The Supreme Court has dismissed three appeals challenging the constitutionality of penalties for customs offences under section 89(b) of the Finance Act 1997.
In a judgment delivered on 25 July 2006 by Chief Justice Murray, the court held that the provision was consistent with the separation of powers, did not constitute wealth-based discrimination and complied with the constitutional principle of proportionality. It concluded that the section was not invalid having regard to the Constitution.
The appeals were brought by Dervisa Osmanovic, Celebija Osmanovic and Samantha Sweeney. The first two cases named the Director of Public Prosecutions, Ireland and the Attorney General as respondents. In Sweeney’s case, Ireland and the Attorney General were respondents, while the Director of Public Prosecutions and Judge Catherine Murphy were notice parties.
The challenges concerned the penalties prescribed for conviction on indictment: a fine of three times the value of the goods, including duty, or £10,000, whichever was greater, or imprisonment for up to five years, or both. The court said the provision left sentencing choices to the court, including whether to impose a suspended or partly suspended prison term. It rejected the argument that the fine option improperly fixed punishment or transferred a judicial function to the legislature or executive.
On alleged wealth discrimination, the court rejected the argument, described in the judgment as the suggestion that “the rich are fined and the poor are sent to prison”. In Sweeney’s case, the submission was that an accused person without money might feel forced to plead guilty in the District Court to avoid a larger fine after trial on indictment. The court said summary disposal required the accused’s choice, the court’s satisfaction that the accused understood the offence and alleged facts, and the prosecutor’s consent. It found no unconstitutional pressure arising from that procedure.
The court also considered proportionality. It said judges retained reasonable sentencing options and could apply proportionality to the offender’s circumstances. The judgment did not decide the constitutionality of mandatory sentences generally; it said that issue did not arise in these appeals and should not be considered.
The ruling resolved the constitutional challenges to section 89(b). The judgment does not state the underlying offence outcomes or sentences in these three cases.