Minister for Justice, Equality and Law Reform v Devine
Jurisdiction | Ireland |
Judge | Mr. Justice Fennelly,O'Donnell J. |
Judgment Date | 26 January 2012 |
Neutral Citation | [2012] IESC 2 |
Court | Supreme Court |
Docket Number | [S.C. No. 147 of 2007] |
Date | 26 January 2012 |
[2012] IESC 2
THE SUPREME COURT
Hardiman J.
Fennelly J.
Finnegan J.
O'Donnell J.
McKechnie J.
BETWEEN:
CRIMINAL JUSTICE ACT 1994 PART VII
CRIMINAL JUSTICE ACT 1994 S46(6)
CRIMINAL JUSTICE (MUTUAL ASSISTANCE) ACT 2008 S10
CRIMINAL JUSTICE ACT 1994 PART II
CRIMINAL JUSTICE ACT 1994 PART III
CRIMINAL JUSTICE ACT 1994 S46(1)
CRIMINAL JUSTICE ACT 1994 S46(2)
CRIMINAL JUSTICE ACT 1994 S46(5)
CRIMINAL JUSTICE ACT 1994 S46(7)
CRIMINAL JUSTICE ACT 1994 S24(4)(B)
CRIMINAL JUSTICE ACT 1994 (SECTION 46(6)) REGS 1996 SI 343/1996 REG 3
CRIMINAL JUSTICE ACT 1994 S23(1)
PROCEEDS OF CRIME ACT 1996 S16
CRIMINAL JUSTICE ACT 1994 S65(4)
CRIMINAL JUSTICE ACT 1994 S24(4)
BEAN & PARRY INJUNCTIONS 8ED 2004
CRIMINAL JUSTICE ACT 1994 S31(1)
CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S21
CRIMINAL JUSTICE ACT 1994 S31(1)(A)(iii)
AMERICAN CYANAMID CO v ETHICON LTD (NO 1) 1975 AC 396 1975 2 WLR 316 1975 1 AER 504
AG v ALBANY HOTEL CO 1896 2 CH 696
F HOFFMAN LA ROCHE & CO AG v SECRETARY OF STATE FOR TRADE & INDUSTRY 1975 AC 295 1974 3 WLR 104 1974 2 AER 1128
CROWN PROCEEDINGS ACT 1947 (UK)
KIRKLEES METROPOLITAN BOROUGH COUNCIL v WICKES BUILDING SUPPLIES LTD 1993 AC 227 1992 3 WLR 170 1992 3 AER 717
CAMPUS OIL LTD & ORS v MIN FOR INDUSTRY & ORS (NO 2) 1983 IR 88 1984 ILRM 85
COLLINS & O'REILLY CIVIL PROCEEDINGS & THE STATE 2ED 2004
MARTIN, AG v DUBLIN CORP & CMRS OF PUBLIC WORKS IN IRELAND 1983 ILRM 254 1983/3/690
CRIMINAL JUSTICE ACT 1994 S24(5)
BOYLE & ORS v AN POST 1992 2 IR 437 1992/5/1543
AG v ABIMBOLA 2008 2 IR 302
EXTRADITION ACT 1965 PART II
CRIMINAL JUSTICE ACT 1994 S24(1)
CRIMINAL JUSTICE ACT 1994 S24(6)
CRIMINAL JUSTICE (MUTUAL ASSISTANCE) ACT 2008 S35
CRIMINAL JUSTICE (MUTUAL ASSISTANCE) ACT 2008 S35(2)
CRIMINAL JUSTICE (MUTUAL ASSISTANCE) ACT 2008 S35(3)
CRIMINAL JUSTICE (MUTUAL ASSISTANCE) ACT 2008 S35(4)
CRIMINAL JUSTICE (MUTUAL ASSISTANCE) ACT 2008 S35(5)
TREATY OF ROME ART 30
SHOPS ACT 1950 S47 (UK)
BEAN INJUNCTIONS 9ED 2006 35
UNITED STATES SECURITIES & EXCHANGE CMSN v MANTERFIELD 2010 1 WLR 172 2009 2 AER 1009 2009 BUS LR 1593
W v H (FAMILY DIVISION: WITHOUT NOTICE ORDERS) 2001 1 AER 300 2000 2 FLR 927 2000 3 FCR 481
ALLEN & ORS v JAMBO HOLDINGS LTD & ORS 1980 1 WLR 1252 1980 2 AER 502
CRIMINAL JUSTICE ACT 1988 S89 (UK)
DRUG TRAFFICKING ACT 1994 S19 (UK)
CIVIL PROCEDURE RULES 1998 SCHED 1 RSC O. 115 r4
MITCHELL & ORS MITCHELL TAYLOR & TALBOT ON CONFISCATION & THE PROCEEDS OF CRIME 3ED 2002 PARA 3.023
R (RESTRAINT ORDER), IN RE 1990 2 QB 307 1990 2 WLR 1232 1990 2 AER 569
DE BURCA & ANDERSON v AG 1976 IR 38
DILLANE v IRELAND & AG 1980 ILRM 167 1980/12/2233
CONSTITUTION ART 41
CONSTITUTION ART 40.3
CONSTABULARY (IRL) ACT 1836 S50
OFFENCES AGAINST THE STATE (AMDT) ACT 1985
GLENCAR EXPLORATIONS PLC & ANDAMAN RESOURCES PLC v MAYO CO COUNCIL (NO 2) 2002 1 IR 84
KENNEDY v LAW SOCIETY OF IRELAND & ORS (NO 4) 2005 3 IR 228
NORTHERN TERRITORY & ORS v MENGEL & ORS 185 CLR 307 129 ALR 1 1995 HCA 65
SCHAUER IS IT IMPORTANT TO BE IMPORTANT?: EVALUATING THE SUPREME COURTS CASE-SELECTION PROCESS 2009 119 YALE LJ 77
SECURITIES & INVESTMENTS BOARD v LLOYD-WRIGHT & ANOR 1993 4 AER 210 1994 1 BCLC 147
PRACTICE & PROCEDURE
Ex parte application
Undertaking as to damages - Interim application - Mutual assistance - Restraint order -Whether State applicant must give undertaking as to damages - Circumstances in which State applicant would be relieved of obligation to give undertaking - American Cyanamid Co v Ethicon Ltd. [1975] AC 396 followed; Boyle v An Post [1992] 2 IR 437, Campus Oil Ltd v Minister for Industry (No 2) [1983] IR 88 and Wakefield v Duke of Buccleugh (1865) 12 LT 628 considered; Attorney-General v Albany Hotel Company [1896] 2 Ch 696, Hoffmann-La Roche v Trade Sec [1975] AC 295 and Kirklees MBC v Wickes Building Supplies Ltd [1993] AC 227 distinguished - Criminal Justice Act 1994 (Section 46(6)) Regulations 1996 (SI 343/1996) - Criminal Justice Act 1994 (No 15), ss 23, 24 and 65 - State's appeal dismissed (147/2007 - SC - 26/1/2012) [2012] IESC 2
Minister for Justice v Devine
1. An applicant for an interim injunction is, so far as I am aware, invariably required, as a condition of the grant of the relief, to give to the court an undertaking as to damages. In the present appeal, the appellant invites this Court to hold that the State should not be required to give an undertaking, when it asks the court to restrain dealing with assets claimed to be the fruits of crime. It is an example of international mutual assistance. The appellant relies on developments of the law in England, in particular, some decisions of the House of Lords. The High Court judge described the issue as "a small point of practice but a large point of principle."
2. In the instant case, the appellant, whom I will describe as the Minister, is performing his part of an international system for mutual assistance in the enforcement of criminal sanctions. The respondent has been investigated in England for involvement in large-scale VAT fraud. She has been convicted and has served sentences of imprisonment in England. The English courts have made orders for the seizure of her properties, including properties in Ireland. The High Court has made consequential orders restraining dealing with the properties.
3. The question raised relates exclusively to the provisional or interim stage of the proceedings: should the High Court have required the Minister to give an undertaking as to damages at the ex parte stage, i.e., when granting an interim restraining order?
4. First, it is necessary to describe the legislative regime.
5. The legislation in force at the relevant time was Part VII of the Criminal Justice Act, 1994 and, in particular, the Criminal Justice Act 1994 (s.46)(6) Regulations, 1996 (S.I. No. 343/1996) ("the Regulations"), made thereunder. The Regulations were made pursuant to section 46(6) of the Act of 1994, which was contained in Part VII of the Act.
6. The Act of 1994 was repealed by section 10 of the Criminal Justice (Mutual Assistance) Act, 1994, which had the effect of revoking the Regulations. However, the Act of 1994 and the Regulations were in force when the High Court (Quirke J) granted the interim restraining order which is under consideration on this appeal.
7. The long title to the Act of 1994 describes it as "an act to make provision for the recovery of the proceeds of drug trafficking and other offences, to create an offence of money laundering, to make provision for international co-operation in respect of certain criminal law enforcement procedures and for forfeiture of property used in the commission of crime and to provide for related matters." The first part of that title refers to domestic enforcement. This case is concerned with the latter part dealing with international co-operation in criminal law enforcement.
8. The Act of 1994 provides for the making of orders confiscating property, (called "confiscation orders") firstly, where a person has benefited from domestic drug trafficking or other offences (Parts II and III) and, secondly, by way of international co-operation, where orders of confiscation have been made in countries designated under the legislation and an application is made to the High Court by or on behalf of the government of such a designated country by way of request for international mutual assistance. The application is for what the Act calls "a confiscation co-operation order." (Part VII). Insofar as confiscation co-operation orders are concerned, the State, by this legislation, was giving effect to the European Convention on Mutual Assistance in Criminal Matters done at Strasbourg on 20 April 1959 and amending international conventions. The Act contains, for each type of order, provision for the making by the High Court of provisional restraint orders prohibiting any person from dealing with property shown to be liable to be made the subject of a confiscation order. Part VII and the Regulations use the model provided for domestic restraint orders and apply it with necessary modification to the case of external confiscation orders.
9. Section 46(1) of the Act of 1994 provides that the Government may by order designate countries as countries in whose case orders described as "confiscation co-operation orders" may be made for the confiscation, in accordance with the law of the State, of property which is liable to confiscation in accordance with "external confiscation orders," made by a court in the designated country for the purpose of recovering from a person the benefits of drug trafficking or property or its value obtained as a result of other crime.
10. Section 46(2) provides:
"If an application is made to the High Court by or on behalf of the government of a country designated under subsection (1) of this section (referred to in this section as a "designated country") and with the consent of the Minister for the making of a confiscation co-operation...
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