McGinley v Criminal Assets Bureau (Cab)

• Jurisdiction: Ireland
• Judge: FENNELLY J.,Mr. Justice Denham
• Judgment Date: 30 May 2001
• Neutral Citation: [2001] IESC 49
• Docket Number: 200/00
• Court: Supreme Court
• Date: 30 May 2001

MCGINLEY v. CRIMINAL ASSETS BUREAU (CAB)

BETWEEN

SIMON McGINLEY

APPELLANT

AND

THE DECIDING OFFICER CRIMINAL ASSETSBUREAU

RESPONDENT

[2001] IESC 49

Denham J.

Murray J.

Hardiman J.

Geoghegan J.

Fennelly J.

200/00

THE SUPREME COURT

Synopsis

SOCIAL WELFARE

Benefit

Withdrawal of benefit - Deciding officer of Criminal Assets Bureau - Whether Circuit Court had jurisdiction to decide matter - Courts of Justice Act, 1947 section 16 - Social Welfare (Consolidation) Act, 1993 section 246 - Criminal Assets Bureau Act, 1996 (200/2000 - Supreme Court - 30/5/01)

McGinley v Deciding Officer Criminal Assets Bureau

Judge Moran of the Circuit Court had stated a case for the opinion of the Supreme Court. Mr. Justice Fennelly delivering the leading judgment held that the learned judge had decided the case as a complete re-hearing. The Circuit Court judge had the jurisdiction to do so and the case stated was so answered.

Citations:

COURTS OF JUSTICE ACT 1947 S16

SOCIAL WELFARE ACTS

CRIMINAL ASSETS BUREAU ACT 1996 S5

SOCIAL WELFARE (CONSOLIDATION) ACT 1993 S246

SOCIAL WELFARE (CONSOLIDATION) ACT 1993 S249(a)

SOCIAL WELFARE (CONSOLIDATION) ACT 1993 S278

CRIMINAL ASSETS BUREAU ACT 1996 S6

CRIMINAL ASSETS BUREAU ACT 1996 S5(1)(c)

SOCIAL WELFARE (CONSOLIDATION) ACT 1993 S204

CRIMINAL ASSETS BUREAU ACT 1996 S8(8)

CRIMINAL ASSETS BUREAU ACT 1996 S5(1)(b)

CRIMINAL ASSETS BUREAU ACT 1996 S8(1)

CRIMINAL ASSETS BUREAU ACT 1996 S8(3)

CRIMINAL ASSETS BUREAU ACT 1996 S8(5)

CRIMINAL ASSETS BUREAU ACT 1996 S8(7)

CRIMINAL ASSETS BUREAU ACT 1996 S10(4)

SOCIAL WELFARE (AMDT) ACT 1997 S34

SOCIAL WELFARE (CONSOLIDATION) ACT 1993 S253(A)

CRIMINAL ASSETS BUREAU ACT 1996 S14

EMERSON V HEARTY & MORGAN 1946 NI 35

MITCHELSTOWN CO-OPERATIVE SOCIETY V COMMISSIONER FOR VALUATION 1989 IR 210

DEPARTMENT OF THE ENVIRONMENT V FAIR EMPLOYMENT AGENCY 1989 NI 149

1 JUDGMENT of the Court delivered on the 30th day of May, 2001by FENNELLY J.

2 This is a case stated by His Honour Judge Carroll Moran, Judge of the Circuit Court, pursuant to section 16 of the Courts of Justice Act 1947. He asks essentially whether he has jurisdiction to entertain an appeal by the Appellant against a finding by the Respondent withdrawing from him benefits under the Social Welfare Acts which he had beenreceiving.

3 The core of the argument before this Court was whether the decision the subject-mater of that appeal ("the decision") was one made under the Social Welfare Acts or should ratherbe considered as having been made under the Criminal Assets Bureau Act of 1996("the act of 1996").

THE CASE STATED

4 The issues in the case will be better understood if I quote in full the terms of the Case Stated. It is as follows:

"This is an appeal from a decision of a Deciding Officer who is an officer of the Minister for Social, Community and Family Affairs and a Bureau Officer of the Criminal Assets Bureau, who has been appointed a Deciding Officer under s. 246 of the Social Welfare (Consolidation) Act 1993. In accordance with the provisions of s.249(a) of the said Act of 1993, the Deciding Officer revised a previous decision in the appellant's case. The Deciding Officer determined that the appellant was not entitled to disability allowance in respect of the period from the 2nd October 1996 on the grounds that he, the appellant, had failed to establish that his means did not exceed the maximum rate of disability allowance payable in his case."

5 Further, the said Deciding Officer determined that the said benefit paid to the appellant is liable to repayment to the Minister for Social, Community and Family Affairs in accordance with s.278 of the said Act of1993.

6 The said decision of the Deciding Officer was made in the name of the Criminal Assets Bureau ("the Bureau").

7 Evidence was given on behalf of the respondent by

8 1. Detective Garda Fennessy

9 2. Detective Sergeant Naughton, and

10 3. Officer Number 10 of the Bureau.

11 No evidence was called on behalf of the appellant.

12 A note was taken of the proceedings and I refer to the transcript for the full content of the evidence.

13 From the evidence I found that there is not doubt that the appellant's means, at the material times, exceeded the maximum rate of disability allowance which was paid to him, and accordingly, on the facts, it appeared that his appeal should be dismissed and the said decision of the Deciding Officer should be affirmed.

14 However, an issue was raised on the appellant's behalf as to whether or not the Bureau was acting intra vires in the investigation and determination of the issues herein.

15 The functions of the Bureau are set out in ss. 5 and 6 of the Criminal Assets Bureau Act 1996, which principal functions are divided into four areas. It was agreed by both parties that only one of these four areas would apply to the present case, namely, that set out in paragraph 9c) of s. 5(1), which enacts that such function is the taking of all necessaryactions.

16 "under the Social Welfare Acts for the investigation and determination, as appropriate, of any claim for or in respect of benefit (within the meaning of section 204 of the Social Welfare (Consolidation) Act 1993) by any person engaged in criminal activity."

17 However, the respondent stated that it was not proceeding under section 5(1)(c) and was not alleging that the appellant had been engaged in criminal activity. Instead the respondent was relying on s.8(8) of the same Act, which reads:

18 "A member of the Garda Siochana, an officer of the Revenue Commissioners or an officer of the Minister for Social Welfare, who is a bureau officer, notwithstanding his or her appointment as such, shall continue to be vested with and may exercise or perform the powers or duties of a member of the Garda Siochana, an officer of the Revenue Commissioners or an officer of the Minister for Social Welfare, as the case may be, for purposes other than the purposes of this Act, as well as for the purposes of this Act".

19 It was submitted on behalf of the respondent that this s.8(8) was sufficient to confer competence on the Bureau. I did not accept this submission. This subsection merely provides that the powers and duties of a bureau officer are not to restrict or diminish the powers or duties which he would have had in his original capacity, (as a Garda, Revenue or Social Welfare officer, as the case may be). This being so, it cannot be interpreted as to extend the frontiers of the functions or competence of the Bureau as enacted in s.5 or s.6 of the same Act.

20 Although, in my view, it was most likely that at some point the appellant had committed a criminal offence in receiving the disability allowance in the material time, the respondent chose not to rely on s.5(1)(c) of the said Act of 1996 and expressly stated that the respondent was not alleging that the appellant had been engaged in criminal activity.

21 It was submitted on behalf of the appellant that s.5(1)(c) can onlyapply

22 1. in the investigation of a person convicted of a criminal offence, or,

23 2. if the first submission is unsuccessful, in the investigation of a person who is actually engaged in criminal activity; in other words, it cannot apply to the investigation of a person who is merely suspected of engaging in criminal activity.

24 As for the first of the appellant's submission, it is my view that any reasonable interpretation of the words "engaged in criminal activity" envisages investigating persons who have not been convicted. First, the word convicted in not used. Further, the whole thrust of the said Act of 1996 is to enable the Bureau to investigate persons who have not been subject to a criminal conviction, and, that, therefore, this submission should fail.

25 As for the second appellant's submission, I believe that a contrast may be made between the words in paragraphs (b) and (c) of s.5(1). In paragraph (b) the Bureau may take action to ensure that the proceeds of criminal activity or of suspectedcriminal activity are subjected to tax. The word suspected is absent in paragraph (c), meaning that it is not intended that an investigation under this paragraph is to apply to persons merely suspected of being engaged in criminal activity. Accordingly, this is a valid submission.

26 In the light of the foregoing, I held that

27 1. the respondent cannot rely on s.8(8) of the said Act of 1996 to give the Bureau competence to move in the presentproceedings,

28 2. s.5(1)(c), if the respondent were to rely on it, would render the Bureau's actions in the proceedings intra vires, as, on the facts of the case it was most likely that the appellant had been engaged in criminal activity pertinent to the particular investigation.

29 3. while 2. (5)(1)(c) cannot apply to persons suspected of being engaged in criminal activity, in my view the same is moot as there was evidence that the appellant most likely had been engaged in suchactivity.

30 At the conclusion of the evidence and submission, Counsel on behalf of the appellant applied for a case stated, to which I acceded.

31 Accordingly, pursuant to section 16 of the Courts of Justice Act 1947, I refer the questions of law set out hereunder for the determination of the Supreme Court, namely:-

32 1. Does section 8(8) of the said Act of 1996 render intravires the acts of the Bureau in these proceedings in a situation where the respondent is not relying on any part of section 5 of the sameAct?

33 2. Does section 8(8) of the said Act of 1996 render intravires the actions of the officers of the Minister for Social, Community and Family Affairs who are also Bureau officer of the of the Bureau in these proceedings in a situation where the respondent is not relying on any part of section 5 of the same Act?

34 3. Does section 5(1)(c) of the said Act of 1996 apply to...