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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Osmanovic, C. -v- D.P.P., Osmanovic, D.-v- D.P.P., Sweeney -v- Ireland & Anor [2006] IESC 50 (25 July 2006)
URL: http://www.bailii.org/ie/cases/IESC/2006/S50.html
Cite as: [2006] 3 IR 504, [2006] IESC 50

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Judgment Title: Osmanovic, C. -v- D.P.P., Osmanovic, D.-v- D.P.P., Sweeney -v- Ireland & Anor

Neutral Citation: [2006] IESC 50

Supreme Court Record Number: 440/04, 441/04, 300/04

High Court Record Number: 2003 No 168JR, 2003 No 169JR, 2002 No 358JR

Date of Delivery: 25 July 2006

Court: Supreme Court


Composition of Court: Murray C.J., Denham J., Hardiman J., Geoghegan J., Kearns J.

Judgment by: Murray C.J.

Status of Judgment: Unapproved

Judgments by
Result
Concurring
Appeal dismissed - affirm High Court Order
Appeal dismissed - affirm High Court Order
Murray C.J., Denham J., Hardiman J., Kearns J.


Outcome: Dismiss

Notes on Memo: Judgment of the Court on Constitutional issue delivered by Murray C.J.
Judgment delivered by Geoghegan J. on non-constitutional issue.



- 9 -

THE SUPREME COURT

Murray C.J. 440/2004
Denham J.
Hardiman J.
Geoghegan J.
Kearns J.
BETWEEN
DERVISA OSMANOVIC
Appellant/Applicant
and

THE DIRECTOR OF PUBLIC PROSECUTIONS,
IRELAND AND THE ATTORNEY GENERAL
Respondents

THE SUPREME COURT

441/2004
BETWEEN
CELEBIJA OSMANOVIC
Appellant/Applicant
and

THE DIRECTOR OF PUBLIC PROSECUTIONS,
IRELAND AND THE ATTORENEY GENERAL
Respondents
THE SUPREME COURT

300/2004
BETWEEN
SAMANTHA SWEENEY
Applicant/Appellant
and

IRELAND AND THE ATTORNEY GENERAL
Respondents
and

THE DIRECTOR OF PUBLIC PROSECUTIONS
AND JUDGE CATHERINE MURPHY

Notice Parties
JUDGMENT of the Court delivered the 25th day of July 2006 by Murray C.J.

Constitutional Challenge
Each of the above-named appellants has challenged the constitutionality of
s. 89(b) of the Finance Act, 1997. The said s. 89 reads as follows:

          “In s. 186 of the Customs Consolidation Act, 1876, there shall be substituted, in lieu of the penalty for each such offence specified therein (being forfeiture of either treble the value of goods including the duty payable thereon, or one hundred pounds, whichever is the greater) –

          (a) on summary conviction, a fine of £1,000, or at the discretion of the court, to imprisonment for a term not exceeding 12 months or to both the fine and the imprisonment,

          (b) on conviction on indictment, a fine of treble the value of the goods, including the duty payable thereon, or £10,000, whichever is the greater, or at the discretion of the court, to imprisonment for a term not exceeding 5 years or to both the fine and the imprisonment.
    Separation of Powers
    It is suggested on behalf of the appellants that in so far as a fine may be imposed, that fine is a fixed penalty contrary to the principles of separation of powers under the Constitution. In making this submission the appellants rely on Deaton v. Attorney General [1963] I.R. 170. The Deaton case concerned a prosecution under
    s. 186 of the 1876 Act. That section conferred on the Revenue Commissioners power to elect which of two penalties there prescribed the court was to impose for a customs offence. This court held that that was repugnant to the Constitution to the extent that the said power was an integral part of the administration of justice and as such could not be committed to the hands of the executive. The judgment of the court was delivered by Ó Dálaigh C.J. Contrary to the submissions made by the appellants, that judgment does not support the particular separation of powers argument which is being made on behalf of the appellants on these appeals. In the Deaton case, the court was considering a piece of legislation which had provided for alternative penalties for a revenue offence already declared to be criminal and which went on to confer on an executive authority the power to choose the penalty in any given case. It will be pointed out later on in this judgment that the penalty complained of in this case is not in fact a fixed penalty but, even if it was, nothing in the judgment of the court in the Deaton case would support any constitutional attack on it. At p. 181 of the report Ó Dálaigh C.J. had this to say:
          “It is common ground that it is for the Legislature, when it creates an offence, to prescribe what punishment shall attach to the commission of such offence. It is also common ground that the Legislature may for a particular offence prescribe a single or fixed penalty, or a maximum penalty or a minimum penalty, or alternative penalties, or a range of penalties.”
        The court went on to hold that once there was a choice of penalty prescribed by the legislature, the exercise of that choice was the administration of justice and had to be carried out by a court.

        In this case, s. 89(b) does not fix a penalty. It is not proposed to enter into any consideration therefore of what would be the position if it had. On the contrary,
        s. 89(b) provides for a choice of penalty that is to say, a fine of treble the value of the goods including the duty payable thereon or £10,000 whichever is the greater or “at the discretion of the court” imprisonment for a term not exceeding five years or to both the fine and the imprisonment.

        There is clearly a multiple choice here. Even within the power to impose a prison term there is clearly the implied power to suspend all or part of that term. The prison sentence whether custodial or suspended or partly custodial and partly suspended may be the only sentence or may be combined with the fine. The selection is entirely to be made by the court. There is no question, therefore, of either the legislature or the executive fixing the punishment. Only the court exercising its judicial power does that. This court cannot accept that because there is a legislative prescription in relation to the fine option there is a breach of the principle of separation of powers. It is quite clear from the judgment of Ó Dálaigh C.J. in the Deaton case that the Oireachtas does have powers to lay down general parameters within which a sentence is to be imposed. There is no necessity in this judgment and indeed it would be wholly undesirable to consider what the limits might be (if any) on the power of the Oireachtas to provide for either fixed sentences or mandatory sentences. One could postulate extreme situations where the sentencing powers of judges were removed altogether and every offence had a mandatory sentence. The constitutionality of such a law would obviously be questionable. But it has always been accepted and indeed was accepted in Deaton that, within reason at least, the Oireachtas has power to lay down those parameters.

        Revenue offences have traditionally attracted a somewhat different kind of sentencing culture. Penalties relating to the value of goods were not uncommon. There is nothing in the structure or content of s. 89(b) which infringes the principles of separation of powers. The Oireachtas was performing a fairly normal function in relation to a revenue offence and on the other hand in relation to the choice of sentences, the courts were to perform their normal function. Any argument that
        s. 89(b) is invalid having regard to the Constitution by reason of a breach of the separation of powers principle has to be rejected.

        Wealth Discrimination
        The next argument put forward in support of alleged unconstitutionality of
        s. 89(b) is that there is inherent in that provision a wealth based discrimination. Crudely put, the argument more or less runs that the rich are fined and the poor are sent to prison. There are several fallacies in this argument. First of all, there is nothing at all unusual about statutory offences of any kind providing for a prison sentence and / or fine. In this instance what is provided for is a fine and/or prison sentence. There is that slight difference of juxtaposition but that would be normal in a revenue offence. In the case of an ordinary offence a judge might well be dealing with somebody who had no money and would, therefore, form the view that some kind of custodial or suspended sentence would be more appropriate as otherwise there would be no punishment. If, on the other hand, the person he is sentencing has money the fine becomes a real option. Normally, there is no element of unconstitutional discrimination in this process.

        In the Sweeney case there is a refinement of the argument. It is submitted on behalf of Ms. Sweeney that she is a person without money and that that being so, she may be forced to plead guilty in the District Court against her will so as to avoid the substantial fine which would be imposed if she was found guilty in a trial upon indictment. This submission is made on foot of s. 13 of the Criminal Procedure Act, 1967, as amended by s. 10 of the Criminal Justice Act, 1999. The relevant subsections of that section are already set out in the judgment of Geoghegan J. relating to the aspects of these appeals other than the constitutionality of s. 89(b) of the Finance Act, 1997. It is appropriate however to set out those provisions again in this judgment. They read as follows:
            “(2) If at any time the District Court ascertains that a person charged with an offence to which this section applies wishes to plead guilty and the court is satisfied that he understands the nature of the offence and the facts alleged the court may
                (a) with the consent of the prosecutor, deal with the offence summarily, in which case the accused shall be liable to the penalties provided for by subsection (3) or

                (b) if the accused signs a plea of guilty, may, subject to subsection (2)(a) send him forward for sentence with that plea to a court to which, if he had pleaded not guilty he could lawfully have been sent forward for trial.
              (2A) The accused shall not be sent forward for sentence under this section without the consent of the prosecutor.

              (3)(a) On conviction by the District Court for an offence dealt with summarily under subsection (2)(a), the accused shall be liable to a fine not exceeding £1,000 (€1,269.74) or, at the discretion of the court, to imprisonment for a term not exceeding 12 months, or to both such fine and imprisonment.”
          In the first instance, it is a matter of choice for the accused whether to plead guilty or not. It must be assumed that normally this will depend on whether the accused knows that he or she is in fact guilty. Even if the accused does wish to plead guilty the court has to be satisfied that he or she understands the nature of the offence and the facts alleged and there has to be in place the consent of the prosecutor, before the District Court judge is entitled to deal with the offence summarily. Undoubtedly, the penalties are less on summary disposal. In that respect this offence is no different from any number of statutory offences. The procedure whereby an indictable offence may, in some circumstances, be dealt with summarily with the consent of both the accused and the prosecutor and attract a lesser penalty is available in numerous instances of statutory offences. It is a perfectly rational and just way of dealing with offences which of their nature may be serious but where in any particular given instance the offending conduct may not be particularly serious relative to other offences of the same kind. The court cannot discern anything unconstitutional about that. Having regard to the various steps which have to be taken and the safeguards which are in the legislation, the court would wholly reject the argument that there is, as it were, “a gun at the head” of an impecunious accused forcing him or her to plead guilty when he or she might either know that he or she was innocent or might consider he or she would get a better trial before a jury.

          A second argument against any suggestion of wealth discrimination is that the option of suspended sentence is open to the judge in any given instance where in all the circumstances that might appear to him or her to be just.

          Thirdly, it has to be borne in mind that s. 89(b) is concerned with a conviction for a revenue offence. Money should have been available to pay the duty and in those circumstances a financial penalty is not unjust. If, however, it is unrealistic or impracticable, the judge has other options as already pointed out. These kind of sentences involving substantial fines have been traditionally a feature of revenue offences and in considering what is fair or unfair or discriminatory or non-discriminatory, the court should take this factor into account. The obiter dicta of Ó Dálaigh C.J. in In re McIlhagga, judgment of the Supreme Court delivered 29th July, 1971 are not really relevant to this case. That was a case where a High Court judge in the Central Criminal Court imposed three years penal servitude on foot of a plea of guilty to a count of obtaining money by false pretences and took other charges into account but added a provision that in the event of the accused paying restitution at any time within a period of three years he would be released from custody upon entering into a bond to keep the peace and be of good behaviour. The defendant brought a habeas corpus application on the ground that the trial judge’s order was contrary to the maxim that all persons are equal before the law. The court held against him but Ó Dálaigh C.J. did say this:
                “The payment in question is not the imposition of a fine. Nor have we here a case – if such is to be supposed – where a court is sentencing two persons of equal obloquy, one rich and the other poor, sends the poor man to prison but lets the rich man go free on payment of a fine well within his means. The payment referred to in Mr. Justice Butler’s order relates to the restoration by the convicted person of the monies of which he fraudulently deprived the injured party. Neither in the purpose nor in effect is there discrimination as between rich and poor.”
              Arising out of that passage there are two observations to be made. The first is that the former Chief Justice took into account that the restitution order was related to the monies of which the defendant had “fraudulently deprived the injured parties”. In every revenue offence there is the element that it arises from the accused owing money to the Revenue Commissioners. Secondly, the former Chief Justice seems to be postulating in his obiter dicta a theoretical case in which the same judge would be sentencing two people, one rich and one poor. Nothing like that is occurring here.

              Finally, the judgment of Herbert J. in the High Court in Redmond v. Minister for the Environment [2001] 4 I.R. 64 does not seem to be in point because even if correctly decided, it cannot be accepted that s. 89(b) is “a law which has the effect, even if totally unintended of discriminating between human persons on the basis of money”.

              Proportionality
              The third ground of alleged unconstitutionality is that s. 89(b) infringed the constitutional principle of proportionality. In this connection, passages from different judgments are cited in the written submissions and were referred to also at the oral hearing. It is appropriate to set out a sample number of them. In WC [1994] 1 ILRM 321 Flood J. said the following:
                    “In my view the selection of the particular punishment to be imposed on an individual offender is subject to the constitutional principle of proportionality. By this I mean that the imposition of a particular sentence must strike a balance between the particular circumstances of the commission of the relevant offence and the relevant personal circumstances of the person sentenced.”
                  The judge then further stated:
                        “The sentence to be imposed on the accused person in a particular case is solely a matter for the trial judge in the independent and impartial exercise of judicial discretion. To suggest otherwise would be to countenance a constitutionally impermissible invasion of judicial independence.”
                      These two passages from the judgment of Flood J. are impeccable but they do not advance the case being made by the appellant. As has already been pointed out in relation to the separation of powers issue the parameters laid down by the legislature are not unreasonable and there are a considerable number of choices available to the sentencing judge.

                      The next quotation comes from D.P.P. v. Kelly, an unreported judgment in the Court of Criminal Appeal of the 5th July, 2004, delivered by Hardiman J. The learned judge said the following:
                            “Under our present sentencing regime sentences must be proportionate not only to the crime but to the individual offender.”
                          And he also said:
                              “The principle in itself is well-established and is derived at least partly from the Constitution. In The State (Healy) v. O’Donoghue [1976] I.R. 325 Henchy J. said that the Constitution guarantees that a citizen should not be deprived of his liberty by a trial conducted so as to shut out ‘a sentence appropriate to his degree of guilt and his relevant personal circumstances’.”
                            That passage must be read in context. As has already been pointed out there are reasonable options open to the trial judge in these cases and in so far as there are limitations (a) they are not unreasonable and (b) they are the kind of limitations which are normal in revenue offences. The principle that sentences must be proportionate to the personal circumstances of the appellant is perfectly capable of being applied in these cases. It may well be, as Professor O’Malley suggests in his “Leading Cases of the Twentieth Century”, that the courts might be entitled to strike down a mandatory sentence if they were convinced that its purpose or effect was to leave offenders liable to a disproportionately heavy punishment. In the view of the court, that issue not arise in this case and should not be considered in this case.

                            The court is of the view that s. 89(b) of the Finance Act, 1997 is consistent with the separation of powers doctrine, does not constitute wealth based discrimination and is consistent with the constitutional principle of proportionality.

                            Accordingly, the court holds that s. 89(b) of the Finance Act, 1997 is not invalid having regard to the Constitution and the appeals must be dismissed.





                            JUDGMENT of Mr. Justice Geoghegan delivered the 25th July 2006


                            Each of these three appeals started life as judicial review applications to the High Court with leave seeking a declaration that section 89(b) of the Finance Act, 1997 is unconstitutional and a consequential order of prohibition/injunction restraining a further prosecution of the applicant. The cases made in the two Osmanovic cases were identical. A joint reserved judgment was delivered by Ó Caoimh J. on the 30th July, 2004. In his conclusions, the learned trial judge referred to similarities between these two cases and the Sweeney case, the subject matter of the third appeal in which he had delivered a judgment on the 27th May, 2004. He also pointed out that there were some differences but apparently did not regard the differences as relevant and neither do I. I will outline them in due course.

                            In his conclusion, the learned trial judge said the following: The judge went on to deal with another aspect of the case to which I will return, the question of whether the impugned provision imposed a fixed penalty.

                            Unfortunately, the learned trial judge’s recollection as to how he had decided the Sweeney case was not entirely accurate. Although he did say in the Sweeney judgment that he accepted the submission made that the application was “somewhat premature” he went on to deal with the constitutionality of section 89(b). The judge upheld its constitutionality.

                            Any judgment as to the constitutionality or otherwise of section 89(b) of the Finance Act, 1993 must be a single judgment of the court, as it is a post-1937 statutory provision. This judgment of mine, therefore, is confined to the other issues which arise.

                            In the two Osmanovic cases, the statement of opposition on behalf of all the respondents contained (inter alia) the following ground of opposition. In the Sweeney case the grounds of opposition included the following:
                            The context of these particular grounds of opposition will become clear when I explain, as I am about to do, the factual background to these proceedings. In this judgment, I will be confining myself to the “moot” issue. Although, in the judgments of Ó Caoimh J. an issue of whether in certain circumstances the appellants will be subjected to a fixed penalty has been made marginally relevant to the moot question, it is primarily a ground of attack on the constitutionality of the statutory provision and, therefore, in my view, should more appropriately be dealt with in the judgment of the court on that issue.

                            The background to the moot issue is as follows. All three appellants have been prosecuted in respect of alleged excise offences contrary to section 186 of the Customs Consolidation Act, 1876, as amended by section 34 of the Finance Act, 1963, as further amended by section 72 of the Finance Act, 1983 and as yet further amended by ss. 89 and 90 of the Finance Act, 1997, and as applied by section 9(1) of the Finance (Excise Duty on Tobacco Products) Act, 1977.

                            Section 89 of the Finance Act, 1997 reads as follows: Section 34 of the Finance Act, 1963 as amended provides in respect of prosecutions under section 186 of the 1876 Act as follows:
                            In the Osmanovic cases the value of the goods was €3,071.75 (Dervisa) and €3,309.53 (Celebija). In the Sweeney case the value of the goods was £1,230.60. The effect of these valuations was that under the statutory scheme the offences would have to be dealt with on indictment unless a particular appellant indicated a willingness to plead guilty in circumstances where the Director of Public Prosecutions consented to summary disposal. This arises under section 34(6)(c) of the Finance Act, 1963, as inserted by section 90 of the Finance Act, 1997 which provides as follows: To understand the options open to the appellants, it is necessary now to move to section 13 of the Criminal Procedure Act, 1967 as amended by section 10 of the Criminal Justice Act, 1999 which amendment came into force on the 1st October, 2001. In their amended form the subsections relevant to this case read as follows: The Osmanovic cases are at a different stage from the Sweeney case but for reasons which I will be explaining, I do not think that anything turns on this. However, I will outline the factual position. In the Osmanovic cases both appellants have pleaded not guilty and have been returned for trial. They have not yet been tried.

                            In the Sweeney case, all that has happened is that the appellant has appeared before the District Court but no further step has been taken.
                            The basis on which the Osmanovics challenge the constitutionality of section 89(b) of the Finance Act, 1997 as contained in their respective statements of grounds may be summarised as follows: The grounds for alleged unconstitutionality put forward on behalf of Samantha Sweeney in her statement of grounds are worded differently but are broadly the same. It is worth quoting however the second ground from her statement of grounds as it sets out the rich/poor issue with admirable clarity. Is each of these appellants acting prematurely in seeking to challenge the constitutionality of section 89(b)? The learned trial judge thought so but I do not agree. In the case of the Osmanovics, the judge took the view that these applicants might well be acquitted on the merits and that they should wait until they were convicted before mounting any challenge to the constitutionality of the provision. In relation to the Sweeney case the respondents lay emphasis on the very early stage of that case and that it is not known yet what options are open to that appellant at the District Court stage. In other words, the Criminal Procedure Act, 1967 has not really yet come into play. The trial judge seems to have been of the same view. I do not accept that locus standi is such a narrow concept or that the views of the learned trial judge conformed with the principles of this court set out in Cahill v. Sutton [1980] I.R. 269. I appreciate that prematurity and locus standi are not quite the same thing. In each of these three cases, however, I am of the opinion that if the appellants’ complaints based on the Constitution could be arguably justified, they are perfectly entitled to air them at this stage. In each case, prosecutions have at least been instituted.
                            Counsel for the Osmanovics have argued that there is plenty of authority for the proposition that a person facing criminal charges has sufficient standing to challenge the constitutionality of the substantive provisions at issue. In the written submissions and at the oral hearing Norris v. The Attorney General                             [1984] IR 36, Desmond v. Glackin (No. 2) [1993] 3 I.R. 67 and Curtis v. Attorney General [1985] I.R. 458 have all been relied on and reliance has also been placed to some extent on the recent judgments of this court in PG v. Ireland and CC v. Ireland delivered on the 12th July, 2005. In expressing the views which I have done, I would prefer to rely on general principle supported by the case which seems to me to be most relevant that of Curtis v. The Attorney General, a decision of Carroll J. in the High Court. The PG and CC cases are distinguishable in that there was a very special reason which is set out in the judgments as to why this court was prepared to consider the validity of a proposed defence ahead of a trial. Some support can be gained from the Norris and Desmond cases but the Norris case in particular would seem to me to have different features. I believe that the case most in point is the Curtis case. In that case, there was a prosecution under section 186 of the Customs Consolidation Act, 1876 as amended and by reason of the provision for the determination of value of the goods the plaintiff wanted to challenge the constitutionality of the relevant provision ahead of the trial. Carroll J. took the view that the plaintiff had locus standi to challenge the constitutionality of the provisions in question “as he was in imminent danger of a determination affecting his rights, and this need not necessarily be a decision which would adversely affect his rights.” In my opinion, Carroll J. applied the law correctly. Applying the same principles to this case, I consider that none of the proceedings, the subject matter of this appeal, are premature.

                            As I have already pointed out in the Sweeney case the learned trial judge decided the constitutionality issue against the applicant. Technically, he made no decision on the constitutionality issue in the Osmanovic cases. I could, in theory, take the view that in those circumstances the Osmanovic cases would have to go back to the High Court for a decision by the High Court on the constitutionality issue. As these cases, however, have been dealt with at the appeal stage contemporaneously with the Sweeney case and as there is already a decision on the constitutionality issue in that case by the same trial judge as tried the Osmanovic cases it would seem to me that this court should decide the constitutionality issue in all three cases by way of single judgment.


                            Osmanovic v. DPP & Ors

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