Interpretation
Cases
Shirley v A. O’Gorman & Co.
[2012] IESC 5
JUDGMENT of Mr. Justice Fennelly delivered the 2nd day of February 2012.
1. This case comes before the Court by way of appeal from the judgment of the High Court (Peart J) delivered on 31st January 2006. In that judgment the learned judge dismissed the challenge of the appellants to the constitutionality of a number of provisions of the legislation which permits lessees compulsorily to acquire the fee simple in tenements from lessors. I will call that the “constitutional action.” In a related proceeding, Peart J had decided, by an earlier judgment of 31st May 2005, on appeal from the Circuit Court, that the first-named respondent had the right to buy the fee simple in property in Carrickmacross from the second-named appellant in accordance with the provisions of Landlord and Tenant (Ground Rents) (no. 2) Act, 1978. These are the ground-rent proceedings.
2. There cannot, of course, be any appeal from the decision of a judge of the High Court on appeal from the Circuit Court. Nonetheless, the two proceedings are inextricably related in a number of ways. An order was made by the High Court that the two proceedings be heard simultaneously. The parties agreed that the evidence given at the hearing of the Circuit Court Appeal would be considered to be evidence in the constitutional action. The learned judge decided that the order in the Circuit Court Appeal would not be made up, pending the decision in these proceedings, in which the compatibility of the legislation with the Constitution is in issue.
3. Furthermore, the learned judge declined, in the course of his judgment in the Circuit Court Appeal, to decide an important issue of interpretation of the legislation in the light of the Constitution, the double-construction rule. He gave as his specific reason that there was a separate challenge to the constitutionality of the legislation. In the event, the question of the interpretation of the legislation in accordance with the presumption of constitutionality and the double-construction rule was not addressed in the course of the constitutional action.
4. The way in which the constitutional action came to be heard in succession to the Circuit Appeal produces an unusual situation. The High Court declined to decide an important issue of interpretation in the Circuit appeal, because of the pending the hearing of the constitutional action, but did not address it at all in the latter proceeding. In the ordinary way, a single judgment of the Court is delivered where the Court decides a question as to the validity of a law having regard to the provisions of the Constitution: see Article 34, section 4.5. That rule does not apply to a decision on a question of interpretation of legislation. For reasons which I will explain, I am delivering my own individual judgment, not on the validity of the laws in question but on their interpretation.
5. In addition, I must make it clear from the outset that no appeal lies from the High Court decision in the Circuit Court Appeal. The consequences, if any, for that proceeding of anything said by this Court is a matter for the parties and for Peart J and not for this Court. I say this, because this Court must interpret the legislation, insofar as that is possible, in a manner which renders it compatible with the Constitution. The Court will decide questions of constitutionality only when it is not reasonably possible to interpret the impugned legislation harmoniously with the Constitution. That may lead the Court to adopt an interpretation which conflicts with that adopted by the High Court, but it does not, by doing so, perform an appellate function insofar as the Circuit Court Appeal is concerned.
The facts
6. The first-named respondent is seeking to acquire the fee simple title to premises on the west side of Main Street, Carrickmacross, County Monaghan. The premises are part of the Shirley Estate, whose title traces back to the early seventeenth century. The landlord’s interest has been vested since 1984 in the second-named appellant, a company registered in the Isle of Man. The first and third named appellants are shareholders in that company and are joined for the purpose of invoking the constitutional provisions concerning the protection of property rights. The learned trial judge accepted that the plaintiffs had standing to bring the action in the light of the judgment of Keane J. (as he then was) in Iarnrod Eireann v. Ireland [1996] 3 IR 321. Nothing now turns on that point and I will refer from now on simply to the appellant, meaning the second-named appellant.
7. The premises formerly consisted of a substantial traditional residence, called Carrick House, in a country town. It was a substantial four-storey end-of-terrace dwelling with attached grounds consisting of gardens. It was totally transformed in the 1970’s and 1980’s by the construction of extensive retail (supermarket) premises on the grounds surrounding the old house. These additions completely absorbed and changed the character of the original premises, though those premises were never demolished.
8. The premises referred to as Carrick House date back to the late eighteenth or early nineteenth century. Peart J described the house, as of the 1930’s, as “a significant and substantial house on the Main Street, in Carrickmacross, with a large garden adjoining same, as well as outhouses of various kinds.” He added: “The main entrance into the house itself was at the southern side of the house in the garden, and took the form of a curved front entrance door. There was an entrance into that part of the garden from the Main Street.” Following examination of valuation records and a number of title deeds, he said that it appeared that “certainly by the end of the 19th century and well into the 20th century this house was the residence of various medical doctors who serviced an adjoining surgery.”
9. Thus, in the early years of the twentieth century, the Shirley Estate had let the premises to a succession of tenants, often medical doctors. The Estate enjoyed the full benefit of fee simple ownership and possession at the end of each term. The lettings which were considered as relevant to the ground rent proceedings commenced in 1919.
10. The first material lease for the purpose of these and, more particularly, the ground-rent proceedings was a lease made on 27th May 1919 whereby Evelyn Charles Shirley granted a lease to Edward Phelan, described as a solicitor. The premises are there described as the “Dwelling House and premises……… lately in the occupation of Doctor McCaul together with the Garden and Office Houses occupied in connection therewith……” As Peart J observed, “clearly the premises were considered to be a suitable residence for a professional person….” The term of the lease was thirty two years from 1st May 1919 at a rent of £50 per annum. It would expire on 30th April 1951. That lease contained a covenant on the part of the lessee to spend a sum of £500 in repairing and improving the premises in accordance with a “Schedule of Improvements and Renovations,” attached to the lease. On completion of these works, the landlord agreed to contribute a sum of £200.
11. On 31st October 1919, Edward Phelan assigned the leasehold interest in the premises to one Ann Jane Daly, “wife of Michael Daly,” in consideration of the sum of £2,500, for the residue of the term of years created by the 1919 Lease. The rateable valuation of the property, described in the Valuation Records as “house office and garden,” was £18.10s. between 1894 and 1917. The property was revalued to £25.10s.0d. in 1947 and was then described as “house, office, yard (in common) and garden.” Part of the property was rated separately as a doctor’s surgery in the occupation of Michael Daly M.D. from 1926 to 1946. Thus, it appears that, following a brief occupation by a solicitor, it was used as a residence and a doctor’s surgery until 1946.
12. By an Indenture of Lease dated 11th October 1945 Evelyn Charles Shirley, the lessor who had granted the 1919 lease, granted to Violet Daly, spinster, described as being in occupation and entitled to the lessee’s interest under the 1919 lease, a further lease for the term of fifty years from the expiration of the 1919 lease of Carrick House at the slightly increased yearly rent of £55. That term would, therefore, expire on 30th April 2001. The lease contained a covenant that the premises would be used as a private dwelling and that the lessee would not make any alterations or additions without the consent of the lessor. The premises were described in that lease as:
“ALL THAT dwellinghouse and premises known as Carrick House in the Main Street, Carrickmacross at present in the occupation of the tenant together with the garden and outhouses occupied in connection therewith ………”
13. The appellant makes the point that, during all these years, the rent substantially exceeded the rateable valuation. This and other evidence would suggest that, as was the view of Peart J, the rent was not at that time a ground rent as that term is generally understood.
14. By May 1969 the lessee’s interest had been assigned to one Margaret Mary Rennick, and, by a Variation Agreement dated 12th October 1970, John Evelyn Shirley, in consideration of an increase in the yearly rent to the annual sum of seventy five pounds (£75.00) removed “all restrictions on the user of the premises demised by the Lease (other than the restriction on the Lessee using the premises in a manner which would be or cause a nuisance).”
15. By Deed of Assignment dated 16th August 1972, Ms. Rennick assigned the premises to Michael Connolly for the residue of the term of years granted by the Lease of 1945. It was Mr Connolly who commenced the process of transformation of the premises. In 1972, he obtained planning permission to convert “the existing residential property” to a butcher’s shop and to erect a supermarket premises. This involved the demolition of an existing small building. A single storey supermarket premises was constructed so as to cover the area thus uncovered as well as what had, up to that time, been the garden adjoining the southern gable of the house. A living room in Carrick House was converted into a butcher’s shop with its own street entrance. These works involved the demolition of the original side entrance into Carrick House with its glass porch, which was demolished. In addition to the construction of a large supermarket premises, an extra storey was constructed increasing the height and area of the premises, an apex building was erected to the front and a store area was extended, while part of the store area was converted to retail purposes. All this is described in detail in the judgment of Peart J in the Circuit Court Appeal on the ground-rent application. In effect, on what had been an attractive garden at the south side of Carrick House, there had been constructed a single storey supermarket premises stretching back some distance from the main street. The ground floor windows to the south of the front door of Carrick House had been replaced also with a shop front window and entrance door leading into a butcher’s shop.
16. By Indenture dated 1st July 1974 Mr Connolly assigned the premises to A. O’Gorman & Company Limited, the first-named respondent. The first-named respondent made successive extensive alterations in 1979 (a much larger store area and loading bay), in 1982 (conversion of first and second floors into flats), 1985 (extended store facility and car-parking), 1990 (new supermarket front and first-floor façade) 1994 (further alterations to frontage to create an entire new front).
17. The cost of the various developments carried out by the first-named respondent between the years 1979 and 1996 was well in excess of IR£300,000. The area covered by buildings was enlarged from 283 sq. metres to some 1339 sq. metres.
18. Peart J determined that, for the purposes of section 9(2) of the Act of 1978, the original buildings had “lost their identity.” He said:
“The answer to that question as far as I am concerned is quite obviously that it has lost that original identity. By no stretch of anybody’s imagination could it be said that this is still the same premises as the rather attractive private residence with garden and outhouses which one can see in the photograph taken in the 1930s.”
19. All of these changes were carried out in breach of covenant and without the consent of the lessor. However, the appellant on 15th February 1991 retrospectively gave its consent in writing and under its seal for all developments carried out up to that time. Insofar as further alterations carried out without lessor’s consent after that date were concerned, Peart J, in his judgment on the Circuit Court appeal, declared pursuant to section 9(5) of the Landlord and Tenant (Ground Rents) (no. 2) Act, 1978 that it would be unreasonable not to declare the first-named respondent a person entitled to enlarge his interest into a fee simple in accordance with section 8 of that Act, principally because of the absence of any prejudice to the lessor, which was aware of the changes, and had apparently been willing to consent to such alterations as had already been made.
20. As a consequence of, firstly, the lessor’s retrospective consent to most of the alterations, and secondly, the determination of Peart J pursuant to section 9(5), the fact of the great majority of the buildings on the land having been erected without the consent of the lessor presented no obstacle to the right of the first-named respondent to acquire the fee simple. It may also be noted that, as the first-named respondent remarks in its written observations, the lessor did not seek any adjustment in the rent as a condition of agreeing to these major alterations.
21. The physical changes to the premises had, however, a major and highly material effect on the rateable valuation, by bringing it above the amount of the rent. The rent, as mentioned above, had been increased to £75 in 1969. After the premises had been developed by Mr Connolly into a butcher’s shop on the ground floor of Carrick House and a supermarket to the south thereof, and before any assignment to Mr O’Gorman, the rateable valuation of the entire premises had been increased to £76.50. As of 2nd March 1998, the date of service of the notice of intention to acquire the fee simple, it had been increased to £211.50.
Proceedings for acquisition of fee simple
22. The first-named respondent served notice of intention to purchase the fee simple in the premises on the appellant on 2nd March 1998 pursuant to section 4 of the Landlord & Tenant (Ground Rents) Act, 1967.
23. On 27th October 1998 the County Registrar made an order determining that the first named-respondent was entitled to acquire the fee simple for IR£23,500.
24. On appeal to the Circuit Court, His Honour Judge Hogan, sitting in Monaghan, by Order of 24th July 2000 upheld the entitlement to acquire the fee simple but reduced the purchase price to IR£20,000.
25. The appellant appealed from that determination to the High Court. By order of the High Court dated 12th October 200, the appeal was transferred to the High Court in Dublin and was ordered to be heard simultaneously with the constitutional action. Peart J determined that appeal by his judgment of 31st May 2005. He upheld the entitlement of the first-named respondent to acquire the fee simple, but assessed the purchase price to be €30,000.
26. Peart J ended his judgment with the following:
“As I stated to the parties after submissions had closed last Thursday, these findings which I have made are subject to further arguments which I will be hearing in relation to the constitutional challenge ordered to be heard simultaneously with this Circuit Appeal. Having discussed the logistics of this with Counsel for all parties, it is my understanding that all are agreed that in so far as any final decision on that challenge may impact on what I have decided thus far in the Circuit Appeal, the benefit or detriment, as the case may be, of such ultimate decision will be available to this case, even though my findings in the Appeal have pre-dated the decision in that challenge.”
27. The appellant states, in written submissions that “[h]aving regard to the fact that his decision would be final, it was decided (and in effect agreed) that no order would be perfected in the landlord and tenant action until the constitutional action was determined and that, should the constitutional action be successful, no such order would issue.” Furthermore, the appellant states that it was also agreed that evidence tendered in the Landlord and Tenant action could be considered as having been tendered for the purposes of the Constitutional claim.” The first-named respondent does not appear to dissent from these propositions, which appear consistent with the intention of the High Court order for the simultaneous hearing to the two proceedings.
28. The right to acquire the fee simple was first conferred on tenants or lessees by section 3 of the Landlord and Tenant (Ground Rents) Act, 1967.
29. Firstly, the right was conferred on persons holding under building leases or proprietary leases, as then defined by the Landlord and Tenant (Reversionary Leases) Act, 1958, or such leases which had expired but where the right to a reversionary lease still existed. Section 3(2)(d) extended the right to two further categories. The first, under paragraph (i), was the holder under a lease for not less than ninety-nine years which had at least twenty-five years to run and where the rent was less than the rateable valuation at the commencement of the Act. The second was as follows:
“a person who, or whose predecessors in title, has or have been continuously in occupation of the land as yearly tenants during the whole of the period of twenty-five years next preceding the date of the service by the person of a notice under section 4 of this Act in relation to the land at a yearly rent of an amount that, at the date of the service of the notice aforesaid, is less than the amount of the rateable valuation of the land at that date.”
30. Thus, it was important, in the last two cases, that the rent be less than the rateable valuation. This was generally taken as a useful guide, from the beginning of the ground-rents legislation, for determining whether the rent is a ground rent, in cases where the leases is not a building lease or similar to one.
31. The Landlord and Tenant (Ground Rents) (no. 2) Act, 1978 replaced the substantive provisions of the Act of 1967. That Act significantly enlarged the scope of the right to buy out the fee simple. Section 8 of that Act provides:
“A person to whom this Part applies shall, subject to the provisions of this Part, have the right as incident to his existing interest in land to enlarge that interest into a fee simple, and for that purpose to acquire by purchase the fee simple in the land and any intermediate interests in it and the Act of 1967 shall apply accordingly.”
32. The Act of 1978 contains the provisions successfully invoked by the first-named respondent in the present case. Section 9(1) of the Act provides:
“This Part applies to a person who holds land under a lease, if the following conditions are complied with:
(a) that there are permanent buildings on the land and that the portion of the land not covered by those buildings is subsidiary and ancillary to them;
(b) that the permanent buildings are not an improvement within the meaning of subsection (2);
(c) that the permanent buildings were not erected in contravention of a covenant in the lease; and
(d) one of the alternative conditions set out in section 10.”
33. Peart J determined, in relation to the application to purchase the fee simple,: that any land not covered by buildings was subsidiary and ancillary to the buildings, (paragraph (a)); that the buildings were not an improvement as defined (paragraph (b)); and, as already stated, the fact that they were erected in contravention of covenant (paragraph (c)) is no longer material. At this point, therefore, only paragraph (d) of section 9(1) needs to be considered. The first-named respondent has to meet “one of the alternative conditions set out in section 10.”
34. I cite section 10 in its entirety. Although the right of the first-named respondent to acquire the fee simple was upheld solely by reference to condition no. 2, condition no. 1 was also considered by Peart J. His interpretation of that provision casts light on the analysis of section 10.2. Section 10 reads:
“The following are alternative conditions one of which must also be complied with in a case to which section 9 relates:
1. that the permanent buildings were erected by the person who at the time of their erection was entitled to the lessee’s interest under the lease or were erected in pursuance of an agreement for the grant of the lease upon the erection of the permanent buildings;
2. that the lease is for a term of not less than fifty years and the yearly amount of the rent or the greatest rent reserved thereunder (whether redeemed at any time or not) is of an amount that is less than the amount of the rateable valuation of the property at the date of service under section 4 of the Act of 1967 of notice of intention to acquire the fee simple or the date of an application under Part III of this Act, as the case may be, and that the permanent buildings on the land demised by the lease were not erected by the lessor or any superior lessor or any of their predecessors in title:
provided that it shall be presumed, until the contrary is proved, that the buildings were not so erected;
3. that the lease was granted by a lessor to the nominee of a person (in this paragraph referred to as the builder) to whom land was demised for the purpose of erecting buildings thereon in pursuance of an agreement between the lessor and the builder that the builder having contracted to sell the buildings would surrender his lease in consideration of the lessor granting new leases to the builder’s nominees;
4. that the lease was granted by a lessor to the nominee of a person (in this paragraph referred to as the builder) in pursuance of an agreement between the lessor and the builder that the lessor, upon the erection of the buildings by the builder, would grant leases to the builder’s nominees;
5. that the lease was granted, either at the time of the expiration or surrender of a previous lease or subsequent to such expiration or surrender—
(a) at a rent less than the rateable valuation of the property at the date of the grant of the lease, or
(b) to the person entitled to the lessee’s interest under the previous lease,
provided that the previous lease expired or was surrendered before the 31st day of March, 1931 and that it would have been a lease to which this Part applied had this Act then been in force and provided that it shall be presumed, until the contrary is proved, that the person to whom the lease was granted was so entitled;
6. that the lease is a reversionary lease granted on or after the 31st day of March, 1931, to a person entitled thereto under Part V of the Act of 1931 or the Act of 1958, whether granted on terms settled by the Court or negotiated between the parties;
7. that the lease, being a lease for a term of not less than fifty years, was made—
(a) partly in consideration of the payment of a sum of money (other than rent) by the lessee to the lessor at or immediately before the grant of the lease and, for this purpose, any money paid in redemption of any part of the rent reserved by the lease (whether the money was paid in pursuance of a covenant in the lease or in pursuance of an agreement made between the lessee and the lessor during the currency of the lease) shall be deemed to be part of the consideration, or
(b) partly in consideration of the expenditure (otherwise than on decoration) of a sum of money by the lessee on the premises demised by the lease, or
(c) partly in consideration of both that payment and that expenditure,
where the sum so paid or expended or the total of those sums was not less than fifteen times the yearly amount of the rent or the greatest rent reserved by the lease, whichever is the less.”
35. The lease of 1945 was for a term of fifty years from 1st May 1951 and was still in effect on 2nd March 1998. The revised rent, £75, was at that date less than the rateable valuation, namely £211.50. The first-named respondent would, as was indeed held by Peart J, have the right to acquire the fee simple provided that “the permanent buildings on the land demised by the lease were not erected by the lessor or any superior lessor or any of their predecessors in title…” For this purpose, the first-named respondent can invoke the presumption that the permanent buildings were not erected by the lessor (or any superior lessor) or any of their predecessors in title.
36. It is important to have regard, not merely to the scope of the provisions conferring the entitlement to acquire the fee simple, but also the system of valuation of the fee simple interest applied by the legislation. The valuation is imposed by statute and forms part of the scheme of the legislation. The background to the scheme of valuation is the system for fixing the rent on a reversionary lease. That rent is used as the point of reference in fixing the purchase price. Section 48(1)(c) of the Landlord and Tenant Act, 1931 provided that the rent payable by a lessee under a reversionary lease, where fixed by the court, would be one quarter of the gross rent. The “gross rent” was defined by section 48(1)(d) in a manner approximating, with some qualifications, to a market rent. Under section 18(1)(4) of the Landlord and Tenant Act (Reversionary Leases) Act, 1958, the rent payable under a reversionary lease was to be one sixth of the “gross rent,” under a similar definition. Under section 35 of the Landlord and Tenant Act (Amendment) Act, 1980, the rent to be reserved by a reversionary lease where the terms were settled by the Court was to be one-eighth of the gross rent. Section 36 of that Act defines “gross rent,” as:
“…the rent which, in the opinion of the Court, a willing lessee not already in occupation would give and a willing lessor would take for the land comprised in the reversionary lease—
(a) on the basis that vacant possession is given and that the lessee pays rates and taxes in respect of the land and is liable to insure against fire and to keep the premises in repair, and
(b) having regard to the other terms of the reversionary lease and to the letting values of land of a similar character to and situate in the vicinity of the land comprised in the lease or in a comparable area but without having regard to any goodwill which may exist in respect of the land.
37. Sections 35 and 36 of the Landlord and Tenant Act (Amendment) Act, 1980 were adapted to the fixing of the purchase price for the fee simple. The detailed provisions for the settlement of the purchase price by arbitration, which were applied by Peart J (as well as by the County Registrar and Judge Hogan) in the present case, were contained in section 7(4) of the Landlord and Tenant (Amendment) Act, 1984. They are as follows:
(a) Where, at the relevant date, the land is held under a lease that has expired or is held at a rent which, whether under the terms of the lease or by operation of a statute, is subject to a review which is due but has not been made, the purchase price of the fee simple shall, subject to the other provisions of this section, be a sum equal to one-eighth of the amount which, at that date, a willing purchaser would give and a willing vendor would accept for the land in fee simple free of all estates, interests and incumbrances, but having regard to any covenant which continues in force by virtue of section 28 of Act (No. 2) of 1978, and assuming that the lessee has complied with any other covenants or conditions in his lease that could affect the price.
(b) A deduction shall be made from that amount equal to the value of the goodwill, if any, in the premises of the person acquiring the fee simple.
(c) A deduction shall also be made from that amount equal to any addition to the value of the premises resulting from such works as would qualify for the special allowance mentioned in section 35 of the Act of 1980.
(d) In determining the amount referred to in paragraph (a) any addition to value deriving from contemplation of substantial rebuilding or a scheme of development (such as are mentioned in section 33 (1) (b) (i) and (ii) of the Act of 1980) shall be disregarded. (emphasis added).
38. The “special allowance” referred to in (c) above, relates to section 35(2) of the Landlord and Tenant, 1980, which provides as follows:
“The special allowance for the purpose of subsection (1) shall be such proportion of the gross rent as, in the opinion of the Court, is attributable to works of construction, reconstruction or alteration carried out by the lessee or any of his predecessors in title which add to the letting value of the land, other than works carried out wholly or partly in consideration of the grant of the lease or repairs and maintenance during the currency of the lease.”
As Peart J explained it, the rationale for the deduction of the special allowance is to protect the lessee from a situation in which he would be paying rent in respect of his own works to the premises, works which he has already paid for. That is certainly its purpose as it appears in the context of the Act of 1980 relating to the fixing of the rent of a reversionary lease.
39. Leaving aside a number of other provisions modifying the concept of a market price, it can be seen that the central provision is that the price is to be set effectively at one eighth of the market value. The apparent legislative justification for that approach is that the Act of 1980 provides that the rent to be reserved by a reversionary lease is to be one eighth of the “gross rent” or, effectively, the market rent.
40. Peart J applied this provision as follows in arriving at a valuation:
“In the present case, this mechanism results in the relevant premises for the purpose of the valuation, being confined effectively to the premises as originally demised, since I am satisfied, as accepted by Mr Freeman,[the lessor’s valuer] that all the additions and alterations made by the lessee since 1971 result in an increase in the rental value of the premises; and therefore, by reason of the fact that such works are within the meaning of the ‘special allowance’ referred to in s. 35 of the 1980 Act, the amount by which they add value must be deducted.”
41. The result was that the value of £30,000 was arrived at by effectively “having to imagine or pretend that all the works whether by way of demolition of part of the original buildings, alterations/extensions to the original buildings on the site, or the erection of new structures on the site by the tenant or Mr Connolly, had never taken place, and attempt to arrive at an estimate of what such premises, in their unaltered state as originally demised in 1945, would have fetched on the 2nd March 1998.” The valuers on each side had provided estimates based on that hypothesis and then dividing by eight. In other words, for the purposes of valuation, all the works carried out by successive lessees in erecting the supermarket and transforming the original premises were excluded from consideration in compliance with section 35(2) of the Act of 1980. In addition, having done all that and arriving at a valuation of the lessor’s original buildings the value was, in addition, divided by eight. The final result is that the lessee is fully protected from having to pay for the capital value of any buildings erected by himself or his predecessors in title, but the lessor, even after all such adjustments, receives only one eighth of the value of the land, including the value of any buildings erected by himself or his predecessors.
The constitutional challenge
42. The appellant claims that the legislation which has the effect that it must transfer its fee simple interest in the premises to the first-named respondent is incompatible with the Constitution for a number of reasons. Some of these are broad and general and some are very specific to the appellant’s circumstances. The principal arguments can be summarised very briefly as follows:
1. Article 43 of the Constitution recognises that the exercise of property rights ought to be “regulated by the principles of social justice.” The exercise of property rights may, in the language of Article 43.2.2 “accordingly” be delimited by law “with a view to reconciling their exercise with the exigencies of the common good.” Provision for the compulsory sale by the owner of the fee simple in property such as the premises to a purely commercial lessee serves no discernible public interest, common good or social policy;
2. The combined effect of section 7, subsections 3 and 4 is to limit arbitrarily the amount of the purchase price payable to the lessor inter alia by providing for a maximum 1/8th of an imaginary market value having disallowed development value (section 7(3)) and any – special allowance under the 1980 Act, which represents additions and improvements made by the lessee and to prevent proper assessment of the deprivation of interest from being made.
3. Depending on the choice of valuations made, the difference between the price fixed on appeal by Peart J at €30,000 as the price of purchase of the fee simple and a wide range of possible valuations if the appellant was not entitled to purchase the fee simple was very large. The lowest possible comparable open-market value was, at a minimum, 100% more the figure of €30,000 fixed by Peart J.
4. The presumption in section 10.2 combined with the requirement that the lessor “prove” that he or his predecessors in title “erected” the building even when he can show that he owned the building outright (in this case, on the grant of the lease in 1919) is inflexible, arbitrary and unjust;
5. the criterion that the rent be less than the rateable valuation is arbitrary and capricious and unconnected to the purpose of the scheme, particularly having regard to the evidence as to the operation of rateable valuations in practice
43. Peart J considered all these arguments in a comprehensive judgment in the constitutional action. It is from that judgment that the present appeal is taken. Having regard to Article 34.4.5 of the Constitution a decision of this Court on the validity of any law must be pronounced in a judgment of the Court.
44. That provision does not apply to a judgment concerning the interpretation, as distinct from the validity of a law. Every Act of the Oireachtas must, so far as is possible, be interpreted, in a manner which renders it compatible with the Constitution. Walsh J explained this principle, known as the “double-construction” rule, in his judgment in McDonald v Bord na gCon (N0. 2) [1965] I.R. 217 at 239 as follows:
“The Greyhound Industry Act of 1958, being an Act of the Oireachtas, is presumed to be constitutional until the contrary is clearly established. One practical effect of this presumption is that, if in respect of any provision or provisions of the Act two or more constructions are reasonably open, one of which is constitutional and the other or others are unconstitutional, it must be presumed that the Oireachtas intended only the constitutional construction and a Court called upon to adjudicate upon the constitutionality of the statutory provision should uphold the constitutional construction. It is only when there is no construction reasonably open which is not repugnant to the Constitution that the provision should be held to be repugnant.”
45. The same learned judge recalled that passage and elucidated the matter further in his judgment in East Donegal Co-operative v Attorney General [1970] I.R. 317 at 341:
“Therefore, an Act of the Oireachtas, or any provision thereof, will not be declared to be invalid where it is possible to construe it in accordance with the Constitution; and it is not only a question of preferring a constitutional construction to one which would be unconstitutional where they both may appear to be open but it also means that an interpretation favouring the validity of an Act should be given in cases of doubt. It must be added, of course, that interpretation or construction of an Act or any provision thereof in conformity with the Constitution cannot be pushed to the point where the interpetation would result in the substitution of the legislative provision by another provision with a different context, as that would be to usurp the functions of the Oireachtas. In seeking to reach an interpretation or construction in accordance with the Constitution, a statutory provision which is clear and unambiguous cannot be given an opposite meaning.”
46. The standing of the appellant to challenge the constitutionality of provisions of the ground rents legislation depends entirely on its being affected by the impugned provisions. Section 10.2 of the Act of 1978 is the only provision which has been successfully invoked with the consequence that the appellant is compelled to convey the fee simple in its property to the first-named respondent. The application of the first-named respondent for an order entitling him to compel the appellant to convey the fee simple to him succeeded only because it was held to be able to meet the conditions of section 10.2.
47. The appellant complains that section 10.2, insofar as it compels it to sell the fee simple in the property to the first-named respondent is arbitrary and unjust. The appellant accepted that it could be logical for the Oireachtas to provide for the payment to the lessor of a fraction of the market value in the case of a building lease where the lessee had constructed and paid for the building and the landlord had merely provided the site. It was submitted that that logic broke down when what was in issue was not a building lease or anything akin to it. The effect of section 10.2 was to take into the net, for the first time, leases such as that for Carrick House, which were not building leases and where the landlord had provided the buildings to the tenant. The evidence on this aspect of the case was summarised by Peart J as follows:
“There was some evidence that various tenants, such as doctors and a solicitor occupied Carrick House for relatively short periods from time to time, and that when these tenancies came to an end the lessor resumed possession and then re-let same. In this way while it was never proved that the original buildings were erected by the lessor, it is the case that upon the granting of the lease the buildings were “provided” (as [counsel] referred to it) by the lessor in 1945. That being the case, one could not say that the lease in this case was ever to be regarded as having been a building lease in the sense well understood and to which a ground rent would attach.”
48. The learned judge proceeded to comment on the way in which a rent, which in 1945 could not be considered a “ground rent,” had, by falling below the rateable valuation permitted the lessee to qualify for purchase of the fee simple. He said:
“It is because of these factors that [counsel] has submitted that the rent in the 1945lease is not what is usually referred to as a ground rent – in other words a rent which is so low that it cannot be seen as being a rack rent or rent one would expect to see in an occupational lease or tenancy. The rent reserved in the 1945 lease was £55 per annum, and there is uncontroverted evidence that rents after the Second World war were significantly low, the implication being that £55 per annum can be seen as being not a bad rent at that time from the landlord’s point of view, and representing far more than it would have been if it were to be simply a ground rent in the accepted sense of that term. I must say that I agree that there is little question but that this rent was not a ground rent in the sense we have come to use that term. I note that Prof. Wylie in his evidence stated that in fact the term “ground rent” is not a term of art, and that it is not defined in the legislation. He stated that “it is used generally speaking to mean a rent that is reserved on a long term lease which is relatively low because all that is being leased is the ground – in other words it does not reflect any buildings because it is contemplatde those buildings will be added later.
“I would not be satisfied by any evidence which I have heard that this rent was in 1945 so low as to amount to a ground rent in that sense. Nevertheless, by the way in which the scheme operates, this rent, by becoming over the years lower than the rateable valuation applicable on the date of service of the notice of application to acquire the fee simple, has achieved the very same significance, as far as assisting the tenant’s eligibility to so acquire that interest, as a classical ground rent. In so far as the scheme might be seen as not having been intended to benefit tenants who were not tenants under building leases or proprietary leases, this is certainly an anomaly in my view, and produces a purely fortuitous situation for the tenant in this case. Nevertheless the legislation says what it says and the tenant is entitled to avail of its provisions if he comes within them and I have found that he does.”
49. It was not, of course, the fact, taken on its own, that the rent was less than the rateable valuation on 2nd March 1998, which enabled the first-named respondent to satisfy the requirements of section 10.2, although Peart J observed at another point that the “increases in valuation resulted in a premises creeping by chance, as it were, into the grasp of s. 10(2) of the Act.” It also had to satisfy, with the benefit of the presumption in its favour, the requirement that “the permanent buildings ……were not erected by the lessor or any superior lessor or any of their predecessors in title.”
50. The application of section 10.2 requires, in the first instance that there be a lease of at least fifty years and that the rent be below the amount of the rateable valuation at the date of service of notice of intention to acquire the fee simple, namely 2nd March 1998. There was no difficulty about compliance with these requirements. The major controversy, certainly in the course of the Circuit Court Appeal was concentrated on compliance by the lessee with the condition that “that the permanent buildings on the land demised by the lease were not erected by the lessor or any superior lessor or any of their predecessors in title.”
51. Before embarking on an analysis of that provision and how it should be interpreted, I must again advert to the fact that this matter has been decided by Peart J in his judgment in the Circuit Court appeal. It is impossible, therefore, to ignore the treatment of the issue by the learned judge. Insofar as I discuss them, it cannot be in the sense that this is an appeal from that decision. It is not and it cannot be. This Court may not encroach into the question of the determination of an appeal from the Circuit Court. It is, however, inevitable that the views expressed by the learned judge become the point of reference on the question of interpretation of the provisions of the legislation, because it was that interpretation that formed the basis on which the appellant mounted its challenge to the constitutionality of the legislation.
52. It does not appear to have been in dispute that proof that “the permanent buildings on the land demised by the lease were not erected by the lessor or any superior lessor or any of their predecessors in title” refers to all the buildings and not merely a part. While I will return to the point, I would emphasise that the term, permanent buildings means all the permanent buildings. Counsel for the appellant submitted to Peart J, in the Circuit Court appeal, that the alternative provision, section 10.1, refers to “the permanent buildings” being erected by the lessee, and not to just some of the permanent buildings. Peart J appears to have accepted this proposition. When he was considering the alternative submission on the part of the first-named respondent in reliance on Condition number 1, he said that he did “not take the view that [Condition Number 1] can be satisfied in the present case by establishing or at least satisfying the Court that the works carried out to Carrick House by the tenant are of such a nature as to have caused Carrick House to have lost its original identity, and that in that sense the present Carrick House structure has been erected by the lessee.”
53. Clearly, the learned judge was taking account of the evidence of the transformation of the permanent buildings which, nonetheless, left standing significant parts of the original Carrick House. For instance, the internal staircase remained and the upstairs rooms had been converted into flats.
54. To put the matter beyond doubt, the learned judge clarified the position in his judgment on the constitutional issue by saying that it had been indeed his intention that his judgment would be clear and that in his view the reference to “permanent buildings” means all permanent buildings on the land.
55. The onus is, of course, on the lessee to satisfy the condition in section 10.1, which contains no presumption on which it can rely, but this passage does not depend on that. It addresses the substance of the condition, namely that the condition refers to the erection of all the permanent buildings. It deals with the fact, not proof of the fact.
56. Furthermore, when he turned to section 10.2, the learned judge appears to confirm that he considered that the proof related to all the buildings. He said:
“Under the latter part of condition 2 the onus is clearly on the landlord to rebut the presumption that the permanent buildings, and for this purpose this must mean the original Carrick House and its outhouses as demised in the 1945 lease, were not erected by the lessor or any superior lessor or any of their predecessors in title.”
In other words, it was common case that the lessee or its predecessors had erected all the permanent buildings which transformed the original Carrick House after the assignment to Mr Michael Connolly in 1972. The problem related to Carrick House. So far as the judge was concerned there was a presumption that the lessee or its predecessors had erected Carrick House and the appellant had to rebut it if it was to resist the application to acquire the fee simple.
57. The passage which I have just cited from the judgment of Peart J is of considerable importance, when considering the interpretation, in the light of the Constitution, of section 10.2. Although he does not spell it out, I believe the learned judge was saying that the term the permanent buildings meant all the permanent buildings on the land. At this point, it is the substance of the condition that needs to be discerned. I will consider the burden of proof and the presumption later. In order for the lessee to be entitled compulsorily to acquire the fee simple, it must be established
“that the permanent buildings on the land demised by the lease were not erected by the lessor or any superior lessor or any of their predecessors in title…”
Confusingly, the condition is negative in form. Expressed in positive language, and leaving aside the interpretation of “predecessors in title” for the moment, it means that to satisfy this condition it must be the fact that none of the buildings were erected by the lessor.
58. The interpretation I propose in the preceding paragraph is, in my view, necessary in order to arrive at a constitutional interpretation. If the term, permanent buildings, means that it is sufficient if the lessee has erected merely part of the buildings, however small, the right compulsorily to acquire the fee simple would be conferred on such a lessee regardless of the fact that it was the lessor that had erected and was the owner of the major part of the buildings. Moreover, the consideration for the purchase would be fixed pursuant to section 7(4) by reference to a rent which is one eighth of the market rent. In an extreme case, the lessee would be entitled to purchase the fee simple compulsorily even if he had taken a lease at very favourable rent, where the landlord had erected all the buildings, except for a small extension. It may, of course, be said that this is an unlikely scenario, because the rent would, in all likelihood, be greater than the rateable valuation. Nonetheless, this remains the correct interpretation of the term permanent buildings.
59. Without an interpretation to the effect that permanent buildings means all the permanent buildings, section 10.2 could, therefore, have the effect of entitling a lessee to acquire the fee simple calculated by reference to one eighth of the market rent even where the lessor had erected most or nearly all the buildings. The effect of the approach whereby the lessee may acquire the fee simple even if he has erected only part of the permanent buildings is graphically illustrated by the result reached in the present case, which I have described at paragraphs 39 and 40. The lessor is to receive only one eighth of the market value of the original Carrick House and lands.
60. Peart J was correct, therefore, to say that the issue of the presumption, in the present case, related to Carrick House and its outhouses.
61. The question, therefore, became essentially whether the appellant could rebut the presumption contained in section 10.2 that the permanent buildings, insofar as they consisted of the remaining elements of Carrick House “were not erected by the lessor or any superior lessor or any of their predecessors in title…”
62. The evidence before the High Court related to the entire period of the ownership of the property by the appellant and its predecessors in title. Peart J traced the history back to a grant to the 1st Earl of Essex in about 1576 by Queen Elizabeth I of England. He said that certain of that granted property, including property situated on the west side of Main Street, passed by inheritance to the ancestors of the present Shirley family in about 1646 and had remained in the ownership of that family in the broad sense ever since. He cited the evidence, in the form of reports of Mr.David Semple, Consulting Engineer and Architect, who assigned to Carrick House a date between 1790 and 1810 and of Mr. David Freeman, Chartered Valuation Surveyor, who dated it in the late 18th or early 19th century.
63. He noted evidence of some very interesting work undertaken by the appellant in assembling estate records from the late 18th century onwards in order to try to satisfy the Court that the probability was that these buildings on the land were erected by the landlord. He traced in particular detail the leases from 1919, all granted by members of the Shirley family, who were the predecessors in title of the first-named respondent.
64. In his judgment in the constitutional case, he noted, in particular, the significance of the evidence regarding the level of rent, £55 per annum, reserved under the extension to the1919 lease. He accepted that there was “uncontroverted evidence that rents after the Second World war were significantly low, the implication being that £55 per annum can be seen as being not a bad rent at that time from the landlord’s point of view, and representing far more than it would have been if it were to be simply a ground rent in the accepted sense of that term.” He added that, in his view, “there is little question but that this rent was not a ground rent in the sense we have come to use that term.”
65. Nonetheless, when he came, in his judgment on the Circuit Court Appeal, to assess this evidence in the light of the presumption contained in section 10.2, he took the following view:
“In my view, given the wording of s.10(2) of the 1978 Act, and of the proviso, it would be necessary for the landlord to show conclusively, and certainly as a matter of almost inescapable probability, that the lessor or his predecessors in title erected the building, given that the proviso is clearly intended to be in ease of the tenant who has no manner or means of establishing the situation one way or another in relation to buildings which are so old.”
66. In his judgment in the constitutional case, the learned judge noted a submission made on the part of the appellant that this was an unreasonable and unfair burden to impose on a landlord. This was a reference to the burden of proof which the learned judge had adopted and applied in the ground-rents appeal. Counsel for the appellant had there submitted that the lessor was, thereby, required to prove, as opposed to satisfy, the Court as a matter of probability, that the lessor or a predecessor in title, erected the permanent buildings, which was an almost impossible task in most cases.
67. I also mentioned at the outset that the learned judge had declined to decide an important issue of interpretation of the legislation in the light of the Constitution. He took note of a submission made by counsel for the appellant that a wide interpretation should be given to the term “predecessor in title” appearing in section 10.2 so that the term would embrace also lessees whose leases expired resulting in the lessor regaining possession of Carrick House before creating a new lease or tenancy in favour of another tenant. He noted that, on such an interpretation, if it could be shown that, at any stage prior to the erection of the new buildings, Carrick House had come back into the possession of the Shirley estate, then it would not matter whether it was the Shirley estate or any lessee who erected Carrick House, since such a lessee whose lease expired would come within the wider definition of a “predecessor in title.”
68. The substance of the submission was that if a narrow and literal rather than a broad interpretation were to be accorded to the term “predecessor in title” this would involve an arbitrary transfer of benefit from the lessor to the lessee. The learned judge, however, expressed the view that it was “undesirable that he express any view on these particular submissions,” given the existence of the constitutional challenge to the legislation. He took the view that it was unnecessary [that he express any view] for the purpose of his determination of the issues on the facts of the Circuit Court Appeal. Consequently, he did not consider whether the double-construction rule should be applied. He appears simply to have adopted what he considered to be the literal construction. While he did not say so, it seems implicit that he was reserving the question of the interpretation to be considered in the constitutional action. Consequently, the learned judge made no decision, in the ground-rent proceedings, on whether the term “predecessors in title” should be given a broad interpretation, as proposed on behalf of the appellant.
69. The effect of the decision by the learned judge, on the interpretation of the Act in the Circuit Court Appeal, was, of course, that the matter had effectively been decided before the hearing of the constitutional claim. It was never reopened. The learned judge, in his judgment in the latter action, merely referred to the manner in which he had referred to this presumption in his earlier judgment. There does not appear to have been any question of reconsidering it in the light of the fact that this was now the constitutional action and that he had declined to consider a broader interpretation in his earlier judgment. He continued:
“Certainly it might have been possible to conclude from the evidence adduced by the plaintiffs that it was, as a matter of probability, the landlord rather than any lessee who erected Carrick House, but that was in my view an insufficient level of proof given the way in which the presumption is couched in the section.”
70. In the result, the appellant was driven to submit that the presumption, at least as it had been interpreted, was arbitrary and punitive, in as much as it appropriated to a lessee, and without proper compensation to the landlord, a benefit which that lessee does not deserve.
71. It is only right to say that the learned judge delivered two very thorough and considered judgments covering the two cases. Nonetheless, it seems clear that a consequence of the necessary segregation of the two issues, one being decided by way of appeal from the Circuit Court and the other in a plenary High Court action, was that the learned judge did not consider or decide upon the question of the correct interpretation of section 10.2 in the light of the presumption of constitutionality and the double-construction rule in either case.
72. As was made clear by Walsh J in the passage from the East Donegal case, cited above, a law “will not be declared to be invalid where it is possible to construe it in accordance with the Constitution…” In McDaid v Sheehy 1991] 1 I.R. 1 at page 19, Finlay C.J. referred to what he described as the “settled jurisprudence of this Court” as being against deciding an issue of constitutional validity in circumstances where the party making the challenge had not been prejudiceed or damaged by the impugned provision.
73. It is regrettable that, for the reasons I have described, the High Court did not, in either of its judgments decide the issue of the correct interpretation, in the light of the double construction rule, of the crucial provision of section 10.2 of the Landlord and Tenant (Ground Rents) (no. 2) Act, 1978. It is also true that, when the matter was raised on the hearing of the appeal, counsel for the appellant appeared reluctant to accept the invitation to argue it.
74. None of the foregoing dispenses this Court from its obligation to respect the constitutional principles which it has laid down affecting constitutional litigation. It must, to the extent that it is reasonably possible, examine impugned laws with a view to discerning whether a construction is open which renders the legislation compatible with the Constitution and only when confronted with a negative result embark on consideration of its compatibility with the Constitution.
75. I turn now to consider what should be the correct interpretation of the presumption expressed in section 10.2. It seems to me that two questions arise regarding the interpretation of the expression, “erected by the lessor or any superior lessor or any of their predecessors in title:
(a) does it exclude the possibility that an earlier unidentified lessor or lessee may have constructed part of the buildings in circumstances where the lessor was full owner of all interests?
(b) does the term “erected” exclude an interpretation that the lessor, by providing the buildings, should be treated as having erected them?
76. These questions are posed in a context where the lessee is seeking to avail of a statutory procedure enabling it to acquire compulsorily from the landlord the latter’s interest in the land the subject of the lease. What is at issue is whether the lessor should be compulsorily deprived of his property. Furthermore, as is clear from the evidence heard in the High Court, that acquisition will be at a price which is set by the legislation at a level very significantly below the value which the lessor would be able to obtain on the open market. What is at issue is the acquisition of the landlord’s property at a price fixed by the legislation so as to favour the purchaser and to the disadvantage of the seller.
77. In those circumstances, it must follow that the principle of the presumption of constitutionality comes into operation and, with it, the principle of double construction. If section 10.2 is reasonably open to an interpretation which is consistent with the appellant’s constitutionally protected property rights and, in that context less unfair and burdensome, that interpretation should be applied.
78. Two separate aspects of section 10.2 need to be examined: firstly, what meaning is to be attributed to the expression, “erected by the lessor or any superior lessor or any of their predecessors in title…?” secondly, what is the standard of proof?
79. In order to be consistent with the rights of the landlord, I believe a broad, indeed a commonsense, construction needs to be given to section 10.2.
80. It is easiest to address the issue by reference to the evidence. The predecessors in title of the appellant include Evelyn Charles Shirley and his predecessors in title. It is common case that, in the period from 1919 to some years after 1951 the premises consisted of the old Carrick House, a substantial residence in a country town. At the time of the grant of the lease of 1919, the lessor was the owner of the fee simple interest in the property. Carrick House had been built many years before, on the evidence probably about the year 1800. Carrick House necessarily had to have been built by some predecessor in title of Evelyn Charles Shirley, the lessor who granted that lease. Of course, at this interval of time, it is not possible to “prove” who built Carrick House and certainly not according to the standard of “almost inescapable probability” required by the learned trial judge in the Circuit Court Appeal. However, the predecessors in title of Evelyn Charles Shirley, as of 1919, must necessarily encompass all previous owners, whether lessors or lessees, since Evelyn Charles Shirley owned all interests in the property at that time. This is a conclusion reached as a matter of inference: there is no direct proof, but the logic seems to me to be so compelling as to inescapable.
81. This brings me to the second point. The word, “prove” in section 10.2 does not introduce any requirement above and beyond what is normally required to discharge a burden to prove on the balance of probabilities. Section 10.2 does not demand eyewitness or physical evidence. It does not preclude the use of inference. The learned trial judge, in his Circuit Appeal judgment, used the expressions, “conclusively,” and “almost inescapable probability,” in setting the standard of proof. Nonetheless, in the constitutional judgment, he acknowledged that it “might have been possible to conclude from the evidence adduced by the plaintiffs that it was, as a matter of probability, the landlord rather than any lessee …erected Carrick House…” The words of section 10.2 certainly impose a burden of proof on the landlord, the appellant in this appeal, to rebut a presumption. But there is nothing in the provision which goes beyond the normal test of balance of probabilities. Very clear words would be required to reach that result. If that were indeed the test, it would be difficult to resist the appellant’s argument that the test would be unfair and unduly burdensome.
82. In my view, it follows that the section, when interpreted in the light of the presumption of constitutionality, and the double-construction rule, would have enabled the appellant to point to the fact that, as of the date of grant of the leases of 1919 and 1945, its predecessor in title had gathered into their ownership all prior rights whether of lessor or lessee. It would thus have been able to rebut the presumption in section 10.2 of the Act of 1978 that the permanent buildings had not been erected by the lessor or its predecessor in title and defeat the application of the first-named respondent for the purchase of the fee simple in the property. The section, properly construed, would not, therefore, have affected the appellant, and it would not have any standing to challenge the section as being repugnant to the Constitution.
83. While the High Court considered the issue of the validity of the impugned sections, and this Court has heard the appeal against its judgment, the High Court did not decide the question of interpretation of the term predecessors in title, on which I have expressed my views. On the interpretation I have adopted, the appellant would not have been affected by section 10.2 and would not have been compelled to sell the fee simple in the property. For this reason, I would dismiss the appeal from the High Court but for the very different reason that the appellant would not have any standing to challenge the section as being repugnant to the Constitution.
84. I must end by emphasising that this conclusion has no effect on the decision of the learned trial judge on the Circuit Court Appeal. It is a matter for the parties and for the learned trial judge to consider what effect it has, if any.
Minister for Agriculture, Food and Forestry v. Brennan
[1997] IEHC 122; [1999] 3 IR 228 (11th July, 1997)
Judgment of Ms. Justice Carroll delivered the 11th day of July, 1997.
1. This is an application for an Order of Mandamus by way of Judicial Review directing the Respondent to hear and determine four charges against the Notice Party. These were that on the 18th December, 1992 he had in his possession prohibited veterinary medicines without product authorisation under the European Communities (Veterinary Medicinal Products) Regulations, 1986 (S.I. 22 of 1986) contrary to Regulation 13(2) of the European Communities (Control Veterinary Medicinal Products and their Residues) Regulations 1988 and 1990 (S.I. 218 of 1988 and S.I. 171 of 1990). They are more particularly set out in the Order of the High Court granting leave to apply for Judicial Review dated the 31st January, 1994.
2. The grounds on which the relief is sought is that the Respondent wrongfully declined jurisdiction to hear and determine the charges against the Notice Party in respect of which he had been summoned and wrongfully struck out the charges on the basis that he did not have jurisdiction.
3. There is conflict between the Affidavits of Peter Charlton and Enda P. O’Carroll (on behalf of the Applicant) and Michele Flanagan (on behalf of the Notice Party) as to what exactly were the submissions made before the Respondent. There was no cross-examination of any of the deponents.
4. Basically what happened was that at the outset of the hearing an objection was raised by Counsel for the Notice Party that the Respondent did not have jurisdiction on the basis that Johnson J. held on the 1st April, 1993 in the case of Meagher -v- Minister for Agriculture (1991 1 I.R. 329) that the entire of the Regulations of 1988 and 1990 referred to in the summonses were ultra vires and void.
5. According to the Statement in Opposition the decision of the Respondent given on the 2nd November, 1993 was:-
“That he was satisfied having construed and interpreted the 1st of April 1993 Judgment and Order of Johnson J. in the High Court that the statutory Regulations in question in their entirety had not been properly legitimised and that therefore the offences alleged on the summonses were not offences known to the law and therefore for want of jurisdiction he was striking the summonses out”.
6. In the Meagher case (which also related to the possession of substances prohibited under the 1988 Regulations) Johnson J. said that the essence of the allegations was whether the Regulations of 1988 and 1990 were ultra vires and unconstitutional in so far as they purported to
(a) amend the Petty Sessions (Ireland) Act, 1851 and
(b) confer additional rights regarding Search Warrants and searching of houses on the Minister for Agriculture.
7. The particular parts of the Regulations which gave rise to the application in the Meagher case were Article 11, paragraph 4 of the 1990 Regulations extending time for institution of proceedings to two years, Article 16, paragraph 2 of the 1988 Regulations concerning Search Warrants and Article 32, paragraph 8 of the 1988 Regulations also extending time to two years.
8. Johnson J. said what was challenged was the fact that existing laws were purported to be amended by Regulation. In his view any power given to a Minister to make Regulations for the purposes of amending or repealing laws is unconstitutional and he found that such portion of Section 3(2) of European Communities Act, 1972 (the 1972 Act) as entitled a Minister by Regulation to repeal or amend or apply, with or without modification, other law exclusive of that of the said Act is unconstitutional. He made no Order in respect of other relief sought in the High Court in particular whether the Regulations of 1988 and 1990 were ultra vires nor did he make an Order quashing the search warrant and prohibiting the prosecution.
9. The Judgment of the Supreme Court on the constitutional issue was pronounced by Finlay C.J. on the 18th November, 1993. The Court held that the power to make Regulations in the form in which it is contained in Section 3, subsection 2 of the 1972 Act is necessitated by the obligations of membership by the State of the Communities now of the Union and is therefore by virtue of Article 29, Section 3, subsections 3, 4 and 5 of the Constitution immune from constitutional challenge.
10. In a separate Judgment of the Supreme Court, Blaney J. went on to deal with the other reliefs which had been sought in the High Court but in respect of which no Order had been made. These narrowed down to a single issue: whether the Regulations of 1988 and 1990 were ultra vires the Minister under Section 3 of the 1972 Act in so far as they authorised the District Court to grant a Search Warrant and to permit a summons to be brought within two years of the commission of an offence notwithstanding Section 10(4) of the Petty Sessions (Ireland) Act, 1851. It was held that the Minister had such power.
11. It was submitted by the Applicant that Johnson J. did not declare the Regulations of 1988 and 1990 to be ultra vires. On his finding only that portion of Section 3 of the 1972 Act and only those portions of the Regulations which purported to amend a law were invalid. This has no relevance therefore to the present case. The Respondent, in holding that the Regulations of 1988 and 1990 were not valid in law and in holding on that basis that he did not have jurisdiction to hear and determine the accusations against the Notice Party wrongfully declined jurisdiction. The Regulations had the presumption of constitutionality and only the High Court and/or the Supreme Court had jurisdiction to decide the constitutionality of the same.
12. Counsel for the Notice Party submitted that the decision of the Respondent was properly made and within jurisdiction on the bona fide opinion that the offences alleged against the Notice Party were not offences at law. He made his order under Rule 66 of the District Court Rules of 1948 which is headed “Order to dismiss or strike out in cases of summary jurisdiction” and provides:-
“In any case of an offence punishable on summary conviction where the Justice does not convict the defendant, he may dismiss the complaint either on the merits or without prejudice to its being again made. If he is not satisfied that the appropriate provisions of these rules have been complied with or is of opinion that the complaint before him discloses no offence at law or if neither the complainant nor the defendant appears, he may if he thinks fit strike out the complaint without awarding costs, but this order shall not debar the complainant from bringing fresh proceedings in the same matter.”
13. The Notice Party submitted that the entire of Regulations were struck down as invalid as a result of the decision of Johnson J. dated the 1st April, 1993 and this stood as a valid interpretation until his Order was vacated by the Supreme Court on the 18th November, 1993.
14. On the 20th July, 1993 the European Communities (Amendment) Act, 1993 (the 1993 Act) was passed which had the effect of confirming the statutory instruments creating the offences alleged against the Notice Party as from that date. Since the offences alleged against the Notice Party were allegedly committed on the 18th December, 1992 and this pre-dated the passing of the Statute, the Notice Party could not be prosecuted for an offence which was not an offence at law at the time of its alleged commission (see Article 15.5 of the Constitution).
15. On this basis the Respondent formed a bona fide opinion on an informed basis that no offence known at law was disclosed to him and his decision was properly made within his jurisdiction.
16. I accept that if Johnson J. had declared that the entire of the Regulations of 1988 and 1990 were invalid, the Respondent would be bound by that decision until it was reversed, ( State (Llewellyn) -v- Donnachada 1973 IR 151 at 157). Also, if the Respondent had heard and determined the case and if his decision was erroneous in fact or law, Mandamus would not lie ( R (Spain) -v- Income Tax Commissioners (1934 IR 27)). But if the Respondent refused to hear a case, Mandamus would lie ( R (McGrath) -v- Clare Justices (1905 2 IR 510)).
17. Neither the Order nor the Judgment of Johnson J. showed that he made any such declaration. There was no declaration that the entire Regulations of 1988 and 1990 were invalid. The Meagher case was only concerned with the powers of search conferred under Article 16 of the 1988 Regulations and the extension to two years of the period of six months laid down by the Petty Sessions (Ireland) Act, 1851. Neither of these were relevant to this case where the powers of search were not in issue and the summons was brought within six months anyway. The matter appears to me to be similar to the case of D.P.P. -v- Brennan 1992 2 I.R. 233.
18. Since the Meagher case did not impugn the entire Regulations there was a presumption of constitutionality which the Respondent was bound to observe. He had no jurisdiction to determine that the Regulations in their entirety were null and void and refuse to hear the case. The confirmation of the Regulations by the 1993 Act was a damage limiting exercise in the event that the Supreme Court upheld the decision of Johnson J. It was not relevant to consider the 1993 Act in interpreting the decision of Johnson J.
19. The appropriate course is to make an Order of Mandamus sending the matter back to the District Court for hearing and determination.
ZS v DPP
[2011] IESC 49
Judgment Title: Z.S. v DPP
Neutral Citation: [2011] IESC 49
Supreme Court Record Number: 70/09
High Court Record Number: 2007 657 P
Date of Delivery: 21/12/2011
Court: Supreme Court
Composition of Court: Denham C.J., Murray J., Hardiman J., Fennelly J., Macken J.
Judgment by: Fennelly J.
Status of Judgment: Approved
Judgments by
Link to Judgment
Result
Concurring
Fennelly J.
Link
Appeal allowed – vary High Court Order
Hardiman J., Macken J.
Denham C.J.
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Murray J.
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Outcome: Allow And Set Aside
THE SUPREME COURT
Appeal No 70/2009
Denham C.J.
Murray J.
Hardiman J.
Fennelly J.
Macken J.
Between:
Z. S.
Plaintiff/Appellant
-and-
THE DIRECTOR OF PUBLIC PROSECUTIONS,
IRELAND AND THE ATTORNEY GENERAL
Defendants/Respondents
JUDGMENT delivered by Mr. Justice Fennelly on the 21st day of December 2011.
1. The Criminal law (Amendment) Act, 1935 created the offences of what was then called unlawful carnal knowledge of girls below the age of 15 (section 1) and between the ages of 15 and 17 (section 2). The Criminal Law Act, 1997 provided that section 2 was to apply to cases of carnal knowledge of all girls under the age of 17. Section 1 of the Act of 1935 prescribed a maximum penalty of penal servitude for life; under section 2 the maximum penalty was five years for a first offence and ten years for a second or subsequent offence.
2. In C.C. v Ireland and others [2006] 4 IR 1, the constitutionality of section 1 was challenged by reason of the absence of any provision permitting a defence on the ground that the accused reasonably or honestly mistook the age of the complainant. For ease of reference, this will be described as the “mistake defence.” This Court decided the issue in two stages. Firstly, the Court decided by a majority that section 1 of the Act of 1935 by necessary implication excluded any defence based on bona fide or reasonable mistake as to the age of the girl. In a second judgment delivered by Hardiman J, speaking for a unanimous Court, it was decided that the section was, consequently, inconsistent with the Constitution.
3. The proceedings which have led to this appeal constitute the counterpart of C.C., so far as section 2 is concerned. The appellant has instituted an action by plenary summons in which he alleges that section 2 is invalid, having regard to a number of provisions of the Constitution, essentially for the same reason as persuaded the Court to strike down section 1. The appellant pleads that section 2 created “an absolute offence with no provision for the defence of reasonable mistake as to the age of the complainant.”
4. There is, however, a difference which has to be considered by the Court. Section 2, unlike section 1, was the subject of amendment in 1997 in a way which would have the effect of extending its scope to offences involving all girls under the age of 17, not merely those aged between 15 and 17.
5. Section 2(1) of the Act of 1935 provided as follows
“Any person who unlawfully and carnally knows any girl who is of or over the age of fifteen years and under the age of seventeen years shall be guilty of a misdemeanour and shall be liable, in the case of a first conviction of such misdemeanour, to penal servitude for any term not exceeding five years nor less than three years or to imprisonment for any term not exceeding two years or, in the case of a second or any subsequent conviction of such misdemeanour, to any term of penal servitude not exceeding ten years nor less than three years or to imprisonment for any term not exceeding two years.”
6. Section 13 combined with item number 7 of the First Schedule of the Criminal Law Act, 1997 amended that provision by deletion of the underlined words, “of or over the age of fifteen years and.” Thenceforth, the section purported to apply to cases of carnal knowledge of all girls under the age of 17.
7. The implications of this amendment are central to the argument on the present appeal. Without that amendment, section 2 would share with section 1 the feature that a defence of honest mistake as to age is not allowed and, as was conceded on behalf of the State, it would suffer the same fate as section 1. If, on the other hand, the post-1937 amendment has the effect of conferring the presumption of constitutionality on section 2, a different result might be achieved. Thus, by application of the double-construction rule and, by implication of a requirement of mens rea, the prosecution would have to prove that the accused did not have an honest belief that the girl was over 17. The section could, if that argument were to be accepted, be rendered compatible with the Constitution.
The facts
8. The essential facts relating to the appellant are agreed. On 20th August 2004, the appellant was charged with the unlawful carnal knowledge of a female under the age of seventeen years of age contrary to the provisions of section 2 of the Act of 1935. The act with which he is charged is alleged to have occurred on 23rd October 2003. The complainant was born on 9th January 1987; thus, she was sixteen years of age at the date of the alleged offence.
9. The appellant was returned for trial at Dublin Circuit Criminal Court on 10th February 2006.
10. While the complainant alleges that the appellant had sexual intercourse with her, he denies this. Nonetheless, he has indicated his wish to be able to assert a defence to the effect that any sexual intercourse which took place occurred at a time when he had an honest and reasonable belief that the complainant was over the age of 17 years.
11. By the date of hearing of the appeal, the appellant had been tried in the Circuit Criminal Court. The jury was unable to reach a verdict and the retrial of the appellant is pending.
The proceedings
12. The plenary summons in the present case was issued on 30th January 2007. The judgment of this Court in C.C. v Ireland declaring section 1 of the Act of 1935 to be inconsistent with the Constitution had been delivered on 23rd May 2006. Pleadings in the present action were closed in December 2007. The High Court (Murphy J) delivered judgment on 19th December 2008.
13. Murphy J held, firstly, that the claim of the appellant was not premature: he rejected an argument advanced on the part of the defendants that the proceedings raised issues of statutory interpretation which could only be properly heard and determined at trial in view of the facts and the defence actually proffered.
14. Secondly, he rejected a challenge made by the defendants to the appellant’s standing to bring the action. It had been submitted that the appellant could not rely on an infringement of constitutional rights in the abstract without showing that his own constitutional rights were infringed. In short, he could not rely on the absence of a provision for a defence of mistake as to age unless he demonstrated that he was affected by that feature of the legislation. The learned trial judge held that the appellant had sufficiently asserted that he had honestly and reasonably believed that the complainant was of sufficient age and that he had, therefore, the necessary standing to mount a constitutional challenge.
15. The learned trial judge then considered, by careful reference to the authorities, whether the presumption of constitutionality attached to section 2. He referred to the judgments of this Court in ESB v. Gormley [1985] I.R. 129 and Representatives of Chadwick (deceased) v. Fingal County Council [2007] IESC 49. While agreeing that the amendment merely broadened the scope of application of the offence without engaging either with the issue of the mental element of the offence or any defence to a prosecution under section 2, he held that it did not follow from this that the presumption of constitutionality did not apply to the provision. In particular, the amendment extended the application of the section “to a new event or category of case,” namely the unlawful carnal knowledge of girls under the age of 15. It followed, in his view that the presumption of constitutionality applied.
16. The learned trial judge then addressed the question whether the presumption of constitutionality had been rebutted. He recalled a wide range of case law on the presumption of constitutionality and the consequential application of the double construction rule. The case was not concerned with section 2 in its original form. The intention of the Oireachtas of Saorstát Eireann could not be attributed to the Oireachtas under the Constitution.
17. The learned trial judge finally ruled that the section had to be given a constitutional meaning, but left the task as what precise meaning that would be to the trial court as follows:
“Accordingly, the court concludes that s. 2, in its amended form, must be interpreted in such a way as to render knowledge as to age a relevant consideration. This may mean that knowledge as to age is to be regarded as an element of the offence, or that a defence of honest or of reasonable mistake as to age may be invoked. The court accepts the submission of the defendants that that question should be determined by the trial court. As the Supreme Court indicated in C.C., any of the three formulations identified above, and perhaps others, would “pass constitutional muster”, so that once it has been determined that the provision is not of a strict liability nature, the question of what the provision requires is one of statutory interpretation rather than constitutional law. The duty of the trial court, therefore, is to give to the provision whatever interpretation is consistent with the Constitution and flows from an application of the ordinary rules of statutory interpretation, including the unrebutted presumption at common law that some mental element should be inferred.”
The appeal
18. At the hearing of the appeal, it was accepted that the problem before the Court fell to be analysed in three phases:
1. Did the amendment to section 2 effected by the Criminal Law Act, 1997 have the effect of conferring on the section the presumption of constitutionality which applies to post-1937 statutes?
2. If not, does it follow, for the reasons given by this Court in its judgment in C.C., that the section is unconstitutional?
3. If not, and the double construction rule therefore falls to be applied, what precise meaning, there being several alternatives, should the Court ascribe to the section?
19. In reality, as the hearing of the appeal proceeded, the focus of analysis became even more narrowly concentrated on the first question. The State, as has already been stated, conceded that, without the presumption of constitutionality, the section could not escape the fate of section 1(1). That concession was correctly made. Leaving the age of the complainant aside, there was no basis for distinguishing between the nature of the offence created by the two sections without application of the double construction rule. On the assumption the provision enjoyed the presumption of constitutionality, it was conceded that it had to be interpreted by the court so as to permit a defence of honest mistake, according to one version at least of the possibilities mentioned by Murphy J.
Discussion of the presumption of constitutionality
20. When either the High Court or the Supreme Court, as the case may be, is called upon to consider the exercise of its power to declare laws to be repugnant to the Constitution, it works according to the principle that any Act of the Oireachtas, i.e. any law enacted since the entry into force of the Constitution, enjoys a presumption of constitutionality. More than seventy years ago, in Pigs Marketing Board v. Donnelly (Dublin) Ltd. [1939] I.R. 413, Hanna J. stated at p. 417:-
“When the Court has to consider the constitutionality of a law it must, in the first place, be accepted as an axiom that a law passed by the Oireachtas, the elected representatives of the people, is presumed to be constitutional unless and until the contrary is clearly established.”
21. As the Court has explained, that principle “… springs from, and is necessitated by, that respect which one great organ of State owes to another” (per O’Byrne J. in Buckley and others (Sinn Féin) v. Attorney General and Another [1950] I.R. 67, at p. 80). The presumption remains a fundamental principle of our constitutional jurisprudence. (see Goodman International Ltd. v. Mr. Justice Hamilton [1992] 2 I.R. 542, Finlay C.J.; Curtin v Dail Eireann & others [2006] 2 IR 556.]
22. An important corollary of that principle is that a court, considering the exercise of that constitutional power, must apply the principle of double construction. Where the legislative provision under examination is reasonably open to two or more interpretations, one of which is compatible with the Constitution and the other or others of which are not, the court must adopt the former interpretation.
23. Walsh J explained the principle in McDonald v Bord na gCon [1965] I.R. 217 at 239, as follows:
“The Greyhound Industry Act of 1958, being an Act of the Oireachtas, is presumed to be constitutional until the contrary is clearly established. One practical effect of this presumption is that if in respect of any provision or provisions of the Act two or more constructions are reasonably open, one of which is constitutional and the other or others are unconstitutional, it must be presumed that the Oireachtas intended only the constitutional construction and a Court called upon to adjudicate upon the constitutionality of the statutory provision should uphold the constitutional construction. It is only when there is no construction reasonably open which is not repugnant to the Constitution that the provision should be held to be repugnant.”
24. In East Donegal Co-operative Livestock Mart Ltd. v. Attorney General [1970] I.R. 317 at 341, the same judge elaborated the principle in the following terms.
“Therefore, an Act of the Oireachtas, or any provision thereof, will not be declared to be invalid where it is possible to construe it in accordance with the Constitution; and it is not only a question of preferring a constitutional construction to one which would be unconstitutional where they both may appear to be open but it also means that an interpretation favouring the validity of an Act should be given in cases of doubt. It must be added, of course, that interpretation or construction of an Act or any provision thereof in conformity with the Constitution cannot be pushed to the point where the interpretation would result in the substitution of the legislative provision by another provision with a different context, as that would be to usurp the functions of the Oireachtas. In seeking to reach an interpretation or construction in accordance with the Constitution, a statutory provision which is clear and unambiguous cannot be given an opposite meaning.”
25. However, the presumption of constitutionality does not apply to laws passed prior to the coming into force of the Constitution. Walsh J explained in State (Sheerin) v Kennedy [1966] IR 379.p.386:
“All laws in force on the date immediately prior to the coming into operation of the Constitution are presumed not to be in conflict with the Constitution in force at the date of their enactment or in excess of the powers of the parliament which enacted them, but they enjoy no such presumption in respect of the provisions of the present Constitution and fall to be examined under the provisions of Article 50 of the Constitution—not as to their validity but, even assuming they were valid, as to whether or not they are inconsistent with the provisions of the present Constitution.”
26. As the matter was expressed by O’Higgins C.J. in Norris v Attorney General [1984] IR 36 at 54:
“However, according to the actual words used in Article 50, the law or laws in question operate unless inconsistency is established, and the onus of establishing such is placed on the person who challenges their continued validity. This is not to say that such pre-Constitution laws enjoy any presumption of consistency or constitutionality. They do not.”
27. By one of the curious ironies of litigation, the State, having argued, in C.C., that section 1 of the Act of 1935 could not be interpreted so as to permit a defence of honest mistake as to age, is now compelled by the consequence of the decision in that case to argue the contrary. For the same reason, the State submits that section 2 of the Act must be considered as a post-1937 enactment by reason of its amendment in 1997.
28. The question then becomes whether that amendment, given its form and its content, has the effect of transforming a provision enacted in 1935 effectively into a provision enacted by the Oireachtas in 1997.
29. The spectrum ranges from cases where a pre-1937 act is formally re-enacted, or applied to a new situation, to cases of slight or peripheral amendment.
30. A good example of the first type of situation occurred on establishment of the new Court of Criminal Appeal by section 3 of the Courts (Establishment and Constitution), Act, 1961. Section 48 of the Courts (Supplemental Provisions) Act, 1961 applied to the newly established courts a large number of enactments relating to the previously existing courts. Amongst these was section 29 of the Courts of Justice Act, 1924, relating to the former Court of Criminal Appeal which had been constituted in accordance with the Act of 1924. Section 29 concerned the finality of decisions of that court. Walsh J in People (Attorney General) v Conmey [1975] 341 at 362 expressed the view that, because that section had been “expressly re-enacted by s. 48 of the Courts (Supplemental Provisions) Act, 1961, it must be given the benefit of the canons of construction laid down by this Court” in the two cases which I have cited in the paragraphs above. The consequence, he explained, was “that it must be assumed that the Oireachtas in 1961 did not intend to violate the constitutional provisions referred to unless the statutory provision leads to no other possible conclusion.”
31. Finlay C.J., in his judgment in ESB v Gormley [1985] IR 129 envisaged a distinction between re-enactment and mere amendment. At page 147 of the judgment he said:
“Where Acts passed since the coming into force of the Constitution expressly re-enact pre-Constitution statutes, this Court has decided on a number of occasions that such re-enactment gives to them the status of having been passed since the coming into force of the Constitution, thus applying the presumption to them.
It is equally clear that the mere fact of an amendment of a pre-Constitution statute contained in a statute passed after the coming into force of the Constitution does not of itself give to that pre-Constitution statute a presumption of validity.”
32. Gormley was concerned with an attack on the constitutionality of statutory powers of the Electricity Supply Board. Firstly, the Board was empowered to enter and place electric lines above or below the ground on privately owned land. Secondly, it was given power to lop or cut trees, shrubs or hedges, which obstructed or interfered with the works of the Board.
33. In the first case, an Act of 1945 amended an Act of 1927 by giving a greatly extended meaning to the expression “electric line.” In this case, the Court held that the 1945 amendment extended and expanded the nature of the works to which the original section applied to such an extent that “this extended or expanded meaning effectively re-enacted s.53 as part of a post-Constitution statute.”
34. In the second case, the amendment of section 98 of the Act of 1927 by section 5 of the Act of 1945 extended the power of lopping and cutting trees and shrubs to cases of potential obstruction of “the survey of the proposed routes of any transmissions or distribution lines …” Though considered “less extensive” this amendment was held to have the same effect. Finlay C.J. stated that the amendment.
“expressly extends the powers of the Board contained in s.98 to a new event or category of cases, namely, its requirement to make a survey only as distinct from the placing of a line.”
35. The Court granted to the defendant in ESB v Gormley a declaration that section 53 of the Act of 1927, “as effectively re-enacted,” by amendment in 1945, was invalid, having regard to the provisions of Article 40.s. 3 Constitution essentially because of the absence of any provision for the payment of compensation to landowners for the consequences of the exercise of the statutory powers. It refused any declaration in respect of the provisions of section 98 of the Act of 1927 as amended in 1945. In neither case did the Court address the question of inconsistency of the legislation with the Constitution in the context of Article 50.1 of the Constitution. For that reason, the case is of limited assistance in the present case.
The present case
36. Sections 1 and 2 of the Act of 1935 both created offences of unlawful carnal knowledge of a girl. The distinction between the offences created by the two sections lay only in the ages of the female victims. Section 1 made it an offence to have unlawful carnal knowledge of girls under the age of 15. Section 2, as originally enacted, made it an offence to have unlawful carnal knowledge of girls aged over 15 and under the age of 17. Otherwise, the penalty provisions were different. In addition, a prosecution under section 2 had to be brought within a year. So far as the essential elements of the offence, apart from the age of the victim, were concerned, there was no difference. Each section created an offence of unlawful carnal knowledge.
37. In particular, there was no difference between the two sections in so far as the question of mens rea was concerned. In its judgments in C.C., this court held that the legislature in 1935 had quite deliberately excluded the possibility of any defence based on mistake, bona fide or otherwise, with regard to the age of the girl. The judgments delivered by Geoghegan J and by myself, with both of which Hardiman J and McCracken J agreed, reached this conclusion on the basis of the legislative history of the provisions. It is unnecessary to set out that history in any detail. Suffice it to say that a defence of mistake had been allowed in 1885 in the case of what Geoghegan J called “the older girl” and was included in the Act of 1935 itself so far as persons of feeble mind were concerned. Geoghegan J concluded as follows at page 41:
“However, the proviso permitting the defence of mistake of age in the case of”the older girl offence” was not inserted into the Act of 1935 and by necessary implication this must have been deliberate particularly when regard is had to the fact that the mens rea element inserted into s. 5 of the Act of 1885 in relation to carnal knowledge with women of unsound mind was effectively repeated in the Act of 1935. To hold otherwise would be an unjustifiable distortion of what was clearly the intention of the Oireachtas of Saorstát Éireann.”
38. In my own judgment, I expressed the same view in slightly different words at page 64:
“It is, to my mind, compellingly clear that the Oireachtas, as a matter of deliberate policy, deprived accused persons of the defence of mistake as to age made on reasonable grounds in all cases, but one, in which it had previously been expressly available. It is, therefore, also compellingly clear that the Oireachtas did not intend that such a defence should be available in the case of a charge of the newly enacted offence of unlawful carnal knowledge of a girl under the age of fifteen. A contrary view would make nonsense of the legislation and would, furthermore, run counter to the commonly accepted interpretation of the section which has prevailed for the seventy years since its enactment.”
39. Following a second hearing in this Court in C.C., Hardiman J delivered a judgment with which all members of the Court agreed. He held that “the form of absolute liability provided in s. 1(1) of the Act 1935 [was], in all the circumstances, inconsistent with the Constitution.” He carefully used the word, “inconsistent,” which appears in Article 50.1 of the Constitution, which reads:
“Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in Saorstát Éireann immediately prior to the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas.”
40. Hardiman J, at page 86 of the report, discussed a proposal that a more limited declaration might be made declaring the provision inconsistent with the Constitution only to the extent that it excluded a defence of honest mistake. He declined to accept that proposal. The Court, therefore, made an order declaring that section 1(1) of the Act of 1935 was inconsistent with the Constitution.
41. It has been quite correctly conceded on the part of the State that section 1(1) and section 2(1) cannot be materially distinguished insofar as both provisions, as enacted by the Oireachtas of Saorstát Eireann, excluded any defence of honest mistake regarding the age of complainant. It follows inevitably that section 2(1) was also inconsistent with the Constitution at the time it came into operation. By virtue of Article 50.1 of the Constitution, section 2(1) did not “continue to be of full force and effect…” after 1937.
42. Hardiman J explained, at page 86, that the consequence of the provision’s inconsistency with the Constitution was that it did not continue to be of “full force and effect,” as provided by Article 50.1 of the Constitution.
43. Because of the unique circumstance that, so far as the availability of a defence of honest mistake is concerned, it is indistinguishable from section 1(1) on which the Court has already pronounced, section 2(1) was not continued in effect by Article 50.1 of the Constitution. Expressed otherwise, being inconsistent with the Constitution, it ceased to have any effect in law from the time of coming into operation of the Constitution. Hence, it had no force in law at the date of the passing of the Criminal Law Act, 1997 and its purported amendment by that Act had no legal effect. Put simply, there was no provision in force capable of being amended by item number 7 of the First Schedule of the Act. The Oireachtas did not in 1997 purport to re-enact section 2(1). It mistakenly assumed that it was still in force. The amendment of 1997 took the form of the deletion of the words “of or over the age of fifteen years and” from section 2(1) of the Act of 1935. The Oireachtas did not purport to re-enact section 2(1) as it had done, in the case of section 29 of the Courts of Justice Act, 1924, by section 48 of the Courts (Supplemental Provisions) Act, 1961, considered in People (Attorney General) v Conmey (see paragraph 30 above).
44. This is, of course, a highly unusual, even unique, situation. It is the consequence of the existence at this point in time of a judgment of this Court declaring inconsistent with the Constitution a materially identical provision. The decision in C.C. v Ireland is crucial. The situation is quite different from the legislative provision at issue in ESB v Gormley, cited above. In that case, there were two provisions in force, which were amended in a way which the Court found to amount to effective re-enactment.
45. Section 2(1) of the Act of 1935 was, for the same reason as was held in relation to section 1(1) in C.C., inconsistent with the Constitution. It did not survive the entry into force of the Constitution. It was not in force in 1997 and could not be amended by the Criminal Law Act of that year.
46. The Court will allow the appeal and will set aside the order of the High Court. It will grant a declaration that section 2(1) of the Criminal law (Amendment) Act, 1935 is and was at all material times inconsistent with the Constitution.
Judgment delivered on the 21st day of December, 2011, by Denham C.J.
1. This is an appeal by Z.S., the plaintiff/appellant, hereinafter referred to as “the appellant”, from the judgment and order of the High Court (Murphy J.) given on the 19th December, 2008, refusing a declaration that the offence (with which the appellant is charged) contrary to s. 2(1) of the Criminal Law Amendment Act, 1935, as amended by s. 13 of the Criminal Law Act, 1997, is unconstitutional on the grounds that the statutory provision does not require proof of mens rea as to the age of the complainant, or provide for a defence of honest but mistaken belief as to age.
2. The appellant is charged with the offence of unlawful carnal knowledge of a girl under the age of 17 years contrary to s. 2(1) of the Criminal Law Amendment Act, 1935, as amended by s. 13 of the Criminal Law Act, 1997, referred to as “the Act of 1935, as amended”.
3. The appellant is challenging the constitutionality of s. 2(1) of the Act of 1935, as amended. He submits that s. 2(1) creates an absolute liability offence so that the defence of mistake as to the age of the complainant is not open to him. Accordingly, the appellant contends that he is prejudiced and that he is entitled to a declaration of the unconstitutionality of s. 2(1) on the same reasoning as in C.C. v. Ireland [2006] 4 IR 1.
Background Facts
4. The parties agreed a statement of facts in the High Court. The complainant was born on the 9th January, 1987. At the time of the incident complained of she was 16 years of age. The appellant was charged with the offence of unlawful carnal knowledge of a girl under the age of 17 years, contrary to s. 2(1) of the Act of 1935, as amended. The appellant was returned for trial on the 10th February, 2006, to the Dublin Circuit Criminal Court. The prosecution case, inter alia, was that at the time of the alleged incident complained of, the appellant ran a shop and hired the complainant as a shop assistant. The incident complained of occurred on the 23rd October, 2003, when the complainant was working for the appellant as a shop assistant. The complainant alleged that the appellant had raped her and she described an incident of sexual intercourse. Seminal staining was found on the inside of the complainant’s jeans. A blood sample was taken from the appellant. A DNA match was found between the said sample and the semen staining. The appellant was arrested on the 23rd February, 2004, and detained for the offence of rape. The appellant was interviewed and denied having sexual intercourse with the complainant. The appellant was returned for trial by the Dublin Circuit Criminal Court in February, 2006.
Civil Proceedings
5. The appellant brought proceedings in the High Court seeking a declaration that s. 2(1) of the Act of 1935, as amended, is invalid having regard to the provisions of the Constitution of Ireland, 1937. The appellant also sought an injunction restraining the Director of Public Prosecutions from prosecuting him on a specified Bill of Indictment pending in the Dublin Circuit Criminal Court, until determination of these proceedings.
The High Court
6. On the 19th December, 2008, the High Court refused the relief sought. The High Court held that s. 2, of the Act of 1935, as amended, because of its amended form, enjoys a presumption of constitutionality, and thus the double construction rule may be applied, and as s. 2 is silent as to any mental element, the double construction rule applies so as to provide knowledge of age as a relevant consideration. The learned High Court judge held:-
“In addition, while the court is mindful of the decision in Chadwick to the effect that a long-established interpretation should not be departed from without good reason, the presumption of constitutionality and the double construction rule furnish ample reason for a new interpretation of s. 2. It is clear from the authorities referred to, in particular In re Haughey, that those principles can, subject to established limits, lead the court to adopt an interpretation of a post-Constitution statutory provision which is at variance with that which would flow from an application of the normal rules of statutory interpretation. Indeed, in Chadwick Fennelly J. expressly held (at paras. 36-37) that he would not depart from the traditional interpretation of the provision under consideration because, among other reasons, such an interpretation would not place the provision in conflict with Article 40.3.2° of the Constitution. The fact that s. 2, as amended, has acquired the status of a post-Constitution statute is therefore sufficient to justify a construction of that provision which differs from that which prevailed in respect of s. 2 in its original form.
Accordingly, the court concludes that s. 2, in its amended form, must be interpreted in such a way as to render knowledge as to age a relevant consideration. This may mean that knowledge as to age is to be regarded as an element of the offence, or that a defence of honest or of reasonable mistake as to age may be invoked. The court accepts the submission of the defendants that that question should be determined by the trial court. As the Supreme Court indicated in C.C., any of the three formulations identified above, and perhaps others, would “pass constitutional muster”, so that once it has been determined that the provision is not of a strict liability nature, the question of what the provision requires is one of statutory interpretation rather than constitutional law. The duty of the trial court, therefore, is to give to the provision whatever interpretation is consistent with the Constitution and flows from an application of the ordinary rules of statutory interpretation, including the unrebutted presumption at common law that some mental element should be inferred.
[…]
This court has already determined that s. 2, as amended, is consistent with the Constitution. For the reasons noted above, the basis relied upon in C.C. as excluding the mental element is not present here. Accordingly, it is legitimate and indeed necessary for the trial court to infer a particular mental element under s. 2 as to the age of the complainant by applying the ordinary rules of statutory interpretation.”
Appeal
7. The appellant filed a notice of appeal on the 4th March, 2009.
Trial in the Circuit Court
8. Since the judgment of the High Court, the appellant has been tried for the offence, having been refused an application for a stay. The trial commenced before His Honour Judge McCartan on the 7th April, 2011, and ended on the 13th April, 2011, without the jury reaching a verdict. The defence claimed that the appellant did not know the age of the complainant but that he believed she was 18 years of age. The complainant said her date of birth was on her C.V., and that she said she was only 16 during the alleged attack. The appellant gave evidence that no date of birth appeared on the C.V.; the appellant said he believed her to be 18 because she had said she had two years work experience. The appellant gave evidence that the complainant made the approaches to him and that there was no sexual intercourse. In his charge to the jury, Judge McCartan directed that the defence could rely on an honest belief about the complainant’s age. The jury did not reach a verdict.
Re-trial
9. The re-trial of the appellant is due to commence on the 24th January, 2012.
Issue
10. Thus at the core of this case is whether the defence of mistake of age is open to the appellant.
Amendment
11. Section 2(1) of the Criminal Law Amendment Act, 1935, provided for the offence of unlawful carnal knowledge of a girl between the ages of 15 and 17 years of age.
It stated:-
“Any person who unlawfully and carnally knows any girl who is of or over the age of fifteen years and under the age of seventeen years shall be guilty of a misdemeanour and shall be liable, in the case of a first conviction of such misdemeanour, to penal servitude for any term not exceeding five years nor less than three years or to imprisonment for any term not exceeding two years or, in the case of a second or any subsequent conviction of such misdemeanour, to any term of penal servitude not exceeding ten years nor less than three years or to imprisonment for any term not exceeding two years.”
12. Section 13 of the Criminal Law Act, 1997, referred to as “the Act of 1997”, amended this section. Paragraph 7 of the First Schedule states:
“The Criminal law Amendment Act, 1935, shall be amended as follows: in section 2(1) and 2(2) (defilement of girl between fifteen and seventeen years of age), “of or over the age of fifteen years and” shall be deleted.”
13. Consequently, the offence, as amended, is:
“Any person who unlawfully and carnally knows any girl who is under the age of seventeen years shall be guilty of a misdemeanour and shall be liable …”
Re-enactment
14. The issue then arises as to whether the Act of 1997 was such a re-enactment as to give the status of having been passed since the coming into force of the Constitution, and thus having the presumption of validity, and to which constitutional principles of construction of post 1937 legislation would apply.
15. In Electricity Supply Board v. Gormley [1985] 1 I.R. 129 at p. 147 Finlay C.J. stated:-
“The first issue of law which arose on this aspect of the case was whether s. 53 of the Act of 1927, by virtue of the amendment thereof by s. 46 of the Act of 1945, and s. 98 of the Act of 1927, by virtue of the amendment thereof by s. 5 of the Act of 1941, should be deemed to have been enacted or re-enacted by the Oireachtas since the coming into force of the Constitution and thus attract a presumption of validity having regard to the provisions of the Constitution.
Where Acts passed since the coming into force of the Constitution expressly re-enact pre-Constitution statutes, this Court has decided on a number of occasions that such re-enactment gives to them the status of having been passed since the coming into force of the Constitution, thus applying the presumption to them. It is equally clear that the mere fact of an amendment of a pre-Constitution statute contained in a statute passed after the coming into force of the Constitution does not of itself give to that pre-Constitution statute a presumption of validity.
With regard to s. 53 of the Act of 1927, however, and the amendment made in it by s. 46 of the Act of 1945, the view of the Court is that the nature and terms of that amendment, which extends and expands the nature of the works to which s. 53 originally applied, and the terms of amendment, which not only made that extension but deemed the meaning of “electric line” in s. 53 of the Act of 1927 to have always had this extended or expanded meaning, effectively re-enacted s. 53 as part of a post-Constitution statute.
Similar considerations apply to the amendment of s. 98 of the Act of 1927 contained in s. 5 of the Act of 1941 which, though less extensive than that contained in s. 46 of the 1945 Act, expressly extends the powers of the Board contained in s. 98 to a new event or category of case, namely, its requirement to make a survey only, as distinct from the placing of a line.”
16. The first issue of law in this case is whether s. 2(1) of the Act of 1935, as amended, should be deemed to have been enacted or re-enacted by the Oireachtas since the coming into force of the Constitution and thus attract a presumption of validity having regard to the provisions of the Constitution. The analysis of Finlay C.J. above is relevant to this case and I adopt and apply it.
17. The re-enactment of s. 2(1) of the Act of 1935, by the amendment of the Act of 1997, relates to the age of the complainant. This has important consequences and addresses the nature of the offence.
18. The importance of the age of a complainant was referred to by Geoghegan J. in C.C. v. Ireland 4 I.R. 1 at p. 41, where he stated:-
“The Oireachtas of Saorstát Éireann when enacting the Act of 1935 was clearly intending to revise the offences under the Act of 1885 and to do this in a number of ways. It was clearly intended that what might be described as “the young girl offence” was to be altered to cover girls under fifteen years of age rather than under thirteen years of age. It is equally clear that the intention was to alter what might be described as “the older girl offence” to over the age of fifteen years but under the age of seventeen years instead of over the age of thirteen years and under the age of sixteen years.”
These issues have been re-addressed and re-enacted in the Act of 1997.
19. The Act of 1997 was an effective re-enactment of the offence. It extended the previous offence to new victims. The amendment in 1997 was a fundamental change to the offence, creating an offence relating to all females under 17 years of age. The amendment extended and expanded the nature of the offence. It was an enactment with a substantive effect. Therefore, the effect of the Act of 1997 was to vest it with the status of an offence in a post Constitution statute and thus it has the status of a post 1937 enactment.
20. As this Court has determined this appeal as a pre 1937 statutory offence, the issue of determining the case on the basis of s. 2 of the Act of 1935, as amended, constituting a post 1937 statutory offence is not one that I will undertake in all the circumstances.
Judgment of Murray J. delivered on the 21st day of December, 2011 (UNAPPROVED)
1. On 20th August, 2004 the appellant was charged with an offence pursuant to s.2(1) of the Criminal Law (Amendment) Act, 1935 as amended by s.13 of the Criminal Law Act, 1997.
That is the charge and if convicted, it can only be for an offence pursuant to s.2(1) of the Act of 1935 as amended by the Act of 1997.
He is not charged with, nor can he be convicted of, an offence pursuant to s.2(1) of the 1935 Act simpliciter. The gravamen of the charge is that he had unlawful sexual intercourse with a girl under the age of seventeen.
In these proceedings he seeks a declaration that s.2(1) of the Act of 1935 as amended by the Act of 1997 is unconstitutional because it does not permit him to raise an offence of reasonable belief that the girl in question was over the age of seventeen years.
Facts and circumstances
In this particular case the offence pursuant to s.2(1) as amended, is alleged to have been committed on 23rd October, 2004. The complainant was sixteen years of age at the date of the alleged offence. The appellant has denied that any sexual intercourse took place between him and the complainant. However, he has stated that he wishes to be able to put forward a defence that he had an honest and reasonable belief that the complainant, at the time when the sexual intercourse is alleged to have taken place, was over the age of seventeen years.
The appellant has already stood trial for the offence before the Circuit Criminal Court but the jury failed to agree on a verdict and a retrial is pending.
Relevant Statutory Provisions
Section 2(1) of the Act of 1935 provides as follows:
“Any person who unlawfully and carnally knows any girl who is of or over the age of fifteen years and under the age of seventeen years shall be guilty of a misdemeanour and shall be liable, in the case of a first conviction of such misdemeanour, to penal servitude for any term not exceeding five years nor less than three years or to imprisonment for any term not exceeding two years or, in the case of a second or any subsequent conviction of such misdemeanour, to any term of penal servitude not exceeding ten years nor less than three years or to imprisonment for any term not exceeding two years.”
Section 13 of the Criminal Law Act, 1997, by reference to the first schedule of the Act, amended section 2 by deletion of the words underlined above “of or over the age of fifteen years and”.
As and from the amendment made by the Criminal Law Act, 1997 the category of offences for which a prosecution could be brought pursuant to the amended section 2 was extended to included crimes of carnal knowledge of girls under the age of fifteen.
Prior to the amendment of s.2(1) a person who committed the offence of unlawful carnal knowledge of a girl under the age of fifteen years could only be prosecuted pursuant to s.1 of the Act of 1935 and not pursuant to section 2(1).
Section 1(1) provides:
“(1) Any person who unlawfully and carnally knows any girl under the age of fifteen years shall be guilty of a felony, and shall be liable on conviction thereof to penal servitude for life or for any term not less than three years or to imprisonment for any term not exceeding two years.”
A person guilty of an offence under s.1 was guilty of a felony and liable to penal servitude for life or for a term of not less than three years or to imprisonment for any term not exceeding two years.
The offence under s.2(1) was a misdemeanour and a person so convicted was liable, in the case of a first conviction, to penal servitude for a term not exceeding five years and not less than three years; or to imprisonment for a term not exceeding two years. In the case or subsequent offence under s.2(1) a more severe penalty was provided for.
Section 2(3) provided that no prosecution for a misdemeanour under s.2(1) could be commenced more than twelve months after the date of the commission of the offence.
The criminal liability created by s.2(1) of the Act of 1935 attached only to those persons who committed the offence within the State, as is ordinarily the case regarding criminal offences. In 1996 the Oireachtas decided that the criminalisation of certain sexual offences should have extraterritorial effect. To that end it provided that where a person, being a citizen of, or ordinarily resident in the State, does an act in any place outside the State, against or involving a child, which, if done within the State, would constitute an offence specified in the schedule to the Act, they shall be guilty of such an offence. The one proviso to the foregoing is that the act committing the offence should also be an offence in the place or country in which it was committed. Section 2(1) of the Act of 1935 is one of the offences mentioned in the schedule.
Accordingly in 1996 the Oireachtas extended the application of s.2(1) of the 1935 Act to such offences when committed in most parts of the world.
Section 2 of the Sexual Offences (Jurisdiction) Act, 1996 provides:
“2.—(1) Where a person, being a citizen of the State or being ordinarily resident in the State, does an act, in a place other than the State (“the place”), against or involving a child which—
(a) constitutes an offence under the law of the place, and
(b) if done within the State, would constitute an offence under, or referred to in, an enactment specified in the Schedule to this Act,
he or she shall be guilty of the second-mentioned offence.”
One of the enactments as specified in the schedule to the Act is s.2(1) of the Act of 1935. None of the parties adverted to this section in the course of the appeal.
Decision
The first question which arises in this case is whether the issue of the constitutionality of s.2(1) as amended by the Act of 1997, falls to be addressed on the basis that the Court is concerned only with s.2(1) of the 1935 Act as a legislative provision which predates the enactment of the Constitution in 1937 or whether s.2(1) of the Act of 1935 should be deemed to have been effectively re-enacted by the amendment to it as found in s.13 of the Criminal Law Act, 1997 and the schedule thereto. If it is the latter then the well established principle of a presumption, albeit rebuttable, of constitutionality would apply. The principle of presumption of constitutionality was articulated by Hanna J. in Pigs Marketing Board v. Donnelly (Dublin) Limited [1939] I.R. 413 at 417, in the following terms:
“When the Court has to consider the constitutionality of a law it must, in the first place, be accepted as an axiom that a law passed by the Oireachtas, the elected representatives of the people, is presumed to be constitutional unless and until the contrary is clearly established.”
In McDonald v. Bord na gCon [1965] I.R. 217 at 239, Walsh J. referred to the practical effect of the principle as follows:
“One practical effect of this presumption is that if in respect of any provision or provisions of the Act two or more constructions are reasonably open, one of which is constitutional and the other or others are unconstitutional, it must be presumed that the Oireachtas intended only the constitutional construction and a Court called upon to adjudicate upon the constitutionality of the statutory provision should uphold the constitutional construction. It is only when there is no construction reasonably open which is not repugnant to the Constitution that the provision should be held to be repugnant.”
Walsh J. elaborated further on this principle in East Donegal Co-Operative Livestock Mart Limited v. Attorney General [1970] I.R. 317 at 341 when he stated:
“It must be added, of course, that interpretation or construction of an Act or any provision thereof in conformity with the Constitution cannot be pushed to the point where the interpetation would result in the substitution of the legislative provision by another provision with a different context, as that would be to usurp the functions of the Oireachtas. In seeking to reach an interpretation or construction in accordance with the Constitution, a statutory provision which is clear and unambiguous cannot be given an opposite meaning.”
Acts passed prior to the coming into force of the Constitution of 1937 do not enjoy a presumption of compatibility with that Constitution, (see for example The State (Sheeran) v. Kennedy [1966] I.R. 379). Accordingly, it is in that sense that I refer in this judgment to pre-1937 and post-1937 legislation.
As regards s.1 of the Act of 1935, this Court in C.C. v. Ireland and ors [2006] 4 IR 1, decided that it was inconsistent with the Constitution. That section, which had not been amended by the Act of 1997, did not benefit from the presumption of constitutionality. It was found to be inconsistent with the Constitution essentially because it was manifest from its legislative history and its terms that it excluded an accused from raising, in defence to a charge under that section, the defence that he reasonably believed that the complainant was over the age below which sexual intercourse was prohibited.
Section 2(1) is expressed in essentially the same terms as regards the intent to commit the offence. If section 2(1) is considered on its own, without regard to any amendment, and therefore on the basis that it is a pre-1937 provision not enjoying a presumption of constitutionality, it ineluctably follows, from the precedent in C.C. v. Ireland, that it suffers from the same constitutional frailty as s.1 and therefore ought to be declared inconsistent with the Constitution. Counsel for the Attorney General accepted that this was an inevitable conclusion if s.2(1) fell to be interpreted as a pre-1937 provision. He argued however, that s.2(1) as amended by the Act of 1997 must be interpreted as constituting post-1937 legislation and therefore enjoyed the presumption.
C.C. v. Ireland did not involve an adjudication or decision on the constitutionality of s.2(1) as amended or otherwise, that issue now arises in this case.
In the High Court, the learned trial judge, having reviewed the authorities and scrutinised the relevant legislative provisions concluded that s.2(1) must be considered to have been effectively re-enacted, although not expressly so, by the amendment made by the Oireachtas in the Act of 1997. Accordingly, he concluded that s.2(1) of the 1935 Act as amended by the 1997 Act enjoyed the presumption of constitutionality. It was on the basis of such an interpretive approach that he reached his final conclusion on the issue of constitutionality.
Before the issue of constitutionality is resolved one way or the other it must be determined whether s.2(1) as amended by the Act of 1997 should be addressed from the perspective of a legislative provision enacted before the coming into force of the Constitution or a provision which should be deemed to have been effectively re-enacted by the amending provision of the Act of 1997. This I think is important from the point of view of a coherent and holistic approach to judicial review of the constitutionality of Acts of the Oireachtas.
The leading authority on such an issue is the decision of this Court in E.S.B. v. Gormley [1985] I.R. 129.
In that case this Court first of all acknowledged that it was well established that where Acts passed after the coming into force of the Constitution expressly re-enacted pre-Constitution statutes, such re-enactment gave to them the status of having been passed since the coming into force of the Constitution and as a consequence the presumption of constitutionality applied to them. That clearly applies to statutory provisions which are expressly or simply stated to be re-enacted even if in exactly the same terms. Accordingly, legislation enacted prior to 1937 and which might otherwise have fallen foul of the Constitution may nonetheless escape condemnation because of its formal and express re-enactment in the same terms in post-1937 legislation by virtue of an interpretive approach based on the presumption of constitutionality.
However, what the Court had to consider in the Gormley case was an amendment, which did not constitute an express re-enactment, but which by its terms and nature could be regarded as effectively re-enacting the provision or provisions in question and thereby fall to be scrutinised as post-1937 legislation enjoying the presumption of constitutionality.
In E.S.B. v. Gormley the Court was considering the constitutionality of the provisions of s.53 and s.98 of the Electricity (Supply) Act, 1927 as amended by the Electricity (Supply)(Amendment) Act, 1945.
The first issue which the Court had to consider was summed up in the judgment delivered by Finlay C.J. in the following terms:
“The first issue of law which arose on this aspect of the case was whether s. 53 of the Act of 1927, by virtue of the amendment thereof by s. 46 of the Act of 1945, and s. 98 of the Act of 1927, by virtue of the amendment thereof by s. 5 of the Act of 1941, should be deemed to have been enacted or re-enacted by the Oireachtas since the coming into force of the Constitution and thus attract a presumption of validity having regard to the provisions of the Constitution.”
The Court then went on to point out that where an Act passed since the coming into force of the Constitution expressly re-enacts pre-Constitution statutes then, according to the established jurisprudence of the Court, such re-enactment gives to them the status of having been passed after the coming into force of the Constitution.
However, the Court pointed out “It is equally clear that the mere fact of an amendment of a pre-Constitution statute contained in a statute passed after the coming into force of the Constitution does not of itself give to that pre-Constitution statute a presumption of validity.”
The Court then considered whether s.53 and/or s.98 of the Act of 1927, although not expressly re-enacted, should be deemed to have been effectively re-enacted by virtue of the amendments made to them. The Court began by considering the first of the impugned provisons, namely s.53 of the Act of 1927, as amended, and stated:
“With regard to s.53 of the Act of 1927, however, and the amendment made in it by s.46 of 1945, the view of the Court is that the nature and terms that amendment, which extends and expands the nature of the work to which s.53 originally applied and the terms of the amendment, which not only made that extension but deemed the meaning of “electric line” in s.53 of the Act of 1927 to have always had this extended or expanded meaning, effectively re-enacted s.53 as part of a post-Constitution statute.”
The Court referred to the nature and terms of the amendment extending and expanding the original s.53 which was sufficient to have the section treated as having been effectively re-enacted.
Therefore, I think it might be useful to look at the nature and terms of each amendment to s.53 by s.46 of the 1941 Act.
Section 53 of the 1927 Act authorised the board to place “any electric line above or below the ground across any land”. Obviously “electric line” had a meaning in the context of the Act of 1927 but there was not a specific statutory definition.
It was the amending section 46 of the Act of 1941 that provided for its meaning to be statutorily defined.
The relevant amendment is as follows:
“46 (2) The expression “electric line” wherever it occurs in the Act of 1927 shall be construed and have effect and be deemed always to have had effect as meaning a wire or wires, conductor, or other means used for the purpose of conveying, transmitting, or distributing electricity and as including any transforming or other apparatus connected with any such wire or wires, conductor, or other means, and as including also any casing, coating, covering, tube, pipe, or insulator surrounding any such wire or wires, conductor, or other means or any such apparatus, and as including also any post, pole, stay, erection, or structure supporting any one or more of the things hereinbefore mentioned.”
Effectively what the statutory definition says that “electric line” in the 1927 Act means the electric wire transmitting or conducting the electricity, any transformer or other apparatus connected to such wires including any coating or insulation around such wires or apparatus. It was also stated to include any electricity pole or other structure supporting the electric line.
The ordinary meaning of “electric line” in the 1927 Act, and certainly a purposive interpretation would, one would have thought, have included the electric wire, including any insulation around the wire and perhaps the poles which supported it, in any case the extended meaning given by the amending section, while no doubt significant, was not particularly wide. Nonetheless the section brought certainty as to what the term meant, and indeed should have been deemed to have meant. Although the Court in that particular instance attached some significance to the fact that the meaning was to have a retrospective effect, it cannot have been a decisive factor since it was not a factor in coming to the same conclusion concerning the other section, section 98, which was also amended. That amending section was “deemed” to effectively re-enact s.98 again having regard to its nature and terms.
Section 98 provided that “the board and also any authorised undertaker may lop or cut any tree, shrub, or hedge which obstructs or interferes with any electric wires of the board or of such authorised undertakers.” The amending provision, s.5 of the Act of 1941, added to that subsection the words “or with the erection or laying of any such electric wires or with a survey of the proposed routes and any transmissions or distribution lines of the board or of such authorised undertakers”. Thus the provision regarding the lopping of trees applies to a couple of extra events.
As regards s.98 the Court also concluded that the amendment constituted an effective re-enactment: It stated:
“Similar considerations apply to the amendment of s. 98 of the Act of 1927 contained in s. 5 of the Act of 1941 which, though less extensive than that contained in s. 46 of the 1945 Act, expressly extends the powers of the Board contained in s. 98 to a new event or category of case, namely, its requirement to make a survey only, as distinct from the placing of a line.”
Neither of the amendments made to the Act of 1927 by the Act of 1941 affected the primary constitutional issue in that case, namely the absence of a provision entitling the landowner to reasonable compensation on the exercise of a statutory power to compulsorily acquire land under the Act. Nonetheless such amendments were considered sufficient for the whole of the Act to be considered as effectively re-enacted.
It seems to me that the nature and terms of the amendment which s.13 of the Act of 1997 makes to s.2(1) of the 1935 Act are at least of the same nature and ambit as those considered by the Court in the Gormley case. Indeed they could be said to be of an even greater ambit, especially compared to the amendment of section 98.
Although s.2(1) of the Act of 1935 was amended by the straightforward deletion of the words indicated above it is clear that in 1997 the Oireachtas took a conscious decision that s.2(1) should be extended to cover all those persons who committed the same criminal acts but in respect of a girl of any age below the age of fifteen. This was to extend and apply the criminal offence to a larger and wider category of persons.
Indeed, a person prosecuted for the same offence as the appellant in this case could only have been prosecuted for an offence contrary to s.2(1) by virtue of the 1997 amending section, if the complainant was under the age of fifteen years. He could never have been prosecuted pursuant to s.2(1) of the 1935 Act prior to 1997. It does not seem to me to be logical or coherent to consider an issue as to the constitutionality of s.2(1) as amended by s.13 of the 1997 Act as arising exclusively in relation to the 1935 Act, in one case, or as being the post-1937 legislation in another, based purely on the facts of a particular case, namely the age of the complainant or victim.
The fact that the Oireachtas had, by virtue of the provisions of s.2(1) of the Sexual Offences (Jurisdiction) Act, 1996 and the schedule thereto, effectively extended the application of the Act to the same criminal acts committed in most of the rest of the world is also a material factor. It should however be emphasised that none of the parties mentioned or relied upon this section in their submissions to the Court.
In any case I am satisfied that the nature and terms of the amendment affected by the Act of 1997 is such that the section must be treated as having been effectively re-enacted, consistent with the approach adopted by this Court in E.S.B. v. Gormley.
I accordingly agree with the conclusion of the learned trial judge on this particular question.
On such a basis it would then fall to this Court to approach the question of the constitutionality of s.2(1) as amended by the 1997 Act, on the basis of post-1937 legislation and it would therefore, in principle, enjoy the benefit of the presumption of constitutionality. That of course is a rebutable assumption. Counsel for the Attorney General had “conceded” that on the basis of such an approach the section, as amended, could reasonably be, and should be, interpreted as permitting an accused to raise a defence of reasonable belief that the complainant, was, at the time of the alleged offence, over the age of seventeen.
If the Court had decided to address the issue of constitutionality from a post-1937 perspective it would have had to decide whether the submission of the Attorney General was correct, or whether, in the particular circumstances of the case, including the legislative history, the decision in C.C. v. Ireland, and the nature of the amendment, the presumption had been displaced. These and perhaps other issues would have been open to consideration if the Court had proceeded on that basis.
However, the majority of the Court have concluded that the issue concerning the compatability of s.2(1) with the Constitution, although amended as described, falls to be considered distinctly as pre-1937 legislation which does not enjoy a presumption of constitutionality.
Article 34.4.5 provides that a decision of the Supreme Court on the question as to the validity of a law having regard to the provisions of the Constitution shall be pronounced as that of the Court with no other opinion being pronounced. This provision applies only to such decisions where they concern post-1937 legislation.
In those circumstances consideration of the constitutionality of s.2(1) as amended by the 1997 Act as post-1937 legislation is excluded.
I express no views whatsoever on the constitutional issues that might have arisen in that context.
Accordingly, although I am of the view that s.2(1) as amended by the Act of 1997 falls to be treated as a post-1937 legislation, the question of deciding on its validity having regard to the provisions of the Constitution and giving consideration to same cannot in the circumstances be considered to arise.
Melton Enterprises v Censorship of Publications Board Ireland
[2004] 1 I.L.R.M. 260
JUDGMENT of the Court delivered by Keane C.J. pursuant to Article 34.4.5 of the Constitution the 4th November 2003 [Nem Diss]
Introduction
This is the judgment of the court on the question raised in these proceedings as to the validity of certain provisions of the Censorship of Publications Act, 1946 (hereafter “the 1946 Act”) having regard to the provisions of the Constitution.
The factual background to the case is as follows. The appellants are a limited liability company incorporated in the United Kingdom which is the owner and proprietor of two newspapers which are sold in Ireland, under the titles respectively of “The Midweek Sport” and “The Weekend Sport”. Their combined sales in the State amount to approximately 25,000 copies per week. They are tabloid newspapers which compete in the State with other tabloid newspapers such as The Irish Sun, The Irish Mirror and The Star.
The first named respondent (hereafter “the Board”) are a statutory body established pursuant to s. 2 of the 1946 Act. The long title of that Act describes it as
“An Act to make further and better provision for the censorship of books and periodical publications”
Section 9 of the 1946 Act provides inter alia that
“[The Board] shall examine the issues recently theretofore published of every periodical publication in respect of which a complaint is made to them in the prescribed manner by any person, and if they are of opinion that the said issues:-
(a) have usually or frequently been indecent or obscene, or …
(c) have devoted an unduly large proportion of space to the publication of matter relating to crime,
and that for any of the said reasons the sale and distribution in the State of the said issues and future issues of that periodical publication should be prohibited, they shall by order prohibit the sale and distribution thereof accordingly.”
On the 25th April, 2001, the Board served a notice in the prescribed form on the respondents in the following terms
“You are the publisher of the periodical publication: Weekly Sport.
In pursuance of the powers conferred on them by s. 7 and 9 of the [1946 Act] (as amended by the Health (Family Planning) Act, 1979 and the Regulation of Information (Services outside the State for Termination of Pregnancies) Act, 1995) [the Board] propose to determine whether they should make a prohibition order in respect of this periodical publication for the following reason –
(c) that the issues recently published of the periodical publication (in respect of which a complaint has been duly made to them) –
(i) have usually or frequently been indecent or obscene,
(iii) have devoted an unduly large proportion of space to the publication of matter relating to crime,
and you are hereby notified that the Board will consider any representations you may wish to make to them before they make a decision in this case.”
On the 2nd May, the applicant’s solicitors wrote to the Board indicating that they intended to make representations to the Board in respect of the notice. They requested the Board in that letter to furnish “precise details” of all complaints which had been received concerning their clients’ publication. On the 4th May, the Board replied stating
“Enclosed is a copy of the only complaint exclusive of the identity of the complainant which the Board received in accordance with the censorship of publications legislation.”
On the 14th May, the applicant’s solicitors wrote inquiring as to the legal basis on which the Board had withheld the complainant’s name. In their reply on 17th May, the Board said
“The Board takes the view that there is no obligation resting upon it to divulge the identity of a complainant and it is not its policy to do so.”
In further correspondence between the Board and the applicant’s solicitors, it transpired that there had been a further complaint, a copy of which was furnished to the applicant’s solicitors, the identity of the complainant again not being disclosed. On the 18th June, the solicitors wrote reiterating their view that the identity of the complainants should be divulged. They also inquired whether these were separate complaints and whether either of the complainants was a body corporate. In their reply on the 2nd July, the Board stated
“The complaints of which you have been notified are separate complaints received from separate persons. Neither of the complainants is a body corporate.
As already indicated to you it is the policy of the Board to protect the identity of complainants, in the public interest of encouraging vigilance among readers of publications and encouraging reports to the Board where appropriate.”
In further correspondence, the Board said that as far as they knew there was no association between the persons who made the individual complaints. They also said that each complainant had been written to asking whether they wished to be identified and that neither complainant had authorised identification. The Board said that they had no reason to believe that the complaints had not been made “in good faith”.
The two sides having maintained their respective positions in further correspondence, the applicants then sought leave from the High Court to issue proceedings by way of judicial review claiming
(i) an order of certiorari quashing the decision of the Board not to disclose the identities of the complainants;
(ii) an order of prohibition preventing the Board from determining whether they should make a prohibition order in respect of the publication until they disclosed the identities of the complainants;
(iii) an order of mandamus directing the Board to disclose the identities of the complainants;
(iv) declarations that the decision of the Board not to disclose the identities of the complainants was inconsistent with the Constitution and not in accordance with natural and constitutional justice;
(v) a declaration that s. 9 of the 1946 Act was repugnant to Article 34.1 of the Constitution in providing for the exercise of judicial functions and powers, other than limited functions and powers, by the Board, a body which was not a court established under the Constitution.
The complaints received by the Board and transmitted to the applicant’s solicitors said inter alia that the “Weekly Sport” was not a newspaper in the generally understood sense and devoted much space to material of a pornographic nature and advertisements offering the services of prostitutes and was of such a nature as to encourage the commission of rape, child abuse and other serious offences.
Leave having been given to institute these proceedings, and a statement of opposition having been filed on behalf of the respondents, the substantive hearing came on before the High Court before Kearns J. In a reserved judgment, he refused to grant the applicants any of the relief claimed. The applicants have appealed to this court from that judgment and this is the judgment of the court on so much of the appeal as relates to the refusal of the High Court judge to grant a declaration that certain provisions of the 1946 Act were invalid having regard to the provisions of the Constitution.
The Censorship of Publications code
Censorship of books and periodicals was established for the first time in Ireland by The Censorship of Publications Act, 1929. Much of that Act was repealed by subsequent legislation and the principal provisions affecting the issues which arise in these proceedings are contained in the 1946 Act.
Section 2(1) of that Act provides for the establishment of the Board, which is to consist of five persons appointed by the Minister for Justice, Equality and Law Reform. Section 3 provides for the establishment of the Censorship of Publications Appeal Board. Section 6, 7 and 8 of the Act are concerned with the examination of books, as distinct from periodical publications.
Section 9(1), which provides for the examination of periodical publications in respect of which complaints are made to the Board, has already been set out. Section 9(3) provides that a prohibition order under the section is to last for a period of twelve months, six months or three months, depending on the intervals at which the publication was ordinarily published.
Section 3 provides for the establishment of a Censorship of Publications Appeal Board consisting of five members, the Chairman of which is to be a judge of the Supreme Court, High Court or Circuit Court or a practising barrister or practising solicitor of not less than seven years standing and four ordinary members. The members are appointed by the Minister for Justice, Equality and Law Reform. Section 10 provides that the Appeal Board may at any time, on the application of the publisher of a periodical publication or of any five persons, each of whom is a member of Dáil Eireann or Seanad Eireann, revoke a prohibition order in respect of a periodical publication or vary the order so as to exclude from its application any particular edition or issue of the periodical publication.
Section 11 provides that four members of the Board are to constitute a quorum at any of its meetings and that a prohibition order is not to be made unless at least three of the members vote in favour of the making of the order and not more than one member votes against it. Section 14 deals with the prohibition of the sale and distribution of prohibited publications. It provides that
“(1) No person shall, except under and in accordance with a permit –
(a) sell, or expose, offer, advertise or keep for sale, or
(b) distribute, or offer or keep for distribution,
any prohibited book or any prohibited periodical publication.
(2) Every person who acts in contravention of subsection (1) of this section shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding fifty pounds or at the discretion of the court, to imprisonment with or without hard labour for a term not exceeding six months or to both such fine and such imprisonment and, in any such case, to forfeiture of the relevant prohibited book or prohibited periodical publication.”
Section 16 provides for the keeping of a register of prohibited publications by the Board and in ss. (9) provides that the fact that a periodical publication is at any particular time entered in the register shall be conclusive evidence that a prohibition order has been made in regard to it and that the order is at that time still in force.
The 1946 Act has been amended in a number of respects by subsequent legislation, but none of the amending provisions is of any relevance to these proceedings.
There is no definition in any of the Acts of the word “obscene”. Section 1 of the 1946 Act provides that
“In this Act … the word ‘indecent’ includes suggestive of, or inciting to, sexual immorality or unnatural vice or likely in any other similar way to corrupt or deprave.”
Submissions of the Parties
On behalf of the appellants, Mr. John Gordon S.C. submitted that a finding of indecency of obscenity and/or the making of a prohibition order was tantamount to a finding that a criminal offence had been committed. He further submitted that the powers vested in the Board by s. 9 were judicial in nature and could not be regarded as “limited” within the meaning of Article 37 of the Constitution. He urged that, even if “limited”, the provisions in question enabled them to be exercised in what are properly described as “criminal matters”, contrary to the provisions of Article 37. He referred in support of these submissions to Article 40.6.1(i) of the Constitution which provides that the publication of indecent matter is an offence which is to be punishable in accordance with law and to the decisions of this court in Irish Family Planning Association Limited –v- Patrick Ryan & Ors [1979] I.R. 295, and Keady –v- the Garda Commissioner [1992] 2 I.R. 197 and of the former Supreme Court in Re. Solicitors Act, 1954 [1960] I.R. 239.
On behalf of the respondents, Mr. Kevin Cross S.C. submitted that the Board was a tribunal vested with limited functions and powers of a judicial nature as provided for in Article 37. The powers were clearly distinguishable from the power to strike a solicitor off the rolls purportedly vested in a disciplinary committee by the Solicitors Act, 1954 and were more akin to the orders upheld in Keady –v- the Garda Commissioner and in the High Court decision of The State (Murray) –v- McRann [1979] I.R. 133. They were clearly not powers in “criminal matters”, since neither the determination by the Board that a periodical publication was “indecent or obscene” nor the making by them of a prohibition order in respect of such a publication had as its consequence the subjecting of any person or body to any criminal liability. Insofar as passages in the judgments of O’Higgins C.J. and Kenny J. in Irish Family Planning Association Limited –v- Ryan indicated a contrary view, he submitted that they were obiter observations which were erroneous in law and should not be followed.
Conclusions
As the former Supreme Court held in Re. Article 26 of the Constitution and the Offences against the State (Amendment) Bill, 1940 [1940] I.R. 470 and as has been reiterated in subsequent decisions, where any particular law is not expressly prohibited and it is sought to establish that it is repugnant to the Constitution by reason of some implied prohibition or repugnancy, such repugnancy, as a matter of construction, must be clearly established. However, as laid down by the court in McDonald –v- Bórd na gCon & Anor [1965] I.R. 217, if in respect of the impugned provisions, two or more constructions are reasonably open, one of which is constitutional and the other unconstitutional, it must be presumed that the Oireachtas intended only the constitutional construction. The court must also apply the consequential presumption, identified in its judgment in East Donegal Cooperative Limited –v- The Attorney General [1970] I.R. 317 that the Oireachtas intended that any procedures permitted or prescribed by an Act of the Oireachtas will be conducted in accordance with the principles of constitutional justice.
Article 34.1 of the Constitution provides that
“Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution …”
The administration of justice is thus exclusively the province of the courts. However, Article 37.1 provides that
“Nothing in this Constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters, by any person or body of persons duly authorised by law to exercise such functions and powers, notwithstanding that such person or such body of persons is not a judge or a court appointed or established as such under this Constitution.”
The appellants argue that, since the powers and functions of the Board relate to “criminal matters”, they are not validated by Article 37.1.
The court is satisfied that this submission is misconceived. Assuming that the powers and functions vested in the Board by the impugned sections are judicial in nature and that their exercise by the Board constitutes the administration of justice, they are clearly not powers and functions which are exercised by them in “criminal matters” within the meaning of Article 37.1. Where the required number of the Board form the opinion that recent issues of a periodical publication have usually or frequently been indecent or obscene and the Board make a prohibition order in respect of the publication, they are not adjudicating on the criminal liability of any body or person. No body or person as a result suffers any form of punishment normally the consequence of criminal conduct, i.e. imprisonment, the imposition of a fine or a community service order or the seizure or confiscation of any property. While the publication of indecent or obscene matter is an offence at common law (see R. –v- Hicklin [1868] L.R. 3QB 360) and its publication is also declared to be an offence under Article 40.6.1(i) of the Constitution, a person can only be rendered amenable by the criminal law in respect of any such publication in criminal proceedings properly instituted and heard by a court established under the Constitution. The court is satisfied that the expression “criminal matters” in Article 37.1 refers to criminal procedures of that nature and adopts the following statement of the law by Finlay P., as he then was, in The State (Murray) –v- McRann:
“A crime or criminal charge must be defined … as an offence against the State itself or as a public offence. A criminal matter within the meaning of Article 37 can be construed as a procedure associated with the prosecution of a person for a crime. It may be the preliminary investigation of such a charge, it may be the trial itself, it could be an appeal from the trial or presumably an application for bail pending trial or appeal. The essential ingredient of a criminal matter must be its association with the determination of the question as to whether a crime against the State or against the public has been committed.”
The forming by members of the Board of an opinion that a publication has been frequently indecent or obscene and the making of a prohibition order, as has already been pointed out, do not constitute an adjudication by the Board that any person or body has committed a crime. A person who sells or distributes a publication in respect of which a prohibition order has been made becomes amenable to the processes of the criminal law under s. 14 and the publisher may also be prosecuted at common law in respect of the publication, but that does not give the proceedings of the Board any of the attributes of a criminal nature which are the essential features of “criminal matters” within the meaning of Article 37.1 of the Constitution.
In support of their submissions, the appellants relied on two passages in the judgments of this court in Irish Family Planning Association Limited –v- Patrick Ryan & Ors. O’Higgins C.J. (at p. 313) said:
“A prohibition order carries with it the inevitable implication that those responsible for the publication have been guilty of conduct deserving of public condemnation and also that they have probably been guilty of a criminal offence.”
Kenny J. (at p. 20) said
“The decision to prohibit the sale and distribution on the ground that it was indecent or obscene involved a very serious implication against them that each of them had committed a criminal offence, for it was rightly conceded by counsel for all the defendants that the publication of an indecent or obscene booklet is a crime under the common law: R. –v- Hicklin.”
If the learned judges in those passages were indeed expressing the view that a decision by members of the Board that a publication was indecent or obscene and that a prohibition order should be made was in law an adjudication that the publishers had committed a criminal offence – and it is not clear that they were – the court is satisfied that that view was erroneous and should not now be followed. They were in any event at best clearly obiter observations, since there is nothing in the judgments of O’Higgins C.J. or Kenny J. which would suggest that their conclusion – that the Board should have considered whether they should communicate with the publishers before deciding whether to make a prohibition order – would have been any different, if the Board’s determination that the publication in question was indecent or obscene did no more than seriously injure the good name of the publishers.
The alternative argument advanced on behalf of the appellants was that the powers conferred on the Board by s. 19 were judicial in nature but were not “limited” within the meaning of Article 37.1 and, accordingly, were powers and functions that could only be exercised by a court established under the Constitution.
It was accepted on behalf of the respondents that the powers and functions in question were judicial. The issue, accordingly, that has to be determined is whether, although judicial, they were “limited” in nature within the meaning of Article 37.1.
Giving the decision of the former Supreme Court in Re. Solicitors Act, 1954, Kingsmill Moore J. said
“The test as to whether a power is or is not ‘limited’ in the opinion of the court, lies in the effect of the assigned power when exercised. If the exercise of the assigned powers and functions is calculated ordinarily to affect in the most profound and far reaching way the lives, liberties, fortunes or reputations of those against whom they are exercised they cannot possibly be described as ‘limited’.”
In that case, the assignment to a disciplinary committee of the function of determining whether a solicitor should be struck off the rolls was held to be constitutionally invalid, because the functions so assigned were judicial in nature and not “limited” within the meaning of Article 37.1. It is clear from the judgment of Kingsmill Moore J. that two factors led to the court’s conclusion that the provisions were constitutionally invalid and not saved by Article 37.1. The first was the consequence for a solicitor of being struck off the rolls, which was described as a sanction of such severity that in its consequences it could be much more serious than a term of imprisonment. The second was that the act of striking solicitors off the rolls had always been reserved to judges.
No such considerations arise in the present case. Undoubtedly, a determination by the Board that a person or body has published an indecent or obscene periodical is one which could adversely affect the reputation of the publisher. The same could be said of many other decisions which are legitimately made by bodies other than courts which are entrusted by the Oireachtas with powers and functions of a judicial nature. The specific consequence which follows – a ban on the sale or distribution of the publications for a limited period – is far removed in gravity from the disqualification of a person from carrying on a trade or profession. The effects of the Board’s functions, although in some instances at least of a serious nature, cannot in the view of the court, be described as “profound and far reaching”. It follows that the functions and powers vested in the Board by s. 9 of the 1946 Act, although of a judicial nature, are “limited” within the meaning of Article 37.1 of the Constitution.
The court will, accordingly, dismiss the appeal from the order of the High Court refusing a declaration that the provisions of s. 9 of the 1946 Act are invalid having regard to the provisions of the Constitution.
THE SUPREME COURT
Keane C.J.
Denham J.
Murray J.
McGuinness J.
Hardiman J.
130/03
BETWEEN
MELTON ENTERPRISES LIMITED
APPLICANTS / APPELLANTS
AND
THE CENSORSHIP OF PUBLICATIONS BOARD IRELAND
AND THE ATTORNEY GENERAL
RESPONDENTS
JUDGMENT delivered the 4th November 2003 by Keane C.J. [Nem Diss]
The factual background to these proceedings has been set out in the judgment of the court on the constitutional issue.
The appellants submitted that, if, contrary to their submissions on the constitutional issue, the provisions of the Act were constitutionally valid, the Board were obliged to disclose to the appellants the identity of the complainants. Mr. Gordon, on behalf of the appellants, submitted that, unless their identity was disclosed, it would not be possible to determine whether the complainants were cranks, business competitors or persons acting for some other ulterior motive and not making complaints in good faith.
Mr. Gordon submitted that natural justice and constitutional justice required that a person against whom a complaint of a serious nature had been made should know who his accuser was. The requirements of fair procedures would not be met if one person was entitled to make a case against another without his identity being disclosed, thus enabling the accused person to test the bona fides of the complainant. He cited in support the decisions of this court in Re. Haughey [1971] I.R. 217, Kiely –v- The Minister for Social Welfare (No. 2) [1977] I.R. 276 and Gallagher –v- The Revenue Commissioners [1995] 1 I.L.R.M. 241 and of the High Court in Ryan –v- V.I.P. Cooperative Society Limited (Lardner J.; unreported; judgment delivered 10th January, 1989) and Flanagan –v- U.C.D. [1988] I.R. 724.
Mr. Gordon further submitted that the Board were not entitled to adopt an inflexible policy of declining in every case to disclose the identity of complainants. It is clear, he said, that they could not legitimately fetter their discretion in that way, citing in support Carrigaline Community Television Broadcasting Company Ltd –v- Minister for Transport, Energy and Communications [1997] 1 I.L.R.M 241.
On behalf of the respondents, Mr. Kevin Cross S.C. submitted that the Board’s procedures fully complied with the requirements of natural justice and fair procedures. The appellants had been furnished with all the material contained in the complaints, other than the identity of the complainants, and the Board had invited the appellants to make whatever representations they considered appropriate before the Board reached any determination of the matter. The audi alteram partem rule had thus been fully complied with: the complainants were not in the position of accusers and the appellants did not enjoy the right to cross-examine them, the circumstances being entirely different from those considered by this court in Re. Haughey.
Mr. Cross further submitted that it was for members of the Board, and them alone, to form an opinion as the whether the publication complained of was indecent or obscene or had devoted an unduly large proportion of space in the publication to matter relating to crime. The identity of the complainants was, accordingly, wholly irrelevant: the Board were required to arrive at their determination without having any regard to the identity of the complainants.
Mr. Cross further submitted that the Board’s policy of non-disclosure of the identity of the complainant did not amount to an unlawful abandonment of its discretion. It was accepted that it had such a discretion, but its stated policy was to ensure that members of the public came forward to make complaints and, as a result, not to disclose their identity. At the same time the policy was not operated so rigidly as to apply in all circumstances, since the Board would seek the consent of the complainant to his or her identity being disclosed as had happened in this case.
Article 5 of the Censorship of Publications Regulations, 1980 (S.I. No. 292 of 1980) made by the Minister for Justice in exercise of the powers conferred on him by s. 20 of the 1946 Act, provides that
“A complaint made under s. 9 of the Act in respect of a periodical publication shall
(a) be in writing,
(b) state the reason why the complainant considers that the sale and distribution in the State of the issues of the publication which are the subject of the complaint and of future issues of the publication should be prohibited,
(c) indicate the passages (if any) in the issues of the publication accompanying the complaint upon which the complainant places particular reliance in support of his complaint, and
(d) be accompanied by a copy of each of not less than three recent issues of the periodical publication.”
It was accepted in the course of the arguments in this court that the regulations could not have envisaged the making of a complaint by a person or body who insisted on remaining anonymous. The sole issue was as to whether the adoption by the Board of a policy of not disclosing the identity of the complainant to the publishers was contrary to natural justice and constituted an unfair procedure.
It is beyond argument that a person accused of a criminal offence has a constitutional right to test by cross-examination the evidence offered by or on behalf of his accuser: see the judgments of the High Court and this court in The State (Healy) –v- Donohue [1976] I.R. 325 and Donnelly –v- Ireland [1998] 1 I.R. 321. It is also clear that where, as in Re. Haughey, in the case of a tribunal other than a court, the conduct complained of, if it resulted in a conviction by a court of competent jurisdiction, would amount to a criminal offence, the person who is the subject of the complaint is entitled to test by examination the evidence relied on in support of the complaint. Similarly, in the case of a tribunal established pursuant to statute or to a contract whose findings determine the legal rights of parties, the parties have the right to test the evidence on which the tribunal proposes to rely in reaching its determination by examination or, at the least, where there is no oral hearing, to be furnished with the witness statements or other material furnished to the tribunal by the opposing party.
Thus, in Kiely –v- The Minister for Social Welfare (No. 2), a person claiming to be entitled to a particular social welfare benefit was held to have been deprived of natural justice where an oral hearing was held by the tribunal, but the medical evidence on behalf of the relevant Minister was in written form only. Similarly, in Ryan –v- V.I.P. Cooperative Society Ltd, it was held that the taxi driver who was the subject of complaints to the defendant’s society of which he was a member was entitled to be furnished with the names and addresses of the persons who had made the complaints and details of the allegations which had been made. Again, in Gallagher –v- The Revenue Commissioners & Ors, a customs and excise officer against whom complaints had been made that he had deliberately undervalued vehicles and thereby caused a loss of revenue to the State was entitled to test the evidence furnished to the Revenue Commissioners by cross-examination. A similar conclusion was reached in Flanagan –v- University College Dublin, where a charge of plagiarism had been made against a student and a disciplinary committee held a meeting to consider the complaint. It was held that she was entitled to receive in writing details of the precise charge being made, to hear evidence of the case at the meeting and to challenge that evidence by cross-examination.
There is, however, one feature present in all those decisions which is conspicuously absent from the present case. In each instance, the relevant tribunal was involved in the ascertainment of objective facts on the basis of which it would then arrive at its adjudication or, in the case of Re. Haughey, submit its conclusions to the Oireachtas in the form of a report. In total contrast, the Board in this case is not engaged in an inquiry which, if properly conducted, would result in impartial and objective findings of fact. It is concerned with the wholly subjective process of determining whether, in the opinion of at least three of its members, the recently published issues of “The Weekend Sport” have usually or frequently been indecent or obscene or have devoted an unduly large proportion of space to the publication of matter relating to crime.
The history of obscenity laws in many countries affords eloquent testimony of just how subjective such determinations, whether made by judges, juries or other bodies, can be. It would, however, be difficult to find a more graphic illustration than the operations of the Board itself at an earlier stage of its history, when it prohibited the sale and distribution in Ireland of a vast range of books as being indecent or obscene, many of which would now be generally acknowledged to be masterpieces of 20th century literature.
I am satisfied that those considerations are of critical importance when one comes to consider the precise role played by complainants in the censorship of publications code. It is reasonable to assume that, when that code was introduced in Ireland for the first time in 1929, the Oireachtas and the Executive were of the view that it would have been an impractical and time wasting process to employ inspectors for the purpose of monitoring the vast range of books and periodicals on sale in the State. They relied instead on a system of voluntary complaints in the expectation, which was not disappointed, that there would be a significant number of persons or organisations willing to bring to the attention of the Board books and periodicals for examination by them. Given that the decision in any particular case as to whether a publication was indecent or obscene was exclusively a matter for the subjective determination of the individual members of the Board, the complaints mechanism was no more than a trigger to set the banning procedures in motion. (It is also of interest to note that, in the case of books as contrasted with periodical publications, the Board can initiate the examination of a publication even in the absence of a complaint.) Moreover, while under the 1929 Act the complaint had to be made to the Minister for Justice in the first instance who then had a discretion to refer the complaint to the Board, that requirement was dropped when the 1946 Act was enacted.
While Article 5(b) of the Regulations requires a complaint to state the reason why the complainant considers a prohibition order should be made, there seems no reason to suppose that this requirement would not be met in a case such as the present by the complainant simply stating that in his or her opinion the passages identified were indecent or obscene or that the extent of them indicated, again in his or her opinion, that an unduly large proportion of the space in the periodical had been devoted to the publication of material relating to crime. Given the subjective nature of the view which the members of the Board have to form, that would seem to be a sufficient basis for invoking its jurisdiction.
That is not to say that, where, as in the present case, the complainants offered detailed reasons as to why, in their view, the publication should be regarded as “indecent or obscene”, the furnishing of such reasons would in any way invalidate the complaint. It seems clear, however, that members of the Board would be acting ultra vires the powers conferred on them if they were to adopt the view of the complainants on any of the matters referred to in their complaints, unless, of course, it coincided with their own independently formed view. Undoubtedly, the requirements of fairness and openness demand that the publishers should be furnished with all the material in the complaints and the Board must at least consider whether they should be invited to make representations to the Board in respect of the complaints. However, while an issue has arisen in these proceedings as to the obligation on the Board to disclose the identities of the complainants to the publishers, no other issue arises as to the fairness and openness of the procedures adopted by them.
As to the relevance of the identities of the complainants, I have already pointed out the sharp contrast between the statutory procedures in this case and the procedures under scrutiny in the decisions on which the appellants rely. Whether the complainant is a public figure whose particular status might lead to his or her view that a publication should be banned being treated with respect by some members of the public, or is a crusading zealot whose views might only evoke support from those of a similar way of thinking, or is a meddlesome crank or busybody or is even a business competitor of the publisher are not factors which the Board are entitled to take into account in any way when reaching the purely subjective opinion they are required to form.
It is clear, for the reasons already given, that the procedures on which the Board embark, once a complaint is made (or even without such a complaint in the case of a book), bear no resemblance to the adversarial procedures which, in the case of other tribunals, may require the invocation of the fair procedures identified in cases such as Re. Haughey and Kiely –v- The Minister for Social Welfare which necessarily include, in at least some instances, the disclosure of the identity of complainants and the testing of the substance of their complaints by the traditional method of cross-examination. While the Board are obliged to afford fair procedures to the appellants to the extent indicated by this court in Irish Family Planning Association –v- Ryan, and have done so, that obligation does not, in my view, extend to disclosing the identities of the complainants, if, in the opinion of the Board, there are policy reasons for not disclosing that identity and that policy cannot objectively be regarded as arbitrary, capricious or unreasonable.
I am satisfied that, the Oireachtas having decided that a system of complaints by the public should be an integral part of the censorship of publications system and should be the only mechanism for initiating the censorship procedure in the case of periodical publications, the Board are entitled to take the view that members of the public would be discouraged from exercising their statutory right to complain if their identity was made public in every case. It inevitably follows that the Board, if satisfied that such a policy should be adopted in order to achieve the objectives of the legislation, could not legitimately differentiate between different complainants. It seems to me that, for those reasons, decisions such as Carrigaline Community Television Broadcasting Company Ltd –v- Minister for Transport, Energy and Communications which deal with the extent to which bodies invested with statutory powers may exercise them in accordance with a predetermined policy have no relevance to the present case.
I would dismiss the appeal and affirm the judgment and order of the High Court.