The Court of Appeal has dismissed an appeal by Darragh Galvin against an order directing that his constitutional challenge to finance legislation proceed as a plenary action rather than by judicial review.
The appeal concerned procedure only. The court did not decide whether the legislation is constitutional, whether Mr Galvin committed the charged offence, or whether he knew his conduct was unlawful.
Mr Galvin faces a charge under section 78(3) and (5) of the Finance Act 2005, as amended, of offering specified tobacco products for sale without the required tax stamp. His affidavit said he advertised 14 packets of tobacco for €140 on a Facebook group after deciding he did not want them. A customs officer posing as a customer intercepted the attempted sale. He said he had not realised he was doing anything wrong.
His proceedings challenge the constitutionality of the offence provision and a separate provision of the Finance Act 2001 that removes the option of applying the Probation of Offenders Act 1907 to a person found guilty of the offence. He also seeks to stop the prosecution. Among his arguments are that the offence provisions are unclear and fail to provide for a defence based on a good-faith misunderstanding of the law. He also argues that the restriction on sentencing options may unfairly affect people in particular circumstances. These are claims in the underlying case, not findings by the Court of Appeal.
The State respondents sought to strike out the judicial review or, alternatively, have it continue as if begun by plenary summons. They said Mr Galvin’s knowledge and other factual matters were relevant and might need to be tested through evidence and cross-examination. The High Court directed a plenary hearing while retaining the judicial review case heading and set deadlines for particulars and a statement of opposition or defence.
The Court of Appeal said a plenary action is ordinarily the appropriate procedure when the principal relief sought is a ruling that legislation is invalid under the Constitution. It rejected Mr Galvin’s argument that the order was premature because the State had not yet filed its statement of opposition. The court said the rules allow a plenary hearing to be directed “at any stage in the proceedings”, while describing the timing as not best practice.
It also rejected the argument that the change in procedure itself would impair his rights in the future criminal case. The court did not determine whether cross-examination should take place or what its scope should be. Those questions, and any risk to the criminal proceedings, could be considered by the High Court if they arose.
The Court of Appeal dismissed the appeal, leaving the High Court’s direction for a plenary hearing in place. The constitutional challenges and the criminal charge remain unresolved in this judgment.