Howe v Revenue Commissioners
| Jurisdiction | Ireland |
| Judge | Mr. Justice White |
| Judgment Date | 24 February 2017 |
| Neutral Citation | [2017] IEHC 153 |
| Docket Number | [2016 No. 81 J.R.] [2016 No. 82 J.R.] |
| Court | High Court |
| Date | 24 February 2017 |
[2017] IEHC 153
THE HIGH COURT
JUDICIAL REVIEW
White Michael J.
[2016 No. 81 J.R.]
[2016 No. 82 J.R.]
AND
AND
Crime & Sentencing – Accountability for possession of large sum of money – Possession of cocaine – S. 38 of the Criminal Justice Act 1994 – S. 20 of the Proceeds of Crime (Amendment) Act 2005 – Breach of fair procedures
Facts: The applicants sought orders of certiorari in both the proceedings for quashing the order of the District Judge for detaining the monies taken from the applicants. The applicants argued that the learned District Judge had erred in law for shifting the burden of proof on the applicants to prove the source of money. The respondents contended that since the order of the District Judge was now spent, the present application had become moot.
Mr. Justice White refused to grant the desired relief to the applicants. The Court held that the order granting the detention of monies had been spent, and thus, the proceedings had become moot. The Court, however, observed that there was nothing illegal or wrong in the learned judge's order as it was a temporary order made until the determination of the forfeiture application. The Court held that the money was lodged in the interest-bearing account and thus, it would not affect the applicants adversely. The Court, however, pointed out that there was some misunderstanding in relation to the burden of proof as it was not mandatory that the applicants would give explanation for the source and origin of money. The Court cautioned the applicants that if the appropriate origin for money was not accounted for, it would have an adverse impact on the outcome of their forfeiture application.
These judicial review applications were heard together. The applicants were granted leave by this Court on 8th February, 2016, on similar grounds. Those grounds are set out in the amended statement required to ground application for judicial review, as follows:-
(i) The applicant seeks the return of a sum of money seized on behalf of the respondents on 8th August, 2015. This sum was below the prescribed statutory minimum for the application of the provisions of s. 38 of the Criminal Justice Act 1994, as amended by s. 20 of the Proceeds of Crime (Amendment) Act 2005. If this sum can properly be taken together with the sum seized from both parties on the same date and can be taken to be in excess of the prescribed statutory minimum.
(ii) The District Court hearing conducted pursuant to s. 38 of the Criminal Justice Act 1994, as amended, was not conducted in accordance with fair procedures or the procedures mandated by section 38.
(iii) The learned District Judge erred in law and acted unreasonably by reversing the burden of proof and stating that he was adjourning the matter so that the applicant could attend and give evidence of the origin of the money. Counsel had made the submission that the applicant did not have to attend or say anything in respect of the money concerned. The District Judge appeared to have erred in law in rejecting this submission.
(iv) The learned District Judge erred in law and fact by reversing the burden of proof in the context of an application pursuant to section 38. The District Judge did not agree with counsel's submission that he could properly appear in the matter and object to an order being made pursuant to s. 38 on the basis that the proofs required under that section had not been satisfied. The District Judge took the view that counsel could only object to the order being made if his clients were present and in a position to give evidence. In holding this view, the District Judge erred in law and exceeded jurisdiction.
(v) The District Judge erred in law by adjourning the case mid-hearing in order for the applicant to be present and to give evidence and by expressing the view that he wished to hear from the applicant with the clear implication that it was incumbent upon the applicant to take part in the proceedings before the District Court in the context of an application pursuant to section 38.
(vi) The District Judge did not rule upon counsel's argument that the proofs under s. 38 had not been made out and refused to entertain further arguments in relation to the proofs until the applicant was present. He then adjourned the case for the express purpose of having the applicant present in court to give evidence without ruling on the arguments made by counsel. This course rendered the hearing unfair and not in accordance with section 38. The court effectively refused to permit counsel to make technical arguments against an order being made pursuant to s. 38 when his client was absent from proceedings.
(vii) The learned District Judge erred by in essence compelling the applicant to take part in the proceedings reversing the burden of proof and disallowing technical arguments to advance before the court passed on the express provisions of section 38.
(viii) In adjourning the case, the court did not make an order pursuant to s. 38 and in failing to do so, the previous order lapsed. There is now no order in place permitting the continued retention of the funds pursuant to the Criminal Justice Act 1994, and these funds should be returned to the applicant.
(ix) If indeed any order was made on 5th February, 2016, under s. 38 authorising the continued retention of the money then this order was made ultra vires without hearing argument from counsel that the proofs required under s. 38 had not been satisfied and for an unlawful purpose i.e. compelling the applicant to attend to give evidence in respect of an application by the State.
(x) The adjournment of the case for the express purpose that the applicant attend to give evidence in the context of an application pursuant to s. 38 amounts to a breach of fair procedures and potentially interferes with a person's privilege against self incrimination.
(xi) The seizure sum of money in question should be returned to the applicant as it represents an amount below the statutory minimum amount. The invocation of the s. 38 procedure in respect of the amount of the two sums amounts to an abuse of process.
(xii) The aggregation of sums seized from two separate individuals so that the aggregate sum exceeds the statutory minimum where otherwise neither sum would be subject to the provisions of s. 38 of the Criminal Justice Act 1994, amounts to an abuse of process and for this reason the sum should be returned.
(xiii) If on 5th February, 2016, the District Judge purported to permit the continued detention of the funds pursuant to s. 38, any such order is invalid having regard to the fact that the court did not complete the hearing pursuant to s. 38 for a continued order having regard to the insertion provided for by the provisions of s. 20(b) of the Proceeds of Crime Act 2005.
(xiv) If any such order was made pursuant to s. 38 on 5th February, 2016, this order was made without evidence to satisfy the court that the proofs under s. 38 had been made out and in those circumstances was made ultra vires.
(xv) In the alternative, if no order was made pursuant to the provisions of s. 38 then there is no continuity of orders pursuant to section 38. The order made on 6th November, 2016, has expired, the cash is unlawfully detained and should be returned to the applicant.
The order of the District Court of 5th February, 2016, sought to be quashed relates to an application to detain monies taken from both applicants. The undisputed evidence is that on 8th August, 2015, both applicants were interviewed at Dublin Airport by customs and excise officials. They were about to board a flight from Dublin to Ibiza on flight FR9177 and had each checked in a bag. Mr. Adam Howe had €3,900 cash on his person and Mr. Laurence Keane had €4,250 on his person. When their checked baggage was examined, cocaine was discovered in Mr. Howe's baggage concealed in a sock. A quantity of cocaine was also discovered in the checked baggage of Mr. Keane which was concealed in a tub of Brylcreem hair gel which had an estimated street value of €2,100.
The applicants did not give any explanation, other than Mr. Howe stating that he received the money from his mother and would spend it during his three days in Ibiza. The cash was seized and detained by custom officers at 9:30am on 8th August, 2015, and the sum of €200 each was returned to the applicants.
Later that morning, one of the custom officers, Thomas McDonnell, swore an information before a Judge of the District Court, Judge John O'Neill, seeking a detention order pursuant to s. 38 of the Criminal Justice Act 1994, as amended by s. 20 Proceeds of Crime (Amendment) Act 2005 on the basis that there was reasonable grounds for suspecting that the applicants were exporting or intending to export the cash of unknown origin and that the said cash directly or indirectly represented the proceeds of crime.
The grounds upon which the officer sought to retain the cash was set out in the information as follows:-
(a) Mr. Adam Howe and Mr. Laurence Keane were travelling together. From additional inquiries, I found that Mr. Howe and Mr. Keane are known to An Garda Síochána and are part of an organised criminal gang.
(b) Mr. Howe was travelling on a ticket to Ibiza departing on 8th August, 2015, and returning on 11th August, 2015. The ticket was booked the day before departure on 7th August, 2015 and cost €350. Mr. Keane booked one way only on 6th August, 2015 and cost €178. Booking flights at the last minute is a method commonly used by criminals to minimise the timeframe...
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