The Court of Appeal has dismissed Darragh Galvin’s appeal against an order directing his challenge to tobacco tax stamp legislation to proceed as a plenary action. The order does not decide the constitutionality of the legislation or the criminal charge against him.
Mr Galvin faces an alleged offence under section 78(3) of the Finance Act 2005, concerning the offer for sale of specified tobacco products without the prescribed tax stamp. His proceedings seek declarations that section 78(3), section 126 of the Finance Act 2001, or both, are unconstitutional or incompatible with the European Convention on Human Rights. He also seeks to prohibit his further prosecution, relief which the appeal judgment says depends on his challenge to section 78(3).
The High Court directed a plenary hearing and set a timetable for further pleadings. The appeal concerned that procedural direction, not the merits of the statutory challenge. The Court of Appeal said plenary proceedings are normally the proper route where the primary relief sought is a declaration against legislation, though there is no rigid rule. It considered that the proceedings were at a preliminary stage and that the exceptional circumstances in earlier cases allowing such challenges to proceed by judicial review were absent.
Mr Galvin argued that directing a plenary hearing was premature under the relevant court rules and risked exposing him to cross-examination about his defence to the criminal charge. The Court of Appeal did not decide whether a particular rule could be used at an earlier stage, saying it was unnecessary to reach a concluded view. It held that the High Court could have struck out the proceedings and that allowing them to continue as a plenary action was a concession to Mr Galvin.
The appellate court also held that the High Court’s order did not determine what evidence could be called or set the scope of any cross-examination. Those matters, along with any standing or “ius tertii” issues, are for the High Court judge hearing the action to decide in light of the pleadings and submissions. The judgment stressed that Mr Galvin’s guilt or innocence is not at issue in these proceedings and said he cannot be compelled to give incriminating evidence.
The appeal was dismissed. The Court of Appeal did not rule on the validity of either statutory provision, the availability of any defence to the alleged offence, or the outcome of any criminal trial.