Criminal Assets Bureau v Routeback Media and Another

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Mr Justice Peter Charleton,Mr Justice Maurice Collins,Mr. Justice Brian Murray
• Judgment Date: 15 July 2025
• Neutral Citation: [2025] IESC 34
• Docket Number: Supreme Court appeal number: S:AP:IE: 2024: 000089 High Court record number: 2018/1CAB [2024] IECA 112 (23 May 2022)

Between

The Criminal Assets Bureau

Applicant/Respondent

and

Routeback Media, trading as Local Mart, and Harry Zeman

Respondents/Appellant

[2025] IESC 34

Charleton J

Woulfe J

Hogan J

Murray J

Collins J

Supreme Court appeal number: S:AP:IE: 2024: 000089

Court of Appeal record number: 2022/172

High Court record number: 2018/1CAB

[2024] IECA 112

(23 May 2022)

An Chúirt Uachtarach

The Supreme Court

Proceeds of crime – Fresh evidence – Remittal – Appellants appealing against orders under the Proceeds of Crime Act 1996 – Whether there was fresh evidence to be considered

Facts: The appellants, Routeback Media and Mr Zeman, claimed that the High Court erred in making final orders under the Proceeds of Crime Act 1996 whereby they were divested of property adjudged to be the proceeds of crime. It was asserted that the High Court: firstly, wrongly excluded fresh evidence on an application under s. 4 of the 1996 Act to dispose of property previously adjudged under s. 3(1) to be the proceeds of crime, and; secondly, on a concurrent application under s. 3(3), to review and overturn that s. 3(1) order, failed to afford fair procedures by refusing the cross-examination of deponents from the respondent, the Criminal Assets Bureau (CAB), who had sworn affidavits asserting evidence, including their belief, when the s 3(1) order was made, that the property originated from criminal activity. That judgment was upheld in the Court of Appeal. The Supreme Court identified the following issues as meeting the constitutional threshold for a further appeal, that of general public importance: (i) Whether a person facing a final order in CAB proceedings which is to be based on affidavit evidence has an entitlement to cross-examine those deponents, whether pursuant to the Rules of the Superior Courts or otherwise. (ii) Where a person facing a final order in CAB proceedings is unrepresented, to what extent is it the duty of a judge to inform that person of the advisability of challenging affidavit evidence by way of their own testimony or through cross-examination? (iii) Should leave to cross-examine always be given on an appropriate affidavit where a final order is being sought under the 1996 Act? (iv) What is the relevant procedure and interaction between ss. 3 and 4 of the 1996 Act with regard to the burden of proof under s. 4 and the consequent issues as to cross-examination on affidavit evidence seeking a disposal order?

Held by Charleton J that since the Court of Appeal had decided that there was genuinely fresh evidence to be considered in this case on the ss. 4 and 3(3) applications, both of which orders were appealed to them, the matter should be reconsidered by the High Court. He held that focus in that Court should be on whatever may be genuinely new in the material proffered by Mr Zeman and should proceed on the basis that this may entitle limited cross-examination; however, this could not amount under the legislation to a general traverse by cross-examination of all the deponents in the ss. 2 and 3 procedure which was finished. Charleton J held that the task faced by the respondents was to overturn the existing s. 3(1) order, or to challenge the making of the s. 4 disposal order, by evidence which was not previously deployed in order to demonstrate that the property caught by the s. 3(1) order did not result from criminal activity. He held that what was required by the High Court was a focus on the relevant issue and such limited evidence as would enable a decision to be made.

Charleton J allowed the appeal and remitted the matter to the High Court for a limited hearing confined to any genuinely new material, the burden of overturning the s. 3(1) order being on the respondent in showing that the assets did not result from criminality or that the interests of justice were inimical to a disposal order in favour of the Minister for Finance on proof of the making of the s. 3(1) final order and the undoubted passing of 7 years since then.

Appeal allowed.

Judgment of Mr Justice Peter Charleton delivered on Tuesday 15 July 2025

1 The focus of this appeal is a claim by the respondents, Routeback Media and Harry Zeman, that the High Court erred in making final orders under the Proceeds of Crime Act 1996 (the “1996 Act”) whereby they were divested of property adjudged to be the proceeds of crime; judgment of Stewart J, 23 May 2022. It is asserted that the High Court: firstly, wrongly excluded fresh evidence on an application under s 4 of the Proceeds of Crime Act 1996 to dispose of property previously adjudged under s 3(1) to be the proceeds of crime, and; secondly, on a concurrent application under s 3(3), to review and overturn that s 3(1) order, failed to afford fair procedures by refusing the cross-examination of deponents from the Criminal Assets Bureau who had sworn affidavits asserting evidence, including their belief, when the s 3(1) order was made, that the property originated from criminal activity. That judgment was upheld in the Court of Appeal; [2024] IECA 112. This judgment, therefore, addresses the interaction and operation of the main sections of the Proceeds of Crime Act 1996.

Determination

2 Mr Zeman's application for a further appeal to this Court identified a number of issues relating to the interpretation of the 1996 Act. The Bureau opposed that application. By determination of 24 October 2024, [2024] IESCDET 124, this Court granted leave to appeal. In the application were: the denial by the judge in the High Court of leave to cross-examine on behalf of Mr Zeman; the nature of a final order under s 4; the threshold whereby a s 3(3) application to overturn a s 3(1) interlocutory order may be brought; the final nature of a s 3(1) order and any power to contest a s 4 final order and the threshold for so doing; and whether an unrepresented person might expect guidance on these procedures at trial or appellate level. The Court identified the following issues as meeting the constitutional threshold for a further appeal, that of general public importance:

• i. Whether a person facing a final order in CAB proceedings which is to be based on affidavit evidence has an entitlement to cross-examine those deponents, whether pursuant to the Rules of the Superior Courts or otherwise.

• ii. Where a person facing a final order in CAB proceedings is unrepresented, to what extent is it the duty of a judge to inform that person of the advisability of challenging affidavit evidence by way of their own testimony or through cross-examination?

• iii. Should leave to cross-examine always be given on an appropriate affidavit where a final order is being sought under the Proceeds of Crime Act 1996?

• iv. What is the relevant procedure and interaction between sections 3 and 4 of the 1996 Act with regard to the burden of proof under section 4 and the consequent issues as to cross-examination on affidavit evidence seeking a disposal order?

The orders in this case

3 For concision, the s 2 interim (freezing) order was made against the property of the respondents on 28 January 2009 by Feeney J; the s 3(1) order was made on 20 January 2011, also by Feeney J; the final s 4 order, disposal of the property, was made on 23 May 2022 by Stewart J. Since then, there have been appeals to the Court of Appeal, including of a s 3(3) review application to the High Court which was concurrently heard at the s 4 hearing. These applications by Mr Zeman reflected the sporadic intervention of personal drafting, reflecting the withdrawal, from time to time, of Mr Zeman's lawyers. In the Court of Appeal, the appeals were finally struck out on 7 October 2022; substantive judgment on 10 May 2024 by Binchy J. Mr Zeman then sought and was granted a further appeal to this Court.

The Proceedings

4 In January 2009, the Bureau issued proceedings against Routeback Media AB t/a Local Mart and Mr Zeman seeking orders pursuant to s 2 and s 3 of the 1996 Act. Routeback is a Swedish company and Mr Zeman is a Swedish national who was asserted to be a director and shareholder. The orders sought related to the balance, then totalling $651,447.85, with continuing interest, according to submissions by the Bureau, in a Bank of Ireland account in the name of EuroConex Technologies Limited which the Bureau claimed to constitute the proceeds of crime. Allegedly, these were the proceeds of a fraudulent scheme by Routeback involving sales on the Internet of email accounts at a unit price of $9.95.

5 Routeback had, it was claimed, entered into an agreement with EuroConex to process credit card payments in connection with this business. As soon as that agreement became operational in October 2002 there were claimed to be a very large volume of transactions, with many rejected by the card issuing banks. In light of the very high level of transactions over a short period of time, and level of rejections, EuroConex put a stop on further transactions. Then, on 24 October 2002 EuroConex notified Routeback that it was closing the account. At that point, a substantial number of transactions had been settled, without complaint, and there was a substantial credit balance in the account. Subsequently, however, EuroConex refunded some $150,000 to customers of two US banks who claimed that they had not authorised or initiated any transaction with Routeback.

6 EuroConex reported its concerns to the Swedish police in April 2003. In November 2006 it was informed that the Swedish police had closed its investigation. EuroConex remained concerned that the monies might have been generated by crime. It reported its suspicions to the Garda Bureau of Fraud and to the Revenue Commissioners in February 2007. On 19 January 2011, the s 3(1) application was brought by the Bureau before Feeney J in the High Court. The application was grounded upon a number of affidavits. Mr Zeman swore affidavits replying to those, denying all allegations made...