Pop & Others v Judge Smyth & Others
| Jurisdiction | Ireland |
| Judge | Ms. Justice Mary Irvine, |
| Judgment Date | 25 November 2009 |
| Neutral Citation | [2009] IEHC 523 |
| Judgment citation (vLex) | [2009] 11 JIC 2503 |
| Court | High Court |
| Date | 25 November 2009 |
[2009] IEHC 523
THE HIGH COURT
BETWEEN
AND
CRIMINAL JUSTICE ACT 1994 S38(2)
CRIMINAL JUSTICE ACT 1994 S38(3)
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8
PROCEEDS OF CRIME (AMDT) ACT 2005 S20
CRIMINAL JUSTICE ACT 1994 S38(5)
CRIMINAL JUSTICE ACT 1994 S38
CRIMINAL JUSTICE ACT 1994 S39
CRIMINAL JUSTICE ACT 1994 S40
CRIMINAL JUSTICE ACT 1994 S41
CRIMINAL JUSTICE ACT 1994 S42
CRIMINAL JUSTICE ACT 1994 S42(2)
DISTRICT COURT (CRIMINAL JUSTICE ACT 1994 SECTION 38) RULES 2006 SI 47/2006
DISTRICT COURT RULES 1997 SI 93/1997
DCR O.38 r4
DCR O.38 r5
DCR O.38 r6
DCR O.38 r7
DCR O.38 r8
DCR O.38
HAUGHEY, IN RE 1971 IR 217
CRIMINAL JUSTICE ACT 1994 S42(1)
DCR O.38 r5(2)
DCR O.38 r5(1)
DPP, PEOPLE v HEALY 1990 2 IR 73 1990 ILRM 313 1989/5/1277
R (JG) v DPP & ORS UNREP CLARK 31.7.2008 2008 IEHC 461
CRIMINAL LAW
Proceeds of crime
Money seized - Detention of cash seized granted by District Court - Proceedings disposed of in absence of legal representation - Applicant afforded opportunity to engage in proceedings which he declined - Whether application to be on notice to party from whom cash has been seized - Whether application could be dealt with ex parte - Whether applicant had locus standi to be heard prior to order being made - Prejudice - Audi alteram partem - Natural justice - Fair procedures - In Re Haughey [1971] IR 217; DPP v Healy [1990] 2 IR 73 and R(G) v Director of Public Prosecutions [2008] IEHC 461, (Unrep, HC, Clark J, 31/7/2008) considered - Criminal Justice Act 1994 (No 15), s 38, 39, 40, 41, 42- Proceeds of Crime Amendment Act 2005 (No 1), s 20 - European Convention on Human Rights and Fundamental Freedoms 1957, arts 6 and 8 European Convention on Human Rights Act 2003 -- District Court (Criminal Justice Act 1994) Section 38) Rules 2006 (SI 47/2006) - District Court Rules 1997 (SI 93/1997), O 38 rr 4 to 8 - Relief refused (2009/379JR - Irvine J - 25/11/2009) [2009] IEHC 523
Pop v Judge Smyth
Facts The applicant herein sought, by way of judicial review, an order of certiorari, quashing the order made by the first named respondent pursuant to s. 38(2) of the Criminal Justice Act, 1994, authorising the second named respondent to detain a cash sum of €38,800 seized from the first named respondent the previous day. The applicant also sought a declaration that he had locus standi to be put on notice of the second named respondent's application pursuant to s. 38(2) prior to the first named respondent making an order pursuant to that section. The first named applicant did not formally retain a solicitor until some time after 10am on the day the order was made and consequently the order was made in the absence of the applicant's legal representative. However, the first named applicant was present in person for the application by the second named respondent but he declined the opportunity to address the court in relation to the making of the order. The first named respondent re-listed the matter but ultimately decided that the court order could not be revisited. The applicant contended that the proceedings before the first named respondent did not accord with the principles of natural justice and fair procedures and that he was denied the right of audi alteram partem. The applicant further submitted that the first named respondent was obliged to insure that the application was not heard in the absence of the applicant's legal advisors.
Held by Irvine J. in refusing the application: That the 1994 Act was silent as to whether or not an application under s. 38(2) was to be on notice to the party from whom the cash was seized. Having regard to the fact that an order made under s. 38(2) was not a final order, the order obtained must be notified to those persons affected by it and the provisions of Order 38 of the Rules of the District Court, it was clear the legislature intended the relief under s. 38(2) to be available ex parte. Consequently, applicant was not entitled to a declaration that he had locus standi to be heard on the application pursuant to s. 38(2) of the 1994 Act. Even if the applicant was entitled to be heard on the application, the applicant failed to establish as a matter of fact that the first named respondent failed to afford him and/or his legal advisers an opportunity to be heard in the course of the application. Nor was it established that the respondents conducted themselves so as to deprive the applicant of his legal representation. In fact the applicant never advised the respondent that he had retained legal representation. Furthermore, it was open to the applicant at any stage to apply to the court under s. 38(5) of the Act to have the seized cash released.
Reporter: L.O'S.
Ms. Justice Mary Irvine, dated the 25th day of November, 2009
1. This is an application for judicial review of a decision made by the first named respondent in the District Court on 3 rd April, 2009. That decision, made under s. 38(2) of the Criminal Justice Act 1994, as amended by the proceeds of Crime Amendment Act 2005 ("the Act"), authorised the second named respondent to detain the cash sum of €38,800 seized from the first named applicant in Dublin Airport on the previous day.
2. By order of the High Court dated 9 th April, 2009, the applicants obtained leave to apply for judicial review which they subsequently did by notice of motion dated 20 th April, 2009. The reliefs sought by the applicant were:-
(i) An order of certiorari quashing the order of the District Court made on 3 rd April, 2009.
(ii) A declaration that the applicants did have locus standi to be put on notice of the second named respondent's application pursuant to s. 38(3) of the Act prior to the first named respondent making an order pursuant to that section.
(iii) A declaration that the applicants' rights pursuant to Articles 6 and 8 of the European Convention on Human Rights and the European Convention on Human Rights Act 2003had been breached.
(iv) A declaration that the provisions of s. 38(3) of the Criminal Justice Act 1994, as amended by s. 20 the Proceeds of Crime (Amendment) Act 2005, were repugnant to the Constitution.
(v) An order of mandamus directing a full de novo hearing of the second named respondent's application pursuant to s. 38(3) of the Act.
(vi) An interim/ interlocutory injunction directing the release and adequate sum of money to the applicant and his family for their maintenance and support.
3. The relief sought by the applicants at para. (iv) above was abandoned at the hearing before this Court as a result of a preliminary objection made to the court by the respondents. Consequently, the court will not deal with this aspect of the relief sought in its judgment.
4. Further, the relief claimed at para. (vi) above was sought by the applicants in an application for an interim injunction made to Cooke J. on 15 th April, 2009. That application was refused on its merits and accordingly, this Court is not entitled to entertain an application for the same relief as that already refused by a court of equivalent jurisdiction.
5. There is little dispute between the parties to as the relevant facts on this judicial review application and they are as follows. The applicants, a Romanian family, were present at Dublin Airport on Thursday, 2 nd April, 2009 as they were intending to travel to Romania that day. Officers of the second named respondent questioned the first named applicant who was found to be carrying a sum of €38,800 in his luggage. The said sum was seized and he was advised that an application would be made the following morning at District Court No. 44 for an order under s. 38(2) of the Act to further detain the sum seized at the airport.
6. The first named applicant contacted Mr. James Sweeney, Solicitor, for the first time on 2 nd April, 2009 but only formally retained him sometime after 10.00 a.m.on Friday, 3 rd April, 2009. As a result, the second named respondent's application pursuant to s. 38(2) of the Act had been heard and determined by the District Judge by the time a representative from Mr. Sweeney's office arrived at the District Court.
7. At the time the application was made to the District Court, the first named applicant was present in person. The District Judge asked him if he spoke English to which he replied in the affirmative. He then heard the evidence of Ms. Mary Mulholland of the office of the second named respondent, who deposed to those matters set out in her information dated 3 rd April, 2009. She set out her grounds for suspecting that the first named applicant was about to export cash which represented the proceeds of crime. Those grounds included the fact that the first named applicant was about to leave the country; that he had given inaccurate information to her as to the precise sum in his possession; that he was unable to name the company for whom he had worked as a truck driver; that whilst he contended he earned €600 a week, the Revenue Commissioners had no history of his employment in the State; that he was in receipt of social welfare; that his bank statements did not support his contention that the cash was a result of his savings over a number of years and that his most recent employment had been as a driver for a pizza company. Ms. Mulholland advised the court that in her opinion, the movement of cash in the manner proposed by the first named applicant was consistent with criminality as it left no audit trail.
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