The Gazette 1986

GAZETTE

sepTemBER

1986

Traffic Act, 1968 provided that a certificate stating that

a specimen of a person's blood contained in specific

concentration of alcohol was to be "conclusive evidence

that at the time the specimen was taken or provided, the

concentration of alcohol in the blood . . . was the

specified concentration of alcohol". The Supreme

Court held that the evidential conclusiveness given to

the certificate prevented the courts from examining a

vital ingredient in the prosecution's case. Accordingly,

its effect was that the accused person was not free to

contest the determination of the concentration of

alcohol set out in the certificate. Fitzgerald C.J. said"

"The administration of justice which in criminal

matters is confined exclusively by the Constitu-

tion, necessarily reserves to the courts and judges

the determination of all the essential ingredients of

any offence charged against any accused person.

In so far as the statutory provision in question here

purports to remove such determination from the

judges or the courts appointed and established

under the Constitution, it is an invalid infringe-

ment of the judicial power".

The limits of this decision were discussed and set out

in the second case,

McEldowney -v-

Attorney-General)

This concerned the Street and House to House

Collection Act of 1962. The Act conferred on an

applicant for a collection permit a right of appeal to the

District Court from the refusal of a Chief Superinten-

dent of Police to grant the applicant such permit. The

Act further provided that the District Justice was to

disallow the appeal if at its hearing a police officer

stated on oath that he had reasonable grounds for

believing that the proceeds of the collection would be

used,

inter alia,

for the benefit of an illegal organisa-

tion. The Supreme Court decided that there was nothing

in the Constitution to prevent the Oireachtas excluding

an appeal from the refusal of an application by a

statutory tribunal or person provided that the appeal

was excluded in express terms, that the statutory

tribunal or person had acted within its statutory limits

and that the rules of constitutional or natural justice

had been followed. If this were done, that would be

" . . . the end of the matter".

What could not be done

was what had been attempted here which was, said

Walsh J., that

"the Statute created a justiciable controversy and

then purported to compel the court to decide it in

a particular manner upon a particular statement of

opinion being given upon oath".

Accordingly, the statutory provision was repugnant to

the Constitution.

At first view it might seem that the "conclusive

evidence" provision in section 104 of the Companies

Act, 1983 must, following these two cases, be consti-

tutionally invalid. Both cases can and should, however,

be distinguished. First, it was a central element in

Maker

-v-

Attorney General-

that the impugned provision

there involved a criminal prosecution and by Article 37

of the Constitution criminal justice is exerciseable only

by a person who is a judge under the Constitution.

There is nothing in Article 37 which prevents the

delegation of decision-making powers in civil matters:

indeed Article 37 is intended to authorise the exercise of

such powers by administrative bodies.

Furthermore, as

the Supreme Court accepted in

McEldowney

-v-

Attorney-General

there need not necessarily be an

appeal from the decision of a statutory body, so that the

"conclusive evidence" provision in section 104 cannot

be condemned solely on the ground that it reserves

exclusively and finally to the Registrar the question

whether the requirements of the 1963 Act concerning

registration have been complied with.

Secondly, McEldowney's case can be distinguished on

the ground that it was concerned with a statutory right

of appeal being made wholly illusory. Judicial review is

not (at least technically) an appeal; certainly it is not

created by statute, but arises at common law; and it

does not in terms fetter a judge's decision-making

power. Nor can it be said that the sole effect of section

104 is to nullify certain judicial proceedings which

would otherwise be open: the section may be employed

in a number of contexts, in not all of which would the

determinative issue be controlled by the section. As

Slade LJ. pointed out in

ex parte Central Bank of

India

the conclusiveness of the Registrar's certificate

has only a limited effect.

"It does

not

operate to confer validity on a charge

which is invalid for reasons other than lack of

registration. All it does is to give a chargee who

has a valid charge protection against the statutory

invalidation of that charge against a liquidator and

creditors of the company which would occur . . .

if the company were to go into liquidation and the

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