Minister for Justice, Equality and Law Reform v Tighe

• Jurisdiction: Ireland
• Judge: Mr. Justice Kevin Feeney
• Judgment Date: 30 April 2008
• Neutral Citation: [2008] IEHC 118
• Court: High Court
• Date: 30 April 2008

[2008] IEHC 118

THE HIGH COURT

No. 122MCA/2006

Min for Justice v Tighe

IN THE MATTER OF AN APPLICATION UNDER SECTION 24 OF THE

CRIMINAL JUSTICE ACT 1994

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

REGULATIONS 1996

IN THE MATTER OF A CRIMINAL INVESTIGATION BEING

CONDUCTED IN THE UNITED KINGDOM OF GREAT BRITAIN AND

NORTHERN IRELAND IN RELATION TO JAMES ANTHONY TIGHE

IN THE MATTER OF A REQUEST MADE ON BEHALF OF THE UNITED

KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND

BETWEEN

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

APPLICANT

AND

JAMES ANTHONY TIGHE (AKA BERNARD TIGHE)

RESPONDENT

CRIMINAL JUSTICE ACT 1994 S46(6) REGS 1996 SI 343/1996 ART 24(4)

CRIMINAL JUSTICE ACT 1994 S24

CRIMINAL LAW ACT 1977

CRIMINAL JUSTICE ACT 1994 PART VII

CRIMINAL JUSTICE ACT 1994 S46

CRIMINAL JUSTICE ACT 1994 S46(1)

CRIMINAL JUSTICE ACT 1994 S46(2)

CRIMINAL JUSTICE ACT 1994 S46(6)

CRIMINAL JUSTICE ACT 1994 S2

CRIMINAL JUSTICE ACT 1994 S3

CRIMINAL JUSTICE ACT 1994 PART III

CRIMINAL JUSTICE ACT 1994 S46(6) REGS 1996 SI 343/1996 ART 3

CRIMINAL JUSTICE ACT 1994 S46(6) REGS 1996 SI 343/1996 PART III

CRIMINAL JUSTICE ACT 1994 S24(4)

CRIMINAL JUSTICE ACT 1994 S23

CONSTITUTION ART 15.2.1

DPP v LOGAN 1994 3 IR 254 1994 2 ILRM 229

CRIMINAL JUSTICE ACT 1994 S46(6) REGS 1996 SI 343/1996 ART 24

CITYVIEW v AN CHOMHAIRLE OILIUNA 1980 IR 381

Abstract:

Practice and procedure - Restraint order - Preliminary issue - S.24 Criminal Justice Act, 1994 as modified by the Criminal Justice Act, 1994 (s.46(6)) Regulations, 1996 - Whether the applicant had lawful authority to apply for and obtain a restrain order.

Facts: The respondent raised a preliminary and sought to strike out the applicant’s claim against the respondent. The applicant had been granted an ex parte order restraining the defendant from disposing of or dealing with or diminishing the value of a specific property until further order of the Court. Prior to the hearing as to whether that order should be removed, the respondent raised a preliminary issue claiming that the applicant was not the appropriate applicant as identified by statute and/or law and therefore had no legitimate and/or lawful basis and/or authority to prosecute the within proceedings. The respondent submitted that the only person permitted to apply for a restraint order pursuant to the regulations/legislation was the DPP.

Held by Feeney J. in refusing the reliefs sought: That section24 of the Criminal Justice Act, 1994 provided that a restraint order could only be made on the application of the DPP. However, the 1996 Regulations modified and adapted the process for the making of a restraint order in that such applications could be made on the application by or on behalf of the Government of a designated country and not by the DPP. The 1996 Regulations made pursuant to the powers conferred on the Government under s. 46(6) of the 1994 Act did not purport to amend the Act as contended for on behalf of the respondent, but rather were necessary and expedient modifications to the scheme expressly permitted for in the 1994 Act. Consequently there was no unconstitutional delegation of authority in the manner in which the relevant regulations of 1996 modified the 1994 Act.

Reporter: L.O’S.

1 Judgment of The Honourable Mr. Justice Kevin Feeney delivered on the 30th day of April, 2008 .

2 This judgment relates to a preliminary issue raised on behalf of the respondent. The respondent has brought a notice of motion dated the 18 ^th February, 2008, seeking to strike out the applicant's claim/action as against the respondent by reason of the fact that the applicant is not the appropriate applicant as identified by statute and/or law and has accordingly no legitimate and/or lawful basis and/or authority to prosecute the within proceedings.

3 The application was grounded on an affidavit sworn by David O'Shea, solicitor for the respondent on the 18 ^th February, 2008. In that affidavit it was claimed that the Minister for Justice Equality and Law Reform was the incorrect applicant in that the legislation provided that the applicant in such cases is to be the Director of Public Prosecutions and no other person. Reliance was placed upon Regulation 24(4) of Statutory Instrument No. 343 of 1996 entitled Criminal Justice Act, 1994 (Section 46(6)) Regulations, 1996. The respondent and moving party in this preliminary application says that the only party who can make an application such as the application herein is the DPP and that it follows that the Minister for Justice Equality and Law Reform is not entitled under the legislation to bring such proceedings. This is the sole issue for consideration by this Court at this point in time.

4 The proceedings herein arise out of an application brought by the Minister for Justice Equality and Law Reform ("The Minister") on behalf of the Government of the United Kingdom of Great Britain and Northern Ireland. The application was for a restraint order pursuant to the provisions of s. 24 of the Criminal Justice Act, 1994, as modified by the Criminal Justice Act, 1994 (s. 46(6)) Regulations, 1996. An ex parte application was made to the High Court on the 9 ^th October, 2006, by the Minister and an 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 that the respondent, that is James Anthony Tighe, (aka Bernard Tighe) and any person having notice of the making of such order be restrained until further order of this honourable Court from disposing of or dealing with or diminishing the value of the property identified in the schedule to the said order. The property included a dwelling house at Pettiswood, Mullingar in the county of Westmeath and various sums of money standing in five specified bank accounts. The affidavits grounding the application for such relief averred that the Government of the United Kingdom of Great Britain and Northern Ireland acting on behalf of its Revenue and Customs Prosecutions Office was investigating the activities of the respondent and another person in relation to their alleged involvement in a conspiracy to cheat the Revenue of that country in the amount of approximately sixteen million pounds Sterling contrary to the U.K. Criminal Law Act of 1977. The affidavits also averred that a warrant had been issued for the respondent in the United Kingdom but that he had absconded from that jurisdiction prior to criminal charge and was as of the date of the ex-parte application residing in Ireland. It was also averred that a restraint order against the respondent had been obtained in the United Kingdom in January of 2006 which said order was varied on the 15 ^th March, 2006. The order referred to property located within this jurisdiction which is the subject matter of these proceedings.

5 The respondent has contested the granting of the restraint order and has averred in an affidavit sworn on the 19 ^th July, 2007, to the following effect, namely:-

"I beg this honourable Court to remove the restraining order against the assets and the property listed in the notice of motion dated the 6 ^th October, 2006 as being not covered by the United Kingdom restraining order and not the proceeds of any fraud or crime".

6 The issue as to whether or not the restraining should be removed, as contended for by the respondent, is due for hearing and determination by the High Court at the end of April, 2008. This preliminary issue has been raised in advance of that hearing.

7 The Criminal Justice Act of 1994 was an Act to make provision for the recovery of the proceeds of drug trafficking and other offences, to create an offence 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. Part VII of the Act deals with "international co-operation" and s. 46 deals with, inter alia, external confiscation orders. Section 46 identified that such external confiscation orders would be referred to as "confiscation co-operation orders".

8 Section 46(1) of the Criminal Justice Act, 1994 states:

"The Government may by order designate countries as countries in whose...