J.M. and Others v Platinum Investment and Development Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Brian McGovern
• Judgment Date: 19 December 2008
• Neutral Citation: [2008] IEHC 421
• Docket Number: [No. 12 CAB/2007]
• Court: High Court
• Date: 19 December 2008

M (J) & Ors v Platinum Investment and Development Ltd

PROCEEDS OF CRIME

IN THE MATTER OF THE PROCEEDS OF CRIME ACT 1996

AND

IN THE MATTER OF AN APPLICATION AFFECTING PROPERTY

ALLEGED TO BE IN THE POSSESSION OR CONTROL OF

J.M., K.B., E.H., W.H.

APPLICANTS

AND

PLATINUM INVESTMENT AND DEVELOPMENT LTD.

RESPONDENTS

[2008] IEHC 421

[No. 12 CAB/2007]

THE HIGH COURT

PRACTICE AND PROCEDURE

Contempt

In camera rule - Breach - Unintentional - Criminal Assets Bureau proceedings - Information relating to Criminal Assets Bureau application published by respondents in newspaper and in book - Court order that no information relating to application be published - Respondents not informed of court order - Penalty for contempt - Whether contempt shown - Whether contempt criminal or civil - Whether defence to show respondents not made aware of order - MP v AP [1996] 1 IR 144, In re Kennedy and McCann [1976] 1 IR 382, The State (Keegan) v De Burca [1993] 1 IR 223, X County Council v A [1985] 1 All ER 53 considered - Proceeds of Crime Act 1996 (No 30), ss 2 & 8 - Respondents found guilty of criminal contempt (2007/12CAB - McGovern J - 19/12/2008) [2008] IEHC 421

M(J) v Platinum Investment and Development Ltd

Facts: The first and third named respondents were the subject of proceedings by the Criminal Assets Bureau (CAB) essentially restraining them from dealing with certain named properties. Orders were also made by the court on 10 December 2007 pursuant to s. 8(4) of the Act of 1996, prohibiting the publication of information that would in any way identify the respondents herein. The first and third named respondents sought on foot of notice of motion for contempt an order attaching the respondents and/or sequestering their assets for failure to comply with the court order. Essentially, the respondents alleged that articles published in the Star on Sunday and the Sunday World newspapers breached the Court order protecting their identities. The facts were not disputed by the respondents. However, the respondents maintained that they had no notice of the Court’s order and were not aware of any restrictions on reporting in relation to those matters. Furthermore, they argued that the information complained of was within the public domain for a long time and in that regard reference was made to an RTE broadcast of 4 July 2007.

Held by McGovern J. in granting the application: That the courts have drawn a distinction between civil and criminal contempt. This application was argued on the basis that the matters complained of amounted to a criminal contempt. The articles complained of clearly made reference to the proceedings in the High Court brought by CAB and which were held in camera. Having regard to the nature of the respondents, with the exception of Merlin Publishing, they ought to have been familiar with the role of CAB and its procedures and Merlin Publishing had a duty to inform itself on the law. The respondents either knew or ought to have known that the CAB matters on which they reported had been held in camera, or were reckless in not establishing the correct position. Consequently, the respondents were guilty of criminal contempt.

Reporter: L.O’S.

PROCEEDS OF CRIME ACT 1996 S8(4)

PROCEEDS OF CRIME ACT 1996 S8(3)

PROCEEDS OF CRIME ACT 1996 S2

P (M) v P (A) 1996 1 IR 144 1996/14/4455

KENNEDY & MCCANN, IN RE 1976 IR 382

KEEGAN v DE BURCA 1973 IR 223

X CO COUNCIL v A & ANOR 1985 1 AER 53

JUDGMENT of

Mr. Justice Brian McGovern

delivered on the 19th day of December, 2008

1 1. This matter comes before the court on foot of a notice of motion issued by the first and third named respondents, J.M. and E.H. arising out of proceedings under the Proceeds of Crime Act 1996, and, in particular, an application for an interim order made on 29^th June, 2007, and a further order made by this court on 10^th December, 2007, which ordered that pursuant to s. 8(4) of the Act, that any publication of information that would in any way identify the first or third named respondent be prohibited.

Section 8 Proceeds of Crime Act 1996

2 2. For the purpose of this application, it is necessary to have regard to s. 8( 3) and (4) of the Proceeds of Crime Act 1996 ("the Act"). These sub-sections read as follows:-

3 2 "(3) Proceedings under this Act in relation to an interim order shall be heard otherwise than in public and any other proceedings under this Act may, if the respondent or any other party to the proceedings (other than the applicant) so requests and the court considers it proper, be heard otherwise than in public.

4 (4) The court may, if it considers it appropriate to do so, prohibit the publication of such information as it may determine in relation to the proceedings under this Act, including information in relation to applications for the making or refusal of and the contents of orders under this Act and the persons to whom they relate."

The facts

5 3. The applicants are the subject of proceedings by the Criminal Assets Bureau ("CAB") in relation to certain properties and a motor vehicle. The High Court has made an order against the first named respondent restraining him from dealing with certain properties and the court made an order against the third named respondent restraining her from dealing with a motor vehicle which was identified by reference to its registration number. The proceedings under the Act arise out of an investigation by CAB into the assets and activities of Martin 'Marlo' Hyland who is described in the course of the proceedings as being the head of a criminal gang involved in drug trafficking and armed robberies, and who was shot dead in December 2006, in a house in Finglas owned by the first named respondent, and which is registered in his sole name. The third named respondent is a niece of Martin Hyland and the first named respondent is her partner.

6 4. On 29^th June, 2007, CAB was granted an order by the High Court under s. 2 of the Act, prohibiting the first named respondent from dealing with three properties which were named in the order.

(a) 19, Fairlawn Park, Finglas, Dublin 11

(b) 33, Clonshaugh Glen, Coolock

7 (c) -¹ Scribblestown Park, Finglas, Dublin 11.

8 On the same date, an order was made against the third named respondent prohibiting her from dealing with a motor vehicle. On Sunday 14^th September, 2008, an article was published in the 'Star on Sunday' newspaper which contained the following paragraph:-

"Since Hyland's death, the Criminal Assets Bureau has seized a high powered jeep and are also pursuing four of his properties in north Dublin and County Meath - including the Scribblestown Park house where he was killed."

9 On 19^th October, 2008, an article appeared in the 'Sunday World' newspaper which purported to be an extract from a book written by Paul Williams, a crime correspondent for that newspaper, and which contained the following paragraph:-

"The Bureau also moved against Marlo's family and obtained High Court orders freezing five properties that family members had bought on the godfather's behalf - including the house he was murdered in."

¹ Number redacted

10 The article also identified the house where the murder took place as,"… his niece, E.H.'s² three-bed terraced house at Scribblestown Park off the Rathoath Road in Finglas West".

11 a 5. The book from which the extract was taken is entitled 'Crime Wars' and was published in or about the month of October 2008. It is alleged that extracts from the book make a number of references to the making of an interim order under s. 2 of the Act and to the identities of the first and third named respondents. The following extracts are taken from the book:-

"E.H. later described the scene to detectives from the CAB. He [Marlo] would come into the car park and there would be obscene amounts of people coming to see him. He would be handing money out left, right and centre … there's a few bob for you, that's for you … he would be lucky to have any left to put back in his pocket."

"The Bureau also moved against Marlo's family and obtained High Court orders freezing a total of five properties family members had bought on the godfather's behalf. The house he was murdered in was included in the action. At the time of writing, the CAB had also seized over €250,000 in cash and a BMW jeep which Hyland bought for his niece, E.H.".³

12 b 6. The facts which have been set out above are to be found in the affidavits of J.M. and E.H. which ground this motion for contempt. The facts are not disputed by the respondents to the motion. In their response, the respondents say that they had no notice of the order made by the High Court on 10^th December, 2007, and they were not aware of any restrictions on reporting in relation to these matters. Furthermore,

² Name redacted

³ Name redacted

13 they say that the material which they published, and which is complained of by the applicants, was in the public domain for a long time. They refer to a broadcast by RTE on 4^th July, 2007, in which they say the properties were identified by location and that the property at Scribblestown Park was recorded on film and shown in a news broadcast. That broadcast also stated that the property was believed to be that of Martin "Marlo" Hyland, and that the Criminal Assets Bureau had made a move to seize it and three other houses, one in Finglas, one in Coolock and one in County Meath. It also referred to the fact that an SUV and a sum of money in cash was also seized.

14 c 7. The RTE broadcast took place after the interim hearing before the High Court on 29^th June, 2007, but some months before the order prohibiting publication, which was made on 10^th December, 2007. Correspondence between CAB and RTE, which was exhibited in an affidavit of Francis H. Cassidy, makes it clear that while CAB...