The Gazette 1978

GAZETTE

JULY-AUGUST

be infringements of the law which were not so at the

date of their commission.

(2) subsection 3 infringed Article 38.1 which provides

that no person shall be tried on any criminal charge

save in due course of law.

(3) subsection 1 gives a power of entry without an order

of a court or a search warrant and this was contrary

to Article 40.5 which provides that the dwelling of

every citizen is inviolable and shall not be forcibly

entered save in accordance with law.

Abbey Films Ltd. certainly had a strong point in

relation to Article 15.5. An ordinary reading of the

subsections does lead to the conclusion that an offence

would be committed unless the High Court were to make

the required declaration. It seemed to McWilliam J. to

lead to the abuse which Article 15.5 was enacted to

prevent, "namely that there should be certainty at the

time of doing an act as to whether it constituted an

offence or not." But the defendants cited

McDonald

Bord na gCon

[1965] IR 217 as authority for the

proposition that no provision of a statute will be declared

invalid where it is possible to construe in accordance with

the constitution, and then offered an alternative

construction of the subsections which was accepted by

McWilliam J. This was that the expression "subject to

subsection 3" in subsection 4 meant that no offence was

committed where the procedure prescribed by subsection

3 was adopted. Having adopted this construction the second

point did not arise because no offence was committed ifthe

procedure under subsection 3 was adopted and therefore no

question of proving guilt or innocence arose. But he did add

thisrider: "I am not satisfied that it is necessarily contrary to

the provisions of the Constitution to put the onus ofproof of

some matter on an accused person." The third allegation

was speedily disposed of when he held that office premises

were not "a dwelling" and that a company was not a citizen

within the meaning of the constitution, since, having regard

to the expression "human persons" in Article 40.1, he was

of the opinion that personal rights could not be attributed to

a company for the purposes of the application of the

constitution. Accordingly he held that the section in

question did not offend against the provisions of the

constitution.

Abbey Films Ltd also presented two other claims.

Firstly, that the Examiner and his officers did not comply

with the provisions of Section 15 and secondly that the

exigencies of the common good did not warrant the

exercise of the powers contained in s.15. McWilliam held

in relation to the first that the authorisations were

produced and that an attempt was made to read the

relevant portions of the Act to the directors. He also held

that the Act required no more of the officers. They were

not required to give an explanation of the section

"however inept the drafting of the section."

The second claim however presented much more

difficulty. It is certainly "for the common good" that the

supply and distribution of films should be more fairly and

equitably carried out. As Kevin Rockett (In Dublin 32

"The Case against the KRS") has pointed out Ireland's

small independent cinema owners should be protected

since they provide an important service in suburban areas

and provincial towns. As things stand they can only be

given this protection if the Examiner is allowed to

complete his enquiry, but McWilliam J. was of the

opinion that some of the methods of ensuring this

equitable supply and distribution of films were not

conducive to the common good. He said "one of the

things conducive to the common good is that it should be

seen that an enquiry by a state body is fair, impartial and

unprejudiced. If it is not or may appear not to be so, this

is against the common good. The very distinct impression

I got was that the Examiner did not enter upon this

investigation in an impartial manner . . . the information

for [his] report ought to be obtained and the report

prepared in a reasonably judicial manner and without

exacerbating feelings during its assimilation." He

therefore gave the declaration that the exigencies of the

common good did not warrant the exercise by the

Examiner of his powers junder S.15. Whilst subsection 3 is

couched in very broad terms it would appear from the

Act as a whole that the "exigencies of the common

good", referred to, mean the common good in relation to,

in this context, the supply and distribution of films, and

not the common good in respects quite divorced from the

fair supply and distribution of films. The High Court's

decision in this respect is a severe setback to the Examiner

since he is now denied access to a very important source of

information. As I stated above, Abbey Films Ltd. is a

distributor of films in Ireland. The directors are also

directors of the 'Green Group' of companies who own 40

cinemas throughout the country and are allegedly the

other parties to the restrictive agreement with the KRS.

Since this decision it has come to the author's attention

that two more suburban (Dublin) cinemas have closed or

are in the process of closing down — The New Sandford

in Ranelagh and the Stella in Rathmines. How much

longer will this continue? Only the Green Group and the

KRS know.

NEW OFFICERS

OF THE SOCIETY

OF YOUNG SOLICITORS

The AGM of the Society was held on 9th June

and the following appointments were made:

Chairperson:

Miss Mary Finlay,

28, Upper Pembroke St.,

Dublin 2.

Secretary:

Mr. Tom O'Connor,

17, Upper Leeson Street,

Dublin 4.

Treasurer:

Mr. William Earley,

14, Lr. Mount Street,

Dublin 2.

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