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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Meagher v. O'Leary [1997] IEHC 158; [1998] 2 IR 33; [1998] 1 ILRM 211 (8th October, 1997)
URL: http://www.bailii.org/ie/cases/IEHC/1997/158.html
Cite as: [1998] 1 ILRM 211, [1997] IEHC 158, [1998] 2 IR 33

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Meagher v. O'Leary [1997] IEHC 158; [1998] 2 IR 33; [1998] 1 ILRM 211 (8th October, 1997)

THE HIGH COURT
JUDICIAL REVIEW
1997 No. 143 JR
BETWEEN
JOHN MEAGHER
APPLICANT
AND
HIS HONOUR JUDGE SEAN O' LEARY, DISTRICT JUDGE MICHAEL PATWELL, MINISTER FOR AGRICULTURE AND FOOD AND THE ATTORNEY GENERAL
RESPONDENTS
JUDGMENT delivered 8th day of October 1997, by Moriarty J.

1. A sequence that has to date entailed substantive hearings in the Supreme Court, the High Court (twice), the Circuit Court and the District Court (twice) relates to events that transpired at the Applicant's farm on the 27th March, 1991. The largely undisputed facts may be summarised as follows:

2. On that date a party of officials from the Department of Agriculture and Food together with two local Gardai attended at the Applicant's farm near Clonmel in the County of Tipperary on foot of a duly issued search warrant. Significant quantities of veterinary preparations were found in various locations in or close to the farmhouse, including the sitting room, hall, kitchen, back bedroom, bedroom of the Applicant's son, shed and two motor cars, registration numbers 90-TS-1456 and 770-IP. These items were seized and sent for analysis. Thereafter, on 24th August, 1992, the Applicant was served with twenty summonses alleging separate breaches of the European Communities (Control of Oestrogenic, Androgenic, Gestagenic and Thyrostatic Substances) Regulations, 1988, and the European Communities (Control of Veterinary Medical Products and their Residues) Regulations, 1990 (Statutory Instruments Numbers 218/88 and 171/90).

3. All the matters complained of related to offences of possession of illegal growth promoters including that colloquially known as "Angel Dust" , and related items at the Applicant's farm.

4. Upon taking legal advice the Applicant brought High Court proceedings impugning the validity of the said Regulations and the constitutionality of Section 3 subsection (2) of the European Communities Act, 1972. The grounds of such challenge need not be noted, and it will suffice to state that the Applicant succeeded in the High Court but, upon an appeal being brought by the Minister for Agriculture and Food, the Supreme Court, by judgment and order of 18th November, 1995 reversed that finding, thereby entitling the Minister to have relisted the District Court prosecution which had been adjourned pending the outcome of the challenge.

5. Accordingly, a special sitting of Clonmel District Court was held on the 6th April, 1984 to hear the summonses before the second-named Respondent, both sides being represented by Solicitor and Counsel. No evidence was offered in relation to three summonses, and evidence was adduced by the Prosecution in regard to the remaining seventeen. The Applicant by his Counsel cross-examined the Prosecution witnesses, and argued certain procedural and other legal infirmities, but no evidence was offered by or on behalf of the Applicant. Rejecting the Applicant's submissions, the second-named Respondent convicted on all seventeen summonses, indicated that he took a most serious view of the offences in the context of their likely repercussions on the Irish beef industry, and sentenced him on fifteen of the summonses to concurrent two year terms of imprisonment, the then maximum custodial sanction, in addition to providing for fines and expenses on the remaining two summonses. From these Orders the Applicant appealed, and by the time the appeal came to be heard, the Supreme Court had given judgment in the separate but related case of Mallon -v- Minister for Agriculture Food & Forestry & Others 1996 1 I.R. 517, on foot of which it had in effect been determined that the maximum custodial sanction provided upon conviction on any of the relevant summonses was not two years, but one years imprisonment. The Applicant's hearing before the first named Respondent took place on the 13th March, 1997. Having some knowledge of the weight of Criminal Appeal Lists in Clonmel, I make no criticism of the date chronology, and obviously recognisances staying sanctions pending appeal had been set, but it is regrettable that in excess of six years elapsed between the search and the appeal hearing. At that latter hearing, the Prosecution conceded the appeals on three of the seventeen summonses, and the Applicant, through his legal advisors, indicated that the remaining fourteen convictions were no longer in issue, and that only the severity of the sanctions was being contested. Having heard the matter on this basis, the first-named Respondent indicated that he considered the offences in themselves of sufficient gravity to merit the maximum sentence of imprisonment, but that he was disposed to make allowance both for the Applicant's hitherto unblemished character, and his pleas of guilty upon the appeal.

6. Accordingly, on eleven of the summonses, he imposed terms of imprisonment of eight months, directing that these should be concurrent terms, save in respect of the first two summonses heard, namely 490 and 491, in regard to which he ordered that the eight month terms should operate consecutively. Three remaining summonses were taken into consideration.

7. The commencement of what thus appeared a final Order that the Applicant be imprisoned for an aggregate term of sixteen months was deferred for some weeks by the first-named Respondent to enable the Applicant to arrange his affairs. On 22 April, 1997, within that period of grace, the Applicant sought and obtained from Kelly J. leave to apply by way of Judicial Review for Orders of Certiorari quashing such portions of the respective Orders of the first-named and second-named Respondents as imposed respectively sixteen months and two years imprisonment, on the basis that the provisions of Section 5 of the Criminal Justice Act, 1951, as amended by Section 12 subsection (1) of the Criminal Justice Act, 1984 were unconstitutional.

8. Detailed and informative written submissions and extracts from relevant legal authorities were exchanged between the parties prior to the one and a half days of legal argument which constituted the hearing. The availability of the former appreciably facilitated a narrowing and defining of the ambit of controversy at the hearing, so that certain aspects alluded to in the submissions no longer require ruling.


(a). Aside from the repercussions of the Mallon Judgment Supra delivered by the Supreme Court between the respective Orders of the first-named and second-named Respondents, it is abundantly clear from Section 18 subsection (1) of the Courts of Justice Act, 1928 that in undertaking the appeal from the second named Respondent, the first-named Respondent was exercising de novo an appellate jurisdiction for the trial of minor offences that was in principle fully subject to all or any limitations applicable at first instance to the second-named Respondent. Mr Hogan, on behalf of the Applicant, intimated that certain old authorities suggested that if the first-named Respondent's Orders of imprisonment fell, the more adverse Orders of the second-named Respondent might in some fashion revive, so that he had felt it prudent on this basis to join the second-named Respondent: I fully accept this, but in the context of the Mallon decision, the second-named Respondent's custodial determination could not in any event now stand, and I have no doubt that in these circumstances it is unnecessary to proceed beyond addressing the lawfulness and constitutionality of the first-named Respon
dent's custodial Orders.

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

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

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

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

"Minor offences may be tried by Courts of summary jurisdiction".

11. Article 34.3.4 further provides that:-

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

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

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


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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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


© 1997 Irish High Court


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URL: http://www.bailii.org/ie/cases/IEHC/1997/158.html