Supreme Court allows appeal, ruling late filing fees are civil not criminal, so double jeopardy does not apply to prosecution.

THE SUPREME COURT

Murray C.J.

Hardiman J.

Geoghegan J.

145/03

BETWEEN/

THE REGISTRAR OF COMPANIES

Applicant/Appellant

and

DISTRICT JUDGE ANDERSON AND SYSTEM PARTNERS LIMITED

Respondent/Respondents

JUDGMENT of Mr. Justice Geoghegan delivered the 16th December 2004

1. It is provided in the companies’ legislation that fees may be charged for the registration of documents in the Companies’ Office and

that “different” (which in practice means increased) fees may be charged where the registration of documents is not done within a

specified statutory time. The second-named respondent was late in filing returns and had to pay substantially increased fees as a

result also under the companies legislation it is provided that a company which does not make its annual return within the prescribed

time is guilty of an offence and may be prosecuted by the Registrar of Companies. In this case the second-named respondent, after

paying the substantially increased fees, was also prosecuted for late returns in two respective years under two separate charges

before the District Court. The first-named respondent made an order striking out the two charges on the grounds that the second-

named respondent was being subjected to double jeopardy. The Registrar sought and obtained leave to bring judicial review

proceedings seeking to quash the order of the District Court. The proceedings duly came before the High Court (Quirke J.) for hearing.

He upheld the view of the District Court judge that it was a case of double jeopardy and refused the application for judicial review.

Before this court now is an appeal from that decision.

2. It is important that I should refer to the relevant legislation and then go on to define as best I can the principle of double jeopardy.

3. S. 369 of the Companies Act, 1963 provided for a table of fees for the registration or delivery of documents to the registrar of

different kinds and in different amounts depending on the category of return. These fees were set out in the Eighth Schedule to the

Act. S. 395 of the Companies Act, 1963 as amended empowers the relevant Minister to alter the fees by order. Subsection 3 of the

amended section reads as follows:

“(3) To avoid doubt, an alteration to the Eighth Schedule under subsection (2)(a) may provide for different fees to be charged

for the registration of documents depending on whether they are delivered to the Registrar of Companies within a specified

time or at various times after a specified time.”

4. As a consequence of other permitted Statutory Instruments made by the Minister the annual return had to be completed within 77

days of the Annual General Meeting and filed forthwith with the Companies Registration Office. Pursuant to such statutory instruments

altering the fees made by the Minister increased fees were imposed for late filing. The increased fees were cumulative up to a fixed

maximum. €379 and €1,200 were paid by the second-named respondent in late filing fees in respect of returns for years ending 31st

December, 2001 and 31st December, 2000 respectively. Although Miss Mary Shortall, the Executive Officer in the enforcement unit of

the Companies Registration Office who swore the principal affidavit on behalf of the appellant uses expressions such as “late filing

penalty”, the word in the Act and in the relevant Statutory Instruments consistently appears to be “fee". There is nothing wrong in

calling a substantially increased fee for a late return a “penalty” provided that that word is not given the narrow connotation of

punishment. It would seem perfectly obvious that the motivation behind imposing substantially increased fees for late filing is one of

deterrent rather than punishment. Of course, again difficulty is encountered with terminology because in the criminal jurisdiction a

sentence may have a deterrent aspect. Throughout the ordinary commercial world there may often be extra payments imposed for

late documents but by no stretch of the imagination could the increased fee be regarded as a punishment for a criminal offence. The

charges by their very nature and character are administrative whether they be standard charges or increased charges to deter late

applications. For this reason, I am satisfied that however legitimate in a moral sense the grievance of the second-named respondent

may be, there can be no question of the principle of double jeopardy having any relevance.

5. The principle of double jeopardy is well known throughout the common law world. In the United States of America it has

constitutional status stemming as it does from the Fifth Amendment to the U.S. Constitution. This derives from the words “nor shall

any subject for the same offence to be twice put in jeopardy of life or limb”. It has been said that there are three essential

protections included in the principle of double jeopardy. These are:

1. Protection from being retried for an acquittal.

2. Protection from retrial after a conviction.

3. Protection from being punished multiple times for the same offence.

6. The principle of double jeopardy has no application whatsoever as between one criminal proceeding and one civil proceeding. For

the decision of the first-named respondent to be upheld therefore it must be demonstrated that a criminal punishment had already

been imposed. The nature of a criminal proceeding has been considered in a number of Irish cases such as Melling v. O Mathghamhna

and the Attorney General [1962] I.R. 1 and several other cases also. Lavery J. in the Melling case made the following observation at

p. 9.

“Apart from authority, it seems to me clear that a proceeding, the course of which permits the detention of the person

concerned, the bringing of him in custody to a garda station, the entry of a charge in all respects and the terms appropriate

to the charge of a criminal offence, the searching of the person detained and the examination of papers and other things

found upon him, the bringing of him before a district justice in custody, the admission to bail to stand his trial and the

detention in custody if bail be not granted or is not forthcoming, the imposition of a pecuniary penalty with the liability to

imprisonment if the penalty is not paid has all the indicia of a criminal charge. The penalty is clearly punitive in character,

being £100 or treble the duty paid value of the goods.”

7. Apart from the penal element in the fee what happened in this case goes nowhere near what the courts have regarded as a

criminal charge. In the same case Kingsmill Moore J. at p. 24 had this to say:

“There was some debate during the course of the argument as to the interpretation of the words ‘criminal charge’. I take it as

meaning no more than an accusation in proper legal form of having committed a criminal offence.

What is a crime? The anomalies which still exist in the criminal law and the diversity of expression in statutes make a

comprehensive definition almost impossible to frame. ‘The criminal quality of an act cannot be discerned by intuition; nor can

it be discovered by reference to any standard but one: is the act prohibited with penal consequences?’ said Lord Atkin in

Propriety Articles Trade Association v. Attorney General for Canada [1931] A.C. 301 at 324. A recent textbook, Cross and

Jones, suggests as a definition ‘a crime is a legal wrong the remedy for which is the punishment of the offender at the

instance of the State’.”

8. Of course, it is true that a statutory summary offence may not require mens rea and may be punishable merely by a fine. But the

formalities whereby the defendant is tried are obviously criminal in nature and there is a prison sentence in default of payment of the

fine. I cannot see that there is any analogy between that and a perfectly sensible provision that as a deterrent against late filing of

returns in the Companies Registration Office, the company in default must pay increased fees. It is, of course, open to argument that

the increased fees are excessive or work a hardship or unfairness but they are still not a criminal penalty and if a company such as

the second-named respondent has any conceivable remedy for such alleged unfairness it lies elsewhere than pleading double jeopardy

in the criminal prosecution.

9. The criminal prosecution comprised, as I have already mentioned, two charges and the offences alleged were contrary to s. 125 of

the Companies Act, 1963 as amended by s. 15 of the Companies (Amendment) Act, 1982 and s. 244 of the Companies Act, 1990. This

was quite clearly by the terms of the statute a criminal prosecution. Mary Shortall in her affidavit states that in April, 2002 a number

of the companies in default with filing “were randomly selected for prosecution pursuant to section 125 of the Companies Act, 1963”.

This policy of random selection may well aggravate the sense of grievance but it is not something which is relevant on this appeal. As

far as this appeal is concerned, the only question is whether the appellant was subjected to double jeopardy when he was

prosecuted. For the reasons which I have indicated, I am satisfied that he was not. Accordingly, I would allow the appeal, set aside

the order of the High Court and substitute for it an order of certiorari quashing the order of the District Court and remitting the

prosecutions to the District Court for trial. While it will obviously be a matter for the District Court, it would seem to be in accordance

with established jurisprudence that the payment of the substantially increased fees would be a legitimate matter to take into

consideration by way of mitigation of penalty if there is a conviction.