McK -v- D, [2004] IESC 31 (2004)

Docket Number:42/03
Party Name:McK, D
Judge:Fennelly J. / McCracken J.
 
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JUDGMENT BY: Fennelly J.THE SUPREME COURT 042/2003Keane C.J.Denham J. Murray J.Fennelly J.McCracken J.IN THE MATTER OF THE PROCEEDS OF CRIME ACT 1996BETWEENMcK Plaintiff/Respondent-v-D Defendant/AppellantJUDGMENT delivered on the 17th day of May, 2004 by FENNELLY J.On 31st July 2002, the President of the High Court made an order pursuant to section 3 of The Proceeds of Crime Act, 1996 ("the 1996 Act") prohibiting the appellant and other persons on notice of the order from disposing of or otherwise dealing with a dwellinghouse, whose ownership is registered in the Register of Freeholders, County Wicklow (hereinafter "the premises").The order was made on foot of a judgment of the same date and following a hearing over six days in the month of May 2001. It was based on a finding that the premises represented in whole or in part the proceeds of crime. The criminal activity in question had taken place in the United Kingdom. The learned President heard evidence, some of it on affidavit, from the plaintiff, an authorised officer of the Criminal Assets Bureau, an English detective constable and a member of An Garda Síochána, attached to the Bureau. He also heard evidence from the appellant.The appeal raises four principal issues. In very brief terms they are:1. That the claim is statute-barred;2. That much of the evidence was inadmissible;3. That the 1996 Act does not apply to the proceeds of crimes committed outside the jurisdiction;4. That it was contrary to the interests of justice to make the order. Section 3 of the 1996 Act provides as follows for the making of what it describes as "an interlocutory order":"3.-(1) Where, on application to it in that behalf by the applicant, it appears to the Court, on evidence tendered by the applicant, consisting of or including evidence admissible by virtue of section 8- (a) that a person is in possession or control of- (i) specified property and that the property constitutes, directly or indirectly, proceeds of crime, or (ii) specified property that was acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes proceeds of crime, and (b) that the value of the property or, as the case may be, the total value of the property referred to in both subparagraphs (i) and (ii) of paragraph (a) is not less than £10,000, the Court shall make an order ("an interlocutory order") prohibiting the respondent or any other specified person or any other person having notice of the order from disposing of or otherwise dealing with the whole or, if appropriate, a specified part of the property or diminishing its value, unless, it is shown to the satisfaction of the Court, on evidence tendered by the respondent or any other person- (I) that that particular property does not constitute, directly or indirectly, proceeds of crime and was not acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes proceeds of crime, or (II) that the value of all the property to which the order would relate is less than £10,000: Provided, however, that the Court shall not make the order if it is satisfied that there would be a serious risk of injustice.(2) An interlocutory order- (a) may contain such provisions, conditions and restrictions as the Court considers necessary or expedient, and (b) shall provide for notice of it to be given to the respondent and any other person who appears to be or is affected by it unless the Court is satisfied that it is not reasonably possible to ascertain his, her or their whereabouts. (3) Where an interlocutory order is in force, the Court, on application to it in that behalf at any time by the respondent or any other person claiming ownership of any of the property concerned, may, if it is shown to the satisfaction of the Court that the property or a specified part of it is property to which paragraph (I) of subsection (1) applies, or that the order causes any other injustice, discharge or, as may be appropriate, vary the order. (4) The Court shall, on application to it in that behalf at any time by the applicant, discharge an interlocutory order. (5) Subject to subsections (3) and (4), an interlocutory order shall continue in force until- (a) the determination of an application for a disposal order in relation to the property concerned, (b) the expiration of the ordinary time for bringing an appeal from that determination, (c) if such an appeal is brought, it or any further appeal is determined or abandoned or the ordinary time for bringing any further appeal has expired, whichever is the latest, and shall then lapse. (6) Notice of an application under this section shall be given- (a) in case the application is under subsection (1) or (4), by the applicant to the respondent, unless the Court is satisfied that it is not reasonably possible to ascertain his or her whereabouts, (b) in case the application is under subsection (3), by the respondent or other person making the application to the applicant, and, in either case, to any other person in relation to whom the Court directs that notice of the application he given to him or her. (7) Where a forfeiture order, or a confiscation order, under the Criminal Justice Act, 1994, or a forfeiture, order under the Misuse of Drugs Act, 1977, relates to any property that is the subject of an interim order, or an interlocutory order, that is in force, ("the specified property"), the interim order or, as the case may be, the interlocutory order shall- (a) if it relates only to the specified property, stand discharged, and (b) if it relates also to other property, stand varied by the exclusion from it of the specified property. Section 8 of the 1996 Act makes special provision for the receipt of evidence of belief as follows: "8.-(1) Where a member or an authorised officer states- (a) in proceedings under section 2, on affidavit or, if the Court so directs, in oral evidence, or (b) in proceedings under section 3, in oral evidence, that he or she believes either or both of the following, that is to say: (i) that the respondent is in possession or control of specified property and that the property constitutes, directly or indirectly, proceeds of crime, (ii) that the respondent is in possession of or control of specified property and that the property was acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes proceeds of crime, and that the value of the property or, as the case may be, the total value of the property referred to in both paragraphs (i) and (ii) is not less than £10,000, then, if the Court is satisfied that there are reasonable grounds for the belief aforesaid, the statement shall be evidence of the matter referred to in paragraph (i) or in paragraph (ii) or in both, as may be appropriate, and of the value of the property.The High Court proceedings The appellant draws attention to three particular features of the proceedings in the High Court. Firstly, the action, having been commenced prior to the decision of this Court in McK v A.F. [2002] I.R. 242, proceeded primarily as if it were an ordinary interlocutory application, i.e., on affidavit and without pleadings other than the issue of a Plenary Summons. Secondly, the learned President stated in his judgment that he had been asked to leave over determination of the issue of the applicability of the Statute of Limitations until he had decided another action. In his judgment, he stated that he had decided this point on 12th April 2002. Counsel says that the appellant is a stranger to this suggested deferment of that issue. Nonetheless, this issue was certainly argued in the High Court as it was argued on this appeal, so nothing seems to turn on the issue. Thirdly, the appellant says that it was anomalous that the learned President decided that the section was not unconstitutional, since, though he had served notice on the Attorney General pursuant to Order 60 of the Rules of the Superior Courts, he had not been allowed to join the Attorney General, but rather had been left to institute a separate action. In fact, the Order 60 Notice was served on the third day of the hearing in the High Court. Not surprisingly, the learned President considered it far too late to join the Attorney General. It would have been necessary to adjourn the entire proceedings. There does indeed seem to have been a misunderstanding or oversight which caused the learned President to rule that the Act was not unconstitutional. However, since the Attorney General was not, in fact joined, the matter was never properly in issue in the High Court and has not been pursued on this appeal.Since one of the grounds of appeal concerns the quality of the evidence before the High Court, it is necessary to summarise the essential facts and the approach of the learned President to them.It was not in dispute that the appellant has a long record of the commission of serious crime in the United Kingdom. He is a UK citizen and has no criminal record in this jurisdiction. The learned President summarised his history as follows:"The Defendant was born in 1939. He has a criminal record extending from the 27th February 1962 including convictions for road traffic offences, shop breaking, malicious wounding, assault, handling stolen goods, robbery, suborning members of a jury, possession of controlled drugs and possession of firearms all within the United Kingdom. He was first sentenced to imprisonment on 18th July 1962 and thereafter in 1963 was sentenced to three years corrective training, in 1965 six months imprisonment, in 1966 to two years imprisonment, in 1969 to three years imprisonment, in 1974 to two years imprisonment, in 1976 to a total of nine years imprisonment, in 1983 four years imprisonment, in 1992 nine months and nine years imprisonment. He was sentenced to three years imprisonment consecutive to the last mentioned sentence for failure to comply with a...

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