263 / 336
might be indulging in special pleading.
As Deputy Golley pointed out, there is a difference
between the legitimate evasion of tax and criminal tax
avoidance. Secondly the right of the Minister and the
State to impose and collect tax rests solely on the
statute, outside the legal content of which there is
neither crime nor right. That being so, the rest of the
right is with the taxpayer and the State has no further
right to interfere beyond the taxation rights conferred
by statute.
Surely, then, the citizen is entitled to seek legal
advice and to try to ascertain his rights. Furthermore,
having ascertained his rights, he is entitled to act on
them. If a mistake is made—if he has overstepped the
boundary where the State is concerned—the State has
ample opportunity, much more than has the individual,
for dealing with the case. The first principle on which
the privilege is grounded is that the citizen must have
some protection against being penalised in the ascer-
taining of his rights and in protecting himself from an
unreasonable infringement of his rights. The question
is whether a breach of this privilege is less important
than the possible disability of the collecting authority
of the State to get their facts easily.
Deputy O'Malley has put the situation totally in
perspective in this regard. It is the whole tradition of
our laws that a man is innocent until proven guilty.
The whole spirit of our law is that even the worst
criminal is entitled to the best help he can get and there
rests the privilege of solicitor and client in criminal
matters. Extending that to civil rights, there has been
the equal principle that a man as against the State
should be in a position to preserve his rights as against
the dominating power of the other side. That was the
whole spirit of
Magna Carta.
The Minister will prob-
ably say that while he agrees with everything I say the
position is that, in effect, a solicitor or the person con-
cerned is an agent in the committing of the offence.
I cannot see how you can escape the privilege with-
out implying that the solicitor or the adviser involved
is an accomplice. If it is a question of fair enforcement
and ascertaining of rights, if there is a doubt and if
the solicitor or other adviser is in the clear himself,
presumably he will not do anything that is a crime or
even unlawful. You can only defend the section by
going the whole way logically and what you are saying,
in effect, is that the man is an accomplice. If you adhere
to the principle that the citizen is entitled to certainty
and enforcement of his rights in the law and that the
State is only entitled to infringe his rights in law in
accordance with the powers given by statute, the prin-
ciple of privilege follows.
I once took part in a murder defence case and I had
some experience of how a matter of privilege could and
did arise and the authorities on that occasion behaved
with the utmost propriety. But if we begin breaching
the privilege that exists, on these grounds, we are open-
ing a flood-gate. If the solicitor is acting
bona fide
professionally or any other professional adviser is acting
bona fide
and doing it in accordance with professional
etiquette and presumably is not breaking the law—if a
solicitor makes a client commit a crime he is an accom-
plice—there is no defence for breaching the privilege.
Without going into the actual wording, the clauses in
subsection (3) here are dangerous. The Minister should
really think again on this matter. The fundamental
mistake being made is trying to get at the client
through the solicitor by breaching privilege when surely
it is the business of the Revenue Commissioners, if they
find the law against the client to get after the solicitor
directly as an accomplice.
The onus of proof is being quietly completely shifted
by the Minister in the whole financial code. It is
being done also in the Capital Gains Bill where the
onus is being shifted from where it should lie—on the
people enforcing the statute to ensure that they are
within the terms of the statute and within their rights
and proving that they are, if necessary—to the other
side so that the State can do what it likes and it is up to
the citizen to prove that the State is wrong. That is
what the Minister is doing, and in another Bill when he
makes taxpayers assess themselves, that is what he is
doing.
The State is now being put in the position of the big
bully and the ordinary taxpayer has to prove that the
State is wrong with the whole probability being that the
big fellow has all the advantages. This is completely
and absolutely foreign to the spirit of our law and I
make no apology for being on a normal high horse
in regard to this.
I think this gallop will be halted in another way and
I hope our Judges will take note of what is developing
now. When you breach a principle of such a funda-
mental nature touching on the rights of the individual
in the criminal and civil spheres you are getting very
near fundamental rights and thereby coming very near
constitutional issues. U p to this, because of the correct
ALL IRELAND
ALL PURPOSE PROFESSIONAL
PROPERTY VALUATION SERVICE
Osborne King &Megran
Dublin 760251 Cork 21371
Galway 65261
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