R (J G) v DPP and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Maureen H. Clark
• Judgment Date: 31 July 2008
• Neutral Citation: [2008] IEHC 461
• Court: High Court
• Date: 31 July 2008

[2008] IEHC 461

THE HIGH COURT

[No. 1442 J.R./2007]

R (J G) v DPP & Ors

JUDICIAL REVIEW

BETWEEN

J.G.R.

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

AND

THE COLLECTOR GENERAL OF THE INLAND REVENUE

AND

JUDGE DONNACHA Ó BUACHALLA

RESPONDENTS

CRIMINAL JUSTICE ACT 1994 S39

PROCEEDS OF CRIME (AMDT) ACT 2005 S21

CRIMINAL JUSTICE ACT 1994 S38(1)

PROCEEDS OF CRIME (AMDT) ACT 2005 S20

CRIMINAL JUSTICE ACT 1994 S38(2)

CRIMINAL JUSTICE ACT 1994 S38(5)

CIRCUIT COURT RULES (NO 2) (SECTION 39 CRIMINAL JUSTICE ACT 1994) 2004 SI 448/2004

RSC O.69

INSPECTOR OF TAXES v KIERNAN 1981 IR 117 1982 ILRM 13

UNWIN v HANSON 1891 2 QB 115

CRIMINAL JUSTICE ACT 1994 S39(1)

RSC O.69 r3

RSC O.69 r4

RSC O.69 r5

MURDOCH MURDOCHS DICTIONARY OF IRISH LAW 4ED 2004

CRIMINAL JUSTICE ACT 1994 S42

INTERPRETATION ACT 2005 S18(H)

CRIMINAL JUSTICE ACT 1994 S42(2)

MCK (F) v F (A) & ORS UNREP SUPREME 23.2.2005 2005/43/8945 2005 IESC 6

PROCEEDS OF CRIME ACT 1996 S3

PROCEEDS OF CRIME ACT 1996 S2

PROCEEDS OF CRIME ACT 1996 S2(5)

CRIMINAL LAW

Proceeds of crime

Forfeiture - Money seized - Procedure - Application made - Time limit - Whether application made when motion issued or oral application to court - FMcK v AF [2005] IESC 6 (Unrep, SC 23/2/2005) followed - Criminal Justice Act 1994 (No 15), ss 38 & 39 - Proceeds of Crime Act 1996 (No 30), ss 2 & 3 - application refused (2007/1442JR - Clark J - 31/7/2008) [2008] IEHC 461

R(JG) v Director Public Prosecutions

Facts The applicant sought an injunction prohibiting the first named respondent from making any application in purported reliance of s. 39 of the Criminal Justice Act, 1994, as amended by s. 20 of the Proceeds of Crime Act, 2005, and an order returning a sum of €100,604.66 seized by the second named respondent. A sum of money had been seized from the applicant and was detained from time to time following applications to the District Court. At no stage did the applicant seek the return of the money. Subsequently, the respondent issued a notice of motion pursuant to s. 39 of the Act of 1994 seeking the forfeiture of the seized money. However, due to the volume of work in the court the matter did not proceed on the return date. The applicant now seeks the aforementioned orders by way of judicial review on the basis that the respondents were out of time for seeking an order of forfeiture. Essentially, the applicant submitted that the two year time limit provided for in the legislation required that the application for forfeiture be made while the money in question was being detained and that the phrase 'application is made' required the respondent to actually stand up in court and request the order, which was not done in this case, the application having been adjourned.

Held by Clark J. in refusing the application: That ss. 38, 39 and 42 did not create any offences or penalties and were not provisions of a penal nature. S. 39(1) of the Act of 1994 was an enabling provision. The applicant was entitled, at any time during the investigative process into the origins of the money, to apply for the return of the money. The narrow and strict interpretation of the wording 'where an application is made' sought to be applied by the applicant was not appropriate. The term 'application is made' was familiar court language with a specific meaning and not a phrase that required to be construed for being obscure or ambiguous or where a literal interpretation would be absurd or where it would fail to reflect the plain intention of the Oireachtas. Application by way of originating notice of motion was a well recognised method for initiating proceedings without pleadings and generally supported by affidavit. The meaning of the phrase 'application is made' included the issue of a notice of motion and did not require that an actual oral demand be made to the Judge.

Reporter: L.O'S.

1 Judgment of Ms. Justice Maureen H. Clark delivered on the 31st day of July, 2008.

Background

2 1. On the 5 ^th November, 2007, the applicant obtained leave from the High Court to apply for judicial review in relation to the following matters:-

3 (1) An injunction prohibiting the first named respondent from making any application in purported reliance of s. 39 of the Criminal Justice Act, 1994, as amended by s. 20 of the Proceeds of Crime Act, 2005, now pending before Circuit Court Judge of the South Eastern Circuit.

4 (2) An order returning a sum of €100,604.66 seized by the second respondent.

5 (3) An order of certiorari quashing the order made by the third respondent on the 21 ^st July, 2005, on grounds that it failed to show jurisdiction on its face.

6 The third ground was abandoned at the hearing on the 21 ^st April, 2008. This is the judgment relating to the substantive hearing.

Facts giving rise to the application

7 2. The applicant's Northern registered car was stopped by customs and excise officers and officers of the Revenue Commissioners as it was about to enter a car ferry travelling to France on the 19 ^th July 2005.

8 3. The car was searched and the sum of £69,880.00 Sterling was found concealed in multiple packages under the back seat of the car. This money was seized pursuant to s. 38(1) of the Criminal Justice Act, 1994, as amended by s. 20 of the Proceeds of Crime Act, 2005 on suspicion that the money was the proceeds of criminal activity.

9 4. On the 21 ^st July, 2005, an application was made to Judge O'Buachalla at Rathdrum District Court in the county of Wicklow for the detention of the said monies seized pursuant to s. 38(2) of the Criminal Justice Act, 1994 pending enquiries as to the source of the cash. Judge O'Buachalla made an order pursuant to s. 38(2) of the Criminal Justice Act, 1994, whereby the said monies were detained for a period which under the statute was for a period of no longer than three months.

10 5. Thereafter, applications were made by the state authorities for the detention of the money at regular three month intervals, the last period of detention expiring on the 18 ^th July, 2007.

11 6. At no stage did the applicant seek the return of the money seized as was open to him under S.38 (5) of the Criminal Justice Act, 2005 on the basis that there were no longer any grounds for the continued detention of the money.

12 7. On the 17 ^th July, 2007, the Director of Public Prosecutions issued a notice of motion pursuant to s. 39 of the Criminal Justice Act, 1994 seeking the forfeiture of £69,888.00 Sterling seized from the applicant on the 19 ^th July, 2005. The motion was in compliance with S.I. 448/04 made pursuant to order 69 of the Circuit Court Rules which provides for procedure to be followed when seeking an order from the Circuit Court directing that any sum seized be forfeit to the Exchequer. The motion was returnable to the 2 ^nd October, 2007.

13 8. There is no issue made as to service of this Notice of Motion. The defendant sought an adjournment of the return date which was refused and he was represented in Court on the 2 ^nd October 2007 when the motion was listed for hearing. He served notice of intention to cross examine on the affidavits filed. Ultimately, due to volume of work in the court that day, the case was not reached.

14 9. On 5 ^th. November 2007 the applicant sought judicial review and an injunction in the terms recited above. He now disputes the legality of the continued detention of the money seized arguing that the respondents are out of time for seeking an order of forfeiture from the Circuit Court and he asserts that the statute requires an application to be made while the money in question is being detained meaning that the application can only be made when the applicant actually stands up in court and makes the request for the order. He claims that as the maximum period allowed for under S. 38 of the Criminal Justice Act is 2 years from the making of the first detention order and the application has not yet been made, the money must be returned.

Applicant's arguments

15 10. The applicant accepts that the cash was seized and detained in a lawful manner up to the 18 ^th July, 2007 and that s. 39 of the Criminal Justice Act, 1994 provides a procedure whereby the monies detained could, within 2 years of the initial detention order, on application be forfeited to the Exchequer once the judge of the Circuit Court was satisfied on the balance of probabilities that the money represented proceeds of crime or was intended for criminal activity. He fully accepts that the amendment effected by S.20 of the Proceeds of Crime Act, 2005 was that, once an application for forfeiture was made, the 2 year time limit was suspended and the money seized would be retained until the Circuit Court hearing and any appeal were completed and there is no dispute that the notice of motion was served within the 2 years period.

16 11. The only issue is whether the money is still lawfully detained if service of a notice of motion is merely notice of an intention to apply for an order and as such is not enough to stop the two year period from running. The applicant's case is that for the application to be made to the Circuit Court, the DPP or his representative must actually stand up in Court and make the request. Anything less does not amount to an application. As no application has been made to the Court within the two year time period, the said monies are unlawfully held and must be returned.

17 12. In interpreting the words " application is made" in S.31(a) he urges reliance on the dicta of Henchy J. in Inspector of Taxes v. Patrick Kiernan [1981] I.R. 117 in relation to the three basic rules of statutory interpretation:-

" A word or expression in a given statue must be given meaning and scope according to its immediate context, in line with the scheme and purpose of the particular...