About this case:

• Citation:
  [2023] IEHC 588
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Oisín Quinn

Delivering judgment for the High Court, Mr Justice Oisín Quinn confirmed that “only in very extreme scenarios where there is ‘no rational relationship between the penalty and the requirements of justice with regard to the punishment of the offence specified’… should statutory provisions of this sort be declared unconstitutional.”

Background

In 2016, a friend of the applicant travelling abroad purchased 15 packets of tobacco for him. The applicant paid €10 per pack for the tobacco, but having tried one pack, decided to sell the rest at €10 per pack online on a Facebook group. His attempted sale of the goods was intercepted by an undercover customs officer posing as a customer.

The applicant cooperated immediately with the undercover customs officer and explained why he was selling the packs and also explained that he did not realise that he was doing anything wrong. There was no challenge to this contention on part of the applicant.

At that time, the applicant was 27 years old and unemployed, but subsequently started a job with An Post. The applicant had no previous convictions, and was concerned that An Post would terminate his employment if he received a conviction for an offence of this nature, despite the relevant events having occurred prior to his employment.

The applicant was charged with an offence of offering for sale a specified tobacco product otherwise than in a pack to which a valid tax stamp was affixed, contrary to s.78(3) and s.78(5) of the Finance Act 2005 (as amended).

A hearing date was set down for 21 February 2018 in the District Court, with leave to bring judicial review proceedings being granted on 19 February 2018. The respondents successfully applied to have the matter proceed by way of plenary hearing, an order which was upheld on appeal by the Court of Appeal.

The High Court

The applicant challenged the constitutionality of s.78(3), and of s.126(6) of the Finance Act 2001, which removes the discretion of the trial judge to apply s.1 of the Probation of Offenders Act 1907, which if it could be applied, would not result in a conviction where a person is found guilty.

The applicant further complained that those sections violated provisions of the European Convention on Human Rights and the right to work.

The applicant claimed that s.78(3) is too complex for a reasonable person to understand, and so they would not know they were committing an offence and accordingly, the section is unconstitutional. The applicant further suggested that the absence of a requirement on part of the prosecution to prove the mens rea or mental element of the crime was also unconstitutional.

Finally, the applicant complained that the removal of the option to apply the Probation of Offenders Act 1907 was unconstitutional where an offender did not appreciate that what he was doing was wrong, and that this situation created a risk of him losing his job.

Mr Justice Quinn limited the cross-examination of the applicant having regard to Galvin [2020] IECA 319 and A. v Governor of Arbour Hill Prison [2006] 4 IR 88, which confirm that where the constitutionality of a provision creating a criminal offence is challenged whilst a criminal prosecution is pending, though the applicant must introduce sufficient evidence to establish a basis for the challenge, it is unnecessary for the applicant to definitively establish this factually in the constitutional case.

Considering the principles arising from King v Attorney General [1981] IR 233, Dokie v DPP [2011] 1 IR 805, Douglas v DPP [2013] IEHC 343, Cox v DPP [2015] IEHC 642 and Bita v DPP [2020] 3 IR 742, the court confirmed that whilst in certain circumstances, an ‘unclear’ law creating a criminal offence can be declared unconstitutional, the court cannot strike down legislation that is said to be too complex.

Mr Justice Quinn considered that it is permissible to legislate for strict or absolute liability ‘regulatory offences’ which do not require the prosecution to prove any deliberate intent to commit the offence.

Acknowledging that the s.78 offence was a ‘strict liability’ offence, the court observed that the accused may defend the charge on the basis of having exercised all due diligence in trying to ensure that the offence was not committed, noting that for crimes with a high degree of “moral opprobrium” such as sexual offences and theft, much closer scrutiny is necessary.

Referencing Dumitran v Ireland [2021] IEHC 567, Mr Justice Quinn found that it is open to the legislature to prescribe the range of sentences that can be imposed for a regulatory offence, except in “extreme scenarios” where there is “no rational relationship between the penalty and the requirements of justice with regard to the punishment of the offence specified”, as per Lynch & Whelan v Minister for Justice [2012] 1 IR 1.

Considering the wording of s.78, Mr Justice Quinn decided that there was no lack of clarity demonstrated with the core element of the section, and the applicant had not claimed any entitlement to avail of the exceptions contained in the section.

Finding that the criticisms of the strict liability nature of the offence were “not well founded”, the court commented that it is “appropriate to describe the offence… as a regulatory offence in the sense that many people would not otherwise consider the sale of tobacco to another adult without a tax stamp to be morally wrong… it is only wrong because of the section that makes it an offence… Indeed, a modern society could not function otherwise.”

Turning to the issue of sentencing limitations, the court applied the rationale in Dumitran, finding that “the applicant did not come close to meeting the test required in the jurisprudence that there be no rational connection between these sentencing restrictions and the underlying offence”.

The court then addressed the argument that the foregoing issues combined created a risk of the applicant losing his job, infringing his right to work.

The court considered that “whether or not the significance of the underlying conduct is appropriately viewed by an employer as sufficient to justify a decision to dismiss will obviously be a matter for consideration”, but found that the evidence given on part of a trade union official supported that a decision to dismiss in the applicant’s circumstances would be disproportionately harsh.

Mr Justice Quinn considered that whether or not the Probation Act was applied, “once an employer looks into the matter it is not clear how material or materially different the application of the Probation Act would be to the situation”.

Conclusion

Concluding that the applicant’s arguments in respect of the European Convention on Human Rights did not alter the court’s analysis, Mr Justice Quinn dismissed the applicant’s claim.

Galvin v The Director of Public Prosecutions & Ors [2023] IEHC 588