DPP v England

• Jurisdiction: Ireland
• Judge: Mr. Justice Hardiman
• Judgment Date: 16 May 2011
• Neutral Citation: [2011] IESC 16
• Court: Supreme Court
• Date: 16 May 2011

DPP v England

IN THE MATTER OF SECTION 38 OF THE COURTS OF JUSTICE ACT, 1936

and

IN THE MATTER OF SECTIONS 38 AND 39 OF THE CRIMINAL JUSTICE ACT, 1994

Between:

THE DIRECTOR OF PUBLIC PROSECUTIONS

Applicant/Respondent

and

DAVID ANTHONY ENGLAND

Respondent/Appellant

[2011] IESC 16

Murray C.J.

Hardiman J.

Macken J.

153/06

THE SUPREME COURT

CRIMINAL LAW

Forfeiture of assets

Detention - Cash - Application for forfeiture while cash detained - Application brought before expiry of detention order - Motion served after expiry of period - Whether cash lawfully detained - Meaning of "application made" - Whether provision penal - Ordinary and natural meaning - Interested person entitled to notice of application - KSK Entrerprises Ltd v An Bord Pleanála [1994] 2 IR 128 considered - Courts of Justice Act 1936 (No 48), s 38 - Criminal Justice Act 1994 (No 15), ss 38 and 39 - Interpretation Act 2005 (No 23), s 5 - Rules of the Superior Courts 1986 (SI 15/1986), O 136 - Application not made while cash lawfully detained (153/2006 - SC - 16/5/2011) [2011] IESC 16

DPP v England

Facts The question posed by the learned trial judge in this case stated was as follows: "Am I correct in determining that where an initial detention order in respect of the sum of £IR79,960 seized on the 15th May, 1998, which was authorised later that day pursuant to s. 38(1) of the Criminal Justice Act, 1994 and which detention order was subsequently extended on the 13th August, 12th November 1998, and the 5th February, 1999 (which order expired on the 5th May, 1999), was lawfully "detained" within the meaning of s. 38 of the Criminal Justice Act, 1994 so as to ground a jurisdiction for an order for forfeiture under s. 39 of the Criminal Justice Act, 1994 being made when an application came before the learned Circuit Court Judge on 29th June, 1999 on foot of a Notice of Motion dated and filed the 23rd day of April, 1999?" The aforementioned cash was seized from the appellant and subsequently detained pursuant to various court orders. The last order for detention expired on 5 May 1999 and subsequently a notice of motion seeking forfeiture, with a return date of 29 June, 1999 was served on the appellant. The appellant submitted that the application for forfeiture of the money was made on 29 June and that on that date the cash was not detained under s. 38 of the Act of 1994, as the last order authorising the detention of the cash had expired on 5 May. The respondent submitted that the phrase "application made" as contained in section 39 of the Act of 1994 was broad enough to include the act of the issuance of the Notice of Motion and further submitted that those words ought to be given a broad purposive meaning. The respondent relied on s. 5 of the Interpretation Act, 2005 in that regard. The appellant argued the words should be given their natural and ordinary meaning.

Held by the Supreme Court; Hardiman J. (Murray C.J., Macken J.) in answering the question in the negative: That it was plain from the statutory provisions cited that the jurisdiction created by s. 39 to order forfeiture of cash seized under s. 38 required that an application for such forfeiture be made while the cash was detained under the said section 38. Section 5 of the Interpretation Act did not apply to section 38 as the words used therein were not obscure or ambiguous. Consequently, the words ought to be interpreted in their ordinary and natural meaning. There were two matters that might be considered of oblique relevance to the question of construction of the words of s. 38. Firstly, Order 136 of the Rules of the Superior Courts, which relates to Proceeds of Crime and Financing of Terrorism was relevant. It provided for the making of an application in that regard to be by way of originating motion. No such rule was made in relation to applications under s. 39. Secondly, the case of KSK Enterprises Limited v. An Bord Pleanala [1994] 2 IR, relied upon by the appellant, determined that in the case of an application being made by way of notice of motion, the application could not be said to be made until notice of same had been given to the parties concerned. In the circumstances of the present case, the application, notice of whose proposed making was given to the person appearing to be interested in early June 1999, was not itself an application made while the money to which it related "was detained under s.38".

Reporter: L.O'S.

COURTS OF JUSTICE ACT 1936 S38(3)

CRIMINAL JUSTICE ACT 1994 S38

CRIMINAL JUSTICE ACT 1994 S39

INTERPRETATION ACT 2005 S5

INTERPRETATION ACT 2005 S5(1)

RSC O.136

RSC O.136 r2

PROCEEDS OF CRIME ACT 1996

CRIMINAL JUSTICE ACT 1994 S41

KSK ENTERPRISES LTD v BORD PLEANALA 1994 2 IR 128 1994 2 ILRM 1 1994/4/1176

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82(3B)(A)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S19(3)

1 JUDGMENT of Mr. Justice Hardiman delivered the 16th day of May, 2011.

2 Hardiman J [nem diss]

3 This is a case stated pursuant to s.38(3) of the Courts of Justice Act, 1936. The question posed by the learned High Court judge will be more comprehensible if certain facts are first set out.

Factual background.

4 On the 15 ^th May, 1998, at Dublin airport, the applicant David Anthony England was found to be in the possession of the sum of £79,960.00 in cash. A customs officer subsequently informed Mr. England that he was seizing the monies referred to pursuant to the powers vested in him by s.38 of the Criminal Justice Act, 1994.

5 Later on the same day, the 15 ^th May, 1998, the relevant customs officer swore an information before a judge of the District Court who, pursuant to the said s.38, permitted the detention of the sum of money referred to for a period of three months from that day.

6 On the 13 ^th August, 1998 a further application was made pursuant to s.38 and an order authorising the detention of the cash for a further period of three months was made.

7 A similar application was made on the 12 ^th November, 1998 with the same result.

8 On the 5 ^th February, 1999 a further application was made pursuant to s.38 and an order was granted permitting the continuing detention of the cash seized for a further three months.

9 Each of these orders was made within three months of the preceding order. The last order expired on the 5 ^th May, 1999: to judge from the written submissions this appears to be common case.

10 Neither party claims that any further order pursuant to s.38 was made in the District Court, after that of 5 ^th February, 1999.

11 Accordingly, this issue would not have arisen at all if the application of the D.P.P. had actually been brought before the Judge of the Circuit Court in advance of the expiry, on 5 ^th May, 1999, of the Court Order for the detention of the funds. Alternatively it would have been open to the D.P.P. to apply for a further period of detention of the funds, before the then existing order expired.

12 Subsequently, the Director of Public Prosecutions issued a notice of motion bearing the date 23 ^rd April, 1999 but apparently served under cover of a letter dated 2 ^nd June, 1999. This letter enclosed a Notice of Motion in which Mr. England was named as respondent. The first paragraph of this read as follows:

"Take notice that at 10am on the 29 ^th day of June, 1999 or so soon thereafter as counsel may be heard, counsel for the applicant in the above entitled proceedings will apply to this honourable court [i.e. the Circuit Court] sitting at Court 24, Chancery Place, Dublin 4…".

13 There follows a statement of the relief sought, in the nature of forfeiture.

14 The appellant has not been charged with any offence relating to the sum of £79,960.00, or any offence in relation to which that sum is evidence.

Statutory provisions.

15 It is necessary, in order to make legal sense of the foregoing recital, now to consider the relevant statutory provisions, which are Sections 38 and 39 of the Criminal Justice Act, 1994. They provide as follows:

16 2 "38.-(1) A member of the Garda Síochána or an officer of customs and excise may seize and, in accordance with this section, detain any cash which is being imported into or exported from the State if its amount is not less than the prescribed sum and he has reasonable grounds for suspecting that it directly or indirectly represents any person's proceeds of, or is intended by any person for use in, drug trafficking.

17 (2) Cash seized by virtue of this section shall not be detained for more than forty-eight hours unless its detention beyond Forty-eight hours is authorised by an order made by a judge of the District Court and no such order shall be made unless the judge is satisfied-

18 a ( a) that there are reasonable grounds for the suspicion mentioned in subsection (1) of this section, and

19 b ( b) that detention of the cash beyond forty-eight hours is justified while its origin or derivation is further investigated or consideration is given to the institution (whether in the State or elsewhere) of criminal proceedings against any person for an offence with which the cash is connected.

20 (3) Any order under subsection (2) of this section shall authorise the continued detention of the cash to which it relates for such period, not exceeding three months beginning with the date of the order, as may be specified in the order, and a judge of the District Court, if satisfied as to the matters mentioned in that subsection, may thereafter from time to time by order authorise the further detention of the cash but so that-

21 a ( a) no period of detention specified in such an order, shall exceed three months beginning with the date of the order;

22 and

23 b ( b) the total period of detention shall not exceed two years from the...