Creaven v Criminal Assets Bureau

• Jurisdiction: Ireland
• Judge: Finnegan P.
• Judgment Date: 29 October 2004
• Neutral Citation: [2004] IEHC 26
• Court: High Court
• Docket Number: [2003 Nos. 323 JR & 949 JR; S.C. Nos. 141 & 153 of 2004]
• Date: 29 October 2004

[2004] IEHC 26

THE HIGH COURT

2003 No. 323JR

CREAVEN & ORS v. CRIMINAL ASSETS BUREAU (CAB) & ORS

BETWEEN

DYLAN CREAVEN, SILICON TECHNOLOGIES (EUROPE) LIMITED

AND

BRADENVILLE HOLDINGS LIMITED

APPLICANTS

AND

THE CRIMINAL ASSETS BUREAU, FELIX J. McKENNA AND DISTRICT JUDGE DAVID ANDERSON

RESPONDENTS

THE HIGH COURT

2003 No. 949JR

BETWEEN

DYLAN CREAVEN, SILICON TECHNOLOGIES (EUROPE) LIMITED

AND

BRADENVILLE HOLDINGS LIMITED

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM,

IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Citations:

CRIMINAL JUSTICE ACT 1994 S55

CRIMINAL ASSETS BUREAU ACT 1996 S14

CRIMINAL JUSTICE ACT 1994 S55(4)

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S15

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S15(4)

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 PART VII

CROWN PROCEEDINGS ACT 1947 S17(1) (UK)

CROWN PROCEEDINGS ACT 1947 S17(2)(3) (UK)

CRIMINAL JUSTICE (INTERNATIONAL COOPERATION) ACT 1990 S3 (UK)

CRIMINAL JUSTICE (INTERNATIONAL COOPERATION) ACT 1990 S3(3) (UK)

CRIMINAL JUSTICE (INTERNATIONAL COOPERATION) ACT 1990 S3(4) (UK)

EUROPEAN CONVENTION ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS 1959 ART 15(1)

EUROPEAN CONVENTION ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS 1959 ART 3

EUROPEAN CONVENTION ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS 1959 ART 4

EUROPEAN CONVENTION ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS 1959 ART 5

EUROPEAN CONVENTION ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS 1959 ART 11

COURTS (SUPPLEMENTAL PROVISIONS) ACT 19611961 SCH 6 PAR 3(2)

COURTS (SUPPLEMENTAL PROVISIONS) ACT 19611961 SCH 6 PAR 3(1)

COURTS & COURT OFFICERS ACT 1995

INTERPRETATION ACT 1937 S11(A)

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S33

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961S33(1)

COURTS OF JUSTICES ACT 1924 S77

COURTS OF JUSTICES ACT 1924 S78

DISTRICT JUSTICES (TEMPORARY PROVISIONS) ACT 1923 S2(1)

DISTRICT JUSTICES (TEMPORARY PROVISIONS) ACT 1923 S2(2)

DISTRICT JUSTICES (TEMPORARY PROVISIONS) ACT 1923 S2(3)

DOWLING, STATE V KINGSTON (NO 2) 1937 IR 699

PALEY LAW & PRACTICE OF SUMMARY CONVICTIONS P19

O'CONNOR JUSTICES OF THE PEACE P13

R V STAINFORTH 1847 11 QB 66

FOURTH CITY BUILDING SOCIETY V CHURCH WARDENS OF EASTHAM 1892 1 QB 661

BATCHELOR & CO (IRL) LTD, STATE V O FLOINN & ANOR 1958 IR 155

MERCHANDISE MARKS ACT 1887 S12

R V SULLIVAN 22 LR IR 504

GREEN V BUCKLECHURCHES 1 LEON 323

HELIER V BENHURST (HUNDRED DE) CRO. CAR. 211

FERGUSON V KINNOULL 8 ER 412

LINFORD V FITZROY 116 ER 4255

HUE & CRY 27 ELIZ C13

R V TRACEY 6 MOD 179

HALSBURY 4ED V1(1) REISSUE PAR 4

SIMPLE IMPORTS LTD & ORS V REVENUE CMSR & ORS 2000 2 IR 243

CUSTOMS LAWS CONSOLIDATION ACT 1876 S205

CRIMINAL ASSETS BUREAU ACT 1996 S14(2)

CRIMINAL ASSETS BUREAU ACT 1996 S14(3)

CRIMINAL ASSETS BUREAU ACT 1996 S14(5)

CRIMINAL ASSETS BUREAU ACT 1996 S14(1)

CRIMINAL ASSETS BUREAU ACT 1996 S14(4)

Synopsis:

CRIMINAL LAW

Certiorari

Warrants - Judicial review - Whether search warrants should be quashed - Whether request received by Minister in accordance with Criminal Justice Act 1994 - Whether power to issue warrants ministerial or judicial (2003/323JR & 949JR - Finnegan P - 24/2/2004)

Creaven v Criminal Assets Bureau - [2004] 4 IR 434

Facts: The third respondent issued two sets of warrants in respect of various premises outside the Dublin Metropolitan District. The applicants sought to have the warrants quashed by way of orders of certiorari. The issues for the court were firstly, in respect of the warrants issued pursuant to the Criminal Justice Act 1994 (s. 55 warrants), whether a request had been received by the Minister in accordance with the Criminal Justice Act 1994 as amended and secondly, in respect of the warrants issued pursuant to the Criminal Assets Bureau Act 1996 (s. 14 warrants), whether the third respondent had jurisdiction to issue the warrants.

Held by Finnegan P. in finding that the s. 55 warrants were bad and that the s. 14 warrants were valid that no valid request was received by the Minister in accordance with the Criminal Justice Act 1994. However, in relation to the s. 55 warrants the power to issue a search warrant was ministerial only and in those circumstances the intention was that a District judge should exercise it outside the area of his jurisdiction.

Reporter: R.W.

1 Judgment of Finnegan P. delivered on the 24th day of February 2004

2 On consent of the parties the two applications mentioned in the title hereof were heard together and a composite amended Statement Required to Ground Application for Judicial Review filed and the matter then proceeded in effect as a single application.

3 On the 18 ^th November 2002 the third named Respondent issued five search warrants pursuant to section 55 of the Criminal Justice Act 1994in respect of the following premises:

4 (a) The premises of the second named Applicant at Unit 16-17 Clare Business Centre, Ennis, Co. Clare.

5 (b) The dwelling house of the first named Applicant at 9 Woodstock View, Ennis, Co. Clare.

6 (c) The premises of First Express Limited, t/a Nightline, Unit M1, North Ring Business Park, Swords, Cloghran, Co. Dublin.

7 (d) The premises of O'Donovan Caulfield Lavan, Accountants, 1 Mount Kennett Place, Henry Street, Limerick.

8 (e) The premises of River International Forwarding Limited of Smithtown Industrial Estate, Shannon, Co. Clare.

9 Also on the 18 ^th November 2002 the third named Respondent issued seven search warrants pursuant to the terms of section 14 of the Criminal Assets Bureau Act 1996in respect of the following premises all situate outside the Dublin Metropolitan District.

10 (a) The premises of the second named Applicant at Unit 16-17 Clare Business Centre, Ennis, Co. Clare.

11 (b) The dwelling house of the first named Applicant at 9 Woodstock View, Ennis, Co.Clare.

12 (c) The residence or dwelling house of Hillarie Holland, 2 Meadow Springs, Clareview Limerick City.

13 (d) The residence or dwelling house of Derek Binchy, Aghada Hall, Aghada, Whitegate, Co. Cork.

14 (e) The offices of Desmond J. Houlihan & Company, Solicitors, Salthouse Lane, Ennis, Co. Clare.

15 (f) The premises of O'Donovan Caulfield Lavan, Accountants, 1 Mount Kennett Place, Henry Street, Limerick.

16 (g) The premises of River International Forwarding Limited, Smithtown Industrial Estate, Shannon, Co. Clare.

17 A further search warrant pursuant to the terms of section 14 was issued in respect of premises of First Express Limited t/a Nightline Express Limited, North Ring Business Park, Cloghran, Co. Dublin within the Dublin Metropolitan District.

18 The Applicants seek to have each of the said search warrants quashed by way of Orders of Certiorari. At the commencement of the hearing the parties agreed a statement of issues but as the matter progressed before me and on cross examination of the Respondents' Deponents it became clear that the matter could be determined by having regard to the following issues:

19 (1) The warrants issued pursuant to the Criminal Justice Act 1994section 55 (the section 55 warrants).

ISSUE

20 Had a request been received by the Minister in accordance with the Criminal Justice Act 1994section 55(4) as amended by the Criminal Justice (Miscellaneous Provisions) Act 1997section 15?

21 (2) The warrants issued pursuant to the Criminal Assets Bureau Act 1996section 14 (the section 14 warrants).

ISSUE

22 Had the third named Respondent jurisdiction to issue the warrants

23 (a) the District Judge being assigned to more than one District or

24 (b) the District Judge issuing the search warrants while not physically present within the relevant District (except in the case of the warrant issued in respect of the Dublin Metropolitan District).

The section 55 Warrants

25 The Criminal Justice Act 1994Part VII contains provisions dealing with International Co-operation. Section 55 of the Act deals with the issue of search warrants. The section as amended in sub-section (4) thereof by the Criminal Justice (Miscellaneous Provisions) Act 1997section 15 provides as follows:

26 2 55.--(1) The Government may by order designate countries in relation to which this section shall apply.

27 (2) Section 63 of this Act shall have effect as if references in that section to drug trafficking or an offence in respect of which a confiscation order might be made under section 9 of this Act included any conduct which is an offence under the law of a country or territory outside the State and would constitute drug trafficking or an offence in respect of which a confiscation order might be made under section 9 of this Act if it had occurred in the State.

28 (3) If, on an application made by the Director of Public Prosecutions or by a member of the Garda Síochána not below the rank of superintendent, a judge of the District Court is satisfied that--

29 a (a) there are reasonable grounds for believing that an offence under the law of a country in relation to which this section applies has been committed, and

30 b (b) the conduct constituting that offence would, if it had occurred in the State, constitute an offence in respect of which the judge would have power under any enactment to issue a search warrant in relation to any place,

31 then, subject to subsection (4) of this section, the judge shall have the same power to issue a search warrant authorising entry, search and seizure in relation to that place as he would have under the enactment in question in respect of an offence committed in the State.

32 (4) No application for a warrant under this section, or for an order under section 63 of this Act as adapted by subsection (2) of this section, shall be made except in pursuance of a direction given by the Minister in response to a request received by him from the government of a country in relation to which this section applies, or a person acting on the authority of such...