The Supreme Court allowed Darragh Galvin’s appeal in a judicial review case concerning the penalties he could face if convicted of selling unstamped tobacco. It did not decide whether the relevant penalty provisions are constitutional. The District Court prosecution remains to be determined, and the Court said a constitutional challenge could be brought later if Mr Galvin is convicted and the necessary facts are established.
Mr Galvin was charged in 2017 with selling unstamped tobacco under section 78(3) of the Finance Act 2005. The charge followed a 2016 test purchase in Tallaght by a Revenue official. The judgment recounts that he had advertised 14 pouches for €140, saying he wanted to recover money spent on tobacco bought for him in Turkey. Those circumstances have not been formally found by the District Court. The prosecution has been stayed while the judicial review proceedings are ongoing.
The appeal concerned the possible penalties and the timing of Mr Galvin’s constitutional arguments. The judgment says a conviction could carry a minimum fine of €5,000, reducible to €2,500, or imprisonment for up to 12 months. It also records that the Probation of Offenders Act 1907 does not apply to excise offences of this kind, removing the option of probation under that Act.
Mr Galvin argued that excluding the 1907 Act option breached the separation of powers under Article 34 of the Constitution. He also argued that the mandatory minimum penalties could be disproportionate under Article 38.1. The Supreme Court’s majority held the Article 34 claim premature. The judgment delivered by Hogan J records that he and Woulfe J disagreed with that view, but he deferred to the majority and did not address the merits.
The Court agreed that the Article 38.1 challenge was premature because proportionality depends on facts that have not yet been established. Among the matters still unresolved are whether the alleged offence was trivial, whether Mr Galvin knew his conduct was illegal, and the circumstances relevant to the seriousness of the conduct. The Court made no finding on those questions.
The Court said that if Mr Galvin is later convicted and the District Court makes the relevant findings, he may bring a fresh constitutional challenge. The present ruling does not prevent that later claim. Hogan J said he would allow the appeal, subject to his qualification, and otherwise agree with the order proposed by Donnelly J. The supplied judgment does not reproduce that proposed order, so the precise terms of the Court’s order are not stated here.