Another 'C' case waiting to happen

Hundreds of convictions are at risk following a ‘highly unusual' Supreme Court decision which may invalidate ‘thousands' of regulations made by ministerial orders. By Justine McCarthy

An extraordinary decision by the Supreme Court has the potential to invalidate “thousands” of regulations made by ministerial orders in the past decade even as a government bill is being rapidly steered through the Oireachtas to close the loophole. Hundreds of convictions procured under the orders giving effect to EU directives, and prosecutions currently in train, are at risk.

The development resurrects the spectre of the ‘C' Case when the Supreme Court declared part of the 1935 Criminal Law (Amendment) Act unconstitutional in a case of statutory rape. As in that case, the state authorities had been warned in advance about the flaw in ministerial orders.

In what lawyers regard as a “highly unusual” decision, Judge Susan Denham consented in the Supreme Court on 12 December to examine a legal point arising from a test case taken against the Department of Agriculture. The court had already delivered its judgment a fortnight earlier, on 28 November, rejecting the appeal, but its written ruling described a query about the legitimacy of regulations made under a 1993 act as “an interesting point of interpretation, which may have importance in a different context”.

As the issue had only been raised in written submissions and not in oral argument during the appeal, the court did not rule on this specific point. But, when the case returned to the Supreme Court for a decision on legal costs on 12 December, the appellants' lawyers asked that the point be examined by the court and the request was granted. A date will be set in January to hear submissions on whether statutory regulations can be amended by ministerial order, as has been the case, or if they require acts of law.

Coincidentally, on the day the Supreme Court agreed to re-open the issue, a government bill addressing the loophole was being debated in the Seanad at committee stage. The European Communities Bill 2006 had been introduced by European Affairs junior minister Noel Treacy only on 5 December, exactly a week after the court judgment.

A “short and technical” bill, as the minister described it to the Seanad, he explained it would “validate a quantity of statutory instruments, introduced since we became members of the European communities back in 1973”. In the course of a long speech about the benefits reaped by Ireland from its EU membership, he did not mention the Supreme Court judgment of the previous week and many senators are still unaware of it. The government chief whip's office said the bill should go through the Dáil in the next term.

The test case was brought by two Co Mayo veterinary pharmacists, brothers Seamus and Darragh Quinn, and a Co Wexford horse breeder, Neil Tector. The Quinns were facing 108 charges between them of making, possessing and selling unauthorised medicines under the Animal Remedies Regulations 1996. There were two charges against Tector that he had remedies without a prescription. All three were being prosecuted by the Department of Agriculture.

In the district court in April 2004, they challenged the validity of regulations made under the 1993 Animal Remedies Act, arguing that the 1972 European Communities Act prohibited the Minister for Agriculture from creating indictable offences by regulation. An informal group of about 20 vets, pharmacists and farmers who feel aggrieved by their treatment at the hands of the Department of Agriculture, particularly its special investigations unit, contributed money to fund the test case. Their bill stands at about €80,000 so far.

Prosecutions initiated against 13 other people were adjourned pending the outcome. The case made by Tector and the Quinn brothers was dismissed in July 2005 in the High Court where they were represented by Trinity College law professor Gerard Hogan, who argued that any amendments to the regulations had to be done by statute.
Hogan was the senior counsel who successfully argued for the state in the Supreme Court hearing of the ‘C' case that, as the convicted rapist had pleaded guilty, he could not benefit from the striking down of the 1935 statutory rape law.

That precedent could limit the number of people who might benefit if the ministerial regulations are also struck down by the impending Supreme Court judgment. However, there are far more convictions at risk as various government departments use them routinely, particularly in agriculture, fisheries and waste management under the auspices of the Department of the Environment.