Dylan Creaven Silicon Technologies (Europe) Ltd and Another v Clyne and another

JurisdictionIreland
JudgeMr. Justice Clarke
Judgment Date06 October 2006
Neutral Citation[2006] IEHC 290
Docket Number[2006 No. 816 JR]
CourtHigh Court
Date06 October 2006
CREAVEN & ORS v DISTRICT JUDGE CLYNE & MIN FOR JUSTICE
JUDICIAL REVIEW

BETWEEN

DYLAN CREAVEN SILICON TECHNOLOGIES (EUROPE) LIMITED AND BRADENVILLE HOLDINGS LIMITED
APPLICANTS

AND

DISTRICT JUDGE PATRICK CLYNE AND THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM
RESPONDENTS

[2006] IEHC 290

[No. 816 JR/2006]

THE HIGH COURT

Abstract:

Criminal law - Criminal procedure - Judicial Review - Certiorari - Production order - Jurisdiction - Seizure of documents -Whether District Court Judge had jurisdiction to make production order - Criminal justice Act 1994 - Criminal justice (Terrorist Offences) Act 2005

: The applicants contended that the production order made by the respondent judge to make documentation available to the UK prosecuting authorities for a VAT fraud prosecution was without jurisdiction. The material the subject of the order was seized pursuant to s. 63 Criminal Justice Act 1994, as amended by the Criminal Justice (Terrorist Offences) Act 2005. The applicants contended that a production order could only be granted to assist foreign authorities post conviction and not for a substantive criminal trial.

Held by Clarke J., granting an order of certiorari quashing the production order, that s. 63 of the Act of 1994 limited production orders to circumstances where the materials sought were required for the purposes of an investigation into benefit, i.e. whether a person had benefited from an offence of which a confiscation order might be made. As no evidence of such a person was present, the District Judge lacked jurisdiction to make the production order.

Reporter: E.F

CRIMINAL JUSTICE ACT 1994 S55

CRIMINAL JUSTICE ACT 1994 S63

CRIMINAL ASSETS BUREAU ACT 1996 S14

CRIMINAL JUSTICE ACT 1994 S63(1)

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S39

CRIMINAL JUSTICE ACT 1994 S63(2)

CRIMINAL JUSTICE ACT 1994 S63(4)

CRIMINAL JUSTICE ACT 1994 S63(1)(a)

CRIMINAL JUSTICE ACT 1994 S63(1)(b)

CRIMINAL JUSTICE ACT 1994 S63(1)(c)

CRIMINAL JUSTICE ACT 1994 S63(1)(d)

CRIMINAL JUSTICE ACT 1994 S63(1)(e)

CRIMINAL JUSTICE ACT 1994 S9

CRIMINAL JUSTICE ACT 1994 S55(2)

CRIMINAL JUSTICE ACT 1994 S9(1)

CRIMINAL JUSTICE ACT 1994 S9(2)

CRIMINAL JUSTICE ACT 1994 S9(4)

CRIMINAL JUSTICE ACT 1994 S9(1)(f)

CRIMINAL JUSTICE ACT 1994 PART VII

EUROPEAN CONVENTION ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS 1959 ART 3

1. Introduction.
2

2 1.1 This matter came on for hearing as an urgent application during the long vacation. The reason for the urgency was that the issue raised in the proceedings had the potential to have a significant effect on criminal proceedings pending in the United Kingdom. Leave to seek Judicial Review of a production order made by the respondent District Judge on the 30th June, 2006, was given by Peart J. on 10th July, 2006 . The purpose of the production order was to make certain documents (to which I will refer in more detail later in the course of this judgment) available to the prosecuting authorities in the United Kingdom for the purposes of that pending criminal trial. The applicants contend that the production order of the respondent District Judge was made in circumstances where no jurisdiction to make such an order existed.

3

3 1.2 By virtue of the urgency of the matter I indicated to the parties at the close of the argument that I would consider the matter over a short number of days and inform the parties of my conclusion concerning the issues raised in these proceedings but reserve the delivery of a detailed written judgment until a later date. On that basis I indicated to the parties that, in general terms, I agreed with the submissions made on behalf of the applicants and proposed making an order of certiorari quashing the production order. The purpose of this judgment is to set out, in detail, my reasons for coming to that view.

2. Background
2

2 2.1 On Friday 30th June, 2006, on the direction of the second named respondent ("The Minister") an application was made to the respondent District Judge for a production order pursuant to the terms of s. 55 and 63 of the Criminal Justice Act, 1994, as amended. The application was successful and the production order was duly made.

3

3 2.2 The material which was the subject of the production order had already been seized, in November 2002, from various premises on foot of five different search warrants issued under s. 55 of the Criminal Justice Act, 1994as amended together with eight warrants issued under s. 14 of the Criminal Assets Bureau Act, 1996. The relevant premises, from which the material was seized, were connected with one or other of the applicants or their advisors. The material consisted of a very large volume of business documentation.

4

4 2.3 A challenge was brought to the validity of the relevant warrants which was substantially successful both in this court and, on appeal, in the Supreme Court. However by that time all of the relevant material had been transmitted to the United Kingdom on foot of a request for international mutual assistance arising out of an investigation being conducted by HM Customs and Excise in the United Kingdom into an alleged VAT carousel fraud. The first named applicant "(Mr. Creaven)" was arrested, tried and acquitted in the United Kingdom of such charges. However charges remain outstanding and were, at the time of the hearing before me, pending against other persons connected with the same investigation.

5

5 2.4 On foot of the quashing of the relevant orders, the relevant material (or at least most of it) was returned from the United Kingdom to this jurisdiction. There it was placed in the possession of the Criminal Assets Bureau. There was a dispute as to certain documentation which, it is contended, may have gone missing. However, in any event, the material remained in the possession of the Criminal Assets Bureau up and until the making of the production orders by the respondent District Judge.

6

6 2.5 It would, however, appear that the applicants were, in principle, entitled to the return of the relevant documentation and that same was, at all material times, the property of one or other of the applicants. In that context it is necessary to turn to the basis put forward for the making of the production order.

3. The Production Order
2

2 3.1 The process commenced with a letter of request to the Minister written on behalf of the United Kingdom Secretary of State at the Home Office dated 5th May, 2006, incorporating a more detailed request from the United Kingdom Director of Revenue and Customs Prosecutions ("DRCP").

3

3 3.2 It is unnecessary to set out in detail the basis for that request. For the purposes of this application it is necessary only to note that the stated basis for the relevant materials being required can be principally found in paragraphs 2 and 3 of part 2 of the detailed request from the DRCP which states as follows:

2

"2. As part of the prosecutors continuing duties in relation to disclosure of unused material, an obligation exists to provide material to the defence that has the capacity to suggest potential submissions that could lead, inter alia, to the exclusion of evidence or a stay of proceedings.

3

The prosecutor takes the view that in the light of Mr. Creaven's contact with the Irish Revenue Commissioners and his provision of witness statements prior to his arrest, there may be a desire on the part of this defendants representatives to rely, at least, partly, on such information in an application to stay proceedings against him."

4

4 3.3 It is, therefore, clear that the purpose for which the letter of request was issued was to comply with the disclosure obligations of the United Kingdom Prosecution Authorities to the occurred in the pending proceedings. It was not contested at the hearing before me that it was, therefore, open to the respondent District Judge to form the view that there was a basis for considering that the materials were potentially relevant to that pending criminal trial. The issue which arises in this case is as to whether or not that consideration is a sufficient basis in law for the making of the Production Order. Against that background it is necessary to turn to the basis of the applicants challenge to the Production Order.

4. The Challenge.
2

2 4.1 The challenge to the order and the competing arguments of the parties can be simply put. The applicants contend that on a proper construction of the relevant statutory provisions, no jurisdiction exists (save in specific and limited cases not relevant to these proceedings) to make a production order of the type actually made by the respondent District Judge in this case, in aid of a substantive criminal trial in a foreign jurisdiction as opposed to circumstances where, post conviction, there is before the criminal courts in the relevant foreign jurisdiction a confiscation process analogous to the similar regime which exists in this jurisdiction.

3

3 4.2 In other words the applicants contend that production orders can only be made to assist forgiven prosecuting authorities in a post conviction confiscation process rather than for a substantive criminal trial.

To understand the competing arguments of the parties on that issue it is necessary to turn to the relevant statutory regime.

5. The Statutory Regime.
2

2 5.1 Section 63(1) of the Criminal Justice Act 1994("the 1994 Act") provided, as originally enacted, as follows:

"A member of the Garda Síochána may, for the purpose of an investigation into drug trafficking or an offence under section 31 of this Act or an investigation into whether a person has benefited from drug trafficking or an offence in respect of which a confiscation order might be made under section 9 of this Act, apply to a judge of the District Court for an order under subsection (2) of this section in relation to...

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