202 / 328
provisions of the 1933 Act repealed by the 1961
Act, orders made under the repeal provisions of the
1933 Act and still in force and so on.
The Society will be able to supply to members
a copy of the booklet on request. The price has not
yet been fixed but it will be reasonable. Enquiries
should be directed to the Secretary.
DECISIONS OF PROFESSIONAL
INTEREST
The right of the Revenue Commissioners to elect for a
penalty on the hearing of a criminal charge is the exercise
of a judicialfunction and is consequently repugnant to the
Constitution
The Supreme Court in the case of Deaton
v.
The
Attorney General and Revenue Commissioners has
allowed an appeal against an order of Mr. Justice
Kenny dismissing an action for a declaration that
such of the provisions of the Customs Acts and in
particular of section 186 of the Customs Consolida
tion Act, 1876, as purport to confer on the Revenue
Commissioners the right to elect on the hearing of
a criminal charge as to the punishment by way of
penalty or otherwise to be imposed are repugnant
to the Constitution. The plaintiff had claimed in
addition to this declaration an injunction to restrain
the defendant, the Attorney General, from proceed
ing or attempting to proceed with two summonses
charging the plaintiff with keeping certain goods and
being knowingly concerned in dealing with certain
goods contrary to section 186 of the Customs
Consolidation Act, 1876.
The penalty provision of section 186 of the Act
of 1876 is that every person who is guilty of an
offence under the section shall for each such offence
forfeit either treble the value of the goods, including
the duty payable thereon, or £100 at the election of
the Commissioners of Customs (now the Revenue
Commissioners) and the offender may either be
detained or proceeded against by summons. The
Revenue Commissioners had purported to elect for
the penalty of £327 175. 3d. and the plaintiff claimed
that the above-mentioned section was unconstitu
tional either as amounting to an administration of
justice by persons not being a court established under
the Constitution or as being an interference with the
courts in a purely judicial domain.
The Chief Justice, delivering the judgment of the
court, said that it had been decided by the court in
the case of Melling
v.
6 Mathghamhna
that
proceedings under section 186 of the Act of 1876
were criminal in character.
The selection of the
sentence to be imposed in a criminal matter where
the accused had been found guilty was traditionally
a function of the judges or the courts. Apart from
the case under consideration the attention of the
court had not been called to any instance in which
this function had been vested in any other person
or body than a judge or court. It had been argued
that this was not an exclusively judicial function
because it is competent for the legislature to prescribe
a fixed penalty for an offence and, thereby, it is said,
to select the punishment to be imposed in a
particular case. While the selection of a punishment
by the legislature is a legislative act and a judicial
act when performed by a judge, it is also an
administrative and executive act as in this case
when the selection of the punishment is committed
to a branch of a State department.
In the opinion of the court this argument was
unsound. There was a clear distinction to be drawn
between the prescription of a fixed penalty and the
selection of a penalty for a particular case.
The
prescription of a fixed penalty is a statement of a
general rule which applied to every person who was
convicted of the particular offence. The legislature
did not, however, prescribe the penalty to be
imposed on an individual in a particular case.
It
stated the general rule and the application of that
rule was for the courts. Where, however, the
rule is stated by reference to a range of penalties to
be chosen from according to the circumstances of
the particular case and choice or selection of penalty
had to be made the matter, at this point, passed
from the legislative domain and it was a function
which was traditionally within the domain of the
courts. Where a range of penalties had been
prescribed the individual citizen found guilty of an
offence was
safe-guarded
from
the executive's
displeasure by the choice of penalty being deter
mined by an independent judge and this safe-guard
was needed.
The selection of a punishment to be imposed was
therefore a part of the administration of justice and
as such could not be committed to the hands of the
executive as Parliament purported to do in section
186 of the Consolidation Act, 1876. The Constitution
invalidated this section only to such extent as it was
inconsistent with or repugnant to the Constitution
and accordingly the section would remain intact
but for the words " at the election of the Com
missioners of Customs." which should be deleted
therefrom.
Cause of action arising before discovery of injury—Statute
of Limitations
The House of Lords dismissed an appeal from
a decision of the Court of Appeal affirming Mr.
Justice Glyn-Jones in holding that claims by seven
steel dressers and the widows of two others who
had died, for damages for negligence or breaches of
statutory duty alleged to have been the cause of
their contracting pneumoconiosis, were statute
84