Harry Cassidy v Commissioner of an Garda SÍochána and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 29 July 2014
• Neutral Citation: [2014] IEHC 386
• Court: High Court
• Date: 29 July 2014

[2014] IEHC 386

THE HIGH COURT

[No. 28 J.R./2013]

Cassidy v Cmsr of An Garda Siochana & Ors

JUDICIAL REVIEW

BETWEEN

HARRY CASSIDY

APPLICANT

AND

COMMISSIONER OF AN GARDA SÍOCHÁNA, JUDGE CORMAC DUNNE, IRELAND AND ATTORNEY GENERAL

RESPONDENTS

Former CEO - Provision of asset, portfolio and investment management services - Pension advisory services - Pension trust - Bank account - Freezing order - s. 17 Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 - Disclosure of un-redacted information - s. 19 Application to lift freezing order

Facts The applicant is a former CEO of Custom House Capital Limited which specialises in asset and investment management. On 1st July, 2011 the Central Bank made an ex parte application to the High Court arising out of concerns it had about the company”s affairs. The High Court appointed two inspectors to investigate and compile a report and the court appointed a liquidator on 21st October, 2011. The proceedings concern approximately €180,000 in two separate bank accounts. These accounts are held by Magpie Private Pension Trust, which was set up in or around Jan/Feb 2000 as a self-administered pension scheme to administer the pension of the applicant. In order for the applicant to set up the scheme it was necessary for him to obtain two independent trustees. The accounts were only earning 0.3% interest and so the applicant wished to transfer the funds to another bank to achieve a more competitive rate. In June 2012, all three signatories signed the request to the bank to close the account. This was not done. In July 2012, the bank informed the trustees who in turn informed the applicant that they had been served with a freezing order dated 9th July, 2012 pursuant to s. 17(2) of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010. On 4 ^th October the applicant”s solicitor sought specific information including sworn information grounding the making of the freezing order. This disclosure was made but in redacted form. Subsequently, the applicant's solicitor wrote to the Chief States Solicitor's Office on 30th October, 2012 seeking disclosure of the un-redacted sworn information and/or reasons for the redaction stating that the information received was inadequate to bring an application to lift the freezing order under s.19. This request was refused. The applicant therefore sought an order of certiorari quashing the refusal by the second named respondent. The applicant argued that the failure of the respondent to provide an un-redacted copy of the sworn information used to ground the original and subsequent applications for orders pursuant to s. 17(2) of the 2010 Act was unlawful and unfair. The applicant argued that for there to be a lawful interference by the first and third named respondents with the applicant's right to peaceful enjoyment of his property guaranteed by the Constitution and under the European Convention on Human Rights, the interference must be proportionate and in accordance with the aim of the legislation. The applicant submitted that there was an absence of fair procedure. The applicant argued that if the redacted material was relevant to the consideration by the Court of the issues under s. 17, then it should be made available to him to enable him to properly mount his application pursuant to s. 19 of the 2010 Act, wherein the onus rests on him to establish that the matters pertaining to that sworn information do not / no longer apply. Conversely, the respondents argued that the prevention of a criminal offence must be regarded as a warranted justification for the interference with property rights. The respondents submitted that said interference was proportionate. It was temporary in nature and the restriction was partial in that it restricted access to the funds but did not extinguish the property rights therein.

Held The court ruled that on a s. 19 application the applicant is not entitled to have sight of the un-redacted sworn information which was used to obtain the freezing order in question.

-The applicant must bear the burden of proof of establishing that there were no grounds to make the order under s. 17 of the 2010 Act or that such reasons no longer apply.

-When he has set out the origins of the funds on affidavit, it is then up to the first named respondent to place on affidavit the grounds on which he alleges that the s. 17 order should not be revoked.

Background

1 1. The applicant in this case is a former Chief Executive Officer of Custom House Capital Limited (hereinafter referred to as "CHC"). CHC's core activities related to the provision of asset, portfolio and investment management services as well as pension advisory services as an approved Qualifying Fund Manager to Approved Retirement Funds. On 1 ^st July, 2011, the Central Bank made an ex parte application to the High Court arising out of concerns it had about the affairs of CHC. The High Court appointed two inspectors to investigate and compile a report about CHC. On foot of the final report, the court appointed a Liquidator to CHC on 21 ^st October, 2011.

2 2. The subject matter of these proceedings concerns approximately €180,000 in two accounts with Bank of Ireland, being account numbers 81859879 and 67532132. These accounts are held by Magpie Private Pension Trust, which was set up in or around January or February 2000 as a self-administered pension scheme to administer the pension of the applicant. In order for the applicant to set up the scheme it was necessary for him to obtain two independent trustees to act as trustees in relation to the pension fund. The trustees of the pension are John Mulholland and Ruth Woods. The applicant is the sole beneficiary.

3 3. The funds in the two accounts were earning deposit interest of only 0.3%. Bank of Ireland would not increase the interest rate. The applicant states that it was decided to transfer the funds to another bank to enable a more competitive deposit rate to be earned. As such, it became necessary to withdraw the funds from the bank. It is a prerequisite that two of the three signatories sign the withdrawal forms. In early June 2012, all three signed the request to the bank to close the account, but the bank did not act on this. When it was followed up in July 2012, the bank informed the trustees who in turn informed the applicant that they had been served with a freezing order dated 9 ^th July, 2012, pursuant to s. 17(2) of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 (hereinafter referred to as "the 2010 Act").

4 4. The applicant states that he did not receive any notification of the freezing order dated 9 ^th July, 2012, obtained by the first named respondent from District Court No. 1 in the Criminal Courts of Justice, nor was he in receipt of three further notifications of the renewal of this freezing order relating to the accounts. It was only when the applicant sought to challenge the freezing order that he received notification of further orders.

5 5. It appears from correspondence between the solicitor for the first named respondent and from subsequent notifications that freezing orders were issued pursuant to s. 17(2) of the 2010 Act, commencing on 9 ^th July, 2012, and continuing on a monthly basis down to the present time.

6 6. The notices pursuant to s. 18 of the 2010 Act did not indicate the factual basis on which these freezing orders were made but stated as follows:-

"This order is to enable An Garda Síochána to carry out an investigation into whether or not there are reasonable grounds to suspect that the transaction on these accounts, if same were allowed to proceed, would comprise or assist in money laundering or terrorist financing."

7 7. The first named respondent was put on notice in writing by the applicant's solicitor that an application would be moved pursuant to s. 19(1) of the 2010 Act before District Court No. 1 in the Criminal Courts of Justice on 5 ^th October, 2012 at 10.30am.

8 8. Solicitors for the first named respondent entered into correspondence with the applicant's solicitor on 2 ^nd October, 2012, as to the basis on which the applicant was making the application. The applicant's solicitor sent a letter by return on 4 ^th October, 2012, stating that the application was confined to s. 19(1) and sought specific information, including a copy of the sworn information grounding the making of the freezing order.

9 9. Before the court on 5 ^th October, 2012, it was indicated by counsel for the first named respondent that the applicant would be furnished with a copy of the sworn information in respect of the most recent freezing order at that time. It was further indicated that the sworn information would be furnished in a redacted form. The matter was then adjourned on consent to 2 ^nd November, 2012, to enable the applicant's consideration of this disclosure. The applicant's solicitor received this disclosure on 17 ^th October, 2012.

10 10. On receiving the sworn information of which the third page was redacted, the applicant's solicitor wrote to the Chief States Solicitor's Office on 30 ^th October, 2012, seeking disclosure of the un-redacted sworn information and/or reasons for the redaction stating that the information received was inadequate to bring an application under section 19.

11 11. The applicant's solicitor received a written response to this letter from the third named respondent on 31 ^st October, 2012, stating that "the sworn information contained information about the ongoing investigation which was not relevant as to why [their] clients had applied for an order under s. 17 of the 2010 Act". They further stated that they believed that they had given more information than required under the relevant Act and that the information provided up to that point was not inadequate to...