Kane v The Revenue Commissioners
| Jurisdiction | Ireland |
| Judge | Ms. Justice Murphy |
| Judgment Date | 04 June 2020 |
| Neutral Citation | [2020] IEHC 275 |
| Date | 04 June 2020 |
| Docket Number | Record No: 2017/529JR |
| Court | High Court |
[2020] IEHC 275
Murphy J.
Record No: 2017/529JR
THE HIGH COURT
JUDICIAL REVIEW
Judicial review – Detention of cash – Criminal Justice Act 1994 s. 38 – Applicant seeking judicial review of a District Court order – Whether the order was bad on its face
Facts: The applicant, Mr Kane, applied to the High Court for judicial review of a District Court order of 31st March 2017 authorising the continued detention of cash seized from the applicant on the 9th July 2015 pursuant to s. 38 of the Criminal Justice Act 1994 as amended by the Proceeds of Crime (Amendment) Act 2005. The applicant submitted that the order was invalid because: (i) the statutory proofs required under s. 38 were not met in full in that the second limb of s. 38(2)(b) was not satisfied; (ii) the evidence provided by the respondents, the Revenue Commissioners, Mr Roche and the Director of Public Prosecutors, was in direct conflict with and could not support the determination of the District Court; (iii) the impugned order was made ultra vires; (iv) the order was bad on its face; (v) a s. 39 application may only be made during the tenure of a valid s. 38 detention order; (vi) the s. 39 application was made without a valid s. 38 detention order in being; and (vii) the s. 39 application was invalid having regard to the absence of the necessary or required statutory pre-requisites being in place – in that there was not in existence an appropriate or valid s. 38 detention order.
Held by the Court that the order made in the District Court on the 31st March 2017 was a valid order made within jurisdiction; the forfeiture application issued on the 8th June 2017 was issued while the cash was detained under s. 38 and was, accordingly, properly before the Circuit Court.
The Court held that it would uphold the validity of the District Court order.
Application refused.
This is an application for judicial review of a District Court Order of 311st March 2017 authorising the continued detention of cash seized from the Applicant on the 9th July 2015 pursuant to section 38 of the Criminal Justice Act 1994 as amended by the Proceeds of Crime (Amendment) Act 2005
The Applicant, on the 10th July 2017, was granted leave to seeks the following reliefs:-
(i) An order of certiorari by way of application for Judicial Review to quash an order of Dublin Metropolitan District Court on the 31st of March, 2017 made pursuant to section 38 of the Criminal Justice Act 1994 as amended, permitting the further detention of the Applicant's property;
(ii) A Declaration by way of application for Judicial Review that the order and further detention of the Applicant's property made at Dublin Metropolitan District Court in respect of the application presented by Mr Patrick Roche is invalid and has no effect;
(iii) An Order of Prohibition prohibiting the Respondent from prosecuting or otherwise taking any further steps in the forfeiture proceedings entitled the Director of Public Prosecutions v William Kane on bill DUR v 0517/17; and
(iv) An Order pursuant to Order 84 Rule 20(8) of the Rules of the Superior Courts 1986 (as amended) staying the Forfeiture proceedings the subject matter of this application pending the determination of the application herein.
The grounds upon which the Applicant claimed to be entitled to an Order of Certiorari and a declaration that the Order of the District Court was invalid are;
i. Failing to comply with the principles of natural and constitutional justice, basic fairness of procedures pursuant to law, the Constitution, the European Convention on Human Rights and acted unlawfully by:
a. Failing to apply the appropriate statutory standards to the facts of the application in this case in a proper manner having regard to the fact that the provisions identified within section 38 had not been met;
b. Erred in law in its interpretation of the appropriate statutory test for meeting the threshold in further extending the detention of the Applicant's property;
c. Erred in law in finding that the further detention of the Applicant's property was necessary and justified while its origin and derivation was further investigated; &
d. Erred in law in finding that the further detention of the Applicant's property was justified while consideration was given to the institution of criminal proceedings against any person for an offence with which the cash was connected.
The grounds upon which an Order of Prohibition and a stay on the forfeiture proceedings were sought were that the forfeiture proceedings pursuant to section 39 of the Criminal Justice Act 1994 (as amended), were founded on the section 38 detention order of the District Court of the 31st March 2017, and that in the event that the said order was invalid, the forfeiture proceedings stemming from the invalid order were themselves invalid.
On the 10th July 2017, the Applicant was granted leave to seek the reliefs set out at (i) (ii) and (iii) above and the forfeiture proceedings entitled The Director of Public Prosecutions -v- William Kane on bill DURV 0517/17 were stayed pending the determination of this application.
The affidavit grounding this application was sworn by the Applicant's solicitor, who made averments as to facts surrounding the seizure of cash from the applicant, presumably based on his client's instructions. The Applicant did not swear an affidavit on his own behalf, even for the purpose of verifying the averments as to facts made by his solicitor. In these circumstances, where there is conflict as to those facts, the court prefers the account given on affidavit by the second Respondent which is reflected in the evidence which he gave to the District Court on the making of the impugned Order. Of greater significance to the court is the fact that there are material inaccuracies in the grounding affidavit. At paragraph 11 the deponent avers that the second respondent, Officer Roche gave evidence to the District Court that his investigation into the origin and derivation of the cash seized from the applicant was complete. He further avers that Officer Roche gave evidence that no further consideration was being given to the institution of criminal proceedings against the applicant for an offence with which the cash was connected. Neither of these averments is true. Officer Roche gave no such evidence. Fortunately, the court has before it a transcript of the proceedings in the District Court which reveals what actually occurred.
The Respondents filed what might be described as a ‘full defence’ to the Applicant's claims. Inter alia they pleaded that the statutory proofs required by section 38 had been satisfied; that even if there was an insufficiency of evidence (which was denied) such error was made within jurisdiction and was therefore not amenable to judicial review; that the order was not bad on its face and furthermore that leave had neither been sought nor granted to seek judicial review on that ground; that the section 39 forfeiture application had been made during the currency of a valid section 38 detention order.
On the evening of Thursday 9th July 2015 Customs Officers encountered the Applicant at Dublin Port when he and his wife disembarked in their vehicle from the ‘MS Stena Adventure’ a car ferry which had arrived from Liverpool. A Customs dog was deployed and gave a ‘positive indication’ on the centre console of the vehicle. Later when a fixed portion of the console was removed, six thousand, six hundred and fifty pounds, sterling (£6,650) was found concealed in that area. The initial explanation proffered by the Applicant is that the cash was his and was the proceeds of the sale the previous month, in Birmingham, of a British registered Mercedes 200, for the sum of £8,000. Later on, through his lawyers, the Applicant proffered a second explanation, namely, that the cash derived from the sale of jewellery approximately two years earlier.
Officer Griffin, the Officer of Customs and Excise who dealt with the Applicant at Dublin Port, suspecting that the cash represented the proceeds of crime or was intended for use in connection with criminal conduct seized it under section 38 of the Criminal Justice Act. He detained the sum of £6,650 noting that it was being lawfully seized pursuant to section 38 of the Criminal Justice Act 1994 (as amended). It was detained on the suspicion that it represented the proceeds of crime or was intended for use in connection with criminal conduct.
On the 10th July 2015 Officer Griffin by information on oath in writing, sworn before the District Court, applied to the Dublin Metropolitan District Court for the further detention of the cash for a period beyond the 48 hours provided for by section 38(2) of the 1994 Act. The section permits a further period of detention, not to exceed 3 months. An order was granted on the 10th July 2015, permitting further detention until 9th October 2015.
The detention Order was granted pursuant to section 38(2) of the 1994 Act as the Court was satisfied that the detention of cash was justified whilst its origin and derivation were further investigated and whilst consideration was given to the institution of criminal proceedings against any person for an offence with which the said cash was connected.
Further detention Orders were made on the following dates: 8th October 2015, 7th January 2016, 6th April 2016, 5th July 2016, 4th October 2016, and 3rd January 2017. On each occasion notice of the application was served on the Applicant. Each application was successful as each was held to have met with the statutory requirements....
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