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". 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". 53 What could not be done was what had been attempted here which was, said Walsh J., that 54 The limits of this decision were discussed and set out in the second case, McEldowney -v- Attorney-General) 2

"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- 5 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. 56 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. 57 Furthermore, as the Supreme Court accepted in McEldowney -v- Attorney-General 58 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 59 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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