Min for Justice v Devine

• Jurisdiction: Ireland
• Judge: Mr. Justice Feeney
• Judgment Date: 18 April 2012
• Neutral Citation: [2012] IEHC 159
• Docket Number: [No. 11 CAB/2010]
• Court: High Court
• Date: 18 April 2012

[2012] IEHC 159

THE HIGH COURT

[No. 11 CAB/2010]

Min for Justice v Devine

IN THE MATTER OF THE CRIMINAL JUSTICE (MUTUAL ASSISTANCE) ACT, 2008

BETWEEN

THE MINISTER FOR JUSTICE AND LAW REFORM

APPLICANT

AND

BERNADETTE MARGARET ROSE DEVINE

RESPONDENT

VALUE ADDED TAX ACT 1994 S72(1) (UK)

CRIMINAL JUSTICE ACT 1977 S77

CRIMINAL JUSTICE ACT 1994

CRIMINAL JUSTICE ACT 1994 (SECTION 46(6)) REGS SI 343/1996

STATUTE OF LIMITATIONS ACT 1957 S11(7)

CRIMINAL JUSTICE ACT 1994 PART VII

CRIMINAL JUSTICE (MUTUAL ASSISTANCE) ACT 2008 PART 4

CRIMINAL JUSTICE (MUTUAL ASSISTANCE) ACT 2008 PART 4 CH3

CRIMINAL JUSTICE (MUTUAL ASSISTANCE) ACT 2008 S51

CRIMINAL JUSTICE (MUTUAL ASSISTANCE) ACT 2008 S6(3)

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

PROCEEDS OF CRIME ACT 1996 S3

MCK (F) v F (A) 2005 2 IR 163

CRIMINAL JUSTICE (MUTUAL ASSISTANCE) ACT 2008 PART 4 S31

CRIMINAL JUSTICE (MUTUAL ASSISTANCE) ACT 2008 S31(1)

CRIMINAL JUSTICE ACT 1994 S4

CRIMINAL JUSTICE ACT 1994 S9

CRIMINAL JUSTICE ACT 1994 S9(1)

CRIMINAL JUSTICE (MUTUAL ASSISTANCE) ACT 2008 S51(4)

R v MAY 2008 1 AC 1028

CRIMINAL JUSTICE (MUTUAL ASSISTANCE) ACT 2008 S51(5)

CRIMINAL JUSTICE (MUTUAL ASSISTANCE) ACT 2008 S52

MURPHY v M (G) 2001 4 IR 113

MCK (F) v D (G W) 2004 2 IR 470

CRIMINAL JUSTICE (MUTUAL ASSISTANCE) ACT 2008 S60

CRIMINAL JUSTICE (MUTUAL ASSISTANCE) ACT 2008 S60(5)

PROCEEDS OF CRIME ACT 1996 S4

MCK v H UNREP FINNEGAN 12.4.2002 2002/20/5092

READ v BROWN 1888 2 QBD 128

COOKE v GILL 1873 LR 8 CP 107

CRIMINAL LAW

Proceeds of crime

Mutual assistance - Confiscation cooperation order - Limitation period - Statutory interpretation - Whether confiscation cooperation order fell within Statute of Limitations - Whether application for confiscation cooperation order constituted action to recover penalty or forfeiture of sum - Whether distinction between confiscation of property and forfeiture of property - Whether confiscation cooperation order in nature of penalty - Whether intention of confiscation cooperation order to deprive wrongdoers from benefit of criminal conduct - Whether enforcement of confiscation cooperation order required separate application - Whether mutual assistance legislation comparable with proceeds of crime legislation - Whether application for confiscation cooperation order statute barred - Whether application brought within two years from date of accrual of cause of action - Whether confiscation cooperation order should be granted - F McK v AF (Proceeds of crime) [2005] IESC 6, [2005] 2 IR 163; F McK v GWD [2004] IESC 31, [2004] 2 IR 470 and Murphy v GM [2001] 4 IR 113 applied - McK v H (Unrep, Finnegan J, 12/4/2002) and R v May [2008] UKHL 28, [2008] 1 AC 1028 approved - Criminal Justice (Mutual Assistance) Act 2008 (No 7), ss 6, 31, 51, 52 & 60 - Statute of Limitations 1957 (No 6), s 11 - Order granted (2010/11CAB - Feeney J - 18/4/2012) [2012] EHC 159

Minister for Justice and Law Reform v Devine

Facts The respondent was convicted of a number of VAT offences in the United Kingdom and was sentenced to six years imprisonment. In addition a confiscation order was made against the respondent. Ultimately a number of the respondent”s assets were seized. The UK authorities were now seeking similar orders in respect of the respondent”s property in Ireland pursuant to the provisions of the Criminal Justice (Mutual Assistance) Act, 2008. On behalf of the respondent it was contended that the proceedings were statute-barred pursuant to the provisions of s. 11(7) of the Statute of Limitations Act, 1957. It was submitted that the application for confiscation cooperation orders could not be brought after the expiry of two years from the date upon which the cause of action accrued. It was further submitted that an application under s. 51 of the 2008 Act amounted to an action to recover a penalty, a forfeiture or a sum by way of either.

Held by Feeney J in rejecting the submissions of the respondent and making the order sought: There was no legal basis for the contention that unless a cause of action was expressly disapplied by the Statute of Limitations that there was then some provision in the Statute of Limitations covering it. The making of a confiscation order was not a penalty, it was recoupment and did not come within the use of that term as set out in s. 11(7)(b) of the 1957 Act. A court did not come to consider the making of a confiscation order until the penalty had already been imposed. Even if the provisions of the Statute of Limitations did apply, the application for a confiscation cooperation order had been made within two years from the date upon which that cause of action accrued. The proofs necessary for the granting of a confiscation cooperation order had been established and the court would make the order sought by the applicant.

Mr. Justice Feeney

1 Bernadette Devine (the respondent) was charged in England with five separate offences relating to the years from 1996 to 1999, of fraudulent evasion of Value Added Tax (VAT) contrary to s. 72(1) of the United Kingdom Value Added Tax Act 1994. She was tried in the Middlesex Crown Court and was convicted by the jury of all five counts on 6^th July, 2001. She was sentenced to six years imprisonment.

2 The fraud of which the respondent was convicted was a fraud which operated on the basis of overseas purchases of goods, outside the United Kingdom, and the subsequent importation into the United Kingdom of those goods without the payment of VAT. When those goods were sold within the United Kingdom, VAT at the relevant rate was charged which resulted in the fraudulent traders being left with the full amount of VAT for which they subsequently failed to account. Traders who were involved in such schemes operate what is known as "missing trader companies" and those companies are essential to the fraudulent scheme.

3 Pending the trial of the respondent in the United Kingdom she was subject to a restraint order in that country which was obtained pursuant to the provisions of s. 77 of the Criminal Justice Act 1977 made by the Court on the 22^nd July, 1999. That order, inter alia, prohibited the respondent from in any way disposing of or dealing with or diminishing the value of any of her assets whether within or outside England and identified certain assets in particular to which the order applied. A number of properties held by the respondent and a number of companies which it was claimed were set up by the respondent for her use and which it was claimed she was the beneficial owner were expressly identified in the order of the 22^nd April, 1999.

4 Following the respondent's conviction on the 6^th July, 2001, confiscation proceedings were commenced and following a hearing in the Middlesex Crown Court an order was made on 5^th August, 2003. The Court determined that the respondent had benefited from her criminal activities, which was the fraudulent scheme in respect of which she was convicted, to the value of £18,759,430 Sterling. A confiscation order was made on the 5^th August, 2003, against the respondent in the sum of €1,446,368.68 Sterling. A schedule of the respondent's assets had been agreed by the defence and the contested matter at the confiscation proceedings hearing related to the valuations of lands and property located at certain locations, namely, at Grayfield House and lands, Stone Parks land and Stone Parks Garages which are shown on page 3 of the schedule of assets attached to the order. The valuations of those properties were agreed at the confiscation hearing on 5^th August, 2003, as is apparent from pages 8 and 9 of the transcript of the confiscation hearing which is exhibited before this Court.

5 At the confiscation hearing it was ordered that the respondent satisfy the confiscation order in full by 31^st August, 2004 and that, in default of payment by that date, the respondent was liable to serve a term of five years imprisonment should she fail to discharge the sum identified in the confiscation order. Following the making of the confiscation order on the 5^th August, 2003, the matter was further before the High Court in London on the 21^st July, 2004, when an order was made appointing a management receiver to preserve and manage the assets of the respondent. The respondent lodged an appeal against both her imprisonment and the confiscation order. On receipt of that appeal, no further action could be or was taken by the United Kingdom authorities on foot of the confiscation order as an appeal was pending.

6 On 27^th January, 2005 the respondent was refused leave to appeal her conviction and an application for leave to appeal against the confiscation order was adjourned, pending the outcome of another appeal which raised a similar point of law which was then current before the House of Lords. By the 21^st December, 2005, that appeal had been dealt with by the House of Lords and on the 21^st December, 2005, leave to appeal the confiscation order was refused by the Court of Appeal and the respondent notified the United Kingdom authorities of her intention to discontinue her appeal against the confiscation order.

7 On 27^th November, 2006 the High Court in England made an order converting the management receivership order into an enforcement receivership order with power to realise the respondent's assets in satisfaction of the outstanding confiscation order.

8 On 26^th July, 2007 the enforcement receiver paid the sum of £317,000 Sterling into the Magistrates Court representing the realisation of the respondent's assets in England and Wales. Enforcement proceedings were commenced against the respondent for non-payment of the outstanding amount in May 2007 and the respondent failed to attend at a number of hearings and was subject to a bench warrant. Finally, on 2^nd October, 2007 the respondent attended Court and was requested to sign a...