consecutively the aggregate term of imprisonment shall not exceed twelve months “.

12. This provision was amended by Section 12 subsection (1) of the Criminal Justice Act, 1984 whereby

” Section 5 of the Criminal Justice Act, 1951 ( which provides that, where two or more sentences passed by the District Court are ordered to run consecutively, the aggregate term of imprisonment shall not exceed twelve months) is hereby amended by the substitution for ‘twelve months’of ‘two years’ “.

13. Mr Hogan submitted that this last quoted provision, on foot of which his client had been penalised, was repugnant to Article 38.2, insofar as the extent of the consecutive sanction, being one of the primary determinants of minor offences noted in a long line of cases from Melling v. O’ Mathghamhna 1962 I.R. I onwards, was of such duration as to take the Prosecution beyond the sphere of minor offences. Reliance was placed on dicta of O’Flaherty J. in Heaney and McGuinness v. Ireland and the Attorney General 1996 I.R. 580 at 589 to the effect that ” constitutional rights must be construed in such a way as to give life and reality to what is being guaranteed “, and of Gannon J. in The State (O’Reilly) v. Delap (High Court 1985), confirming that if one of the first-named Respondent’s jurisdictional limitations related to range of punishment, his sentence must be seen to be within such limitation. Even though the argument would have been clearer had the differential between maximum terms for single and aggregated offences exceeded that between one year and two years, the Oireachtas had in setting a self-imposed limitation so eroded the Applicant’s rights, in the context of the proper ambit of minor offences and access to trial by jury, as to require a finding of unconstitutionality. Such a finding would mean it was accepted that on all occasions on which District Judges or Circuit Judges on appeal had utilised Section 12 subsection (1) of the 1984 Act so as to impose sentences exceeding twelve months, those sentences exceeded the true jurisdictional limits applicable.

14. I have considered the detailed submissions advanced by both sides, and the authorities relied upon, although, given the absence of direct authority on the essential issue, some of these are perhaps of somewhat peripheral relevance.

15. Given that it is uncontested in argument, and indeed was set forth in the Supreme Court judgments in the Mallon case supra, that a maximum penalty of two years imprisonment for a single offence takes that offence beyond the category of a minor one, whereas a maximum penalty of one year’s imprisonment does not, the crucial issue in the present instance appears as follows:

16. Is the sphere of minor offences likewise exceeded if that two year maximum penalty is comprised as an aggregation of two or more lesser sentences imposed consecutively in respect of different offences tried together by a Judge?

17. It is difficult to oppose in principle the concept of some measure of consecutive sentencing rendering sanctions for a plurality of offences greater than for a single one: if a youth snatches handbags from six different women on different occasions then, whether it be viewed from the stand point of moral turpitude, loss and distress to victims, or in the context of any of the generally held objectives of sentencing, his criminal involvement self-evidently exceeds that of the perpetrator of a single like offence. From the offender’s standpoint also, as argued by Mr Charleton, and in the context of the efficient conduct of the criminal justice system, it is desirable and preferable that some fair and balanced scheme of sentencing perimeters address this contingency, rather than having disposal of a second or subsequent complaint against an alleged offender deferred until conclusion of hearing and/or sentence in relation to its predecessor.

18. Notwithstanding Mr Hogan’s concerns over a self-imposed limitation, it seems to me imperative that a maximum aggregate sentence be set forth by the Oireachtas that accords with the requirements of fairness and constitutional justice. If, in the example referred to above a Court dealing summarily with the six offences were permitted to impose an indeterminate succession of consecutive sentences, it could give rise to an aggregate sentence of six years imprisonment, which would exceed the maximum allowable for many serious offences following trial on indictment, and could on no rational basis be viewed as an exercise of jurisdiction pursuant to Article 38.2.

19. Construing the impugned subsection of the 1984 Act in this regard inevitably involves a balancing of conflicting constitutional rights and duties. The manner in which this exercise should be undertaken was set forth in Touhy v. Courtney 1994 3.I.R. 1 at 47 by Finlay C.J., as approved by Hamilton C.J. in the reference case Information (Termination of Pregnancies) Bill, 1995 1 I.R.1:

“In the challenge to the constitutional validity of any statute in the enactment of which the Oireachtas has been engaged in such a balancing function, the role of the Courts is not to impose their view of the correct or desirable balance in substitution for the view of the legislature as displayed in their legislation, but rather to determine from an objective stance whether the balance contained in the impugned legislation is so contrary to reason and fairness as to constitute an unjust attack on some individual’s constitutional rights”.

20. Applying this test to the relevant subsection, I am clearly of the view that the balance set forth in limiting to two years an aggregated maximum of lesser consecutive sentences cannot be said to so contravene reason and fairness as to constitute an unjust attack on the Applicant’s constitutional rights. In the words of O’Flaherty J. in Heany and McGuinness -v- Ireland and the Attorney General (Supra ), it appears to me that there is “proper proportionality in the provision” between the conflicting rights involved.

21. Whilst not directly in point, since the first-named Respondent was confined to an appellate exercise of the second-named Respondent’s summary jurisdiction, I am by analogy somewhat fortified in the view that I have taken by noting, as urged by Mr Charleton, the exceptionally far-reaching jurisdiction in indictable crime entrusted exclusively to the Circuit Court in respect, inter alia, of such crucial matters as the entire spectra of offences relating to controlled drugs, non-fatal offences against the person, and offences against property, an allocation of jurisdiction upheld by the Supreme Court in Tormey -v- Ireland 1985 I.R. 289.

22. In accordingly forming the view that Section 12 subsection (1) of the Criminal Justice Act, 1984 is not unconstitutional, I do so on the basis, be it either by way of concession or legal finding, that summonses 490 and 491 amounted to separate offences. Undoubtedly many common factors applied to all items found in the search and it may be that other items would have been more obviously mutually distinguishable, but the two substances involved clearly differed in form and colour, and in my opinion may properly be found to disclose separate offences.

23. Whilst it does not now govern my findings, it does appear to me that in situations where a summary sentencing jurisdiction is being exercised in relation to what in essence amounts to a single criminal transaction, it is wrong in law that consecutive sentences should be imposed in respect of different summonses or charges clearly referable to that single transaction, in such fashion as to render the aggregate sentence in excess of twelve months. One may envisage cases of potential difficulty having to be analysed in this regard, but it may be that an appropriate criterion in analysing inter-linked offences would be to decide whether or not an acquittal on a first alleged complaint would amount to a bar against the Prosecution proceeding on second or subsequent complaints. However, this does not fall to be decided in the present case.

24. It was also canvassed in the Applicant’s written submission, but not argued by Mr Hogan, that the first-named Respondent’s sentence was arbitrary, disproportionate and of such dimensions as to amount to a manifestly unjust punishment warranting the intervention of this Court. I do not think such a proposition is sustainable. Undoubtedly the sentence was one of appreciable rigour, but it factually represented the considered determination following a proper hearing of a Judge who was experienced and aware of the circumstances surrounding these types of offences, and legally, given my primary finding, it was imposed neither in excess of, nor without, due jurisdiction.

25. On foot of the authority of Associated Provincial Picturehouse Limited v. Wednesbury Corporation 1948 1 KB 223, as substantially adopted in this jurisdiction in The State (Keegan) -v- The Stardust Victims Compensation Tribunal 1986 I.R. 642, and succeeding cases, I can envisage extreme cases in which a High Court jurisdiction might arise to impugn a particular sentence of such unreasonableness or unfairness as to satisfy the criterion formulated by Henchy J. in the Keegan case of ” whether the impugned decision plainly and unambiguously flies in the face of fundamental reason and common sense”.

26. This is not such a case and it seems to me that for such a theoretical jurisdiction to be invoked over and above ordinary appellate procedures, it would require singular and striking facts, such as perhaps an immediate maximum custodial sentence being imposed following a guilty plea to shoplifting a single item, upon an elderly female first offender.

27. As to the severity of the aggregate sentence, I am satisfied on the findings I have made that it should not be quashed, and of course I am concerned with its merits neither in the context of a sentence re-hearing nor of considering whether its duration erred in principle. Whilst the Executive are required to honour the substantive integrity of the sentence imposed, the authorities are entitled (as noted in a recent unreported Court of Criminal Appeal decision of 14th July, 1997 given by Barron J. in DPP -v- Trevor Rowley (sentence ex-tempore portion)) to take such steps within the sentencing structures as may be humane and appropriate.

DPP v Judge Ryan  and CP

(notice party) [2011] IEHC 280
JUDGMENT of Kearns P. delivered on the 19th July, 2011
The applicant is seeking an order of certiorari quashing the order of the respondent dated 16th November, 2010, striking out the complaint against the notice party on a charge of sexual assault under s.2 of the Criminal Law (Rape) (Amendment) Act 1990 as amended by s.37 of the Sex Offenders Act 2001 and a further order of mandamus requiring the respondent to hear and determine the charge against the notice party, to enter a conviction and to impose a sentence on the notice party in accordance with law.

The relevant provision, as amended, is in the following terms:

“2.—(1) The offence of indecent assault upon any male person and the offence of indecent assault upon any female person shall be known as sexual assault.
(2) A person guilty of sexual assault shall be liable on conviction on indictment to imprisonment for a term not exceeding 5 years.

(2)(a) A person guilty of sexual assault shall be liable on conviction on indictment—

(i) in case the person on whom the assault was committed was a child, to imprisonment for a term not exceeding 14 years, and

(ii) in any other case, to imprisonment for a term not exceeding 10 years.

(b) In this subsection ‘child’ means a person under 17 years of age.

(3) Sexual assault shall be a felony.”

It should be noted at this point that when the offence is tried in the District Court, in accordance with its jurisdiction, the maximum applicable sentence is 12 months.

FACTUAL BACKGROUND
The incident underlying the present application occurred on the 12th April, 2009. On that date the complainant and her fiancé were hosting a 30th birthday party at their home in Dublin where food and alcohol were served to family and friends. At approximately 3.00 a.m. the complainant went to her bedroom where she lay on her bed fully clothed and fell asleep. She lay on her side as she was feeling ill. At approximately 2.00 a.m. the notice party arrived at the party. The evidence is that he is a member of the same rugby club as the complainant’s fiancé although it appears to be accepted by the parties that he was not invited to attend the event.

The notice party had consumed approximately 12-14 pints of beer between 3.00 p.m. and his arrival at the party and a further two and a half cans thereafter. At some point he went upstairs to find a place to sleep. It is the notice party’s evidence that he entered into what he believed to be an empty room where he then fell asleep in what he believed to be an empty bed.

The complainant woke at some point during the night, which she estimates as 30 minutes after she had fallen asleep, and understood that there was a person laying with his chest to her back and with his hand in her underwear and his fingers in her vagina. The complainant assumed the person to be her fiancé and feeling comfortable returned to sleep. One of the complainant’s brothers entered into the bedroom and discovered the notice party laying chest to back with the complainant with his arm around her waist and with the appearance that his hand was in her genital region. He then went downstairs and alerted one of his brothers along with the complainant’s fiancé who then forcibly removed the accused from the bedroom.

Although he initially denied the allegation of sexual assault when it was put to him while being questioned by the gardaí, when the charge was eventually brought against him before the District Court a plea of guilty was entered at an early stage. The respondent heard the facts relating to the prosecution case and directed that the matter be remanded pending the preparation of a Victim Impact Statement and a probation report, both of which were duly prepared.

The matter subsequently came before the District Court on the 16th November, 2010, whereupon it was indicated to the court that a sum of money in the amount of €1,500 had been brought to court by the notice party by way of a compensation payment. The prosecuting garda was asked to contact the complainant to determine whether she was willing to accept the sum. She indicated that the she did not want the money and that it could be paid to charity. The respondent accepted the money for payment to charity and €500 was immediately paid into court with the balance to follow. The respondent then ordered that the charge be struck out against the applicant.

The order of the court was in the following terms:

“On the 12th April 2009, in the Dublin Metropolitan District, did sexually assault one L. K., a female.
Contrary to Section 2 of the Criminal Justice (Rape) (Amendment) Act 1990 as amended by Section 37 of the Sex Offenders Act 2001,

And the defendant, having pleaded guilty to the said offence on 23rd February 2010, and the Judge having convicted the defendant on that date,

And the offence, being an offence to which Section 13 of the Criminal Procedure Act, 1967 applies and the Court being satisfied that the accused understood the nature of the offence and the facts alleged and the Director of Public Prosecutions having consented to the offence being dealt with summarily,

it was adjudged that the said complaint be struck out.” (sic)

The prosecuting garda did not raise any objection at that stage to the determination of the court, however the evidence is that the he was surprised by the decision in particular as the Judge had not expressed any intention of striking the matter out up to that point in time.
On foot of the order the applicant brought judicial review proceedings within one month.

To the extent that it is relevant the notice party is a 37 year old male. He has previously worked in construction and has more recently studied Chinese traditional medicine and acupuncture and has completed a course in Dorn Therapy. He has one previous drunk in charge of a motor vehicle offence from 2006 for which he was disqualified from driving for one year and fined.

SUBMISSIONS ON BEHALF OF THE APPLICANT
The applicant raises two principal grounds in its legal submissions. The first is that the Judge did not have jurisdiction to strike out the case in circumstances where a guilty plea has been entered and the second is that the decision is on its face unreasonable.

Turning to the first ground, the applicant argues that the District Court Rules (“DCR”) provide only two instances in which it is appropriate for the court to make an order of strike out. They are contained in O.23, r.3 and O.38, r. 1(4) DCR 1997 which respectively provide that: where an accused (or his representative) is present at the required time and place but where the prosecutor (or his representative) is not, then the judge may strike out, dismiss without prejudice or adjourn the complaint; or where the court is of the opinion that the complaint discloses no offence at law, or if neither the prosecutor or accused appear, then the judge may strike out the complaint with or without awarding costs.

The case of DPP v. Judge Maughan (Unreported, High Court, Ó Caoimh J., 3rd November, 2003) is cited as a case in point. The facts are that the accused pleaded guilty to a charge of drunk driving before the District Court but sought to explain his behaviour by giving evidence that at the time of the offence he had been driving to the hospital where he had been called to visit his seriously ill father who then died in the weeks following. Having initially adjourned the matter the judge then indicated that upon the payment of €200 to Victim Support the matter would be struck out. The sum was paid and the charge was duly struck out. The D.P.P. brought an action by way of judicial review seeking similar orders to the present case.

In his judgment, Ó Caoimh J. held as follows:

“I am furthermore satisfied that the order made by the respondent was made in excess of jurisdiction as he was obliged at the time to determine the case before him and to proceed in accordance with law to enter a conviction and to impose a penalty as required by law. He was not entitled to strike out the charge, notwithstanding the circumstances outlined to him by the notice party’s solicitor at the time.”
The second ground of the applicant’s submission is that the order is inherently contradictory on its face in that it records the fact that the accused pleaded guilty, was convicted but that the charge was struck out. The case of Meagher v. O’Leary [1998] 4 IR 33 is cited in support of the proposition that unreasonableness can in itself be a ground for granting relief. In his judgment Moriarty J. noted, obiter, that:
“On foot of the authority of Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 KB 223, as substantially adopted in this jurisdiction in The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642 and succeeding cases, I can envisage extreme cases in which a High Court jurisdiction might arise to impugn a particular sentence of such unreasonableness or unfairness as to satisfy the criterion formulated by Henchy J. in Keegan of ‘whether the impugned decision plainly and unambiguously flies in the face of fundamental reason and common sense’.”
Although not cited by the applicant, Moriarty J. continued by exemplifying the above statement in the following fashion:
“This is not such a case and it seems to me that for such a theoretical jurisdiction to be invoked over and above ordinary appellate procedures, it would require singular and striking facts, such as perhaps an immediate maximum custodial sentence being imposed following a guilty plea to shoplifting a single item, upon an elderly female first offender.”
In response to the submissions of the notice party the applicant contends that the Summary Jurisdiction Act 1850 has no application as it only grants a jurisdiction to order strike out offences “against this Act”.
Similarly issue is taken with the contention that s.1 (1) of the Probation of Offenders Act 1907 can be inferred into the order made by the respondent and it is argued that such a contention is incorrect. It is contended that the 1907 Act allows for a charge to be “dismissed” as opposed to struck out. The distinction between the two is that an order under the 1907 Act creates a record of the charge whereas a strike out means that there is no record whatsoever. Furthermore reliance is placed on ss.13 & 14 of the Courts Act 1971 which provides that the District Court is a court of record and that “[i]n any legal proceedings regard shall not be had to any record, relating to a decision of a judge of the District Court in any case of summary jurisdiction, other than an order […]”.

Further or in the alternative, the applicant argued that on its terms it would have been inappropriate to apply s.1 (1) of the 1907 Act on the grounds that one of the requirements of the provision is that the act complained of must have been committed in extenuating circumstances or be trivial in nature, neither of which may be said to apply in this case.

The applicant seeks to draw attention to the criticisms in the Law Reform Commission’s 2004 Consultation Paper on the Court Poor Box which concludes with the recommendation that the court poor box be replaced by a statutory regime. It is further noted that there are no examples cited in either Consultation Paper or the later Report whereby a charge for a sexual offence was struck out in circumstances similar to those in the present case.

The suggestion of acquiescence by the applicant due to the apparent failure to object at the time of the decision is rejected on the grounds that the respondent had not intimated that she was considering the order of strike out, and following the decision, any objection would have been to no effect. Furthermore the decision to bring judicial review proceedings was made immediately following the order.

On the issue of the alternative remedies available, the applicant argues that as the order was for strike out it was not open to it to appeal the decision the sentence as, in effect, no sentence was applied. Were the 1907 Act applied then it is accepted that the applicant could have brought an appeal against the severity or otherwise of the sentence imposed.

Finally, the applicant in addressing any suggestion that the granting of the orders sought would place the notice party in double jeopardy cites the following passage from the textbook Res Judicata and Double Jeopardy by Paul Anthony McDermott at para.24.10:

“It is clear that an order quashed for being made without jurisdiction will be no bar to putting the accused on trial again for the same charges. In such a case, to use the words of O’Brien L.J. [in R v. Justices of Antrim [1895] 2 IR 603 at 636] ‘the pretended adjudication of the usurping tribunal would appear to be a mere nullity – not merely voidable but void’. Such an adjudication is no adjudication at all and the accused cannot be said to have been in peril. A court which commences a trial with jurisdiction may by its subsequent actions lose such jurisdiction.”

SUBMISSIONS ON BEHALF OF THE NOTICE PARTY
The notice party submits five arguments in response to those of the applicant. The first submission addresses the jurisdiction of the District Court Judge to make an order of strike out.

There is no dispute that the applicant directed that the charge be tried as a summary matter which brought it within the confines of the jurisdiction of the District Court. The notice party then cites O. 23, r.1 DCR as providing jurisdiction for the making of a strike out order. The rule provides that:

“Where the accused, personally or by solicitor or counsel appears and admits the truth of the complaint made against him or her, the Court may if it sees no sufficient reason to the contrary, convict or make an order against him or her accordingly, but if the accused does not admit the truth of the complaint, the Court shall, subject to the provisions of rule 2 hereof, proceed to hear and determine such complaint.” (Emphasis added)
The notice party also contends that s.50 of the Summary Jurisdiction Act 1850 provides jurisdiction for a discretion not to impose a conviction in summary proceedings. The section sets out:
“And it be enacted, That where any Person shall be convicted before a Justice or Justices of the Peace of any Offence against this Act, and it shall be a First Conviction, it shall be lawful for the Justice or Justices, if he or they shall so think fit, to discharge the Offender from his Conviction, upon his making such Satisfaction to the Party aggrieved, for Damages and Costs or either of them, as shall be ascertained by the Justice or Justices.”
Furthermore, although it was not specifically cited by the respondent in making her order, the terms of the Probation of Offenders Act 1907, and in particular ss. 1(1) & (3) provide adequate jurisdiction to decline to impose a conviction in summary matters. Particular emphasis is placed on s.1 (3) which grants the power to require an accused to pay compensation or damages to the victim. This, it is argued, extends to charitable donations or donations into the court poor box.
The notice party refers to the Law Reform Commission’s 2004 Consultation Paper on the Court Poor Box and cites the following passage from paras. 1.03 and 1.06:

“It is incontrovertible that the court poor box system is a long established tradition, predating the foundations of the State.
[…]

Although it is thus possible to identify a number of possible sources from which the court poor box system evolved, it is not possible to state with certainty which, if any, of these sources is the antecedent. Perhaps it may be the case that the concept evolved from an amalgam of these sources. Nevertheless, it is beyond doubt that the practice of allowing an offender to make a payment to the court poor box as an alternative to conviction and sentence where, in the circumstances of the case, the court takes the view that a conviction would be unduly harsh, is now regarded by some judges as a familiar feature of the common law, and applied accordingly.”

Although not cited by the notice party the paragraph continues in the following terms, which is relied on by the applicant:
“However, its application remains solely a matter for individual judges, and it is beyond doubt that there is serious inconsistency in the use of the court poor box. Whilst there are many reasons for the non-application, or limited application, of the court poor box, it may well be that a factor in some judges’ hesitation in utilising the court poor box is the somewhat uncertain status the court poor box enjoys in Irish law.”
The above statutes and excerpt, it is submitted, demonstrate sufficient jurisdiction on which the respondent was entitled to relay in the exercise of her discretion to order a strike. It is further submitted that the power to so order with a charitable donation is an ancient one and one that existed prior to the existence of the State and may be one which was exercisable by the former justices of the peace. Where this power was one found in common law, then it is argued that, it was formalised by virtue of s.78 of the Courts of Justice Act 1924 which transferred to the District Court all jurisdiction which was vested in a Justice of the Peace.
The case of DPP v. Maughan is sought to be distinguished on its facts. It is submitted that for certain types of offences, such as s.49 of the Road Traffic Act 1961 (as amended), the Oireachtas has mandated that where an accused is found guilty then a conviction and a specific range of sentences must be applied.

As such, the discretion to apply the Probation Act 1907 has been removed by statute in such cases. It is the notice party’s position that this is not such a case.

It is argued that the cases of DPP v. McCormack [2000] 4 IR 356 and DPP v. NY [2002] 4 IR 309 are authority for the fact that it is lawful for the court to impose non-custodial sentences in sexual offences cases and that a custody sentence is never mandatory in the absence of a statutory direction to that effect.

The notice party raises a relatively minor issue with the applicant’s failure to identify (or plead) any mistake in the application of sentencing principles or any failure to properly consider relevant factors. This point feeds into the next submission made on behalf of the notice party.

The second submission is that the respondent was within her jurisdiction in making her decision and was not incorrect either in fact or at law and therefore the matter is not properly subject to judicial review. Similarly, although it is denied that there was any mistake in the application of sentencing principles, it is submitted that where it is found that there was a mistake then such a mistake was one which was within the respondent’s jurisdiction to make and therefore the appropriate remedy for the applicant is an appeal and not judicial review. In particular, the notice party’s suggestion appears to be that if the respondent made any mistake then it was one of fact, or alternatively a mistake of law within jurisdiction, namely the correctness of the application of sentencing principles in light of the evidence, which is not a matter which is capable of judicial review.

The notice party forwarded a number of authorities in support of this position. Of note is the decision of Balaz v. Judge Kennedy [2009] IEHC 110 in which Hedigan J. reviewed the law on errors within jurisdiction and held at paras. 30-31 as follows:

“In considering the applicant’s case on this ground, the Court must remain acutely aware of its function in judicial review proceedings. It is not the purpose of this unique and special remedy to empower the High Court to act as an appellate body, which may review findings of fact and critically assess in minute detail the legal principles applied by the original tribunal. In a criminal case, such as the present one, the Court has no authority to re-evaluate the evidence on its own terms. There are good reasons for the imposition of such limits on the Court’s capabilities; I have not had the opportunity to hear from any witnesses and examine their demeanour, nor to inspect any exhibits and consider their probative effect. In Truloc Ltd. v. McMenamin [1994] 1 ILRM 151, O’Hanlon J. stated at page 155:-

‘I do not consider that it is part of the function of the High Court, on an application for judicial review, to examine in detail the evidence tendered in support of a prosecution in the District Court for the purpose of assessing whether, in the opinion of the High Court judge, that evidence was sufficient to support the conviction which has been entered against a defendant.’

Moreover, in Roche v. Martin [1993] ILRM 651, the High Court held that a judge in a criminal trial will not be deemed to have exceeded jurisdiction, unless the conclusion which he reaches as to the satisfaction of a particular proof is not supported by any evidence. Murphy J. stated:-

‘In different appellate procedures insufficiency of evidence may be a ground for reversing a decision of a court of first instance but insufficiency of evidence – save in the most extreme case – does not deprive the… Judge of jurisdiction to reach a decision on the matter before him.’”
The third submission is that because the applicant directed that the matter be tried summarily it is not now open to him to seek to have the sentence delivered by the respondent reviewed on its merits. While acknowledging that the comments of Moriarty J. in the case of Meagher v. O’Leary may provide sufficient jurisdiction to examine a decision by way of judicial review it is submitted that no unreasonableness, irrationality or lack of proportionality is pleaded in this case or applies such as to warrant the invocation of such a jurisdiction.

Reliance is also placed on the case of DPP v. Kelliher (Unreported, ex tempore, Supreme Court, Keane C.J., 24th June, 2000) where it was held that to permit review of a decision to refuse to send an accused forward on an irrationality basis would involve:

“[…] inquiring into the merits into the decision and inquiring whether on the facts before him the District Judge was right or wrong in the course that he took. That is not a course which it is open to the Superior Courts to take in Judicial Review proceedings. It is tantamount to affording the Director a right of appeal in such case and of course it must inevitably follow that such a right of appeal would have to exist also in the case of an accused person who conversely took exception to an Order returning him or her for trial.”
Fourth, the notice party raises a number of discretionary bars to relief. In particular it is submitted that the applicant acquiesced at all stages to the manner in which the respondent handled the charge and that he then did not object to the decision at the time it was made either before or immediately afterwards. It is also submitted that the applicant did not exhaust all of the alternative remedies open to him, namely his right under s.4 of the Summary Jurisdiction Act 1857 to bring an appeal on a point of law, or alternatively an appeal by way of case stated. This, it is said, is sufficient, based on the case law, to warrant a refusal to judicially review the decision.
Finally, the notice party argues that there would be a manifest unfairness were the court to grant the orders sought as to do so would expose him to double jeopardy and that instead the court should simply direct that if the only error on the face of the order was the failure to refer to the 1907 Act then the correction of this “slip” would satisfy the justice of the case. Furthermore any remittal to the District Court in line with the orders sought would infringe on his legitimate expectation that once the sentence was passed and the payment to charity was made there would be finality to the proceedings. The lack of any system in Ireland whereby spent convictions could be expunged from a person’s record was also a point which was sought to be impressed on the court in making its decision on whether to direct that a conviction should be entered against the notice party in circumstances where the offence, as directed to be tried summarily, was deemed to be a minor matter. As a corollary it was suggested that the case of DPP v. Nally [2007] 4 IR 145 is authority for the proposition that the trier of fact, in that case a jury but here the respondent, could not be directed by the court to enter a conviction.

CONCLUSION
For various of the reasons adumbrated on behalf of the notice party, I am satisfied that this Court should not intervene by way of judicial review to quash an order made by a competent judge of the District Court who is acting within jurisdiction and still less should it do so in terms or circumstances whereby this Court would effectively be instructing the District judge to enter and record a ‘guilty’ verdict and deal differently with the matter of penalty. To do so would be to usurp a function allocated under law to the judge trying the case, the very error which was identified in DPP v. Nally [2007] 4 IR 145 when the independent function of the jury was held to have been abrogated. This course would be particularly objectionable where, as in the present case, the notice party has made a substantial payment to charity without demur from the prosecution and effectively undergone a sanction in any event.

Despite the fact that there is some lack of clarity surrounding the origins and development of the Poor Box jurisdiction, it has from time immemorial been part of the repertoire of remedies available in limited circumstances to judges of the District Court to apply where the facts of the particular case suggest that the higher interests of justice would best be served by doing so. I have no doubt that such humane considerations were to the forefront of the mind of Judge Maughan in the driving case in which he believed there had been extenuating circumstances of an unusual degree (DPP v. Judge Maughan (Unreported, High Court, Ó Caoimh J., 3rd November, 2003)) albeit that the High Court did not find he had the discretion to do as he did. However, I am satisfied the District judge did have such discretion in this particular case. It is clear that the District judge found extenuating circumstances of a special character which justified her in exercising her discretion in the manner she did.

Unless there is clear evidence that a judge of the District Court is missapplying discretion in operating a ‘strike out’ and ‘pay’ method of disposing of exceptional cases I would be extremely averse to the idea of truncating or wiping out that power.

I am also of the view that, on procedural grounds, the applicant must fail because the appropriate remedy in this case was to exercise one of the appeal options which were available to the applicant which would have been more respectful of the distinct and separate functions of the Director of Public Prosecutions and a member of the judiciary.

For these reasons I would refuse the relief sought in this case.

Director of Public Prosecution v Scott Gray

 

1985 No. 256

Supreme Court

12 March 1986

[1987] I.L.R.M. 4
(Finlay CJ, Henchy, Griffin, Hederman and McCarthy JJ)

12 March 1986

FINLAY CJ

(Hederman J concurring) delivered his judgment on 12 March 1986 saying: This is an appeal by the Director of Public Prosecutions against the order and judgment of Gannon J in the High Court, dated 26 July 1985, on an appeal brought by him (the DPP) by way of case stated, from a decision of District Justice T.P. O’Reilly, the District Justice assigned to the District Court Area of Castleblayney, on the grounds that the justice’s determination was erroneous in law.

The net issue which arises on the appeal is as to whether the District Justice before whom the respondent Scott Gray was charged with a number of offences contrary to the Betting Duty (Certified Returns) Regulations 1934, was entitled, upon convicting the Defendent of one offence, to take into consideration, pursuant to s. 8 of the Criminal Justice Act 1951, a number of other offences of which the respondent admitted himself guilty.

The betting regulations in respect of which the respondent was charged were made by the Revenue Commisioners pursuant to s. 25(1) of the Finance Act 1926 and were ‘for securing the payment of the duty on bets and generally for carrying the provisions of this Act in relation to such duty into effect.’

By virtue of s. 25(2) of the Act of 1926 it was provided as follows:

Every person who contravenes or fails to comply with a regulation made under this section shall be guilty of an offence under this section and shall be liable on summary conviction thereof to an excise penalty of £500.

S. 69(1)(b) of the Finance Act 1982 substituted the sum of £800 for £500 in this section.

By s. 78 of the Excise (Management) Act 1827 (7 and 8 Geo. IV, c. 53) it was provided that:

It shall be lawful for the justices of the peace when they shall see cause, except in cases where there is or shall be any provision that no mitigation shall be made by the justices of the peace, and they are hereby authorised and empowered, to mitigate any penalty incurred for any offence committed against this Act, or any other Act or Acts of Parliament relating to the revenue of excise, for which any information shall have been exhibited before such … justices … as the said justices in their discretion shall think fit, so as such mitigation shall not reduce such penalty to less than one-fourth part thereof; and that every such mitigation and payment thereupon accordingly made, shall be a sufficient discharge of every such penalty to the person or persons convicted of such offence;

It was provided by s. 70 of the Finance Act 1982 that one-half should be substituted for one-quarter in s. 78 of the 1827 Act, thus leaving the provision one for mitigation provided that it did not reduce the penalty below one-half.

S. 8 of the Criminal Justice Act 1951 reads as follows:

(1) Where a person on being convicted of an offence admits himself guilty of any other offence and asks to have it taken into consideration in awarding punishment, the Court may take it into consideration accordingly.

(2) If the court takes an offence into consideration, a note of the fact shall be made and filed with the record of the sentence, and the accused shall not be prosecuted for that offence, unless his conviction is reversed on appeal.

From the case stated it would appear that the respondent stood charged before the learned District Justice with a breach of regulation 15 of the Betting Duty Regulations 1934 committed on 6 August 1982 and with a total of seventeen charges of breaches of Regulation 18 of the same Regulations alleged to have been committed on 2, 3 and 4 August 1982.

What the learned District Justice did in those circumstances was that he first convicted the respondent of the offence contrary to Regulation 15 and then the respondent having admitted his guilt in respect of all the other 17 offences, took them into consideration and imposed a penalty of £800. In other words, the statutory mandatory penalty, without mitigation.

Submissions on the appeal
On behalf of the appellant it was submitted:

1. That by its terms s. 8 of the Act of 1951 could not apply to an excise offence by reason of the fact that the function of a justice on such an offence was not to award punishment or to take any matter into consideration in awarding punishment but was merely to convict or acquit the person charged with such an excise offence, the penalty being automatic and mandatory. It was further contended that the power vested in the Justice to mitigate was not a power to vary or exercise a discretion with regard to the punishment, but only arose after the punishment had been imposed or incurred automatically. On this ground it was asserted that it is impossible to interpret section 8 as being applicable to excise offences.

2. It was submitted on behalf of the appellant that the provisions contained for penalty in s. 25(2) of the Finance Act 1926 and the provisions contained in s. 78 of the 1827 Act with regard to mitigation were special provisions dealing with a particular and specific topic, namely, excise offences, and that on the ordinary rule of construction of statutes, should not be taken to be impliedly amended or repealed by a subsequent general provision such as s. 8 of the Act of 1951.

On behalf of the respondent it was firstly urged that a necessary corollary to the canon of construction of statutes which ordains that penal sections or provisions should be strictly construed was that a provision such as s. 8 of the Act of 1951 which was intended to alleviate the situation of persons on whom penalties were imposed should be liberally construed in favour of those persons. It was urged that having regard to that principle there was nothing contained in section 8 which could reasonably lead to an inference that the Legislature intended to except from it excise offences. It was further urged that so long as a Justice had a power of mitigation under s. 78 of the 1827 Act then it was truly possible for him to take into consideration the admission of guilt in other offences in awarding punishment and that he was awarding punishment in a manner similar to the exercise of a discretion by any judge in a criminal case where a maximum penalty is provided. Reliance was placed on behalf of the respondent on the fact that the Legislature had seen fit, over the years, to exclude the application of the Probation of Offenders Act, statutory provisions which, it was submitted, were in the same category as s.8 of the Act of 1951, from various types of offences and eventually by the Finance Act 1984, from excise offences, and by analogy it was urged if the Legislature had intended that s. 8 of the Act of 1951 should not apply to excise offences they would have made a similar exempting or excepting provision in regard to it.

The Law
I accept the contention made on behalf of the respondent that s. 8 of the Act of 1951 must be liberally construed in favour of a person on whom a penalty is being imposed in a criminal case.

Approaching the interpretation of the section on that basis, however, I am satisfied that by its terms it can only be applicable to the awarding of punishment in respect of an offence where the court awarding such punishment may genuinely and bona fide take into consideration an admission of guilt to other offences in reaching a decision as to what the level of punishment should be. It would follow, in my view, for example, that by its own terms the section could never, conceivably, apply to a person convicted of murder in respect of which one penalty, and one penalty only can be imposed, namely, penal servitude for life who sought to have taken into consideration his admission of guilt of other offences.

I am further of the view that upon the true construction of s. 25(2) of the Finance Act 1926 and of s. 78 of the Excise (Management) Act 1827 that the position in these excise offences is that the court has, upon convicting a person charged, no discretion at all with regard to the penalty which must be imposed, though it has a power to direct a mitigation which significantly is stated in s. 78 to be of the penalty incurred . Furthermore, if the power of mitigation were to be equated, as the respondents contend, with the discretion invested ordinarily in a court as to the range of penalty to be imposed, subjected only to a maximum, then the provision contained in s. 78 making payment of the mitigated amount a full discharge of the liability of the person convicted would be wholly inappropriate.

I have carefully considered the submission made on behalf of the respondent with regard to the conclusions which it is said should be drawn from the analogy of the Probation of Offenders Act 1907, and in particular, from the express exclusion of that section by the Finance Act 1984 from application to excise offences. I have come to the conclusion that it does not disturb the view which I have formed about the true interpretation of s. 8 of the Act of 1951 and its consequent non-application to these excise offences. The difference, in my view, clearly lies in the terms of s. 1 of the Probation of Offenders Act 1907 which is the section made non-applicable. Subs. (1) of the section provides:

Where any person is charged before a court of summary jurisdiction with an offence punishable by such court, and the court thinks that the charge is proved, but is of opinion that, having regard to the character, antecedents, age, health or mental condition of the person charged, or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed, it is inexpedient to inflict any punishment or any other then a nominal punishment or that it is expedient to release the offender on probation, the court may, without proceeding to conviction, make an order either (i) dismissing the information or charge; or…

There appears to me to be nothing in the terms of that subsection inconsistent prima facie with its application to excise offences. The mandatory and fixed penalty which is the leading characteristic of the excise penalty which is the leading characteristic of the excise offence since it arises only on conviction would not be inconsistent with a section granting to a court of summary jurisdiction a special power not to proceed to conviction in respect of any offence charged before it and to impose instead a different form of order.

I am, therefore, satisfied that the first submission made on behalf of the appellants is correct and should succeed.

It is not, accordingly, necessary for me to consider the second and alternative submission made by them with regard to the interpretation of statutes and the question of the implied repeal or amendment of the earlier special statutory provisions. I prefer not to do so as I would like to reserve to another occasion the question as to whether that canon of construction is applicable to statutory provisions dealing with criminal law, having regard to the rule of interpretation which strictly interprets penal provisions and what I deem to be the corollary or corresponding rule that provisions alleviating the position of those charged with criminal offences should be liberally interpreted. I would, accordingly, allow the appeal and answer the specific questions raised in the case stated by the learned District Justice as follows:

(a) The learned District Justice was incorrect in law in dealing in the case in the manner in which he did, and

(b) Being so incorrect, he has not technically a discretion, having regard to the statutory provisions applicable, as to the amount of fine to be imposed on each charge, but he does have, by virtue of s. 78 of the Act of 1827, as amended by the Finance Act 1982, a power on each charge to mitigate the amount of penalty imposed, namely, £800, by such amount as he in his discretion shall see fit, provided that it does not reduce it below £400.

HENCHY J:

The defendant was at all relevant times a bookmaker who carried on business at a licensed bookmaking office at Castleblayney, Co. Monaghan. An officer of the Revenue Commissioners visited the office in August 1982. As a result, the defendent was charged in the District Court with a number of offences contrary to the Betting Duty (Certified Returns) Regulations, 1934. When those cases came on for hearing before the District Court it was agreed (by means of a form of plea bargaining) that the defendent would plead guilty to one offence and that, on further pleading guilty to the other offences, he would be free to argue that those other offences should not be dealt with by separate sentences, but be merely taken into consideration under s. 8 of the Criminal Justice Act, 1951.

The primary offence to which the defendant pleaded guilty was a contravention of Regulation 15 of the Betting Duty (Certified Returns) Regulations, 1934, the charge being that he failed immediately on the acceptance of a bet to make indelibly the slip by means of which the bet was made with the date and time of receipt and a number in consecutive series. That offence carried (under s. 78 of the Excise Management Act, 1827, as amended) an excise penalty of £800 which the District Justice could mitigate to a sum not less than £400.

The other offences in question (to which the defendant also pleaded guilty) were offences contrary to Regulation 18 of the same Regulations, which charged that he failed to enter, within the prescribed period, in the book kept specially for the purpose, particulars of each of the bets in question in those charges.

Counsel for the defendant contended before the District Justice that the defendant, having pleaded guilty to the primary offence, was entitled under s.8 of the Criminal Justice Act, 1951, to have those other offences to which he had pleaded guilty taken into consideration, rather than have them dealt with separately. The District Justice acceded to that submission. Accordingly, taking those other offences into consideration, he imposed a revenue penalty of £800 in respect of the primary offence, but he imposed no penalty in respect of the other offences. They were merely noted, pursuant to s. 8(2), as having been taken into consideration.

An appeal by way of case stated under s. 2 of the Summary Jurisdiction Act, 1857, as extended by s. 51 of the courts (Supplemental Provisions Act, 1961), was taken to the High Court by the DPP against that decision. That appeal was disallowed and the DPP now appeals to this court against that decision.

The central question is whether s. 78 of the Excise Management Act, 1827 (as amended), was impliedly repealed or made inoperative by s. 8 of the Criminal Justice Act, 1951. If it was not, then each of the several offences to which the defendant pleaded guilty was liable to an excise penalty of £800, subject to mitigation by the District Justice to a sum of not less than £400. If it was impliedly repealed or overridden by s. 8 of the 1951 Act, then the District Justice had jurisdiction to act as he did.

It may be stated as a general rule that the courts lean against the repeal or exclusion of earlier statutory provisions by implication. The rationale underlying this approach is that a statutory provision, formally and solemnly enacted by Parliament, should not be deemed to have been abrogated or excluded, obliquely or indirectly or inadvertently, by a provision in a later statute, when that later statute contains no expression of an intention to abrogate or exclude the earlier provision. Modern statutes tend to be meticulous in indicating—usually in a special schedule—the earlier statutory provisions that are being repealed or amended. For example, the Criminal Justice Act, 1951, contains a special schedule setting out the several enactments repealed by the Act and clearly indicating the application and the extent of the repeal. It is noticeable that s. 78 of the Excise Management Ace, 1827, is not mentioned in that schedule. It has been held that such an omission is a strong indication that a repeal of the section was not intended: R v Poor Law Commissioners (1837) 6 Ad. & El. 1.

The way to decide whether repeal by implication has been effected was stated as follows by A.L. Smith J in West Ham Churchwardens v Fourth City Mutual Building Society [1892] 1 QB 654

The test of whether there has been a repeal by implication by subsequent legislation is this: are the provisions of a later Act so inconsistent with, or repugnant to, the provisions of an earlier Act that the two cannot stand together? (at p. 658)

Applying that test to the present case, I am satisfied that s. 8 of the 1951 Act does not render s. 78 of the 1827 Act inoperative in the cases for which it was enacted. I consider that the two sections can stand together and be operated separately and independently in appropriate cases.

S. 25(1) of the Finance Act, 1926, empowered the Revenue Commissioners to make regulations for securing the payment of the duty on bets. S. 25(2) (as amended by s. 69(1)(b) of the Finance Act, 1982) provided that every person who contravenes or fails to comply with such a regulation shall be guilty of an offence and shall be liable on summary conviction to an excise penalty of £800. It was to such offences that the defendant pleaded guilty.

Because the penalty laid down for those offences is an excise penalty, s. 78 of the Excise Management Act, 1827 became applicable. That section (as amended and adapted) is to the effect that when a District Justice is dealing with prosecutions of this kind for revenue or excise offences, he is given a discretion to mitigate the penalty to an amount which is not less than half of that laid down by the relevant statute for the offence. The section is designed for the purpose of allowing, as a matter of judicial discretion in appropriate cases, a substantial degree of mitigation of the severe monetary penalties prescribed as revenue or excise penalties. Those penalties are fixed at such high punitive levels for a variety of reasons, but particularly to ensure that not alone will the wrongdoers be prevented from keeping the unpaid duty but that they will have to pay a heavy penal sum to the State. The range of penalties prescribed is in reality a form of penal taxation of the wrongdoer for the benefit of the Exchequer. While s. 78 of the 1827 Act is intended to grant relief in appropriate cases, the continuation up to date, and the modernisation, of this scheme of statutory penalties show that the imposition and collection of those penalties must be treated as an integral part of the means for raising the revenue of the State. It is not to be expected that Parliament would allow the imposition and collection of those penalties to be avoided save by a clear statutory provision to that effect. S. 8 of the Criminal Justice Act, 1951, is clearly not such a provision.

What the customs and excise code has done is to provide that, save in those cases where mitigation is allowed, the prescribed penalties will necessarily be imposed and collected as part of the revenues of the State. The imposition and collection of those penalties is designed specially and exclusively for the specified offences against that code. There is therefore brought into application the rule of statutory interpretation that when Parliament has provided specifically by statute for a limited set of circumstances, there is a presumption that general words in a later statute are not to be taken as overriding the earlier specific provisions, unless an intention to do so is clearly expressed. The presumption to that effect is encapsulated in the maxim generalia specialibus non derogant .

In The Vera Cruz (1884) 10 App. Cas. 59 61 the Earl of Selborne LC stated the application of the maxim in the following clear words:

Now if anything be certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so. (at p. 68)

It has to be accepted that s. 8 of the Criminal Justice Act, 1951, is on the face of it, in terms general enough to allow a District Justice to impose a penalty for one excise offence and to avoid imposing any penalty for other such offences to which the defendant has pleaded guilty. but the general words of s. 8 are unaccompanied by an indication of such an intention. In those circumstances, s. 8 cannot be construed as allowing an avoidance of the specific earlier provisions which lay down what is in effect a mandatory excise penalty for each such offence. Such a sweeping change in the revenue law could not be held to have been introduced indirectly and unspecifically under the cloak of general words. It is a classic example of the operation of the maxim generalia specialibus non derogant .

It is neither necessary nor desirable to attempt to indicate the type or the range of cases in which other offences may not be taken into consideration by a District Justice under s. 8. That the generality of the jurisdiction conferred by the section must in many cases be rendered inoperable, necessarily follows from the constitutional and statutory limitations of the jurisdiction of the District Court. It could scarcely be said that the District Court could, by operating s. 8, dispose of offences which are outside its jurisdiction. For a District Justice to do so would be to act ultra vires or, in some cases, unconstitutionally. To take an extreme example, a person found guilty in the District Court of a trifling traffic offence could not successfully invoke the section for the purpose of having a murder taken into consideration. Nor, it may be argued, could s. 8 be operated when the result would be the frustration of a specific statutory intent, as expressed in the form of the prescribed penalty, or in specified mandatory consequences of a conviction (such as a disqualification, the loss of a licence, or the like) or in other statutory indications showing that a conviction was not intended to be dispensed with by operating s. 8. It is sufficient for present purposes to hold that, for the reasons I have given, s. 8 may not be applied in the circumstances of this case.

I would allow this appeal and answer the two questions in the case stated as follows:

1. The case was incorrectly dealt with by the application of s. 8 of the Criminal Justice Act, 1951.

2. In dealing with each of the offences to which the defendant pleaded guilty, the District Justice has the discretion as to mitigation of penalty which is vested in him by s. 78 of the Excise Management Act, 1827, as amended by s. 70 of the Finance Act, 1982.

I would remit the case for trial accordingly in the District Court.

GRIFFIN J:

I agree with the judgement of the Chief Justice. I would like to add only a few comments.

In my opinion s. 8(1) of the Criminal Justice Act, 1951 can have no application where the offence in respect of which the accused person has been convicted is one carrying a mandatory penalty. Where the court can impose only one penalty for that offence, any other offence of which the accused admits himself guilty is in such case incapable of being ‘taken into consideration in awarding punishment’ within the meaning of the section. The purpose of the section is in my opinion clear—to enable the judge, in passing sentence, where offences other than those for which an accused person had been convicted had been committed by him, and were still untried and were admitted by him, to impose a sentence appropriate to the offence of which he was convicted having regard to and taking into account the other offences of which he then admitted his guilt. As the Chief Justice has pointed out, this the Judge cannot genuinely and bona fide do where only one penalty can be imposed for the convicted offence.

In this case, the offence being an excise offence, the only penalty which the District Justice could impose for the offence of which the respondent pleaded guilty was an ‘excise penalty of £800’ (pursuant to s. 25(2) of the Finance Act, 1926 as amended by s. 69(1)(b) of the Finance Act, 1982). Once he had imposed that penalty, he then had the power of mitigation to a sum not less than £400 pursuant to s. 78 of the Excise (Management) Act, 1827, as amended by s. 70 of the Finance Act, 1982. But the power of mitigation did not alter the nature or the amount of the penalty imposed. That this is so is under-scored by the provisions in s. 70—‘every such mitigation and payment thereupon accordingly made shall be a sufficient discharge of every such penalty to the person or persons convicted of such offence’ (emphasis added).

The offence of which the respondent was convicted in this case is an excise offence. Apart from revenue and excise offences and offences under the Customs Acts, there do not appear to be many offences in respect of which only one penalty may be imposed—murder, capital murder, and treason immediately come to mind. But in addition to such offences there are other offences which a judge cannot in certain circumstances take into consideration under s. 8(1) of the 1951 Act. An obvious example is lack of jurisdiction. If a court has no jurisdiction to try a particular offence, it cannot take that offence into account in passing sentence for an offence which it has jurisdiction to try. If it did so, it would effectively be disposing of that particular offence notwithstanding the fact that it would have had no jurisdiction to try it, as s. 8(2) of the 1951 Act provides that if the court takes an offence into consideration the accused shall not be prosecuted for that offence. Again, if in respect of an offence the Legislature has provided that on conviction thereof certain consequential orders must follow, that offence cannot be taken into consideration because the statutory consequential orders cannot be made. Such consequential orders can be made only in the case of a conviction, and the taking into consideration of an offence does not amount to a conviction. Thus, for example, the offence of what is commonly called drunken driving under s. 49 of the Road Traffic Act, 1961 cannot be taken into consideration, as the mandatory order under s. 26 of the Act declaring the driver to be disqualified from holding a licence for the period provided by the statute cannot be made. These are but examples to illustrate that it is not only in the case of offences in respect of which only one penalty can be imposed by the court that s. 8(1) cannot be applied.

Apart from the examples I have given, I do not attempt any comprehensive statement as to when specific provisions in an earlier statute are impliedly repealed or excluded by a general provision in a later statute.

I would accordingly allow the appeal and answer the two questions in the case stated in the same manner as the Chief Justice Henchy J.

McCARTHY J:

On its face, s. 8 of the Criminal Justice Act, 1951 is unrestricted in application. It is possible to read a qualification in to the wording of subs. 2‘the accused shall not be prosecuted for that offence’ so as to exclude from the operation of s. 8 cases where, as here, charges have been brought and the summonses, or cognate proceedings, are before the court. That is not what the subsection says, and such an extension would, logically, relate back to whatever is deemed to be the commencement of a prosecution not just the penultimate act.

The contention of the DPP, that s. 8 does not apply to revenue offences, raises consideration of the like application of the Probation of Offenders Act 1907. The legislative history of Saorstat Eireann and of the State reflect a continuing belief by the Oireachtas spurred by the Parliamentary draftsman that, unless expressly excluded, the 1907 Act was of general application, including application to revenue offences. The fact of subsequent application or exclusion by amendment is no guide to the true construction of the original statute; it is not for the Oireachtas to construe past legislation, but if one finds that between 1907 and 1951 there had been express statutory exclusions of the 1907 Act, it may be some guide to the true construction of the 1951 Act. Such exclusions are to be found in the Intoxicating Liquor Act 1927, s. 35, the Road Transport Act 1933, s. 9 (as substituted) and the Road Traffic Act 1949, s. 49 (as inserted); a subsequent amendment of road traffic legislation in the Road Traffic (amendment) Act 1978 contain a like exclusion—s. 13. The Social Welfare Act 1952, s. 55, the Redundancy Payments Act 1967, s. 50, the Air Navigation and Transport Act 1973, s. 16 and the Air Navigation and Transport Act 1975, s. 6, contain like exclusions as, for what added significance may be attached, the Finance Act 1963, s. 34(11) in respect of offences under the Customs Acts (statutorily defined in the Customs , s. 11) and in respect of excise offences by the Finance Act 1984, s. 78.

No authority directly in point in Ireland has been cited in argument; counsel for the appellant informed the Court that there did not appear to have been any reported case in which the construction of s. 8 of the 1951 Act arose. In England there is no statutory foundation for this practice which is based on convention. In R v Simons [1953] 1 WLR 1014, the Court of Criminal Appeal disapproved of the sentencing Court taking into consideration offences against the Road Traffic Acts which may involve, on conviction, disqualification for driving or the endorsement of a licence when sentence is being passed for a different class of offence.

It is a principle of construction that in the case of general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation one should not hold that earlier and special legislation was indirectly repealed, altered, or derogated from merely by force of such general words—see the observations of the The Earl of Selborne LC in the Vera Cruz (1884) 10 App Cas 59. The Court has not been referred to any case in which this principle has been extended to the criminal law or the construction of a criminal statute which, of its nature, is subject to the canon of construction appropriate to a penal Act, in which the more lenient of two reasonable constructions must be given. In the Finance Act, 1982 the section of the Estate Management Act, 1827, permitting mitigation of an excise penalty was amended (s. 70) so as to change the level of mitigation to not less than half the prescribed penalty. Two years later the Oireachtas thought it proper to exclude the Probation of Offenders Act from excise offences, at the same time increasing the excise penalty in the case of offences such as arise in the present appeal from £500 to £800. Either the Oireachtas believed that the apparent general provisions of s. 8 of the 1951 Act did not extend to excise penalties or, alternatively, did not wish to exclude such cases from its operation.

In the instant appeal, the defendant failed to make the appropriate entry in respect of five transactions on 2 August, six transactions on 3 August and six transactions on 4 August. In each case the offence was committed at noon on the day following the acceptance of the betting slip containing the details as set out in the summons; it was, so to speak, the one act or omission on the part of the defendant and, indeed, one for which he might have no moral responsibility or, indeed, any knowledge whatsoever, but still be guilty of what are clearly absolute offences. Indeed the joining together of such a number of identical acts or omissions as being separate offences arising from the same single act or omission might call for examination of the doubt expressed by Henchy J in The State (Rollinson) v Kelly [1984] IR 248.

I assume that the purpose, or one of the purposes, of s. 8 of the Criminal Justice Act, 1951 was to encourage persons charged with criminal offences, and conscious of guilty involvement in many such, to ‘wipe the slate clean’ by enabling other offences to be taken into consideration and precluding further prosecution in respect of such offences when they were taken into consideration. If all of the bets of 2 August or of 3 August or of 4 August had been written on the one slip, there would have been but one offence on each day; indeed, if all of the bets for the three days had been written on the one slip on 2 August, there would have been but the one offence. Alternatively, for example, if the first slip the subject of charge 3 August had been segregated it could have amounted to three separate bets and, consequently, three separate offences. These facts highlight, I believe, the somewhat artificial nature that lies in the separation or segregation of these offences and emphasises the desirability of a modifying jurisdiction lying with the judicial power rather then the final recourse to the Revenue Commissioners provided for by the Excise Management Act, 1827. In my opinion, the words of s. 8 of the 1951 Act are to be given their plain and unrestricted meaning; the District Justice was correct in his conclusion that s. 8 was applicable to the proceedings before him and was therefore correct in law.

The learned High Court Judge expressed strong criticism of the manner in which the district Justice was invited to approach his consideration of the case and, in particular, the potential application of s. 8 of the 1951 Act. I do not share the view that there was any impropriety involved.

It follows that I would dismiss this appeal.