Murphy v The Revenue Commissioners

JudgeMr. Justice McDermott
Judgment Date12 May 2016
Neutral Citation[2016] IEHC 239
Docket NumberRECORD NO: 289/2014JR
CourtHigh Court
Date12 May 2016

[2016] IEHC 239



McDermott J.

RECORD NO: 289/2014JR




Revenue – Forfeiture – The Finance Act, 2001 – The Finance Act 1999 – Seizure – Probable cause for the seizure or detention – Notice of Seizure – Principles of fair procedures.

Facts: The applicants sought an order of certiorari quashing the decision of the respondent to forfeit and seize the property involved in the matter. The applicants contended that the respondents had acted ultra vires in purporting to forfeit the mineral oil, the truck and the tanker. The applicants contended that the seizure and the retention of items and property had not been carried out in accordance with law. The applicants claimed that it lacked ‘probable cause’ for making the seizure or the detention. The respondents challenged the locus standi of the first applicant to maintain the present proceedings.

Mr. Justice McDermott held that the application for an order of certiorari quashing the decision of the respondent to forfeit and seize would be refused. The Court validated the locus standi to maintain the present proceedings in favour of the second named applicant. The Court observed that the seizure and the retention of items and property had been carried out in accordance with law. The Court stated that the applicants had been accorded fair procedures appropriate to the investigation and decisions made. The Court observed that the detention and seizure provisions were invoked in the course of an investigation of the events. The Court refused certiorari stating that the applicants had refused and continued to refuse to seek the appropriate remedy open with respect to the concerned relevant issues.

JUDGMENT of Mr. Justice McDermott delivered on the 12th day of May, 2016

The applicants in this case seek an order of certiorari quashing the decision of the respondent to seize and render liable to forfeiture 37,000 litres of mineral gas oil along with a truck and oil tanker. The applicants also seek a declaration that the respondent acted ultra vires in purporting to forfeit the mineral oil, truck and tanker. A number of declarations and an injunction restraining the respondent from forfeiting the goods are also sought. Leave was granted on 31st July, 2014 (Hogan J.) to apply for judicial review. There is no challenge in these proceedings to the validity of any of the statutory provisions engaged having regard to the provisions of the Constitution.

Background facts

On the 21st June, 2014 the first named applicant, Mr. Michael Murphy, was driving a truck bearing registration number 06 D 78819, towing an oil tanker bearing the identification number BM 385, along the M9 motorway. The tanker contained approximately 36,000- 40,000 litres of oil and both the tanker and the oil were said to be the property of the second named applicant, HAZ.COM Fuels Ltd (hereinafter ‘the Company’) of which Mr. Murphy is a director.


Mr. Murphy had driven the vehicle from the company's premises and intended to make a delivery of mineral oil to a customer, a Mr. Gibney, with whom both the first and second named applicant had traded for a number of years. The delivery was to be received at a premises in Oldcastle, County Meath. The applicant avers that ordinarily, he would not make deliveries of mineral oil on behalf of the Company. However, no other driver was available when Mr. Gibney called the applicant on 21st June, 2014 stating that he was ‘stuck’ for a delivery.


During the course of this journey Mr. Murphy was stopped by Garda Liam Lawlor on the M9 motorway in County Carlow because Garda Lawlor observed inconsistent hazard markings on the truck and the tanker. Garda Lawlor averred in his affidavit that he observed the number 1202 on the rear of the truck, which is the identification code for Diesel, but the identification number for Kerosene, 1223, appeared on the front of the truck.


Garda Lawlor spoke to Mr. Murphy and examined the Tachograph Unit in the truck, which creates a record of a driver's driving of a vehicle. Garda Lawlor discovered that the first named applicant was not using a digital tachograph driver's card as is required by section 21(5) of Part 4 of the European Communities (Road Transport) (Working Conditions and Road Safety) Regulations 2008. Garda Lawlor downloaded the information from the Tachograph and found that the truck in fact had a UK registration number. The combination of the numbers used within the registration number was the same as a vehicle registered in the UK in 2008. The truck carried a registration plate number 06 D 78819, indicative of registration in 2006. The applicant claimed to be the owner of the truck and tanker, but when asked to account for the incorrect registration plates, he declined to answer any questions.


The chassis number of the truck was also checked by Garda Lawlor against the 2006 registration plate which purported to identify the truck. The chassis number and the registration number did not match, according to the National Vehicle File attached to the Garda Pulse system. The first named applicant refused to account for the incorrect registration plates when questioned by Garda Lawlor. It later transpired that the licence plates were registered to a similar truck owned and operated by the company “DHL” Supply Chain (Irl) Limited in Dublin.


Mr. Murphy was asked to produce ‘any documents relating to the load’ and other documents for the vehicle as were required by law. He could not do so nor could he produce the movement documents, or any documentation relating to the mineral oil contained in the tanker. The applicant was also unable to produce a driver's licence or an ADR driver's card (related to the carriage of dangerous goods). Garda Lawlor avers that Mr. Murphy failed to produce any relevant documents and in particular, the delivery documentation relating to the mineral oil which must be carried during the course of a delivery, contrary to Regulation 23 of the Mineral Oil Tax Regulations 2012( S.I. 231 of 2012) and which is an offence under s. 102(1)(a) of the Finance Act 1999. The only relevant document that the applicant produced was an invoice from HAZ.COM Fuels Ltd to KCT Limited, relating to mineral oil and dated 14th May, 2014 and haulage documents relating to a crane.


The applicant was also in possession of €17,514.45 and £1,310.50(UK) in cash when stopped. The applicant claimed that these monies were a combination of his own monies, and monies which he collected from customers of the company over the previous week. This money was seized by the Gardaí but later returned.


Garda Lawlor, formed a suspicion that Mr. Murphy was driving a stolen vehicle and arrested him on that basis. He was taken to Carlow Garda Station where he was detained under section 4 of the Criminal Justice Act, 1984 (as amended). Garda Lawlor detained the truck, trailer unit and oil, the cash and Mr. Murphy's mobile phone pursuant to the provisions of section 9 of the Criminal Law Act, 1976. While detained, he was interviewed by Garda Philip O'Sullivan and Garda Liam Lawlor. The applicant answered ‘no comment’ to most of the questions put to him during the course of the interview. However, when asked if there was any reason why he was not carrying transport documents relating to the load, the applicant stated that ‘If I had one of our usual vehicles I would have had everything.’ At approximately 4.15am on 22nd June, 2014 the applicant was released without charge from Garda custody, having been informed that the truck, tanker, oil and money had been seized by An Garda Síochana. It was confirmed in a letter to the applicants' solicitors dated 7th July that all matters in issue were ‘currently under investigation’ and that the property would remain in Garda custody. The solicitors would be notified when the case was finalised.


On the 22nd June Mr. Leo Harte a Revenue and Customs Officer, had the truck, tanker and oil moved to the State warehouse. Mr. Harte was tasked with sampling the oil and samples were taken from each of the six pods on the tanker. The results of the tests at the State Laboratory indicated that the product was marked mineral oil; the fuel tank contained road diesel. Mr. Harte then detained approximately 36,000 litres of mineral oil under section 140(1) of the Finance Act, 2001, because he suspected that they were liable to forfeiture under s 102(5) of the Finance Act 1999. Mr. Harte also detained the oil tanker under the same provision on the grounds that it was suspected that the oil tanker trailer was liable to forfeiture under s 125(3) of the Finance Act 2001.


On the 23rd June, 2014 Kenny Stephenson, solicitors wrote on behalf of both applicants and claimed that the vehicle was not owned by Mr. Murphy or the company. However, it was stated that the fuel tank and the fuel loaded onto the vehicle was the property of the company. It was claimed that the Volvo truck unit was the property of a ‘third party’ who was unnamed and ‘was simply lent by a third party to Mr. Murphy’ to enable him to make the delivery to Mr. Gibney. It was claimed that Mr. Murphy accepted the loan of the truck ‘in good faith’ and the fact that it is the property of another was something for which he did not accept any criminal culpability. The letter sought the return of the money and diesel and offered to meet with Gardaí‘to elaborate’ on any of these matters. In a later letter dated 17th July, 2014 the solicitors, their client having been interviewed on the 16th July, continued to maintain that the account in the letter of 23rd June set out ‘in full’ the background to the matter.


On 26th June, 2014 Mr. John Clancy an Assistant Principal Officer of...

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