Criminal Assets Bureau v Murphy

JurisdictionIreland
CourtSupreme Court
JudgeMs. Justice O'Malley
Judgment Date27 February 2018
Neutral Citation[2018] IESC 12
Docket Number[S.C. Nos. 35 & 36 of 2016],[Supreme Court Appeal No: 35/2016 and 36/2016] [High Court No: 2011/10 CAB]
Date27 February 2018

[2018] IESC 12

THE SUPREME COURT

O'Malley Iseult J.

Clarke C.J.

McKechnie J.

MacMenamin J.

Dunne J.

O'Malley J.

[Supreme Court Appeal No: 35/2016 and 36/2016]

[Court of Appeal No: 2014/1452 and 2014/1453]

[High Court No: 2011/10 CAB]

BETWEEN:
CRIMINAL ASSETS BUREAU
RESPONDENT
AND
MICHAEL MURPHY JUNIOR

AND

MICHAEL MURPHY SENIOR
APPELLANTS
AND
AMY FORREST
NOTICE PARTY

Proceeds of crime – Exclusion of evidence – Public importance – Appellants seeking exclusion of evidence – Whether any rule as to the exclusion of evidence which is illegally or unconstitutionally obtained is applicable in civil proceedings

Facts: Cash, in respect of which the respondent, the Criminal Assets Bureau, obtained orders under the Proceeds of Crime Act 1996, was seized from the dwelling of one of the appellants on foot of an invalid search warrant and thus in breach of his constitutional rights. The acknowledged difficulty with the warrant was that it had been issued under the provisions of s. 29 of the Offences Against the State Act 1939 before that section was held to be unconstitutional by the Supreme Court in Damache v Director of Public Prosecutions [2012] 2 IR 266. The appellants, the Murphys, argued that the cash should have been excluded from evidence because it was unconstitutionally or illegally obtained. The respondent contended that any rule excluding evidence on that basis has no application in in rem proceedings. That argument was accepted by the trial judge and by the Court of Appeal. In its determination on the application for leave to appeal the Supreme Court noted the wide public importance of clarifying the law on whether any rule as to the exclusion of evidence which is illegally or unconstitutionally obtained is applicable in civil proceedings.

Held by O'Malley J that the court should refuse the order sought by the Bureau if the evidence establishes that the asset was seized in such circumstances that the court would be lending its process to action on the part of a State agent or agents involving a deliberate and conscious breach of constitutional rights (in the sense clarified by the Court in Director of Public Prosecutions v J.C. (No. 1) [2017] IR 417). O'Malley J held that where the issue concerns evidence in the true sense, the J.C. test (including that part of the test concerned with evidence gathered illegally but not in breach of a constitutional right) can be applied subject to alteration of the burden of proof to the balance of probabilities. O'Malley J held that where an alleged breach of rights concerns the actual asset sought to be seized, the issue is not its "exclusion"; rather, the question for the court will be whether a breach of rights has occurred such that an order should not be made under the 1996 Act. O'Malley J held that where the issue is raised, the Bureau must bear the burden of establishing on the balance of probabilities that (i) the asset was not seized in circumstances of unconstitutionality, or (ii) that, if it was, it is appropriate nonetheless to make the order sought; in the latter case it is for the Bureau to explain the basis upon which it contends that the order should be made, and to establish any facts necessary to justify such conclusion. O'Malley J held that a respondent should be entitled to rely only upon a breach of his or her own rights, unless the court is satisfied that the breach of another person's rights is so egregious as to justify dismissing the proceedings; other than in those circumstances, breach of the rights of a third party who is not a respondent should not give rise to a refusal of the order. O'Malley J held that where there is more than one respondent claiming legitimate ownership of the asset, and the constitutional breach affects only one, or at least not all, the court should not refuse an order unless the breach is such as to justify dismissal of the proceedings.

O'Malley J held that she would allow the appeal and remit the matter to the High Court for rehearing.

Appeal allowed.

JUDGMENT of Ms. Justice O'Malley delivered the 27th day of February 2018.
Introduction
1

The value of the property in dispute in these civil forfeiture proceedings is relatively insignificant – less than €20,000 in cash – but the litigation raises important questions. The context for those questions is that the cash, in respect of which the respondent has obtained orders under the Proceeds of Crime Act 1996, was seized from the dwelling of one of the appellants on foot of an invalid search warrant and thus in breach of his constitutional rights. The acknowledged difficulty with the warrant was that it had been issued under the provisions of s. 29 of the Offences Against the State Act 1939, as amended, before that section was held to be unconstitutional by this Court in Damache v. Director of Public Prosecutions [2012] 2 I.R. 266.

2

The appellants ('the Murphys') have argued that the cash should have been excluded from evidence because it was unconstitutionally or illegally obtained. The respondent ('the Bureau') has contended, in essence, that any rule excluding evidence on that basis has no application in in rem proceedings. This argument was accepted by the trial judge (see Criminal Assets Bureau v Murphy [2014] IEHC 583) and by the Court of Appeal ( Criminal Assets Bureau v Murphy [2016] IECA 40). The Court of Appeal held that the exclusionary rule was intended to prevent the deployment of unconstitutionally obtained evidence only in in personam proceedings against the person whose rights had been breached, and had no relevance in in rem proceedings where the issue before the court was the provenance of the property itself.

3

In its determination on the application for leave to appeal this Court noted the wide public importance of clarifying the law on whether any rule as to the exclusion of evidence which is illegally or unconstitutionally obtained is applicable in civil proceedings. Leave to appeal to this Court was thus granted on the following points:

(i) Where a dwelling is entered other than in accordance with law, and that dwelling is not that of a person seeking to assert a constitutional right to the inviolability thereof, may evidence be excluded in proceedings concerning a person not dwelling therein?

(ii) Is there any rule of law requiring that evidence obtained in consequence of illegal entry into a dwelling should be excluded from civil proceedings, including proceedings in rem under the Proceeds of Crime Act 1996, as amended?

(iii) Is there any rule of law requiring the exclusion of evidence in civil proceedings obtained in consequence of a deliberate illegality, or a mistake amounting to an illegality, or in consequence of the deliberate and conscious violation of the rights of one of the parties?

4

I feel it necessary to observe at this stage that couching the questions in terms of the exclusion of evidence did not, perhaps, accurately describe the central issue to be determined by the Court. The cash was not produced before the Court as evidence tending to prove any disputed issue of fact – rather, the evidence in the case was adduced by the Bureau and by the Murphys to respectively support or undermine the proposition that the money represented the proceeds of criminal activity. The distinction becomes particularly apparent in relation to the first and third questions posed, which raise the possibility that evidence of the cash might be excluded in respect of some parties but admitted in respect of others. While this result could be accommodated in criminal trials, it would be absurd in proceedings of the instant character if, for example, the property seized were to be claimed on the basis of joint ownership by an occupant and a non-occupant.

5

In reality, therefore, the problem is not whether items found and seized in such circumstances can be put in evidence, since the Bureau does not intend to do so or to prove any matter thereby, but whether the Bureau was entitled, having regard to the established illegality, to an order intended to deprive the Murphys of the cash. In broader terms, it seems to me that the question that the Court should address is whether the constitutional principles underpinning the exclusionary rule have any application in proceedings of this nature such that the State should, in all or in any circumstances, be denied the benefit of an action taken by its agents in breach of an individual's constitutional rights.

6

Despite the breadth of the terms upon which leave to appeal was granted, I think it preferable, for present purposes, to confine consideration of the issue to litigation involving the State and to illegality and breach of rights arising from the actions of State agents. This is because the instant case involves, as do most such cases, the use of the coercive powers conferred upon elements of the force publique. The factors that may properly influence the Court's approach to the matter will not often arise in purely private litigation and indeed it seems clear that there are few recorded cases where it has. Since private parties normally lack such legally coercive powers, a case where one party seeks to secure an advantage over the other by the use of means which violate the rights of that other will, it seems likely, involve considerations of the criminal law and/or the law of tort. To deal with these issues in the context of the instant proceedings would be to engage in an undesirable level of hypothetical discussion.

Background facts
7

The Murphys are father and son. In May, 2009 a number of firearms were found in the course of a search of a vehicle driven by Michael Murphy Jr. He was subsequently prosecuted and sentenced for firearms offences. Following his arrest, investigating gardaí obtained a warrant pursuant to s.29 of the Offences against the State Act 1939, as amended, which was relied upon as authority for a search of a...

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8 cases
  • BS & RS v The Refugee Appeals Tribunal
    • Ireland
    • Supreme Court
    • 22 May 2019
    ...sense of DPP v JC, seek to obtain an advantage in litigation, this has been considered in the case of Criminal Assets Bureau v Murphy [2018] IESC 12. Neither any such contention, nor any issue of recklessness or negligence, whether gross or simple, can arise on the facts of this case. The ......
  • Criminal Assets Bureau v Mannion
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    • 17 December 2018
    ...The respondent placed significant reliance on the principles outlined by the Supreme Court in DPP v JC [2017] 1 IR 417 and CAB v Murphy [2018] IESC 12. He also relied on the Supreme Court’s consideration of privacy rights, as expressed in CRH Plc v The Competition and Consumer Protection Co......
  • Patrick Hyland v The Commissioner for an Garda Síochána
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    • 18 February 2022
    ...counsel referred to the decision in CRH v. CPCC [2018] 1 IR 521. Counsel also referred to the Supreme Court decision in CAB v. Murphy [2018] 3 IR 640, where the rationale for the exclusionary rule was set out in the judgment of O'Malley J. at paras. 125 et seq. It was submitted that in this......
  • Brassil v DPP
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    ...the courts in applying the principles outlined in Kenny. This is clear from the Supreme Court case of Criminal Assets Bureau v. Murphy, [2018] IESC 12, [2018] 3 I.R. 640. That case involved property seized by the Criminal Assets Bureau and the status of such evidence, if seized pursuant to ......
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