Hand v. Dublin Corporation [1991] IESC 1; [1991] 1 IR 409 (7th March, 1991)

[ Home ] [ Databases ] [ World Law ] [ Multidatabase Search ] [ Help ] [ Feedback ] [ DONATE ] Supreme Court of Ireland Decisions You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Hand v. Dublin Corporation [1991] IESC 1; [1991] 1 IR 409 (7th March, 1991) URL: https://www.bailii.org/ie/cases/IESC/1991/1.html Cite as: [1991] 1 IR 409, [1991] IESC 1 [ New search ] [ Printable RTF version ] [ Help ] Hand v. Dublin Corporation [1991] IESC 1; [1991] 1 IR 409 (7th March, 1991) Supreme Court Patricia Hand and others (Plaintiffs) v. The Right Honourable the Lord Mayor, Aldermen and Burgesses of Dublin, The Minister for Industry, Commerce and Tourism, Ireland and the Attorney General (Defendants) No. 394 of 1988 [7 th of March, 1991] Status: Reported at [1991] 1 IR 409 Griffin J. 1. This appeal is taken by the plaintiffs against the order of the High Court made by Barron J. on the 28th October, 1988, dismissing the plaintiffs’ claim for a declaration that such of the provisions of ss. 4 and of the Casual Trading Act, 1980 , as purport to empower the first and second defendants to refuse to grant respectively to the plaintiffs (a) a casual trading licence and (b) a casual trading permit are invalid having regard to the provisions of the Constitution, and for ancillary relief by way of injunction and damages. The statutory provisions 2. In its long title the object of the Act of 1980 is described as being “TO PROVIDE FOR THE CONTROL AND REGULATION OF CASUAL TRADING AND TO PROVIDE FOR CONNECTED MATTERS”. “Casual trading” is defined in s. 2 , sub-s. 1 as meaning “selling goods by retail at a place (including a public road) to which the public have access as of right or at any other place that is a casual trading area”. “Casual trading area” is defined in s. as meaning land standing designated [by a local authority in its functional area] under s. 7 of the Act of 1980 as an area where casual trading may be carried on. 3. Restrictions on casual trading are provided for in s. 3 of the Act of 1980, the relevant provisions of which are:- “(1) A person shall not engage in casual trading in a casual trading area unless he is, or is the servant or agent acting as such of, a person who holds a casual trading licence and a casual trading permit that are for the time being in force and the casual trading is in accordance with the licence and the permit. (2) A person shall not engage in casual trading in an area other than a casual trading area unless he is, or is the servant or agent acting as such of, a person who holds a casual trading licence and the casual trading is in accordance with the licence. (3) (a) Where there is a casual trading area in the functional area of a local authority, a person shall not engage in casual trading (i) in that functional area other than in that casual trading area... (4) A person who contravenes this section shall he guilty of an offence. (5) (a) In a prosecution for an offence under subsection (1) of this section, it shall be presumed until the contrary is shown that, at the time of the casual trading to which the offence relates, the defendant, or any person of whom he was at that time acting as a servant or agent in relation to such trading, was not the holder of a casual trading licence for the time being in force or of a casual trading permit for the time being in force. (b) In a prosecution for an offence under subsection (2) of this Section, it shall be presumed until the contrary is shown that, at the time of the casual trading to which the offence relates, the defendant, or any person of whom he was at that time acting as servant or agent in relation to such trading, was not the holder of a casual trading licence for the time being in force.” 4. The grant of casual trading licences is provided for in s. 4 of the Act of 1980 which is central to this case. The relevant sub-sections are as follows:- “( 1) Subject to the subsequent provisions of this section the Minister shall, on the application in writing of a person therefore and on payment of a fee of £100, grant to the person a licence (referred to in this Act as ‘a casual trading licence’), in such form and specifying such matters as the Minister may determine, authorising the person to engage in casual trading.” “(3) (a) A casual trading licence may contain such conditions (if any) as the Minister determines and specifies in the licence. (b) A person who holds a casual trading licence shall comply with the conditions of the licence. (c) A person who contravenes paragraph (b) of this subsection shall be guilty of an offence.” “(5) The Minister may refuse to grant a casual trading licence to a person who has been convicted of an offence in relation to the importation, possession or sale of goods committed while he was the holder of a casual trading licence or an offence under this Act . “(6) The Minister shall not grant a casual trading licence to a person who was convicted of two or more offences (each offence being either an offence in relation to the importation, possession or sale of goods committed while the person was the holder of a casual trading licence or an offence under this Act ) if the latest conviction occurred less than five years before the first day on which the person proposes to engage in the casual trading to which the application for the licence relates and, two, at least, of the convictions occurred after the expiration of the last period (if any) of disqualification by virtue of this subsection for being granted a casual trading licence.” 5. A casual trading licence remains in force for a period of twelve months and then expires (section 4, sub-section 7). Section of the Act of 1980 provides for the grant of casual trading permits. The effect of this section is that where there is a casual trading area in its functional area, a local authority shall, on the application in writing of a person who is the holder of a casual trading licence for the time being in force, grant a casual trading permit authorising such person to engage in casual trading at one place only in one specified casual trading area in its functional area on specified days. The local authority has, therefore, no power to grant such a permit unless the applicant is at that time the holder of a licence granted under section 4 . Section , sub-s. 1 of the Act of 1980 requires a person engaging in casual trading in a casual trading area to display the casual trading permit relating to the trading in such a position as to be clearly visible and easily legible to members of the public at that place. Section 6 , sub-s. 2 has a similar provision requiring the display of the licence where the casual trading is being carried on other than in a casual trading area. It is to be noted that these provisions are for the benefit of members of the public. Section , sub-s. 3 provides that a person who contravenes the section shall be guilty of an offence. Section , sub-s. 1 (b) of the Act of 1980 enables a local authority to appoint officers of the authority to be “authorised officers” for the purpose of the Act and such an authorised officer or any member of the gardaí may, in the functional area of the authority, exercise the powers conferred by section 11 . The powers granted by that section are very wide but for the purposes of this appeal it is not necessary to set them out. It is sufficient to say that under s. 11 , sub-ss. 3 and 4 (a) a person shall not obstruct or interfere with or give false information to an authorised officer or a member of the Garda Siochána in the performance of his functions under the Act , nor fail, refuse or neglect to comply with a requirement of an authorised officer or a member of the Garda Siochána under section 11 . A person who contravenes these provisions is guilty of an offence. Section of the Act of 1980 provides for penalties. Under that section offences contravening s. 3 of the Act are triable on indictment, and a person guilty of an offence under s. 3 on conviction on indictment is liable to a fine not exceeding £5,000 together with, in the case of a continuing offence, a fine not exceeding £250 per day after the first day, or to imprisonment for a term not exceeding 6 months, or to both fine or fines and imprisonment. Offences under s. 3 are triable summarily if a justice of the District Court is of opinion that the facts proved or alleged constitute a minor offence fit to be tried summarily, and if the Director of Public Prosecutions consents and the defendant does not object to being tried summarily. In such event the penalty is a fine not exceeding £500 . All other offences under the Act are triable summarily, the penalty for which is also a fine not exceeding £500. 6. The Act came into force in the City of Dublin in 1983 (the date is not stated in the papers before us) and thereupon the first defendant designated the south side of Henry Street from the junction of Liffey Street Upper to the junction of O’Connell Street Lower as a casual trading area in the month of December to facilitate Christmas trading there – the distance between Liffey Street and O’Connell Street would be approximately 250-300 yards. A current licence and a current permit are necessary to enable a casual trader lawfully to trade in that area during the month of December in any year. The facts 7. All fourteen plaintiffs are street traders who have been engaged in that activity for varying periods of years. During most of such time, as the learned trial judge found in his judgment (see:- [1989] I. R. 26), and as was admitted in the action, they have been trading in Henry Street in contravention of the relevant provisions of the Act of 1980. In respect of trading in the month of December in Henry Street, four of the plaintiffs have at no time had a casual trading permit; three of them were not granted a permit in respect of December, 1984, or December, 1985; five of them were not granted a permit in respect of December, 1985, and the remaining two had a permit in respect of December, 1985. In the period from the 1st December to the 24th December in each year each of them would earn approximately £50 to £60 per week. There are 85 “places” in Henry Street, and these have been allocated to traders who have both a licence and a permit. There are upwards of 900 applicants each year for these 85 places, with the result that there is a huge waiting list of those seeking permits in respect of Henry Street, including a large number who have never been convicted of any offence under the Act . 8. Towards the end of November, 1985, each of the plaintiffs applied to the Minister for a licence for the twelve months commencing the 1st December, 1985. As each of them had been convicted of two or more offences under s. 3 of the Act , each of these applications was refused pursuant to s. 4 , sub-s. 6 of the Act of 1980. None of them was therefore able to apply for or obtain a permit for Henry Street for the month of December, 1985. That did not however deter them from trading in Henry Street in that month though without a licence or permit to do so. As was admitted in evidence at the trial, when trading without a licence or permit is carried on, they “keep a wary eye out for the guards”. When a garda or authorised officer approaches the area in which they are trading, they run away. 9. They again traded in Henry Street in the month of December, 1986. On the 9th of December in that year each of them was informed by Miss MacInerney, an authorised officer under the Act of 1980, that as they had no licence or permit, they could no longer trade in Henry Street and that any of them who attempted to do so would be removed by the gardaí. These proceedings were commenced on the following day. 10. In the High Court the action was tried by Barron J. It was accepted on behalf of the plaintiffs that the kernel of the case was the provisions of s. 4 , sub-s. 6 of the Act of 1980. It was submitted in the High Court that (a) the wording of the sub-section is so uncertain that it is not possible to ascertain, from the language used, the intention of the Oireachtas; (b) furthermore, that if it is capable of construction, the effect of the sub-section is to deprive the plaintiffs of their means of livelihood and that the deprivation of the licence is a punishment out of proportion to the nature of the offences committed and is therefore invalid having regard to the provisions of the Constitution. 11. The learned trial judge dismissed the plaintiffs’ claim and refused the relief sought. In so doing, he concluded (a) that s. 4 , sub-s. 6 of the Act of 1980 was capable of construction and construed it, and that it applied to the plaintiffs as each of them had at least two relevant convictions and in no case had five years elapsed since the last of such convictions; (b) that even if the principle of proportionality were to be adopted in this jurisdiction it could apply only in the exercise of administrative powers and could not apply to s. 4 , sub-s. 6 of the Act of 1980 since it was the Oireachtas which imposed the sanction; (c) that as the right to earn one’s livelihood by casual trading is given by the Act it is not unreasonable for the Oireachtas to deprive the person to whom it is granted of the licence for conduct directly referable to the fitness of that person to exercise that privilege (sic). 12. From that order of the High Court the plaintiffs have appealed to this Court. No appeal was taken in respect of the conclusion of the learned trial judge relative to the construction of s. 4 , sub-section 6. The remaining submissions in the High Court were repeated in this Court. In addition, it was submitted on behalf of the plaintiffs that:- (1) the decision of this Court in Conroy v. Attorney General [1965] I. R. 411 was wrong in so far as it was held (i) that the grant of a driving licence under part III of the Road Traffic Act, 1961 , was a privilege, and (ii) that the making of a consequential disqualification order under s. 26 , sub-s. 1 of the said Act upon the conviction of a person of an offence specified in the second schedule to that Act was not a punishment which could be imposed only by a court, and that Conroy’s case should not be followed; (2) the plaintiffs had a right to earn their livelihood as street traders, and Article 40, s. 3 , sub-s. 2 of the Constitution prohibited the Oireachtas from enacting legislation which deprived them of their means of livelihood as street traders. Presumption of constitutionality 13. It is well settled that when this Court or the High Court has to consider the constitutionality of any law enacted by the Oireachtas, the impugned Act and each provision thereof is presumed to be constitutional unless and until the contrary is clearly established. That principle therefore applies in this case. The decision in Conroy v. Attorney General 14. A large part of the argument both in the High Court and in this Court was concerned with the decision of this Court in Conroy v. Attorney General [1965] I. R. 411. In that case the plaintiff was charged in the District Court with the offence of what is commonly called driving while drunk pursuant to s. 49 of the Road Traffic Act, 1961 . If convicted he was liable on summary conviction to imprisonment for a term not exceeding 6 months or to a fine not exceeding £100 or to both fine and imprisonment. Pursuant to s. 26 of that Act, in the case of a first offence there was a consequential disqualification for holding a driving licence for not less than one year, and for not less than three years in the case of a second or subsequent offence. It was contended on his behalf that, by reason of the gravity of the offence and the severity of the punishment, the offence charged was not a minor offence fit to be tried summarily and that the provisions of that Act providing for summary trial were invalid having regard to the provisions of the Constitution. 15. Whilst in that case the Court considered the nature and effect of the statutory “right” to a driving licence (“right” in that context being used in contrast to “privilege”), and of the consequential disqualification from holding a driving licence pursuant to s. 26 of the Act of 1961, the ratio of the decision was that a punishment of 6 months imprisonment and a fine of £l00, which the offence under s. 49 attracts, does not remove that offence from the category of minor offences triable summarily, and that the consequential disqualification from holding a driving licence is not part of the punishment for the offence. 16. No issue as to mode of trial of any offence under the Act of 1980 arises in this case. 17. Accordingly, the Court, as it ruled at the conclusion of the submissions made on behalf of the plaintiffs, is satisfied that the issues which arose in that case, are not relevant to any of the issues which arise in this case. The case made under Article 40, s. 3 , sub-section 2 18. The plaintiffs submitted that they have a right to earn a livelihood as street traders and that the provisions of s. 4 , sub-s. 6 of the Act of 1980 effectively deprive them of that right. They claim that such deprivation is out of proportion to the nature of the offences committed by them or which might be committed by them under the Act , and that s. 4 , sub-s. 6 is an unjust attack by the State on their right to earn a livelihood. 19. As to proportionality, they relied on what was said by the Court of Appeal in England in Reg. v. Barnsley Metropolitan Borough Council, Ex parte Hook [1976] 1 W. L. R. 1052. In that case, a stall holder in an ancient town market under an oral licence from the Council had his licence revoked by letter from the market manager. The reason for the revocation was that, on one occasion, after the market had closed and the public toilets were locked, he had been seen urinating in a side street by some Council workers and reproved by them. The matter was reported to the market manager who terminated his licence by letter at a few days’ notice. The stall holder appealed to two Council committees. His appeals were dismissed and he was barred from trading in the market for the rest of his life. The Barnsley Corporation Act, 1969, and the bye-laws made under that Act, which regulated the conduct of the market, contained no provisions in relation to the determination or revocation of a stall holder’s licence or the terms on which it was held. The stall holder applied for an order of certiorari. 20. It was held by the Court of Appeal that:- 1. when the Council was exercising its discretionary power, under the Act of 1969, to regulate the common law public right to buy and sell in a market, it was dealing not only with the contractual situation but also with the common law right of a man to earn his living in the market and it was under a duty to act judicially; 2. that the appeal hearings had been conducted in breach of the rules of natural justice, and their decision should therefore be quashed; 3. there was no express power in the Act of 1969 or in the bye-laws made under that Act empowering the manager or the committees of the Council to revoke the stall holder’s licence; 4. the punishment for trivial conduct unconnected with the market was excessive. 21. In the opinion of the Court, none of the issues which arose in that case are of any relevance to the issues which this Court has to determine in the instant case. 22. In this case, the Oireachtas, in which is vested the sole and exclusive power of making laws for the State, has expressly enacted that the Minister shall not grant a licence to a person who was convicted of two or more relevant offences. Most of the offences created by the Act of 1980 are minor offences, and the indictable offences created by s. 3 may be tried summarily in the circumstances provided for in section 15, sub-section 2. Although they are minor offences they are by no means trivial offences. In Minister for Industry, Commerce and Tourism v. Quinn (Unreported, Supreme Court, 23rd January, 1981) Henchy J. giving the unanimous judgment of this Court, said at p. 10 that:- “The penalties fixed by s. 8 of the Prices (Amendment) Act, 1972 , indicate the legislature’s opinion of the gravity of this kind of criminal offence.” 23. The offence in that case was charging 1 d. more than the permitted maximum price for a pint of draught stout. The penalties provided by s. 8 of the Act of 1972, on summary conviction, were a fine not exceeding £100 together with a fine not exceeding £10 per day in the case of a continuing offence but not exceeding £100 in total, or imprisonment for a term not exceeding 6 months or to both such fine and imprisonment. That statement of Henchy J. is equally applicable to the offences created by the Act of 1980. 24. The personal rights guaranteed by the Constitution are set out in Article 40. Article 40, s. 3, sub-ss. 1 and 2 are in the following terms:- “1° The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen. 2° The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.” 25. The general guarantees in these two sub-paragraphs are not confined to the rights specified in the Article, and it is now well settled that amongst the unspecified personal rights granted by Article 40, s. 3 is the right to earn a livelihood. On behalf of the plaintiffs it was alleged that their right to earn their livelihood is a property right protected by Article 40, section 3, sub-section 2. This claim however was not developed in the submissions to the Court during the hearing of the appeal - indeed no argument was addressed in support of that claim. 26. However, assuming, without deciding, that the right to earn a livelihood is a property right, the question which arises is whether s. 4, sub-s. 6 of the Act of 1980 constitutes an unjust attack on the rights of the plaintiffs to obtain a licence to enable them to trade. The right to trade and earn a livelihood is not an unqualified right. In modern times there must be few professions, occupations, trades, or industrial or commercial undertakings which are not subject to what Costello J. in Attorney General v. Paperlink Ltd. [1984] ILRM 373 referred to as “legitimate legal restraints” (p. 384). This Court in Moynihan v. Greensmyth [1977] I. R. 55 in its judgment delivered by O’Higgins C. J. at p. 71 said:- “It is noted that the guarantee of protection given by Article 40, s. 3, sub-s. 2, of the Constitution is qualified by the words ‘as best it may’. This implies circumstances in which the State may have to balance its protection of the right as against other obligations arising from regard for the common good”. 27. The stated object of the Act of 1980 is to provide for the control and regulation of casual trading. In enacting the legislation, the Oireachtas, having regard to the requirements of the common good, has to strike a balance between the legitimate rights and interests of those who may be affected by the legislation. These include- 1. the members of the public, who are entitled without hindrance to pass and repass along the area in which casual trading is carried on; 2. those engaged in casual trading, including those who possess a licence and permit to trade in the designated area and who trade in accordance with the conditions of the licence and the permit; 3. the local authority which is charged with the duty of overseeing and supervising casual trading in its functional area and of ensuring that those who engage in casual trading do so in compliance with the Act; 4. those who carry on trade in business premises in the neighbourhood of the casual trading area. 28. In the opinion of the Court where the Oireachtas has to legislate for the control and regulation of casual trading in a public place to which the public have access as of right or on land occupied by and in the functional area of a local authority, and designated by that authority as a casual trading area, it is open to the Oireachtas to provide for strict control and regulation of that trading having regard to the exigencies of the common good. This the Oireachtas has done. In the Act of 1980 the Oireachtas has made provision for how and where casual trading may take place, for the restrictions imposed on those engaged in such trading, for the grant of licences and permits, and for the offences that may be committed by those engaged in such trading both with and without a licence or permit. These are all matters which are peculiarly within the competence of the Oireachtas, in whom the legislative power of Government is vested by the Constitution, and the courts cannot intervene at the behest of casual traders who have temporarily lost the right to obtain a licence unless an injustice is thereby done to such traders. Section 4, sub-s. 6 of the Act of 1980 makes perfectly clear the circumstances in which the licence granted in pursuance of that section may be lost, and those engaged in casual trading can be under no misapprehension as to the consequences of failure to comply with the provisions of the Act, and of conviction of two or more offences under the Act. In respect of such convictions the Oireachtas has provided what amounts to a statutory disqualification for obtaining a licence for the period fixed by that sub-section. 29. In the opinion of the Court, where a person engaged in casual trading has been convicted of an offence under the Act of 1980, it is neither unjust nor unreasonable to deprive that person of the right to obtain a licence under the Act by reason of his having been convicted of a second or further offences under the Act. The Court is therefore satisfied that the plaintiffs have failed to establish that the impugned provisions of s. 4, sub-s. 6 of the Act of 1980 are an unjust attack on their rights protected by Article 40, s. 3, sub-s. 2 of the Constitution. 30. This action accordingly fails and the appeal stands dismissed. © 1991 Irish Supreme Court BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII URL: https://www.bailii.org/ie/cases/IESC/1991/1.html