The High Court has dismissed Darragh Galvin’s challenge to the constitutionality of a tobacco tax-stamp offence and related sentencing restrictions. The court said it would hear the parties on costs; it did not decide the pending criminal charge or whether the Probation Act could be applied in that case.
Galvin was charged with offering for sale specified tobacco products without the required tax stamp, contrary to section 78(3) and (5) of the Finance Act 2005, as amended. The judgment says a summons issued on 20 September 2017. It recounts that, in 2016, a friend returning from Turkey brought him 15 packets of Virginia Gold tobacco. Galvin said he paid €10 per pack, tried one and disliked it, then advertised the remaining 14 for sale at €10 each in a Facebook group. A customs officer posing as a customer intercepted the attempted sale on 16 November 2018.
Galvin told the officer he had not realised he was doing anything wrong. At the time he was unemployed; he later began working for An Post and said he feared a conviction could cost him his job. The judge recorded that his lack of awareness was not challenged for the purposes of the constitutional proceedings.
The case began as judicial review but was converted to a plenary hearing and heard on 19 and 20 October 2023. The judge limited cross-examination about why Galvin had not known the conduct was an offence, finding that line of questioning irrelevant and potentially liable to cast doubt on his account. The judgment stressed that the constitutional hearing required enough evidence to ground the challenge, not a definitive determination of facts that could be addressed in the criminal trial.
Galvin argued that the offence was too complex for a reasonable person to understand, that the absence of a requirement to prove criminal intent was unconstitutional, and that excluding the Probation Act was unconstitutional where a person did not know the conduct was wrong. He also argued that conviction could threaten his right to work.
The court found that, despite some complexity in statutory exceptions, the core prohibition was clear: offering for sale fine-cut tobacco without a tax stamp. It held that the law could create a strict-liability regulatory offence and rejected the challenge based on the absence of a mens rea requirement. Applying the reasoning in an earlier case, Dumitran v Ireland, the judge also found the sentencing restrictions were not irrational or disproportionate. Those restrictions include the removal of the Probation Act option, a District Court fine of up to €5,000 (which may be reduced to €2,500 for mitigating reasons), and imprisonment of up to 12 months, which may be suspended or replaced with community service.
The judge was not persuaded that the possibility of employment consequences made the law unconstitutional. The ruling dismissed all grounds of Galvin’s claim. The pending criminal proceedings and any employment decision remained outside the order described in the judgment.