Finnegan v District Judge Michael Walsh and Others
| Jurisdiction | Ireland |
| Judge | Kearns P. |
| Judgment Date | 21 June 2013 |
| Neutral Citation | [2013] IEHC 276 |
| Court | High Court |
| Date | 21 June 2013 |
[2013] IEHC 276
THE HIGH COURT
AND
AND
CRIMINAL JUSTICE (MONEY LAUNDERING & TERRORIST FINANCING) ACT 2010 S19(1)
CRIMINAL JUSTICE (MONEY LAUNDERING & TERRORIST FINANCING) ACT 2010 S17
CRIMINAL JUSTICE (MONEY LAUNDERING & TERRORIST FINANCING) ACT 2010 S18
CRIMINAL JUSTICE (MONEY LAUNDERING & TERRORIST FINANCING) ACT 2010 S19
CRIMINAL JUSTICE (MONEY LAUNDERING & TERRORIST FINANCING) ACT 2010 S20
CRIMINAL JUSTICE (MONEY LAUNDERING & TERRORIST FINANCING) ACT 2010 S21
CRIMINAL JUSTICE (MONEY LAUNDERING & TERRORIST FINANCING) ACT 2010 S22
CRIMINAL JUSTICE (MONEY LAUNDERING & TERRORIST FINANCING) ACT 2010 S17(1)
CRIMINAL JUSTICE (MONEY LAUNDERING & TERRORIST FINANCING) ACT 2010 S17(2)
CRIMINAL JUSTICE (MONEY LAUNDERING & TERRORIST FINANCING) ACT 2010 S18(4)
CRIMINAL JUSTICE (MONEY LAUNDERING & TERRORIST FINANCING) ACT 2010 S18(5)
CRIMINAL JUSTICE (MONEY LAUNDERING & TERRORIST FINANCING) ACT 2010 PART III
DPP v DOYLE 1994 2 IR 286
CRIMINAL JUSTICE (MONEY LAUNDERING & TERRORIST FINANCING) ACT 2010 S17(3)
CRIMINAL JUSTICE (MONEY LAUNDERING & TERRORIST FINANCING) ACT 2010 PART IV CHAP 4
VEHICLE TECH LTD v ALLIED IRISH BANKS PLC & ORS 2012 2 IR 131 2011/48/13639 2010 IEHC 525
CRIMINAL JUSTICE ACT 1994 S31(8)
PROCEEDS OF CRIME ACT 1996
DCR O.46A
DCR O.46A r3
MURPHY v DUBLIN CORP & MIN FOR LOCAL GOVT 1972 IR 215 1973 107 ILTR 65
MCDONALD v RADIO TELIFIS EIREANN 2001 1 IR 355 2001 2 ILRM 1 2003/40/9555
HOGAN & ORS ADMINISTRATIVE LAW IN IRELAND 4ED 2010 1115
O'MAHONY v JUDGE BALLAGH & DPP 2002 2 IR 410 2001/19/5350
FOLEY v JUDGE MURPHY & DPP 2008 1 IR 619 2007/24/4877 2007 IEHC 232
LYNDON v DISTRICT JUDGE COLLINS UNREP CHARLETON 22.1.2007 2009/33/8216 2007 IEHC 487
FLANNERY v HALIFAX ESTATE AGENCIES LTD (T/A COLLEYS PROFESSIONAL SERVICES) 2000 1 WLR 377 2000 1 AER 373 2000 CP REP 18
ENGLISH v EMERY REIMBOLD & STRICK LTD 2002 1 WLR 2409 2002 3 AER 385 2003 IRLR 710
CRIMINAL LAW
Disclosure
Application for judicial review - Refusal to grant order for disclosure - Holder of credit union account subject to freezing orders - Application for disclosure - Refusal of disclosure - Finding that application premature - Alleged breach of fair procedures - Public interest in integrity of ongoing criminal investigation - Absence of reason or principle underpinning decision of court - Whether finding that application premature correct where no possibility of application being made at later stage - Whether reasons furnished of sufficient particularity or specificity - DPP v Gary Doyle [1994] 2 IR 286; Vehicle Tech Limited v Allied Irish Banks plc & Ors [2010] IEHC 525, [2012] 2 IR 131; Murphy v Dublin Corporation [1972] IR 215; McDonald v RTÉ [2001] 1 IR 355; O'Mahony v Ballagh [2002] 2 IR 410; Foley v Judge Murphy [2007] IEHC 232, [2008] 1 IR 619; Lyndon v Collins [2007] IEHC 487, (Unrep, Charleton J, 21/1/2007); Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377 and English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409 considered - Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 (No 6), ss 17, 18, 19, 20, 21 and 22 - Decision quashed (2012/875JR - Kearns P - 21/6/2013) [2013] IEHC 276
Finnegan v District Judge Walsh
Facts: The applicant was a holder of a Tallaght West Credit Union account that was the subject of successive freezing orders pursuant to s.17 of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 (the ‘2010 Act’). In these proceedings, the applicant sought various reliefs by way of judicial review in respect of the first named respondent”s refusal to accede to his application under s.19(1) of the 2010 act and grant disclosure to him. The applicant”s solicitor had written to Gardai on the 18 th May 2012 seeking a copy of the freezing order then in force, as well as all documentation that had been used in support of the application, but only a copy of the order was disclosed. The application for disclosure therefore focused predominantly on this supporting documentation; and when this was refused, the application for judicial review was made.
It was the applicant”s contention that disclosure should be made as he had no knowledge of the basis on which the freezing order was made. He claimed that without the relevant disclosure, he was unable to challenge the order pursuant to s. 19 of the 2010 Act. It was accepted there was no explicit provision for disclosure within the 2010 Act, however, it was argued that under the constitutional right of fair procedures, there was a requirement to furnish detailed reasons for the making of the order regardless. The fourth named respondent argued that if the applicant wished to challenge the freezing order, it was for him to prove that the monies held in the account came from a legitimate source, a matter which would undoubtedly be in his own knowledge. On that basis, it was argued that the disclosure of the supporting documentation was not necessary, an inaction that did not breach the applicant”s constitutional right of fair procedures. In response, the applicant argued that if he was to challenge the freezing order, s. 19 of the 2010 Act obliged him to prove that the monies in the account would not be used in money laundering or terrorist financing. It was contended that this would require disclosure of the relevant documents.
Held by Kearns P. that under s. 18 of the 2010 Act, a person affected by a freezing order should be furnished with reasons for why it was made. However, under s. 18(5), detailed reasons did not have to be given where there were reasonable grounds that doing so could prejudice the related investigation. It was certainly in the public interest to refuse to order disclosure when necessary to maintain the integrity of an ongoing investigation into criminal activity. However, it was held that circumstances such as that could only justify non-disclosure of certain classes of documents which were considered potentially prejudicial to ongoing proceedings, not a refusal of disclosure generally.
On consideration of the first respondent”s decision to refuse disclosure, it was held that there did not appear to be any consideration of which documents could be disclosed. In fact, there did not appear to be any clear rationale or principle for the ruling whatsoever. As it was a requirement of a judge to outline the reasons behind a court ruling, the application for judicial review was granted.
Application for judicial review granted. Decision of first named respondent quashed.
JUDGMENT of Kearns P. delivered the 21st day of June, 2013.
In these proceedings the applicant seeks various reliefs by way of judicial review in respect of the first named respondent's refusal to grant an order for disclosure to the applicant in the context of an application brought by him under s.19 (1) of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 (hereinafter referred to as the "2010 Act").
The applicant is the holder of an account at Tallaght West Credit Union, Dublin 24, which said account has been the subject matter of successive "freezing" type orders under s. 17 of the 2010 Act. The relevant sections of the 2010 Act provide as follows:-
2 "17. Direction or order not to carry out service or transaction.
(1) A member of the Garda Síochána not below the rank of superintendent may, by notice in writing, direct a person not to carry out any specified service or transaction during the period specified in the direction, not exceeding 7 days, if the member is satisfied that, on the basis of information that the Garda Síochána has obtained or received (whether or not in a [suspicious transaction] report made under Chapter 4 of Part 4), such a direction is reasonably necessary to enable the Garda Síochána to carry out preliminary investigations into whether or not there are reasonable grounds to suspect that the service or transaction would, if it were to proceed, comprise or assist in money laundering or terrorist financing.
(2) A judge of the District Court may order a person not to carry out any specified service or transaction during the period specified in the order, not exceeding 28 days, if satisfied by information on oath of a member of the Garda Síochána, that-
(a) there are reasonable grounds to suspect that the service or transaction would, if it were to proceed, comprise or assist in money laundering or terrorist financing, and
(b) an investigation of a person for that money laundering or terrorist financing is taking place.
(3) An order may be made, under subsection (2), in relation to a particular service or transaction, on more than one occasion.
(4) An application for an order under subsection (2) shall be made to a judge of the District Court assigned to the district in which the order is proposed to be served.
(5) A person who fails to comply with a direction or order under this section commits an offence ....
18. Notice of direction or order.
(1) As soon as practicable after a direction is given or order is made under section 17, the member of the Garda Síochána who gave the direction or applied for the order shall ensure that any person who the member is aware is affected by the direction or order is given notice, in writing, of the direction or order unless-
(a) it is not reasonably practicable to ascertain the whereabouts of the person, or
(b) there are reasonable grounds for believing that disclosure to the person...
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Harry Cassidy v Commissioner of an Garda SÍochána and Others
...available to the applicant. 42 42. In the course of argument, references were made to Finnegan v. District Judge Michael Walsh & Ors [2013] IEHC 276. Kearns P. had to deal with a similar application for disclosure of the reasons for the making of a freezing order over certain accounts. The ......