THE Supreme Court decided yesterday that a Co Meath farmer and businessman was entitled to, an order prohibiting seven of District Court summonses against him being Heard.
In July 1994, the High Court ruled that summonses against Mr Frank Mallon, Balrath House, Kells, relating to the alleged finding of clenbuterol, known as angel dust, could proceed in the District Court.
The Supreme Court decided "yesterday that seven summonses brought against Mr Mallon under 1990 regulations could not go ahead while one summons taken under 1988 regulations could proceed.
The 1988 regulations allow, on conviction, for a fine of up to £1,000 and one year's imprisonment but the 1990 regulations allow for an increased prison sentence of up to two years.
The Supreme Court held the two year sentence was invalid under the Constitution, as such a penalty could not be imposed by the District Court.
Seven summonses related to the administering to farm animals of a prohibited substance, a veterinary medicine containing clenbuterol, other than under and in accordance with a licence under regulation 5 of EC regulations of 1990.
The eighth summons alleged Mr Mallon had in his possession a prohibited substance - two 100 ml bottles of a clear liquid substance which consisted of or contained oestradiol bensoate and norterstosterone decanoate - to which 1988 regulations applied.
Article 38.2 of the Constitution provides that "minor" offences may be tried by courts of summary jurisdiction. The High Court judge concluded that an offence which attracted a two year sentence could not be regarded, as minor and said he was satisfied that, in so far as the regulations provided for summary trial of an offence which carried such a term, they infringed Article 38.
The High Court judge ordered the prosecution should proceed on the bans that regulation 32(6) of the 1988 regulations had not been repealed and was valid and, that regulation 11(1) of the 1990 regulation was to be read as if the words "or to imprisonment for a term not exceeding two years or both" had been deleted. Lawyers for Mr Mallon, who appealed the High Court decision, submitted the trial judge erred in law.
The Chief Justice, Mr Justice Hamilton, said the question was whether the provision of regulation 11 (1) with the relevant words excised was "severable", was independent and legally able as representing the will Minister.
He was satisfied the trial judge erred in law in allowing the regulation to stand with the words excised and would allow the appeal brought by Mr Mallon in respect of this aspect of the case.
With the words excised, section's 11(1) provided that a person who contravened a provision of the 1990 regulations shall be guilty of an offence. No penalty was now provided for contravention of the 1990 regulations.
As a result, Mr Mallon was entitled to an order prohibiting the District Judge hearing or determining a prosecution under the regulations.
The Chief Justice said he would dismiss Mr Mallon's appeal in respect of the summons under the 1988 regulations.
Mr Justice O'Flaherty and Mr Justice Barron agreed with the Chief Justice's judgment. Mr Justice Blayney and Mrs Justice Denham said they would dismiss the entire appeal.
Mr Justice Blayney said he agreed with the High Court judge that the unconstitutional part of the 1990 regulation could be severed. Mrs Justice Denham said the suggested maximum fine of £1,000 was constitutional. It was equally clear the maximum sentence of two years was unconstitutional. The Minister had no power to create an unconstitutional penalty. However, it was clear the portion which was constitutional may stand alone.