BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Supreme Court of Ireland Decisions |
||
|
You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Thomas Delaney v Judge John Coughlan and others [2012] IESC 40 (27 June 2012) URL: http://www.bailii.org/ie/cases/IESC/2012/S40.html Cite as: [2012] IESC 40 |
||
[New search] [Help]
Judgment Title: Thomas Delaney v Judge John Coughlan and others Neutral Citation: [2012] IESC 40 Supreme Court Record Number: 421/10 High Court Record Number: 2009 1076 JR Date of Delivery: 27/06/2012 Court: Supreme Court Composition of Court: McKechnie J., MacMenamin J., McGovern J. Judgment by: MacMenamin J. Status of Judgment: Approved
Outcome: Dismiss | ||||||||||||||||
THE SUPREME COURT JUDICIAL REVIEW
APPEAL NO 421/2010 McKechnie J. MacMenamin J. McGovern J. BETWEEN THOMAS DELANEY APPLICANT/APPELLANT AND
JUDGE JOHN COUGHLAN, JUDGE CORMAC DUNNE, DETECTIVE GARDA PETER MAGUIRE AND COMMISSIONER OF AN GARDA SÍOCHÁNA RESPONDENTS JUDGMENT of Mr. Justice John MacMenamin dated the 27th day of June 2012.
1. On 27th July 2010, the High Court (Hanna J.), dismissed the appellant’s application for judicial review of a number of orders made by the first and second named respondents in the District Court. These orders authorised the continued detention of cash sums which Detective Garda Maguire, the third named respondent, seized from the appellant after searches of his car and home. The orders were made pursuant to Section 20 of the Proceeds of Crime (Amendment) Act 2005, (“the 2005 Act”), which replaced Section 38(1) of the Criminal Justice Act 1994 (“the 1994 Act”). These provisions identify the circumstances in which a District Court may make an order for continued detention of monies seized by An Garda Síochána or Customs Officers which are suspected to be the proceeds of crime. The legal issues in the appeal relate to the evidential and statutory basis upon which a District Court Judge is empowered to make an Order for detention of cash beyond an initial period of 48 hours, and to further extend such Order subsequently, so as to allow further investigation.
2. It is only necessary to outline the facts in very brief form.
3. On 18th June 2009, members of An Garda Síochána obtained a search warrant pursuant to Section 26 of the Misuse of Drugs Acts 1977 to 1984 to search the appellants home. This warrant was obtained by the third named respondent, Detective Garda Peter Maguire. Some days later, the appellant was driving a car. In the course of an operation targeting serious crime, he was stopped for a drugs search under Section 23 of the Misuse of Drugs Acts. Cash in the sum of €9,300 was found concealed in a cowling on the handbrake of the car. Prior to this, the appellant, had, served a lengthy prison sentence for offences contrary to Section 15A of the Misuse of Drugs Acts. He had not been in gainful employment for a period in excess of 10 years. On the same day, Detective Garda Maguire, and a number of other members of An Garda Síochána, went to the appellant’s home, and executed a search warrant which they had obtained. Some €27,200 was found in the house, this was concealed under a duvet in a child’s bedroom, which in turn was locked by means of an external padlock. Detective Garda Maguire suspected that the cash directly or indirectly represented the proceeds of crime, and was intended for use by the appellant in connection with criminal conduct. Having formed that suspicion, he seized the money he found in the house in exercise of powers under Section 38(1A) of the Act of 1994 as amended. The precise provisions of the amended Act will be set out later in the judgment. This seizure was to investigate from where the money had been obtained.
4. On the 27th June 2009 Detective Garda Maguire appeared before the first named respondent, District Judge John Coughlan. He sought an order permitting the continued detention of the sums of €9,300 and €27,200. He swore two separate informations for this purpose. He testified that he had formed the suspicion that the sums directly or indirectly represented the proceeds of crime. Thereafter, the first named respondent, made orders pursuant to Section 38(2) of the Act of 1994 as amended. The effect of these orders was that the cash was to be detained by An Garda Síochána until 24th September 2009. The application was made on 27th June 2009 was ex-parte. A subsequent application, on 23rd September 2009, was made on notice to the first named respondent, who was then represented. On that occasion, the appellant applied to have the sums in question paid back to him. The second named respondent, District Judge Cormac Dunne who dealt with the matter on that occasion, refused this application, and authorised a further period of detention of the funds in question.
5. On 19th August 2009, counsel for the appellant made an application for leave to seek judicial review of the determination made by the first and second named respondents. The appellant’s case raises the question as to whether the first and second named respondents acted within jurisdiction in making the impugned orders; and whether, having regard to the provisions of Section 38 of the Act of 1994 as amended, they were entitled to make the orders on the basis of Detective Garda Maguire’s evidence that he had formed the suspicion that the cash sums in question directly or indirectly represented the proceeds of crime.
6. In his order of 27th June 2009, District Judge Coughlan recited that the cash sums had been seized and detained in accordance with Section 38 of the Criminal Justice Act 1994 as amended by Section 20 of the Proceeds of Crime (Amendment) Act 2005. The form of the order is worded in the first person. It recites that Judge Coughlan had at the time of such seizure and detention, and had at the time of making the order, reasonable grounds for suspecting that:
7. The issue which arises in the case requires statutory interpretation; the point can only be explained fully by outlining that legislation, first, as it was originally enacted in 1994; and second, as it now stands, having been amended by the Act of 2005. While State authorities may detain monies seized, any subsequent detention beyond 48 hours can only be effected by order of the District Court. 8. The Criminal Justice Act 1994. The long title of the Act of 1994 identifies its legislative purpose. It was to make provision for the “recovery of the proceeds of drug trafficking and other offences …” and also to make provision “for forfeiture of property used in the commission of crime …”
9. Part VI of that Act contains provisions relevant here. In its original form, it was set out as follows. “Part VI Drug Trafficking Money Imported or Exported in Cash
(2) Cash seized by virtue of this section shall not be detained for more than 48 hours unless its detention beyond 48 hours is authorised by an Order made by a judge of the District Court and no such Order shall be made unless the judge is satisfied – (a) there are reasonable grounds for the suspicion mentioned in subsection (1) of this section, and (b) that detention of the cash beyond 48 hours is justified while its origin or derivation is further investigated or consideration is given to the institution (whether in the State or elsewhere) of criminal proceedings against any person for an offence with which the cash is connected …” “(3) Any Order under subsection (2) of this Section shall authorise the continued detention of the cash to which it relates for such period, not exceeding three months beginning with the date of the Order, as may be specified in the Order, and a judge of the District Court, if satisfied as to the matters mentioned in that subsection, may thereafter from time to time by Order authorise the further detention of the cash so that (a) no period of detention specified in such an Order shall exceed three months beginning with the date of the Order; and (b) the total period of detention shall not exceed two years from the date of the Order under subsection (2) of this section.” (emphasis added). The emphasised part of the provision lies at the heart of this case. As it stood then, the section allowed for seizure and detention derived from drug trafficking, but no other category of criminal activity. The 1994 Act was amended in 2005. The purpose and intention of this amendment was to allow for detention of cash which is the “proceeds of crime”. Plainly, this is a much broader category of criminal activity than simple drug trafficking. The question now is whether S. 38(2) of the Act of 1994, which was not amended by the 2005 Act, in fact allows for a District Judge to order continued detention beyond 48 hours, on finding there are reasonable grounds for suspicion that the cash represents the proceeds of crime generally as opposed to drug trafficking, an offence which has specific characteristics which are briefly outlined later in the judgment.
10. What was the effect of this 2005 amendment? Counsel for the State contends that it was to empower a District Judge, if satisfied that there are reasonable grounds for the suspicion mentioned in subsection (1) of Section 38, to order detention while further investigation was being carried out. But in the 1994 Act, “the suspicion” mentioned in Section 38 (1), could only be that the cash detained was imported into, or exported from the State, and there were reasonable grounds for suspecting that it directly or indirectly represented any person’s proceeds of, or was intended by any person for use in drug trafficking.
11. The term “drug trafficking” was defined in detail in Section 3(1) of the Criminal Justice Act 1994. The gist of the offence consists in the production or supply of a controlled drug; its transportation or storing its importation or export, the carrying out of acts ancillary to those activities; or the use of a ship for illicit traffic in controlled drugs. As defined, the term has a clear “territorial” or “cross border” connotation. The statutory remit of the legislation, then, therefore, related to the detention by the State authorities of moneys which had been seized, and which were being imported into, or exported from this State and which represented the proceeds of drug trafficking. Thus the legislation had a relatively narrow remit. 12. The remainder of the “original” Section 38, outlined the procedure to be adopted by the District Court to permit continued detention itself subsequent upon detention. A number of subsequent orders might be made in the District Court for continuing detention pending investigation, provided the District Judge in question was satisfied in accordance with the requirements of Section 38(1) of the 1994 Act. Provision was made for a person aggrieved by such order to apply for the release of the funds, if a District Judge was satisfied that there were no longer any grounds for their detention (Section 38(5)(a) and (b)). If criminal proceedings were instituted, the cash was not to be released until such proceedings were concluded (Section 38(6)).
Forfeiture Procedure under the 1994 Act As well as providing for a procedure in the District Court for continued detention, the 1994 Act also contained provision for the making of forfeiture orders in the Circuit Court. This is part of a “linear process” with forfeiture as its end point, provided that the State authorities comply with the necessary proofs. Section 39(1) of the Act of 1994 provided
13. I add here that provision was also was made in the Act of 1994 for further appeal against decisions of this type to the High Court. The terms of the statute in this regard are not material to the issue in question here, nor is the value of the cash sums seized. The amendments brought in by the 2005 Proceeds of Crime (Amendment) Act 2005. 14. As mentioned earlier, the 1994 statute was amended by the Proceeds of Crime (Amendment) Act 2005, stated in its long title to be “An Act To Make Further Provision In Relation To The Recovery and Discovery Of Proceeds Of Crime …” Unquestionably then, the espoused intention of the legislature in this amendment, was to broaden the scope of the legislation so as to encompass the proceeds of crime generally, rather than those exclusively confined to drug trafficking. The question which arises is whether the amendments achieve that stated objective?
15. Part 4 of the 2005 Act is entitled ‘Amendments to Act of 1994’. The mode and format of the amendments contained in the 2005 Act are unusual. The construction of these specific provisions hinges on their precise format and content. One cannot extrapolate from the findings made here in the context of rather infelicitous drafting and induce some general principle: rather the task is to apply the principles of interpretation to the provisions at hand. It is to make sense of something which was left unclear. The format of the new provision is relevant, it is necessary to outline it some detail. The appellant’s case can only be understood in its statutory context, and by a detailed comparison of the provisions of the 2005 Act, with the Principal Act of 1994.
16. The relevant amendments in the 2005 Act provided:
20.- Section 38 of the Act of 1994 is hereby amended – (a) by the substitution of the following subsections for subsection (1): “(1) a member of the Garda Síochána or an officer of customs and excise may search a person if the member or officer has reasonable ground for suspecting that – (a) the person is importing or exporting, or intends or is about to import or export an amount of cash which is not less than the prescribed sum, and (b) the cash directly or indirectly represents the proceeds of crime or is intended by any person for use in connection with any criminal conduct. (1A) a member of the Garda Síochána or an officer of the Revenue Commissioners may seize and in accordance with this section detain any cash (including cash found during a search under subsection (1) if – (a) its amount is not less than the prescribed sum, and (b) he or she has reasonable grounds for suspecting that it directly or indirectly represents the proceeds of crime or is intended by any person for use in any criminal conduct”, (b) and by the insertion of the following subsections after subsection (3): (3A) Where an application is made under Section 39(1) for an order for the forfeiture of cash detained under this section the cash shall, notwithstanding subsection (3), continue to be so detained until the application is finally determined” 17. This court is not entitled to have regard to the heading at the beginning of Part 4 as an aid to interpretation however. (See Section 18(g)(ii) Interpretation Act 2005; but the court may have regard to the long title of the amending act and to other provisions of the statute generally.
18. I turn then to the effect of the amendments. It will be noted that the provisions deal first with the power of search, (Section 38(1)); thereafter seizure, and then detention and continued detention by the authorities, (Section 38(1A)); and finally forfeiture (Section 38(3A)).
19. However the amending Act did not expressly replace or amend subsection (2) of the Act of 1994. That subsection permits detention of cash seized beyond a 48 hour period on foot of an order made by a Judge of a District Court as recited earlier, such an order is not to be made unless that judge is satisfied
20. However Section 21 of the 2005 Act did amend the procedure for forfeiture in the Circuit Court. The new section provided as follows:
21. However the orders made by the District Court in this case did not contain such a recital in accordance with the terms of the original 1994 Act; but rather contained recitals in accordance with the new Section 38(1A), to the effect that the District Judge had reasonable grounds for suspecting that the sums in question directly or indirectly represented “the proceeds of crime or is intended by any person for use in any criminal conduct”. The case advanced here, relies on the fact that Section 38(2) of the Act of 1994 was not amended. It is said the legislation only confers jurisdiction on a District Judge in relation to a suspicion identified in subsection (1)(a) of Section 38, but not to a suspicion formed under subsection 1(A). It is said that the power vested in a District Judge to grant a further detention order under subsections (2) or (3) of Section 38 is exclusively linked to, or governed by, the suspicion identified only in Section 38(1)(a) and (b), that is to say the provisions as to search. Consequently, it is said the suspicion referred to in Section 38(1A) relating to seizure and detention does not figure in the equation at all, even as a result of the 2005 amendment.
22. As well as rendering the power of detention provided for under Section 38(1A) inoperable, the argument begs the question as to whether there could possibly be a legislative rationale for the construction now urged on this court.
23. Senior counsel for the appellant, Mr. Michael O’Higgins S.C., submits that there is such a rationale. He contends that the “import/export” and “drug trafficking” dimension was always an aspect of the 1994 Act. He contends that the amending Act of 2005 did not introduce anything new in that respect. He submits that it has always been a condition for the making of an Order under Section 38(2), or Section 38(3), that a District Judge was obliged to consider whether or not there was a reasonable suspicion that a person such as the appellant was either actively or intending to import or export the cash in question. He contends that the amendment to Section 38, effected by the 2005 Act, was simply to insert an express power of search which had hitherto been absent, presumably to facilitate the location of concealed cash. Counsel argues that the new subsection 38(1A), permits the seizure by the authorities of cash found either pursuant to, or without resort to that power. The primary effect of the amendment brought about in the 2005 Act he submits, is to change the requisite suspicion for seizure from the specific to the general, that is from suspected “drug trafficking” to “suspected criminal conduct”, but counsel contends, this amendment did not affect the nature of the enquiry, or the legal basis upon which a District Court might make a continued detention order.
24. However I think this argument can be put in another way. The essence of the appellant’s case is that the amendment introduced: (1) a specific power to search, hitherto absent from the legislation; (2) this power of search may arise only where a member or officer has reasonable grounds for suspecting the person in question intends to, or is actually importing or exporting the cash in question, and the cash directly or indirectly represents the proceeds of crime or is intended for use in connection with criminal conduct; (3). the cash may be seized and detained by the authorities if found during a search under Section 38(1) if the authorities have reasonable grounds for suspecting that it directly or indirectly represents the proceeds of crime or is intended for criminal conduct; but that (4). the basis of jurisdiction for a judge in the District Court to order continued detention must actually satisfy the narrower criteria identified in Section 38(1), which, is to paraphrase, that the money is being imported or exported from the State and that it represents the proceeds of crime or is intended by any person for use in connection with any criminal conduct. When looked at in this four step logical progression the appellant’s analysis begs the question why the Act should be read in this illogical way? Why could this have been the intention of the legislature?
25. Counsel frankly admits that his argument is entirely a “technical one” and has no merits as to substance. Nonetheless, he contends that the cardinal rule for the construction of Acts of the legislature is that they should be interpreted according to the intention expressed in the Acts themselves. He mounts his attack on two alternative bases: the first that the Act should be interpreted according to its literal meaning: the second, that the Act, being penal in nature should be interpreted strictly in favour of his client.
26. I propose to deal with these two alternatives sequentially. Prior to doing so however, it is necessary to advert to provisions of the Interpretation Act 2005. 27. Section 5(1) of that Act states that, in construing provision of any Act, (other than a provision that relates to the imposition of a penal or other sanction), “ … (a) that is obscure or ambiguous or (b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of – (i) in the case of an Act to which paragraph (A) of the definition of Act in Section 2(1) relates to the Oireachtas … the provision shall be given a construction that reflects the plain intention of the Oireachtas … where that intention can be ascertained from the Act as a whole.”
A literal construction of the legislation 28. The consideration which immediately follows proceeds on from the premise that the provisions do not impose a penal or other sanction. Is unnecessary to decide as to the nature of the provisions. The outcome of the process of interpretation is identical, no matter which legislative categorisation or interpretative principles are applied to the sections.
29. For the purposes of the argument, one accepts that the meaning of the provisions in question are unclear so that they might be seen as “obscure or ambiguous”. How then should they be construed? Would the effect of the interpretation urged for be “absurd” or “fail to reflect the plain intention of the Oireachtas”?
30. In Howard v. The Public of Commissioners Works [1994] 1 I.R. 101 Blayney J. quoted with approval a passage from Maxwell on the Interpretation of Statues (12th Edition) to the following effect:-
31. In the course of his argument, counsel referred to the recent decision of this court, DPP v. England [2011] IESC 16, where, on behalf of the court, Hardiman J. took the opportunity to consider how Section 38 of the Act of 1994 in its unamended state should be construed. He held that the words of this Section should be given a literal interpretation. The analysis which now follows applies imparts such an interpretation. I observe, in passing, that the court in DPP v. England expressly prescinded from expressing any view as to whether the section in question was actually a penal provision. Moreover, that case considered only the Act of 1994 in its unamended state. The issue which arose in England was quite different also. There, the question was whether any order for the continued detention of the sums seized was extant at the time an order for continued detention was made. The case hinged on the meaning of the term “application made” in Section 39 of the Act of 1994 in its unamended form.
32. Having analysed the provision on the four-step basis set out earlier, I take the view that the language used in the provision is not as in Blayney J.’s quotation from Maxwell “clear and unequivocal”; to the contrary the provision is unclear. But the meaning to be given to it must be sensible. The impugned provision, read sensibly, empowers a District Judge to order continued detention, where the cash directly or indirectly represents the proceeds of crime, or is intended by any person for use in connection with any criminal conduct. It must be recollected that precisely the same terminology is deployed by the drafter in Section 38(1)(b) of the amended Act, and in Section 38(1A). Both deal with the situation where the cash directly or indirectly represents the proceeds of crime, or is intended by any person in connection with criminal conduct.
33. To read or construe the provision in the manner urged by counsel for the appellant would in my view, give rise to an absurd outcome. For a District Judge to order continued detention for more than 48 hours, he would have to be satisfied as to two pre-conditions; that is to say, (a) that the money in question was to be imported or exported, and (b) that it directly represented the proceeds of crime or intended for use in connection with such. But it does no violence to the text of the Act to impart a consistent meaning to the powers of search, seizure, detention by the authorities, and continued detention on foot of a District Court order. Such a logical sequence was followed in the 1994 Act in its original form. I am entirely unpersuaded that the legislature intended otherwise.
34. Moreover, the argument loses further traction when one looks to other provisions of the Act. In the first place, as adverted to earlier, the intent of the legislature is quite clear. It is identified in the long title of the 2005 Act. That intention was to make provision in relation to the recovery and disposal of the proceeds of crime, and not simply confined to drug trafficking. That intent was to broaden the scope of the power rather than maintain its confines within the limits of the principal Act.
35. But the logic of this conclusion acquires greater force when one looks to the forfeiture provisions of the 2005 Act. Section 21 of the 2005 Act (cited earlier) is very clear. The legislature intended to substitute the words
“any persons proceeds of, or is intended by any person for use in, drug trafficking”. When one follows through the logic of the procedure, the legislative intention of the amendments becomes crystal clear. It is to allow for a District Judge to order continued detention of the cash, if there was reasonable suspicion that it represented the proceeds of crime or cash that might be used in connection therewith. The words now used in the statute in relation to forfeiture, mirror precisely the terms of Section 38(1A)(b), viz :- “(b) he or she has reasonable grounds for suspecting that it directly or indirectly represents the proceeds of crime or is intended by any person for use in any criminal conduct.”
A Strict Interpretation? 37. Does a strict interpretation lead to a different conclusion? Enactments that interfere with constitutional rights are to be strictly construed. This rule means that where there is a genuine doubt or ambiguity as to the interpretation a permitted meaning that is less restrictive of the constitutional rights should be presumed to be the intended one. The greater the incursion into a constitutional right, the greater the clarity to be expected in that statutory incursion. A court will not readily permit an Act to abrogate a constitutional right by implication. But this does not preclude a court from assessing whether the provision in question carries with a necessary implication; but such implication must be clearly intended. A court is not debarred from applying common sense. Just as in DPP v. England however, this court does not find it necessary to express a view as to whether the sections in question are penal in nature.
38. Would the outcome be different were the provision to be considered as one which imposes a “penal or other sanction?”. It is well accepted that certain categories of statutory provision must be strictly construed. An example of this, relied on by the appellant, is a warrant permitting search or seizure under the Customs and Excises Acts.
39. In Simple Imports Limited v. Revenue Commissioners [2000] 2 I.R. 243, warrants were issued pursuant to Section 205 of the Customs Law Consolidation Act 1876 and Section 5(1) of the Customs and Excise (Miscellaneous Provisions) Act 1988. The legislation required that a customs officer must have “reasonable” grounds for his suspicion for the purposes of entering a premises and seizing goods alleged to be prohibited and in contravention of customs and excise legislation. Importantly, the provisions also laid down that a District Judge must be satisfied, from information on oath given by an officer, that such officer had grounds for such suspicion.
40. In Simple Imports, informations were sworn by the customs officer concerned, outlining the reasons for believing that there were uncustomed or prohibited goods on the premises in question. But there lie a number of vital distinctions between this case and Simple Imports. In the latter case, the warrants, while correctly recording the basis upon which they had been issued, actually showed on their face that the statutory preconditions had not been complied with. There was no information on oath before the District Judges which could have accorded with what was necessary to ground jurisdiction.
41. In Simple Imports, the actual recital in the District Court orders was to the effect that it appeared to the District Judges, or they were satisfied that the officer had “cause” or a “ground” – not “good reason” – to suspect that there were uncustomed goods on the premises. (See the judgment of Keane J. in Simple Imports at p. 255). The actual want of jurisdiction was therefore disclosed on the face of the District Court orders. The justifying grounds for the order fell short of the vital jurisdictional threshold identified in the statute which would have permitted the order. The fact that a District Judge had “cause” or “ground” was insufficient to satisfy the terms of the statute itself. What was necessary was that a District Judge be “satisfied” that the officer had “good reason”. On those facts, this court held, by a majority, that, given the necessarily “draconian nature” of powers conferred by the statute, a warrant could not be regarded as valid which carried a statement on its face that it had been issued on a basis not authorised by statute. It followed therefore, that the warrants were invalid and had to be quashed. The court also held that, when issuing a warrant under the legislation on the basis of the information provided by an officer, a District Court Judge must be satisfied that, viewed objectively, the cause or ground relied on for the suspicion was reasonable. It was to be presumed that the District Judge, in issuing the warrant, would act in accordance with the requirements of the relevant legislation: the onus of establishing that he, or she, had failed to do so, rested on the person challenging the validity of the warrant.
42. Keane J., with whom Barrington J. concurred, put matters this way:-
43. The contrasts with the instant case are very clear. Here there can be no doubt or ambiguity as to the intent of the statutory provision. What is being asked of the court is to ‘presume’ a lacuna when the words in fact clearly, and by necessary implication comprise both S.38(1) and S. 38(1A). The task here is to read the statute in order to impart a consistent meaning to its provisions. This is not a situation where the recitals in the orders fall short of the statutory requirement in the same sense as in Simple Imports. There, the orders unambiguously demonstrated the want of jurisdiction. I am satisfied that, on a proper construction of the statute, the warrants here show that the District Judges in this instance were acting within jurisdiction. That proper construction must, in my view, necessarily lead to a meaning where the proper grounds for the making of an order are set out in Section 38(1A) of the Act of 2005, as well as Section 38(1). The recitals in the orders in question precisely reflect the same terms in Section 38(1A) of the Act, in its amended form. In simple terms, the judges had reasonable grounds for suspecting that the cash directly or indirectly represented the proceeds of crime or was intended by any person for use in any criminal conduct. This also reflects precisely forfeiture provisions of Section 38(1)(b) and Section 39(1) of the Act.
44. It cannot be said the provisions in question are such as to impose some fresh or unfair imposition of criminal liability by the use of “oblique or slack language” (see Henchy J. in Inspector of Taxes v. Kiernan) [1981] I.R. 117. There is no question of a failure to comply with the statutory duty necessary for jurisdiction, but rather the necessary construction of the statute to give obvious meaning even were it to be strictly construed. It cannot be said that these provisions actually impose a penalty or criminal liability.
45. In DPP v. Moorehouse [2006] I.R. 421 Kearns J., speaking for the majority of this court, (at p. 44 of the report), held that, even a provision in a penal statute identifying the ingredients of an offence should not be read so as to lead to “an artificial or absurd result”. The position here of course is less radical. What is in question is not a section creating an offence, but one setting out the grounds for jurisdiction upon which a District Judge may order the continued detention of goods which have already been seized. What is recited in the orders is a reflection of what is in the Act. The meaning of the provision is clear by necessary implication. The argument on strict construction fails.
46. In conclusion, seen in the round, to construe the provisions in question as suggested by the appellant would defeat the objective of the legislation itself; it would negate the intention of the Oireachtas; it would run counter to the forfeiture provisions actually contained elsewhere in the Act which reflect the legislative intention; it would give rise to absurdity; it would suggest the legislature acts in vain, it lacks logic. This is not a situation where the statute “catches” conduct not intended by the legislature. Of course, in interpreting a statute a court must take the greatest care to lean against the possibility of doubtful penalisation, but this is not such a case. If there is an issue here, it is simply one of unhappy drafting; the error is very minor and the legislative purpose is clear. The court is permitted to and should read the Act in its proper construction.
47. In either circumstance, the argument advanced by the appellant fails. I would dismiss the appeal, and affirm the order of the High Court.
| ||||||||||||||||
