Humphreys v Director of Public Procecutions
| Jurisdiction | Ireland |
| Judge | Mr. Justice Garrett Simons |
| Judgment Date | 25 January 2019 |
| Neutral Citation | [2019] IEHC 24 |
| Docket Number | 2016 No. 313 J.R |
| Court | High Court |
| Date | 25 January 2019 |
[2019] IEHC 24
THE HIGH COURT
JUDICIAL REVIEW
Simons J.
2016 No. 313 J.R
Judicial review – Case stated – Forfeiture application – Applicants seeking judicial review – Whether proceedings had been dismissed
Facts: The High Court, in November 2014, made an order, on an appeal from the Circuit Court, the effect of which was to dismiss certain proceedings in their entirety (the forfeiture application). The respondent, the DPP, maintained the position that those proceedings remained “pending” before the Circuit Court, and that the Circuit Court accordingly had jurisdiction to state a case to the Court of Appeal. Judicial review proceedings were instituted in response to an indication by the Circuit Court in March 2016 that it intended to accede to the DPP’s application to state a case to the Court of Appeal. The applicants in the proceedings, Mr Humphreys, Mr Davis and Pacnet Holdings Ltd, were three of the four respondents to the forfeiture application. The fourth respondent, Anonan International Traders Ltd, was a notice party to the proceedings, and indicated through counsel that it supported the application for judicial review. The judicial review proceedings sought, in effect, to restrain the taking of any further steps in respect of the forfeiture application on the basis that those proceedings had been dismissed. The DPP opposed that relief.
Held by the Court that the DPP’s position was untenable, and failed to respect the principle of res judicata and the hierarchy of the courts. The Court concluded that the applicants had made out grounds for judicial review. The Court held that this was not a case where the High Court should exercise its discretion to refuse relief.
The Court held that it would grant the following relief to the applicants: 1) a declaration that the effect of the judgment and order of the High Court of 11 November 2014 in the proceedings entitled “Director of Public Prosecutions v. Humphreys & Ors.” (High Court Record Number 2013 No. 69 CA) was to dismiss the forfeiture application pursuant to s. 39 of the Criminal Justice Act 1994 in its entirety; and 2) an order of prohibition restraining the DPP from taking any further steps to progress the purported case stated from the Circuit Court in the forfeiture application.
Application granted.
These judicial review proceedings should have been entirely unnecessary. The need to bring the proceedings only arose as a consequence of the unwillingness of the Director of Public Prosecutions (‘ DPP’) to respect the finality of a High Court judgment.
The background to the matter can be shortly stated. In November 2014, the High Court (O'Malley J.) made an order, on an appeal from the Circuit Court, the effect of which was to dismiss certain proceedings in their entirety. I will refer to these earlier proceedings as the ‘ forfeiture application’. Notwithstanding the fact that the forfeiture application had been dismissed in its entirety, the DPP maintains the position that those proceedings remain ‘ pending’ before the Circuit Court, and that the Circuit Court accordingly has jurisdiction to state a case to the Court of Appeal.
The within judicial review proceedings were instituted in response to an indication by the Circuit Court in March 2016 that it intended to accede to the DPP's application to state a case to the Court of Appeal. The applicants in the judicial review proceedings are three of the four respondents to the forfeiture application. (The fourth respondent is a notice party to these judicial review proceedings, and has indicated through counsel that it supports the application for judicial review). The judicial review proceedings seek, in effect, to restrain the taking of any further steps in respect of the forfeiture application on the basis that those proceedings have been dismissed. The DPP opposes this relief.
The judicial review proceedings came on for hearing before me on 15 January 2019.
The stance which has been adopted by the DPP is so extraordinary that I adjourned the judicial review proceedings overnight in order to allow counsel on behalf of the DPP to confirm his instructions. Counsel informed me on the following day that the DPP's position remained as before.
For the reasons set out below, I have concluded that the DPP's position is untenable, and fails to respect the principle of res judicata and the hierarchy of the courts.
The forfeiture application related to cash which had been seized at Shannon Airport in May 2010. The cash was in a variety of different currencies, and was equivalent in value to approximately €210,000.
Section 39 of the Criminal Justice Act 1994 (as amended by the Proceeds of Crime Act 2005) provides that a judge of the Circuit Court may order the forfeiture of any cash which has been seized if satisfied that the cash, directly or indirectly, represents the proceeds of crime, or is intended by any person for use in connection with any criminal conduct. Section 38 of the Criminal Justice Act 1994 authorises the District Court to order the detention of cash seized for periods not exceeding three month intervals and for a total period not exceeding two years from the date of the (first) order for detention. The combined effect of the two sections is that an application to forfeit cash must be made within two years of the date of the (first) detention order.
Section 38(3A) of the Criminal Justice Act 1994 (as inserted in 2005) provides that where an application is made under section 39(1) for an order for the forfeiture of cash detained, the cash shall, notwithstanding the two-year time limit, continue to be so detained until the application is finally determined.
The forfeiture application was instituted by way of an originating notice of motion as required under Order 69 of the Circuit Court Rules. There were four parties named as respondents / notice parties to the forfeiture application. For ease of exposition, I will use the shorthand ‘ respondents’ rather than ‘ respondents / notice parties’ to describe these parties.
Three of these four respondents issued a notice of motion seeking to dismiss the forfeiture application on the basis that one of the parties, Mr Davis, had not been served with the originating notice of motion within the two-year time limit. The fourth respondent, Anona International Traders Ltd. (‘ Anona International’), was not a party to this motion. It is accepted that Anona International is now the only party claiming ownership of the cash.
I pause here to note that there were thus two notices of motion in existence before the Circuit Court, namely (i) the originating notice of motion, and (ii) the notice of motion seeking to dismiss the application. This assumes significance subsequently in that the originating notice of motion mistakenly remained listed before the Circuit Court following the High Court appeal.
Returning to the chronology, the motion to dismiss the forfeiture application came on for hearing before the Circuit Court in March 2013. The Circuit Court (Judge O'Donnell) refused the application to dismiss. The three respondents then exercised their statutory right of appeal to the High Court pursuant to section 37 of the Courts of Justice Act 1936 (as amended). This appeal was heard by O'Malley J., and a reserved judgment was delivered on 21 October 2014, Director of Public Prosecutions v. Humphreys [2014] IEHC 539. An order allowing the appeal and directing the DPP to pay the costs of the proceedings in the Circuit Court, and of the hearing of the High Court appeal, was made on 11 November 2014. The order was ultimately perfected on 27 January 2015.
The effect of the High Court order was to dismiss the forfeiture application in its entirety. There can be no doubt about this. The operative part of the order states that ‘ the Appeal be allowed’. The appeal, as is clear from the notice of appeal filed on 22 March 2013, was in respect of the judgment and decision of the Circuit Court to dismiss the application of the first, second and third named respondents set out in their notice of motion dated 17 September 2012. That motion is clear in its terms, and it sought to dismiss the ‘ within application’, i.e. the forfeiture application. The motion did not, for example, limit its scope to an application to dismiss the forfeiture application as against the three respondents who had issued the motion.
Moreover, any other interpretation of the effect of the High Court order would be wholly inconsistent with the terms of the judgment of 21 October 2014. The central issue before the High Court in the appeal concerned the interpretation and operation of the two-year time limit. The High Court had to consider what steps had to be taken within the two-year period in order to comply with the same. In particular, the High Court had to consider the argument, made on behalf of the DPP, that it was not necessary that all relevant parties be served within the two year time period. The High Court rejected this argument, by reference, in particular, to the judgments of the Supreme Court in KSK Enterprises Ltd v. An Bord Pleanála [1994] 2 I.R. 128, and Director of Public Prosecutions v. England [2011] IESC 16.
(The approach of the High Court to the issue of statutory interpretation has subsequently been endorsed by the Supreme Court in Reilly v. Director of Public Prosecutions [2016] IESC 59; [2016] 3 I.R. 229).
Crucially, the High Court expressly stated that where a statutory time limit requires that an application be brought by way of motion on notice, the notice must...
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