The Gazette 1978

GAZETTE

JULY-AUGUST

19

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 v 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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