McK v M

• Jurisdiction: Ireland
• Judge: Finnegan P.
• Judgment Date: 12 February 2003
• Neutral Citation: [2003] IEHC 155
• Court: High Court
• Docket Number: No. 139 SP/2002
• Date: 12 February 2003

[2003] IEHC 155

THE HIGH COURT

No. 139 SP/2002

McK v M & Ors

IN THE MATTER OF THE PROCEEDS OF CRIME ACT1996

BETWEEN

Mc K

PLAINTIFF

AND

M AND ORS

DEFENDANTS

Citations:

RSC O.25

RSC O.11 r1

RSC O.11

PROCEEDS OF CRIME ACT 1996 S3

STATUTE OF LIMITATIONS ACT 1957 S11(7)

OPPENHEIM INTERNATIONAL LAW 9ED 1 386

BROWNLIE PRINCIPLES OF PUBLIC INTERNATIONAL LAW 5ED 310

CONSTITUTION ART 29.3

O'LAIGHLEIS, IN RE 1960 IR 93

CAUDRON V AIR ZAIRE & ORS 1985 IR 716

MCKENNA V H (E) 2002 1 IR 72 2002 2 ILRM 117

PROCEEDS OF CRIME ACT 1996 S4

GILLIGAN V CRIMINAL ASSETS BUREAU & ORS 1998 3 IR 185

MCK (F) V F (A) 2002 1 IR 242 2002 2 ILRM 303

PROCEEDS OF CRIME ACT 1996 S2

JOINT V M'CRUM 1899 1 IR 217

RSC O.11 r1(G)

M (MURPHY) V M (G) & ORS: GILLIGAN V CRIMINAL ASSETS BUREAU & ORS 2001 4 IR 113

DPP & GLACKEN V HOLLMAN UNREP O'HIGGINS 29.7.1999 1999/ 8/1821

BONALUMI V SECRETARY OF STATE 1985 1 AER 979

ANTONELLLI V SECRETARY OF STATE 1998 1 AER 997

CAMMELL V SEWELL 1858 3 H & N 617

ALCOCK V SMITH 1892 1 CH 238

CLARE & COMPANY V DRESDNER BANK 1915 2 KB 576

PARAMOUNT AIRWAYS LTD 1992 3 AER 1

UNITED KINGDOM INSOLVENCY ACT 1986 S238 (UK)

EX PARTE BLAIN RE SAWERS 1879 12 CH 522

FRANKS LIMITATION OF ACTIONS 1959

COMMON LAW PROCEDURE (AMDT) (IRL) ACT 1853 S20

CIVIL PROCEDURE ACT 1833 S3 (UK)

STAUTE OF LIMITATIONS ACT 1939 S2(5) (UK)

THOMSON V LORD CLANMORRIS 1900 1 CH 718

CONNOLLY V LEAHY 1899 2 IR 344

REAL PROPERTY ACT 1833

ACT TO LIMIT THE TIME FOR CRIMINAL PROSECUTIONS FOR WORDS SPOKEN 1715 S3 2 GEO 1 CAP 20

SUMMARY CONVICTIONS ACT 1849 S35

DEFAMATION ACT 1961

FORFEITURE ACT 1870 S1

COMMON INFORMERS ACT 1951 (UK)

STATUTE OF LIMITATIONS ACT 1957 S11(7)(B)

SAUNDERS V WEIL 1892 2 QB 321

ADAMS V BATLEY 18 QBD 625

Synopsis:

PRACTICE AND PROCEDURE

Preliminary issues

Proceeds of crime - Whether power to order service out of jurisdiction - Whether Proceeds of Crime Act, 1996 applied where defendant out of the jurisdiction - Whether Statute of Limitations applied - Proceeds of Crime Act, 1996 section 3 - Rules of the Superior Courts, 1986 Order 25 and 11 (2002/139SP - Finnegan P - 12/2/2003)

McK v M and Ors - [2003] 3 IR 1

Pursuant to Order 25 of the RSC the court was asked to determine: (1) Whether service effected out of the jurisdiction under Order 11(1) by a member of the Gardai was good service; (2) Whether there was power under Order 11 to order service out of the jurisdiction of proceedings pursuant to the Proceeds of Crime Act, 1996; (3) Whether the Proceeds of Crime Act, 1996 applied where the defendant was out of the jurisdiction and the offences relied upon were committed out of the jurisdiction; (4) Whether Proceeds of Crime proceedings must be brought within the time limited by the Statute of Limitations Act, 1957, s. 11(7).

Held by Finnegan P. in answering (1), (2) and (3) in the positive and (4) in the negative that the manner of service did not infringe public international law. The court may make an order in rem affecting funds in the jurisdiction where the person entitled to the sums is resident out of the jurisdiction.

Finnegan P.

1 Pursuant to the Rules of the Superior Courts Order 25 this matter comes before me for the determination of the following issues -

2 (1) Whether service effected out of the jurisdiction pursuant to a Court Order under the Rules of the Superior Courts Order 11(1) by a member of the Garda Siochana is good service.

3 (2) Whether there is power under the Rules of the Superior Courts Order 11 to order service out of the jurisdiction of proceedings claiming relief pursuant to the Proceeds of Crime Act1996section 3.

4 (3) Whether the Proceeds of Crime Act1996applies where the Defendant is out of the jurisdiction and the offences relied upon were committed out of the jurisdiction.

5 (4) Whether proceedings pursuant to the Proceeds of Crime Act1996must be brought within the time limited by the Statute of Limitations 1957 section 11(7).

6 At the hearing Counsel for the Defendants sought to expand these issues by introducing further issues which he characterised as subsidiary issues. I was satisfied that the said issues are outside those issues which I had permitted to be dealt with by way of preliminary issue and that the Plaintiff was not fairly on notice of the same and I accordingly declined to entertain them.

7 The first issue arises in the following circumstances. By Order made on the 27^th March 2002 the Plaintiff was given liberty to issue and serve notice of the Special Summons herein out of the jurisdiction the Defendants being resident in Northern Ireland. By further Order of Mr. Justice Abbott made on the 5^th April 2002 it was ordered that service be effected on the second named and fifth named Defendants at the offices of Ruairi McShane & Company Solicitors, 34 Hill Street, Newry, Co. Down, Northern Ireland. Service was effected in Northern Ireland by a member of An Garda Siochana in accordance with the said Orders.

8 On behalf of the second named Defendant and the fifth named Defendant it is contended that service by an on duty member of the Garda Siochana in Northern Ireland was in breach of public international law and that such service should be set aside. Reliance is placed on the following passage in Oppenheim's International Law Ninth Edition Volume 1 page 386 which insofar as relevant provides as follows -

"A state is not allowed to send .... its police forces into or through foreign territory .... or to exercise an act of administration or jurisdiction on foreign territory without permission."

9 Reliance is also placed on Principles of Public International Law Ian Brownlie Fifth Edition at page 310 -

"The governing principle is that a state cannot take measures on the territory of another state by way of enforcement of national laws without the consent of the latter. Persons may not be arrested, a summons may not be served, police or tax investigations may not be mounted, orders for production of documents may not be executed, on the territory of another state, except under the terms of a treaty or other consent given".

10 Finally reliance is placed upon the Constitution of Ireland Article 29.3 -

"Ireland accepts the generally recognised principals of international law as its rule of conduct in its relations with other states".

11 It would be a breach of the comity of nations for a member of the Garda Siochana to act in that capacity within the territory of another state. That is not what occurred here. In serving notice of the Special Summons herein the member of the Garda Siochana was performing an act unrelated to his powers and status as such member. The fact that he possessed those powers and enjoyed such status is coincidental only and his capacity to perform the act in question was in no way dependant on his possessing such powers or enjoying such status. It is not suggested that the service if effected by an individual other than a Garda Siochana would be open to objection. In these circumstances as a matter of municipal law I am satisfied that the service effected is not invalidated by the circumstance that the person effecting the same was a member of the Garda Siochana. Further I am satisfied that the manner in which service of notice of the Special Summons was effected does not infringe public international law and accordingly Article 29.3 of the Constitution of Ireland is of no assistance to these Defendants. In any event having regard to the decision in Re O” Laighleis (1960) I.R. 93 Article 29.3 of the Constitution of Ireland confers no rights on individuals.

12 As to the second ground it is contended on behalf of these Defendants that it is only in cases that come within the heads of the Rules of the Superior Courts Order 11 Rule 1 that orders can be made authorising service out of the jurisdiction and in this regard reliance is placed upon Caudron v Air Zaire and Others (1985) I.R. 716. Order 11 Rule 1 does not authorise service out of the jurisdiction of civil forfeiture proceedings and in this regard differs from the corresponding Rule in England nor does the Rule authorise service abroad of proceedings relating to personal property in the State unless such proceedings come within one or other of the sub headings of Rule 1.

13 Counsel for these Defendants contends that my decision in McKenna v E.H. 18^th July 2001 unreported is so manifestly wrong that it should not be followed. The argument is that the substantive relief claimed in these proceedings is an Order pursuant to the Proceeds of Crime Act 1996section 4 and that the nature of the proceedings therefore is that they are in rem proceedings for forfeiture of property and in this regard reliance is placed on the judgment of McGuinness J. in Gilligan v Criminal Assets Bureau and Others 1998 3 LR. 185 at 224. At that point the judgment was dealing with the issue as to whether the proceedings were civil or criminal rather than with the question of the substantive relief being sought. More in point is the decision of the Supreme Court in F. McK v A.F. and J.F. unreported 30^th January 2002 Fennelly J. where it was held that the Interlocutory Order under section 3 is a substantive remedy. See also the Judgment of Geoghegan J. in that case. This is of course not to say that the section 4 Order does not itself represent a substantive remedy. However once it is the case that the section 3 Order is a substantive remedy I see no reason to depart from my judgment in McKenna v E.H. While in that case I did not find it necessary to determine whether the injunctive reliefs provided for in the Proceeds of Crime Act1996sections 2 and 3 are in the nature of ancillary reliefs similar to the mareva injunction sought in Caudron v Air Zaire and Others or substantive relief such as the injunctive relief sought in Joint v M'Crum (1899) 1 LR. 217 it has now been determined by the Supreme...