The Supreme Court has ruled that three people prosecuted over alleged excise offences were entitled to challenge the constitutionality of a penalty provision before their trials or convictions.
In a judgment delivered on 25 July 2006, Mr Justice Geoghegan said the appeals were not premature because prosecutions had been instituted and the appellants’ constitutional complaints could arguably be justified. The ruling addressed the timing of the challenges. It did not decide whether the challenged provision was constitutional.
The cases concerned section 89(b) of the Finance Act 1997, which set penalties for offences under customs legislation when tried on indictment. The provision allowed for 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, at the court’s discretion.
The appellants argued that the provision constrained a trial judge’s sentencing discretion and discriminated against people unable to pay a large fine. Samantha Sweeney’s case also argued that fear of a fine beyond an accused person’s means, or imprisonment, could pressure someone with a defence to plead guilty. These were allegations advanced in the constitutional challenges, not findings made in this judgment.
The two Osmanovic appellants had pleaded not guilty and been returned for trial, but had not yet been tried. Sweeney had appeared before the District Court, with no further step taken. The respondents argued that the challenges were premature or moot because no conviction or penalty decision had yet occurred; in Sweeney’s case, they also pointed to the early procedural stage.
The High Court had treated the applications as premature. The Supreme Court disagreed, relying on the principle that a person facing prosecution may have standing to challenge a provision where an imminent determination could affect their rights. It considered the three cases not premature, despite their different stages.
The judgment was confined to the mootness issue. It noted that the High Court had already rejected Sweeney’s constitutional challenge, while no constitutional decision had technically been made in the Osmanovic cases. Geoghegan said the Supreme Court should decide the constitutional issue in all three cases by a single judgment, given that the appeals had been heard together. This judgment itself made no final ruling on that constitutional issue and set out no final order on the appeals beyond its conclusion that the proceedings were not premature.