Minister for Justice, Equality and Law Reform v Devine

• Jurisdiction: Ireland
• Court: High Court
• Judge: O'Sullivan J.
• Judgment Date: 27 June 2006
• Neutral Citation: [2006] IEHC 216
• Date: 27 June 2006
• Docket Number: [2005 No. 16 MCA]

[2006] IEHC 216

THE HIGH COURT

[No 16 M.C.A./2005]

MIN FOR JUSTICE v DEVINE

IN THE MATTER OF THE CRIMINAL JUSTICE ACT, 1994, SECTION 46(6)

IN THE MATTER OF THE CRIMINAL JUSTICE ACT, 1994, SECTION 46(6)

REGULATIONS, 1996

IN THE MATTER OF CRIMINAL PROCEEDINGS PENDING BEFORE THE

COURTS OF THE UNITED KINGDOM AGAINST BERNADETTE

MARGARET ROSE DEVINE

IN THE MATTER OF A REQUEST SENT BY THE HOME OFFICE ON

BEHALF OF THE SOLICITORS OFFICE OF H.M. CUSTOMS AND EXCISE

BETWEEN

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

APPLICANT

AND

BERNADETTE MARGARET ROSE DEVINE

RESPONDENT

CRIMINAL JUSTICE ACT 1994 PART VII

EUROPEAN CONVENTION ON MUTUAL ASSITANCE 1957

CRIMINAL JUSTICE ACT 1994 S24

CRIMINAL JUSTICE ACT 1994 S24(5)

BEAN INJUNCTIONS 8ED 2004

CRIMINAL JUSTICE ACT 1994 S24(5)(a)

CREAVEN v CRIMINAL ASSETS BUREAU (CAB) 2005 2 ILRM 53

MESKELL v CIE 1973 IR 121

CONSTITUTION

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S21

HOFFMAN-LA ROCHE v COMMISSION 1979 3 CMLR 211

Abstract:

Injunction - Undertaking as to damages Freezing order - Ex parte - Proceeds of crime - Application for ex parte asset freezing order in support of foreign criminal proceedings - International mutual assistance in criminal matters - Whether undertaking as to damages ought to be given by applicant - Criminal Justice Act 1994 (Section 46(6)) Regulations 1996 - Criminal Justice Act 1994, sections 24 and 46(6).

Part VII of the Criminal Justice Act 1994 made arrangements for international co-operation between parties to the 1957 European Convention on Mutual Assistance (in criminal matters) and set up a scheme whereby the authorities in the State could seek court orders freezing and realising property here to aid orders made in other ratifying states relating to proceeds of crime. The applicant was requested by the United Kingdom to apply ex parte for a court order restraining the respondent from dealing with assets located in the State on the basis that there was a confiscation order in being in the United Kingdom for offences relating to unpaid VAT. The High Court granted the ex parte restraining order sought. No undertaking as to damages had been given by the applicant. The respondent applied for a discharge or variation of the ex parte order pursuant to section 24(5) of the Criminal Justice Act 1994, as amended. She submitted that her right to private property, equality of arms before the court and the principle of audi alteram partem, guaranteed under the Constitution and the European Convention on Human Rights, was restrained by the ex parte order.

Held by Mr Justice O'Sullivan in holding that a variation in the ex parte order and an undertaking as to damages would be appropriate in the circumstances that a court should lend particular weight to the obligations of the State under an international convention and should be particularly conscious of the need for prompt, comprehensive and effective international co-operation in respect of criminal activities. Those obligations reinforced the countervailing need that the courts have due regard to the unrepresented interests of parties affected by such orders and in particular the constitutional and convention guarantees in relation to property rights, the principle of equality before the court and the principle of audi alteram partem.

Reporter: P.C.

1 O'Sullivan J. delivered on the 27th June, 2006.

Introduction

2 This case concerns a small point of practice but a large point of principle. Should the court require the Minster for Justice, Equality and Law Reform to furnish an undertaking as to damages when applying to it ex parte for an order restraining the respondent from dealing with property in this jurisdiction ("a restraint order") in aid of confiscation proceedings in the United Kingdom brought to recoup proceeds of crime so found in that jurisdiction?

3 The position at common law appears to be that where the Crown applies for an injunction to enforce what is prima facie the law of the land or to uphold the proper administration of justice no such undertaking will be required (even on an application ex parte) but that if the Crown is seeking to enforce its proprietary rights it will be. The respondent (the applicant on this application accepts this to be the position in this jurisdiction but submits that because of constitutional and European Convention on Human Rights guarantees in relation to

4 (a) fair procedure;

5 (b) rights to private property; and

6 (c) equality before the courts,

7 such an undertaking should be required, certainly on an ex parte application.

The statutory context

8 Part VII of the Criminal Justice Act, 1994, made arrangements for international co-operation between ratifying parties to the 1957 European Convention on Mutual Assistance (in criminal matters) and set up a scheme whereby, inter alia, the authorities in this country would seek orders freezing and realising property here to aid orders made in other ratifying countries relating, for example, to proceeds of crime. The United Kingdom became a designated country for this purpose in November, 1996, and has requested the applicant to apply, initially ex parte, for an order restraining the property of the respondent located in this jurisdiction.

9 The respondent was convicted at Middlesex Crown Court on 6 ^th July, 2001, on five counts of fraudulent evasion of Value Added Tax and sentenced to imprisonment for six years. At subsequent confiscation proceedings it was determined that she had benefited from her criminal conduct to the value of £18,759,430 and a confiscation order was made. That order is under appeal and pending final determination a restraint order is in existence in the U.K. The applicant for the order affecting the respondent's property in this jurisdiction says, notwithstanding, that there are reasonable grounds for the court here to be of opinion that a confiscation co-operation order will be made, that a request will be made by the Government of the U.K. for a similar order in this State and that if this is done the applicant Minister will consent to same subject to such request being in the proper form. The respondent is currently residing outside the jurisdiction of this court.

10 Against this background and supported with appropriate documentation Quirke J. on 7 ^th March, 2005, on the ex parte application of the applicant, made a restraint order. A motion for interlocutory relief was to be returnable for a later date. No undertaking as to damages was given to the court nor was there any mention of one. That order was made pursuant to s. 24 of the Criminal Justice Act, 1994 as inserted by the Criminal Justice Act, 1994 (s. 46(6) Regulations 1996). Subsection 5 of that section provides that a restraint order

11 a "(a) may be discharged or varied in relation to any property, and

12 (b) shall be discharged on the conclusion of the proceedings or of the application in question."

13 The application for discharge may be made by the person affected by it.

The submissions

14 Before I focus on the real issue between the parties I shall mention that it became tolerably clear after argument that both accepted the following statement from 8 ^th [2004] Ed. of Bean on injunctions at p. 26 to represent the common law position in this country

"The court has a discretion to grant an interim injunction without requiring an undertaking in damages. There are a number of types of case in which an undertaking is generally dispensed with. They include:"

15 a "(a) Matrimonial and domestic proceedings...

16 (b) Where the Crown applies for an injunction to enforce what is prima facie the law of the land (Hoffman-LaRoche and Co. A.G. v. Secretary of State for Trade and Industry [1975] A.C. 295; Director General of Fair Trading v. Toby Ward Limited [1989] 1...