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

• Jurisdiction: Ireland
• Judge: Mr Justice McCracken,FENNELLY J.
• Judgment Date: 17 May 2004
• Neutral Citation: [2004] IESC 31
• Court: Supreme Court
• Docket Number: [2003 No. 42]
• Date: 17 May 2004

McK. v. D.

IN THE MATTER OF THE PROCEEDS OF CRIME ACT 1996

BETWEEN

McK

Plaintiff/Respondent

-v-

D

Defendant/Appellant

[2004] IESC 31

Keane C.J.

Denham J.

Murray J.

Fennelly J.

McCracken J.

042/2003

THE SUPREME COURT

Synopsis:

- [2004] 2 IR 470 - [2004] 2 ILRM 419

The High Court made an order prohibiting the appellant from dealing in a property which the respondent claimed represented the proceeds of crime committed outside the jurisdiction by the appellant, a UK citizen. The appellant claimed the proceedings were statute barred, the evidence of the authorised officers of the respondent was inadmissible, the Act has no application to crimes committed outside the State and that by reason of delay and oppression it was contrary to the interests of justice to make the order. The appellant appealed the High Court decision.

Held by the Supreme Court (Keane CJ; Denham; Murray; Fennelly and McCracken JJ) in allowing the appeal that the High Court order was a freezing order as opposed to a forfeiture; the Statute of Limitations had no application and that the trial judge was entitled, in the circumstances, to admit evidence adduced on the part of the respondent. However, the legislation could only apply to property acquired with the proceeds of crime committed within the State and accordingly the appeal must succeed.

Reporter: F. McE

Citations:

PROCEEDS OF CRIME ACT 1996 S3

PROCEEDS OF CRIME ACT 1996 S8

MCK V F (A) 2002 1 IR 242 2002 2 ILRM 303

RSC O.60

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

MCK V H UNREP FINNEGAN 12.4.2002 2002/20/5092

PROCEEDS OF CRIME ACT 1996 S8(1)

MURPHY V M (G) 2001 4 IR 113

G V CAB 1998 3 IR 185

PROCEEDS OF CRIME ACT 1996 S1(1)

MELLING V MATHGHAMHNA 1962 IR 1

CRIMINAL LAW (JURISDICTION) ACT 1976

CRIMINAL JUSTICE ACT 1994 S31(11)

EXTRADITION ACT 1965

EXTRADITION (AMDT) ACT 1987

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

BONALUMI V SECRETARY OF STATE 1985 1 AER 979

ANTONELLI V SECRETARY OF STATE 1998 1 AER 997

STATUTE OF LIMITATIONS ACT 1957 S2

STATUTE OF LIMITATIONS ACT 1957 S3

OFFENCES AGAINST THE STATE ACT 1972 S3

O'LEARY V AG 1993 1 IR 102 1991 ILRM 454 1990/10/2890

OFFENCES AGAINST THE STATE ACT 1972 S3(1)

OFFENCES AGAINST THE STATE ACT 1972 S3(1)(A)

OFFENCES AGAINST THE STATE ACT 1972 S3(1)(B)

EXTRADITION ACT 1873 S5

AMAND V SECRETARY OF STATE FOR HOME AFFAIRS 1943 AC 147

CRIMINAL JUSTICE ACT 1994 S31

1 JUDGMENT delivered on the 17th day of May,2004by FENNELLY J.

2 On 31 ^st July 2002, the President of the High Court made an order pursuant to section 3 of The Proceeds of Crime Act, 1996("the 1996 Act") prohibiting the appellant and other persons on notice of the order from disposing of or otherwise dealing with a dwellinghouse, whose ownership is registered in the Register of Freeholders, County Wicklow (hereinafter "thepremises").

3 The order was made on foot of a judgment of the same date and following a hearing over six days in the month of May 2001. It was based on a finding that the premises representedin whole or in part the proceeds of crime. The criminal activity in question had taken place in the United Kingdom. The learned President heard evidence, some of it on affidavit, from the plaintiff, an authorised officer of the Criminal Assets Bureau, an English detective constable and a member of An Garda Síochána, attached to the Bureau. He also heard evidence from the appellant.

4 The appeal raises four principal issues. In very brief terms theyare:

5 1. That the claim is statute-barred;

6 2. That much of the evidence was inadmissible;

7 3. That the 1996 Act does not apply to the proceeds of crimes committed outside the jurisdiction;

8 4. That it was contrary to the interests of justice to make theorder.

9 Section 3 of the 1996 Act provides as follows for the making of what it describes as "an interlocutory order":

10 2 "3.–(1) Where, on application to it in that behalf by the applicant, it appears to the Court, on evidence tendered by the applicant, consisting of or including evidence admissible by virtue of section 8-M

11 (a) that a person is in possession or control of

12 (i) specified property and that the property constitutes, directly or indirectly, proceeds of crime, or

13 (ii) specified property that was acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes proceeds of crime,

14 and

15 (b) that the value of the property or, as the case may be, the total value of the property referred to in both subparagraphs (i) and (ii) of paragraph (a) is not less than £10,000,

16 the Court shall make an order ("an interlocutory order") prohibiting the respondent or any other specified person or any other person having notice of the order from disposing of or otherwise dealing with the whole or, if appropriate, a specified part of the property or diminishing its value, unless, it is shown to the satisfaction of the Court, on evidence tendered by the respondent or any otherperson

17 (I) that that particular property does not constitute, directly or indirectly, proceeds of crime and was not acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes proceeds of crime, or

18 (II) that the value of all the property to which the order would relate is less than £10,000:

19 a Provided, however, that the Court shall not make the order if it is satisfied that there would be a serious risk ofinjustice.

20 (2) An interlocutory order

21 (a) may contain such provisions, conditions and restrictions as the Court considers necessary or expedient, and

22 (b) shall provide for notice of it to be given to the respondent and any other person who appears to be or is affected by it unless the Court is satisfiedthat it is not reasonably possible to ascertain his, her or theirwhereabouts.

23 (3) Where an interlocutory order is in force, the Court, on application to it in that behalf at any time by the respondent or any other person claiming ownership of any of the property concerned, may, if it is shown to the satisfaction of the Court that the property or a specified part of it is property to which paragraph (I) of subsection (I) applies, or that the order causes any other injustice, discharge or, as may be appropriate, vary the order.

24 (4) The Court shall, on application to it in that behalf at any time by the applicant, discharge an interlocutory order.

25 (5) Subject to subsections (3) and (4), an interlocutory order shall continue in force until

26 (a) the determination of an application for a disposal order in relation to the property concerned,

27 (b) the expiration of the ordinary time for bringing an appeal from that determination,

28 (c) if such an appeal is brought, it or any further appeal is determined or abandoned or the ordinary time for bringing any further appeal has expired,

29 3 whichever is the latest, and shall then lapse.

30 (6) Notice of an application under this section shall begiven

31 (a) in case the application is under subsection ( 1) or (4), by the applicant to the respondent, unless the Court is satisfied that it is not reasonably possible to ascertain his or herwhereabouts,

32 (b) in case the application is under subsection (3), by the respondent or other person making the application to theapplicant,

33 4 and, in either case, to any other person in relation to whom the Court directs that notice of the application he given to him orher.

34 (7) Where a forfeiture order, or a confiscation order, under the Criminal Justice Act, 1994, or a forfeiture, order under the Misuse of Drugs Act, 1977, relates to any property that is the subject of an interim order, or an interlocutory order, that is in force, ("the specified property"), the interim order or, as the case may be, the interlocutory order shall

35 (a) if it relates only to the specified property, stand discharged, and

36 (b) if it relates also to other property, stand varied by the exclusion from it of the specified property.

37 Section 8 of the 1996 Act makes special provision for the receipt of evidence of belief as follows:

38 2 "8.–(1) Where a member or an authorised officerstates

39 (a) in proceedings under section 2, on affidavit or, if the Court so directs, in oral evidence, or

40 (b) in proceedings under section 3, in oral evidence, that he or she believes either or both of the following, that is to say:

41 (i) that the respondent is in possession or control of specified property and that the property constitutes, directly or indirectly, proceeds of crime,

42 (ii) that the respondent is in possession of or control of specified property and that the property was acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes proceeds of crime,

43 3 and that the value of the property or, as the case may be, the total value of the property referred to in both paragraphs (i) and (ii) is not less than £10,000, then, if the Court is satisfied that there are reasonable grounds for the belief aforesaid, the statement shall be evidence of the matter referred to in paragraph (i) or in paragraph (ii) or in both, as may be appropriate, and of the value of the property.

The High Court proceedings

44 The appellant draws attention to three particular features of the proceedings in the High Court. Firstly, the action, having been commenced prior to the decision of this Court in McK v A.F. [2002] I.R. 242, proceeded primarily as if it were an ordinary interlocutory application, i.e., on affidavit and without pleadings other than the issue of a Plenary Summons.Secondly, the learned President stated in his judgment that he had been asked to leave over determination of the issue of the applicability of the Statute of Limitations until he had decided...