F.Mc.K v G.W.D (Proceeds of Crime outside State)

• Jurisdiction: Ireland
• Judge: Mr. Justice Finnegan
• Judgment Date: 31 July 2002
• Neutral Citation: [2002] IEHC 115
• Court: High Court
• Date: 31 July 2002

[2002] IEHC 115

THE HIGH COURT

No. 9060P/2000

McK v. D

IN THE MATTER OF THE PROCEEDS OF CRIME ACT 1996

BETWEEN

Mc K

PLAINTIFF

AND

D

DEFENDANT

Citations:

PROCEEDS OF CRIME ACT 1996 S3

PROCEEDS OF CRIME ACT 1996 S8

DPP & ORS V HOLLMAN & ORS UNREP O'HIGGINS 29.7.1999 1999/8/1821

MURPHY (M) V M (G) & ORS UNREP O'HIGGINS 4.6.1999 1999/19/5948

DRUG TRAFFICKING OFFENCES ACT 1986 S1

R V HAGNALL JUSTICES EX PARTE SMYTH 1992 152 JP 475

PROCEEDS OF CRIME ACT 1996 S1

CONSTITUTION ART 15.5

DOYLE V AN TAOISEACH 1986 ILRM 693

FINANCE ACT 1980 S79

IMPOSITION OF DUTIES (NO 239) (AGRI PROD) (CATTLE & MILK) SI 152/1979

HAMILTON V HAMILTON 1982 IR 466

MCGEE V CULLIGAN 1992 1 IR 233

EXTRADITION (EUROPEAN CONVENTION ON THE SUPRESSION OF TERRORISM) ACT 1987 S1(4)

GILLIGAN V CRIMINAL ASSETS BUREAU & ORS 1998 3 IR 185 1998/7/1996

STAUTE OF LIMITATIONS ACT 1957 S11(7)(B)

MCK V H 2002 1 IR 72 2002 2 ILRM 117

Synopsis:

CRIMINAL LAW

Proceeds of crime

Whether the 1996 Act applies to crimes committed outside jurisdiction - Delay - Res judicata - Whether Act creates offences retrospectively - Whether claim statute barred - Statute of Limitations, 1957 (No 6), section 11(7)(b) - Proceeds of Crime Act, 1996, section 3 - Bunreacht na hÉireann, Article 15.5 (2000/9060P - Finnegan P - 31/7/2003)

McK v D

the plaintiff applied for an order pursuant to section 3 of the Proceeds of Crime Act, 1996 confiscating certain of the defendant's property representing the proceeds of crime. A number of legal objections to the making of the order were raised by the defendant including, inter alia

: (1) that the Act applied only to crimes committed within the jurisdiction; (2) that it was not in the interests of justice to make the order having regard to the delay in making the application; (3) that the issue of the confiscation of the defendant's property was

res judicata, having regard to the fact that he had previously served a prison sentence in England in default of payment of a confiscation order for drugs offences; (4) that section 3 was unconstitutional in that it infringed Article 15.5 of the Constitution as having retrospective effect, and; (5) that the plaintiff's claim was statute barred under section 11(7)(b) of the Statute of Limitations, 1957.

Held by Finnegan J in making the order sought pursuant to section 3 of the Proceeds of Crime Act, 1996 that: (1) the Act of 1996 does not apply only to crimes committed within the jurisdiction; (2) there was no delay on the part of the plaintiff either in instituting or prosecuting the proceedings; (3) res judicata could only apply if the plaintiff in the two relevant actions was the same. As the plaintiff in the UK proceedings was the Crown and not the plaintiff in the present proceedings res judicata could not apply; (4) the acquisition of assets deriving from crime was not a legal activity before the passing of the Act of 1996 and did not become an illegal activity because of that Act; (5) section 11(7)(b) of the Statute of Limitations, 1957 has no application to actions taken under the Proceeds of Crime Act, 1996

1 Mr. Justice Finnegan delivered on the 31st day of July 2002

2 This is an application for an order pursuant to the Proceeds of Crime Act 1996section 3 thereof in respect of premises in Co. Wicklow together with the furniture, fittings and contents therein and thereon the premises being those comprised in a Folio of the Register County Wicklow. The premises were valued at £120,000 stg. in 1992 and at £360,000 I.R. on the 19th February 2000.

3 The Defendant was born in 1939. He has a criminal record extending from the 27th February 1962 including convictions for road traffic offences, shop breaking, malicious wounding, assault, handling stolen goods, robbery, suborning members of a jury, possession of controlled drugs and possession of firearms all within the United Kingdom. He was first sentenced to imprisonment on the 18th July 1962 and thereafter in 1963 was sentenced to three years corrective training, in 1965 six months imprisonment, in 1966 to two years imprisonment, in 1969 to three years imprisonment, in 1974 to two years imprisonment suspended, in 1976 to a total of nine years imprisonment, in 1983 four years imprisonment, in 1992 nine months and nine years imprisonment. He was sentenced to three years imprisonment consecutive to the last mentioned sentence for failure to comply with a Confiscation Order for £140,000 stg. made on the 18th November 1992.

4 The premises the subject matter of this application were purchased by the Defendant in late 1998 - early 1999 without the aid of a mortgage and for the consideration of £I.R.128,000 By transfer dated 26th April 1993 he transferred the premises to his partner for the sum of £5. She contemporaneously executed an acknowledgement that she held the premises in trust for the Defendant and executed a transfer in his favour of the premises in consideration of £10 which transfer bears no date except the year 2000. The premises are at present occupied by his current partner. The following dates appear to me to be relevant in considering the evidence as to the source of funds utilised by the Defendant to acquire the premises. He would appear to have been almost continuously in prison from 1963 to 1971 and from December 1974 to the 14th December 1984. He appears to have been at large from the 14th December 1984 to the 20th October 1992. He was again in prison from the 20th October 1992 to the 4th April 2001. The only relevant period of significance during which he was at liberty and so capable of engaging in employment is that from 14th December 1984 to the 20th October 1992.

5 Also relevant is the nature of the offences of which he was convicted on the 11th December 1992 - two counts of possessing a controlled drug of class A with intent, two counts of possessing a controlled drug of class B with intent, two counts of possessing a firearm. He was sentenced to a total of nine years imprisonment for these offences. At the same time a Confiscation Order for £140,000 stg. to be effected within twelve months was made and on failure to comply he was to serve a further term of three years imprisonment consecutive to the sentence imposed. In fact he failed to comply with the Confiscation Order and served the three years imprisonment.

6 The Proceeds of Crime Act 1996requires me to make an order pursuant to that section if it appears to me on evidence tendered by the Plaintiff including evidence admissible by virtue of section 8 of the Act that -

7 (1) The Defendant is in possession or control of specified property.

8 (2) In the circumstances of this case that the specified property was acquired in whole or in part with property that directly or indirectly constitutes the proceeds of crime and

9 (3) That the value of the property is not less than £I.R.10,000

10 Section 8 of the Act provides that where a member or an authorised officer of the Criminal Assets Bureau in oral evidence on an application pursuant to section 3 of the Proceeds of Crime Act 1996states his belief that the Defendant is in possession or control of the property and that the property was acquired in whole or in part with property that directly or indirectly constitutes the proceeds of crime and is valued at not less than £I.R.10,000 then if the court is satisfied that there are reasonable grounds for that belief the statement shall be evidence of those matters. The order shall be made unless it is shown to the satisfaction of the court on evidence tendered by the Defendant or any other person that the property was not acquired in whole or in part with property directly or indirectly constituting the proceeds of crime or if it is satisfied that there would be a serious risk of injustice.

11 On the application the Plaintiff an authorised officer of the Criminal Assets Bureau gave evidence pursuant to section 8 of the Proceeds of Crime Act 1996satisfying me as to the requirements of section 3 of the Proceeds of Crime Act 1996. As to the grounds for the belief of the Plaintiff the Plaintiff relied on information furnished to him by Detective Constable T M of New Scotland Yard and Detective Garda D L of the Criminal Assets Bureau both of whom gave evidence and I am satisfied on the evidence before me of these two witnesses that there are reasonable grounds for the Plaintiff's belief. Accordingly on this application I must make an order unless I am satisfied on evidence by the Respondent or other witnesses called by him that the property was not acquired in whole or in part with proceeds of crime or the value of the property does not exceed £I.R. 10,000

12 As to the value of the property I have evidence of two valuations carried out upon the same one in 1992 and the other in 2000: further it is not an issue that the value of the property exceeds £I.R.10,000

13 The Defendant gave evidence as to the source of the funds utilised by him to acquire the premises. In short his evidence is that in the period between December 1984 when he was released from prison and late 1988 - early 1989 when he purchased the property he carried on business dealing in mens clothing primarily mens shirts and jumpers. He purchased from importers and wholesalers and sold them to others to retail...