Cunningham v The Commissioner of an Garda Siochána

JurisdictionIreland
JudgeO'Regan J.
Judgment Date14 February 2019
Neutral Citation[2019] IEHC 104
CourtHigh Court
Docket Number[2018 No. 28 J.R.]
Date14 February 2019

[2019] IEHC 104

THE HIGH COURT

JUDICIAL REVIEW

O'Regan J.

[2018 No. 28 J.R.]

BETWEEN
TIMOTHY CUNNINGHAM
APPLICANT
AND
THE COMMISSIONER OF AN GARDA SIOCHANA
FIRST NAMED RESPONDENT
THE CRIMINAL ASSETS BUREAU
SECOND NAMED RESPONDENT
THE DIRECTOR OF PUBLIC PROSECUTIONS
NOTICE PARTY
DANSKE BANK
NOTICE PARTY

Judicial review – Enlargement of time – Monetary property – Applicant seeking a declaration that his monies were unlawfully seized by the respondent – Whether the applicant had established any basis to secure an enlargement of time to maintain the judicial review proceedings

Facts: The applicant, Mr Cunningham, in a judicial review application brought by way of statement of ground on the 15th January 2018, sought an order of mandamus compelling the first respondent, the Commissioner of An Garda Siochána, to provide a detailed and comprehensive report setting out the statutory provisions and all orders of the court under which his monetary property was seized, detained and distributed together with orders relied upon by the first respondent to search, detain, forfeit and distribute the monies being the documents presented in a pre-action letter of the 4th August 2017. In addition, an order of mandamus compelling the second respondent, the Criminal Assets Bureau, to compile a report setting out the statutory provisions under which his monetary property was seized, detained and distributed as set out in a pre-action letter of the 21st July 2017 was sought. An application for a declaration that the applicant’s monies were unlawfully seized by the first respondent was made together with a declaration that the applicant’s property rights under Article 40.3 of the Constitution had been infringed. An injunction was sought until the conclusion of the judicial review proceedings. An application was made for further relief including an extension of time if necessary.

Held by O’Regan J that the applicant had failed to establish any basis to secure an enlargement of time to maintain the judicial review proceedings. O’Regan J held that the applicant had failed to discharge the onus on him to establish that the relevant monies belonged to him, in particular post the making of the forfeiture order.

O’Regan J held that, in the circumstances, all of the reliefs claimed by the applicant would be refused.

Reliefs refused.

JUDGMENT of Ms. Justice O'Regan delivered on the 14th day of February, 2019
Issues
1

In this judicial review application, brought by way of statement of ground on the 15th January 2018, the applicant is seeking an order of mandamus compelling the first named respondent to provide a detailed and comprehensive report setting out the statutory provisions and all orders of the court under which his monetary property was seized, detained and distributed together with orders relied upon by the first named respondent to search, detain, forfeit and distribute the monies being the documents presented in a pre – action letter of the 4th August 2017. In addition, an order of mandamus compelling the second named respondent to compile a report setting out the statutory provisions under which his monetary property was seized, detained and distributed as set out in a pre – action letter of the 21st July 2017 was sought. At para. 3 an application for a declaration that the applicant's monies were unlawfully seized by the first named respondent is made together with (para. 4) a declaration that the applicant's property rights under Article 40.3 of the Constitution have been infringed. An injunction was sought until the conclusion of the within judicial review proceedings. However, it does not appear that any injunction was made to date and certainly no argument was made before this Court for an injunction. At para. 6, an application is made for further relief including an extension of time if necessary. This is the only reference by the applicant to an extension of time.

Background
2

A brief relevant chronology is as follows: -

(a) On the 16th February 2005, the applicant's home was searched under s. 29 of the Offences Against the State Act 1939 as amended and £STG2.4 million was removed;

(b) On the 27th March 2009, the applicant was convicted under ten counts connected to the colloquially known Northern Bank Robbery;

(c) On the 23rd February 2012, the Supreme Court issued its decision Damache v. DPP [2012] 2 IR 266, where it found that a s. 29 warrant to search was repugnant to the constitution;

(d) In April 2013, the applicant was successful in having the order of the 27th March 2009 quashed;

(e) On the 18th February 2014, the applicant pleaded guilty to two counts of the nine remaining counts for which the applicant was retried;

(f) On the 27th February 2014, the applicant was sentenced and an order was made confiscating and/or forfeiting (see discussion below) the monies which are the subject matter of these proceedings;

(g) In a letter of March 2017, the applicant's solicitor was advised that the order of the 27th February 2014 incorporated a forfeiture order in respect of the monies aforesaid under s. 61 of the Criminal Justice Act 1994 and a letter was enclosed bearing date the 30th April 2014 between An Garda Siochána and the State Solicitor for the DPP which confirms the making of the forfeiture order and the fact that no appeal or challenge was made thereto;

(h) A certificate of conviction bearing date the 26th February 2014 (although the order was not made until the 27th February 2014) refers to the relevant monies having been confiscated by order of the 27th February 2014.

(i) The order of forfeiture was drawn up on the 4th March 2018 on behalf of the within respondents and was furnished to the applicant on the 14th May 2018

The applicant's submissions
3

The applicant tendered written submissions to the court and also presented oral submissions at the hearing on the 31st January 2019. In these proceedings the applicant has sworn four affidavits respectively dated the 10th January 2018, the 4th May 2018 (which in my view is not at all relevant to the issues arising), the 23rd July 2018 and the 30th January 2018.

4

The applicant argues: -

(a) The money was taken from his home and this is prima facie evidence of his ownership;

(b) The order was not drawn up (and no explanation given) until the 4th March 2018;

(c) The order did not take effect until perfection;

(d) The court is not being asked to make an order determining ownership of the money;

(e) It would be unfair of the respondents to take issue with the time limits provided for by the Rules of Court;

In reply oral submissions the applicant indicated: -

(a) The applicant could not argue that the date of order was from the date of pronouncement as opposed to perfection of the order;

(b) The respondents have not established a lack of candour on the part of the applicant;

(c) The forfeiture order was not referred to until March 2017 and therefore the applicant is not out of time;

(d) Although the interviews between the applicant and An Garda Siochána which occurred in February 2005 are technically admissible, nevertheless they are not sufficient to displace the burden on the applicant to show ownership of the monies which he has discharged by virtue of the fact that the monies were taken from his home in 2005.

5

In written submissions, the applicant states: -

(i) The forfeiture order could not have been lawfully made (paras. 38 – 45). S. 29 of the 1939 Act is unconstitutional and therefore the money belongs to the applicant and his rights are guaranteed by the Constitution under Articles 43 and 40.3.2.

(ii) The perfected order was the first notice of the making of the forfeiture order (para. 46).

(iii) The confiscation order is prima facie unlawful (para. 48 – 54).

(iv) There was no waiver of the interest of the applicant in the funds (paras. 55 – 65) the applicant has locus standi as leave was granted;

(v) Any application made herein is not time barred;

(vi) The applicant is entitled to a proper accounting under the Constitution.

Submissions on behalf of the respondents

(i) The applicant was aware of the forfeiture order at the latest and taking his position at its height, from March 2017 when he was furnished with a copy of a letter of the 30th April 2014 from An Garda Siochána identifying the making of the forfeiture order on the 27th February 2014;

(ii) The information sought at paras. 1 and 2 of the statement of grounds has already been given or is otherwise within the means of knowledge of the applicant;

(iii) The applicant has stated in affidavit that he was not represented in court on the 27th February 2014, however has been challenged on this and has subsequently accepted that he was represented;

(iv) The applicant says he has no recollection of the making of the forfeiture order however this is not relevant to the efficacy of the order;

(v) The respondents rely on the interviews between the applicant and An Garda Siochána in February 2005 which are replete with acknowledgments that the money taken...

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