The provisions of this Bill are, in the main, designed to furnish the State with powers adequate to deal with a problem which has, of recent years, become one of urgent importance, namely, the prevention of the illegal exportation or attempted exportation of goods which are the subject of any export prohibition. For goods imported irregularly, whether so imported with intent to evade payment of duty or to evade some import prohibition or restriction, a comprehensive and detailed code has for a long time existed. It is to be found in the appropriate provisions of the Customs Consolidation Act, 1876, as amended by later Acts. No such detailed provision, however, existed as regards goods subject to export prohibition, as at the time that the Act was passed prohibitions of this nature were practically non-existent. From time to time, however, starting with the Dangerous Drugs Act, 1920, such prohibitions began to appear, and an attempt to provide the legal machinery requisite for State control was made in each case by the adaptation to export procedure of certain import provisions. The powers so provided were naturally limited in scope, and it was not until the passing of the Scrap Iron (Control of Export) Act, 1938, that more extended powers were taken. Cases of irregular exportation were then beginning to arise with a certain regularity, but they were few in number and no practical difficulty arose until the wide range of export prohibitions imposed as the result of emergency conditions made the matter one of major importance.
Prohibitions so imposed are as a rule based on Emergency Powers Orders made under Article 31 of the Emergency Powers Order, 1939, which enables a Minister to provide by Order for regulating, restricting or prohibiting the importation or exportation of any article. While the Emergency Powers Act, 1939, prescribes penalties for breaches of such Orders and provides for forfeiture by Order of Court of any goods involved, the procedure thus made available was not sufficient to provide the State with such powers as Revenue practice requires for adequate control. To remedy this defect the penal procedure provided by the Scrap Iron (Control of Export) Act, 1938, was, by Emergency Powers (No. 52) Order, 1940, made applicable to any goods being or attempted to be exported in contravention of an Order made under Article 31 of the Emergency Powers Order, 1939. Accordingly, in such cases, proceedings, whether for penalties or for seizure of the goods, are based on the Act of 1938, as applied by Emergency Powers (No. 52) Order, 1940.
This adaptation of customs law was at best an emergency device to meet a pressing need. It has not been found unsatisfactory in practice, but it remains merely an adaptation, and there is a clear and urgent necessity for direct and detailed provisions to meet the various difficulties which the experience of the past few years has revealed for the first time, and which have increased in proportion to the constant attempts to evade the many export prohibitions which it has been found necessary to impose. It was originally intended that this Bill should form a permanent legal code relating to procedure, penalties and seizure in the case of export goods, but in deference to the wishes of the Opposition Parties it has been agreed that the Bill should, in the first instance at least, be temporary in effect, and it is now provided that it shall continue in force until 31st March, 1950, and then expire.
The general nature of the Bill will make its provisions applicable to any goods which are at present or may be hereafter prohibited, and the powers sought are, in the main, the counterpart of the powers conferred on the Revenue Commissioners in the case of import smuggling. In particular, this applies to the provisions which shift the onus of proof to the defendant and which require certain persons to give all relevant information which is in their possession or knowledge. These correspond to the powers given by Section 20 of the Finance Act, 1936, in the case of evasion of duty or evasion of import prohibitions. It may be added that the principle that the onus of proof should be on the defendant is a well-established feature of customs law—it can be traced back at least as far as 1827.
It was found necessary, after the introduction of the Bill, to insert two amendments, viz: Clauses 9 and 10. The position as regards Clause 9 is this: Under Section 8 of the Courts of Justice Act, 1924, an appeal lies by both parties from a decision of a Justice of the District Court in all cases other than criminal. In the latter type of case an appeal lies only by the person against whom the Order of Court shall have been made. In the case of O Croinin v. Brennan (1939) I.R. 274, the High Court held that in a case which was concerned with evasion of customs duty the proceedings were civil in nature, and, accordingly, it seems clear that in customs cases which relate to non-payment of duty such an appeal lies. In a recent case— The State (Francis Gettins) v. Circuit Court Judge, North Western Circuit— the Supreme Court has in effect held that a breach of prohibition imposed by Emergency Powers Order is a criminal matter, and that in such cases the State has no right of appeal. There is a third type of case, namely, breach of prohibitions imposed otherwise than by Emergency Powers Order. In this case, there is some doubt whether an appeal by the State does or does not lie.
All these three types of cases, whether relating to evasion of customs duty, to a prohibition imposed under an ordinary statute, or to a prohibition arising out of the emergency code, and whether civil or criminal in essence, are subject to the same administrative procedure, namely, search, seizure, detention or charge of the person, and prosecution. It would be illogical that where a dismiss is given in the District Court the procedure would take different ways so that the State would have the right of appeal in some cases but not in others, and it is considered that this procedure should be unified as well, beyond dispute. Such a unified procedure exists in the law relating to excise, as under Section 82 of the Excise Management Act, 1827, there is a general right of appeal from the District Court. In this respect, therefore, the clause merely assimilates customs procedure generally to that which has long obtained in all excise prosecutions.
Clause 10 is designed to facilitate references by way of case stated from the Circuit Court to the Supreme Court by making it competent for either side to apply therefor, instead of, as hitherto, making such application dependent on the consent of all parties. Customs law is in many instances intricate—its operation is far-reaching in effect, and it is desirable that no facility for its proper elucidation should be hindered or withheld.
Opportunity has also been taken to effect some improvements and to supplement some deficiencies in the existing law. Thus, a general provision has been made bringing goods prohibited to be imported within the terms of Section 42 of the Customs Consolidation Act, 1876, which enumerates a list of prohibited imports. The effect will be that the mere fact of prohibition will automatically apply the existing provisions dealing with irregular imports to any goods at present prohibited or which may hereafter be prohibited. This will make for simplicity of drafting in future legislation. Again, in the case of certain goods, weight per given superficial area is a determining factor in deciding liability to duty or the application of the Control of Imports Acts. Ordinarily, no difficulty arises, but it is felt necessary that in cases of dispute there should be the power to make regulations prescribing the method by which weight is to be ascertained in any particular case.
There are also a few minor points which are largely matters of form.