Blanchfield v Hartnett and Others

JurisdictionIreland
JudgeFENNELLY J.,Keane C.J.
Judgment Date16 May 2002
Neutral Citation[2002] IESC 41
CourtSupreme Court
Docket Number[S.C. No. 288 of 2000]
Date16 May 2002
BLANCHFIELD v. HARTNETT & ORS

BETWEEN

PATRICK BLANCHFIELD
Applicant/Appellant

and

JUDGE WILLIAM HARTNETT, THE DIRECTOR OF PUBLICPROSECUTIONS AND HIS HONOUR JUDGE C. KELLY
Respondents

[2002] IESC 41

Keane C.J.

Hardiman J.

Fennelly J.

Record No. 288/00

THE SUPREME COURT

Synopsis:

JUDICIAL REVIEW

Criminal law

Constitutional law - prohibition - Financial services - Banking law - Forgery offences - Examination orders - Evidence -Jurisdiction of Circuit Court - Whether orders of examination ultra vires - Whether fair procedures complied with in obtaining orders - Whether evidence obtained admissible in criminal prosecution - Whether Circuit Court judge empowered to determine validity of District Court order - Bankers Book Evidence Act, 1879 - Forgery Act, 1913 - Larceny Act, 1916 (288/2000 -Supreme Court - 16/5/2002)

Blanchfield v Harnett - [2002] 3 IR 207 - [2002] 2 ILRM 435

Facts: The applicant had been charged with offences of forgery and fraudulent conversion. In addition orders of examination had been granted in relation to the applicant under the Bankers Books Evidence Act, 1879. The applicant initiated judicial review proceedings seeking to have the orders of examination quashed and also sought an order prohibiting the impending criminal prosecution. The applicant contended, inter alia, that the orders of examination were bad on their face for failing to show their relevant statutory basis and that they were ultra vires. Arguments were also advanced that the orders in question breached the privacy rights of the applicant and were obtained in breach of fair procedures. Allegations of delay were made on behalf of both sides. In the High Court O'Neill J held that it could not be said that the prosecuting authorities were guilty of inordinate delay and accordingly the application for an order of prohibition would be refused. The question of whether certain evidence was admissible would fall to be determined by the trial judge. The application for an order of certiorari would be refused. The applicant appealed to the Supreme Court.

Held by the Supreme Court (Keane CJ and Fennelly J delivering judgments; Hardiman J agreeing) in dismissing the appeal. Fennelly J held that the trial judge in the Circuit Court had the power to rule on the legality of orders which authorised the collection of evidence, which in this case were orders made under the Bankers Books Evidence Acts. It was not necessary for a party to apply for judicial review in order to have such orders quashed. The learned trial judge had correctly exercised his discretion to refuse certiorari. The delay period was not comparable to cases in which orders of prohibition had been granted. The delay that had arisen was not culpable. Keane CJ delivered obiter comments relating to the judgment in Guardians of the New Ross Union -v- Byrne (130 LR (Ir.) 160).

Citations:

BANKERS" BOOKS EVIDENCE ACTS 1879 - 1989

BANKERS" BOOKS EVIDENCE ACT 1879 S7

BANKERS" BOOKS EVIDENCE ACT 1879 S10

RSC O.63 r1(17)

LARCENY ACT 1916

FORGERY ACT 1913

BANKERS" BOOKS EVIDENCE (AMDT) ACT 1959

BUILDING SOCIETIES ACT 1989

CENTRAL BANK ACT 1989 S131

BANKERS" BOOKS EVIDENCE ACTS 1879 - 1989 S7(a)

HAUGHEY & MULHERN V MORIARTY & ORS 1999 3 IR 28

BYRNE V GREY 1988 IR 31

BERKLEY V EDWARDS 1988 IR 217

COUGHLAN V PATWELL 1992 ILRM 808

DPP V SPECIAL CRIMINAL COURT & WARD 1999 IR 60

BARRY V FITZPATRICK & HOGAN & DPP 1996 1 ILRM 512

MCSORLEY & ANOR V GOV OF MOUNTJOY PRISON 1997 2 IR 258

KEATING V GOVERNOR OF MOUNTJOY PRISON 1991 1 IR 61

CRIMINAL JUSTICE ACT 1994 S4

CONSTITUTION ART 40

P (P) V DPP 2000 1 IR 403

CLUNE V DPP 1981 ILRM 17

DE ROISTE V MIN DEFENCE 2001 1 IR 190 2001 2 ILRM 241 2001 ELR 33

DPP V MCMAHON 1986 IR 393

GAMING & LOTTERIES ACT 1956

O'DONNELL V DUN LAOGHAIRE CORP 1991 ILRM 301

O'REILLY V MACKMAN 1983 2 AC 237

WANDSWORTH LONDON BOROUGH COUNCIL V WINDER 1985 AC 461

KRUSE V JOHNSON 1898 2 QB 91

R V READING CROWN COURT 1988 QB 384

LISTOWEL UDC V MCDONAGH 1968 IR 312

SLATTERY'S LTD V COMMR OF VALUATION & DEVALLY UNREP SUPREME 13.7.2001

AG, PEOPLE V O'BRIEN 1965 IR 142

DPP, PEOPLE V LYNCH 1982 IR 64

PORTSMOUTH CITY COUNCIL V QUETLYNN 1988 QB 114

AG, PEOPLE V MCGLYNN 1967 IR 232

GLOVER & MULLIGAN, STATE V MCCARTHY 1981 ILRM 47

NEW ROSS GUARDIANS V BYRNE 130 LR IR 160

1

JUDGMENT delivered the 16th day of May, 2002,by FENNELLY J.

2

The Bankers" Books Evidence Acts, 1879 to 1989 provide for the admission of bank records as evidence of their contents in legal proceedings. Section 7 of the Act of 1979 provides:

"On the application of any party to a legal proceeding a court or judge may order that such party be at liberty to inspect and take copies of any entries in a banker's book for any of the purposes of such proceedings. An order under thissection may be made either with or without summoning the bank or any other party, and shall be served on the bank three clear days before the same is to be obeyed., unless the court or judge otherwisedirects."

3

Section 10 of that Act provides:

4

"The expression "legal proceeding"means any civil or criminal proceeding or inquiry in which evidence is or may be given, and includes an arbitration; The expression "the court" means the court, judge, arbitrator, persons or person before whom a legal proceeding is held or taken;

5

The expression "a judge" means with respect to England a judge of the High Court of Justice, and with respect to Scotland a lord ordinary of the Outer House of the Court of Session, and with respect to Ireland a judge of the High Court of Justice in Ireland;"

6

Other sections of that Act, as amended, regulate the procedures for proof of entries in bankers" books.

7

Orders under the Acts may be made by the Master of the High Court (Order 63, rule 1(17). There is no equivalent rule for the Circuit Court or the District Court.

8

Until November 1994, the appellant carried on a financial consultancy business under the name of Abbey Financial Services in Kilkenny. In the period from November 1994, a large number of complaints were made to thegardaí of financial irregularities allegedly resulting in significant losses to more than thirty individuals. The first of these related to a single cheque and was made to Detective Garda J Seymour in November 1994.

9

On 6th December 1994, the first-named respondent (" the District Judge") issued a warrant for the arrest of the Appellant on a charge of forging a cheque drawn on the Ulster Bank at College Green, Dublin, and payable to one Edward Walsh. This was done on foot of an information sworn by Detective Garda J Seymour. On 19th December 1994, the appellant was arrested, brought before the District Court and charged with the offence of forgery. On a number of dates between December 1994 and March 1995, the District Judge made about twenty orders pursuant to Bankers" Books Evidence Acts, all on the application of Detective Garda J Seymour, permitting the latter to inspect and take copies of entries relating to accounts of or relating to the appellant in a wide number of banks and building societies. The first of these orders was made on 6th December 1994, the date of issue of the warrant and, thus, before the appellant was charged. All were entitled as being made in proceedings between the Director of Public Prosecutions and the appellant.

10

The appellant appeared initially in the District Court in Kilmainham and then on 29th December 1994 in Kilkenny and the 22nd December 1994 in Waterford, when he was released on bail. He agreed to attend for interview at Kilkenny Garda Station on 27th December 1994 and continued to do so until May 1995. From December 1994 to October 1995, the proceedings, still consisting of the single charge of forgery, in the District Court were adjourned from month to month, in the face of objections on behalf of the appellant.

11

During this period, Detective Garda J Seymour was engaged in an investigation significantly broader than that related to the single offence of forgery, with which the appellant had already been charged. The appellant accepts that he was aware of this. In total, some thirty nine complaints had been made regarding the appellant's conduct of his business. The total sums involved were of the order of one million pounds. Detective Garda J Seymour reported to the DPP in June 1995, though information and documentation from a number of bank officials was not yet available. As a result of the directions of the DPP a largenumberof additional statements had to be obtained. On 24th October 1995, the initial single charge of forgery was withdrawn with, it is said, liberty to re-enter.

12

In late January or early February 1996, Detective Garda J Seymour was instructed by the Director of Public Prosecutions to bring further charges against the appellant. It was necessary, however, for that purpose, to take further statements from three bank officials, who, in the event, declined to make statements until they had obtained legal advice. The appellant was not newly charged until 12th September. Detective Garda J Seymour was in touch with the appellant in August 1996 when the final drafts of the new charges was being completed and asked him to present himself as Kilkenny District Court on 3rd September. The appellant asked that the matter be dealt with in Waterford rather than Kilkenny. It was agreed that the appellant would appear in Waterford on 3rd September, but, because of the commitments of the appellant's solicitor, this had to be postponed to 12th September. He was charged on that date with eight offences of fraudulent conversion and forgery contrary to the Larceny Act 1916 and the Forgery Act, 1913 and the Book of Evidence was served. The appellant was sent forward for trial to the Kilkenny Circuit Court. On the same date also, the District Judge made four further orders under the Bankers Books Evidence Acts. In respect of the period...

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