Thomas Delaney v Judge John Coughlan and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 27 June 2012
• Neutral Citation: [2012] IESC 40
• Court: Supreme Court
• Date: 27 June 2012

[2012] IESC 40

THE SUPREME COURT

McKechnie J.

MacMenamin J.

McGovern J.

APPEAL NO 421/2010

Delaney v Judge Coughlan & Ors

JUDICIAL REVIEW

BETWEEN

THOMAS DELANEY

APPLICANT/APPELLANT

AND

JUDGE JOHN COUGHLAN, JUDGE CORMAC DUNNE, DETECTIVE GARDA PETER MAGUIRE AND COMMISSIONER OF AN GARDA SÍOCHÁNA

RESPONDENTS

PROCEEDS OF CRIME (AMDT) ACT 2005 S20

CRIMINAL JUSTICE ACT 1994 S38(1)

MISUSE OF DRUGS ACT 1977 S26

MISUSE OF DRUGS ACT 1977 S23

MISUSE OF DRUGS ACT 1977 S15A

CRIMINAL JUSTICE ACT 1994 S38(1A)

CRIMINAL JUSTICE ACT 1994 S38(2)

CRIMINAL JUSTICE ACT 1994 S38

CRIMINAL JUSTICE ACT 1994 PART VI

CRIMINAL JUSTICE ACT 1994 S3(1)

CRIMINAL JUSTICE ACT 1994 S38(5)(A)

CRIMINAL JUSTICE ACT 1994 S38(5)(B)

CRIMINAL JUSTICE ACT 1994 S38(6)

CRIMINAL JUSTICE ACT 1994 S39(1)

PROCEEDS OF CRIME (AMDT) ACT 2005 PART IV

PROCEEDS OF CRIME (AMDT) ACT 2005 S19

INTERPRETATION ACT 2005 S18(G)(ii)

CRIMINAL JUSTICE ACT 1994 S38(3A)

PROCEEDS OF CRIME (AMDT) ACT 2005 S21

CRIMINAL JUSTICE ACT 1994 S38(1)(A)

CRIMINAL JUSTICE ACT 1994 S38(3)

CRIMINAL JUSTICE ACT 1994 S38(1)(B)

INTERPRETATION ACT 2005 S5(1)

INTERPRETATION ACT 2005 S2(1)

HOWARD & ORS v CMRS OF PUBLIC WORKS IN IRELAND 1994 1 IR 101

MAXWELL & LANGAN ON THE INTERPRETATION OF STATUTES 12ED 1969

DPP v ENGLAND UNREP SUPREME 16.5.2011 2011/17/4009 2011 IESC 16

CRIMINAL JUSTICE ACT 1994 S39

CRIMINAL JUSTICE ACT 1994 S38(1A)(B)

SIMPLE IMPORTS LTD & SEVEN IMPORTS LTD v REVENUE CMRS & ORS 2000 2 IR 243 1999/23/7430

CUSTOMS CONSOLIDATION ACT 1876 S205

CUSTOMS & EXCISE (MISCELLANEOUS PROVISIONS) ACT 1988 S5(1)

CREAVEN & ORS v CRIMINAL ASSETS BUREAU & ORS 2004 4 IR 434

INSPECTOR OF TAXES v KIERNAN 1981 IR 117 1982 ILRM 13 1981/10/1728

DPP v MOOREHOUSE 2006 1 IR 421 2006 1 ILRM 103 2005/21/4245 2005 IESC 52

CRIMINAL LAW

Proceeds of crime

Detention of "proceeds of crime" cash - Statutory interpretation - Principles to be applied -Power to detain cash under Criminal Justice Act 1994, s 38(1) - Power to further detain cash by District Judge under s 38(2) - Insertion of new subsection - Effect of amendment - Whether power of District Judge to further detain cash on reasonable grounds - Howard v Commissioners of Public Works [1994] 1 IR 101; Director of Public Prosecutions v England [2011] IESC 16, (Unrep, SC, 16/5/2011); Simple Imports Ltd v Revenue Commissioners [2000] 2 IR 243; Creaven v Criminal Assets Bureau [2004] IESC 92, [2005] 1 ILRM 53; Inspector of Taxes v Kiernan [1981] IR 117 and Director of Public Prosecutions v Moorehouse [2005] IESC 52, [2006] 1 IR 421 applied - Customs Law Consolidation Act 1876 (39 & 40 v c 35), s 205 - Misuse of Drugs Acts 1977 (No 12), ss 15A, 23 and 26 - Customs and Excise (Miscellaneous Provisions) Act 1988 (No 10), s 5 - Criminal Justice Act 1994 (No 15), Part VI , ss 3, 21, 38 and 39 - Proceeds of Crime (Amendment) Act 2005 (No 1), Part IV, ss 19, 20 and 21 -Interpretation Act 2005 (No 23), ss 2, 5 and 18 - Appeal dismissed (421/2010 - SC - 27/06/2012) [2012] IESC 40

Delaney v Judge Coughlan

Facts: A sum of cash belonging to the appellant had been seized in June 2009 in the belief it represented the proceeds of criminal activity. The cash was retained beyond the initial forty eight hours in accordance with orders made by the first and second respondents. The orders had been made on the basis of s. 38 of the Criminal Justice Act 1994 (‘1994 Act’), as amended by s. 20 of the Proceeds of Crime (Amendment) Act 2005.

The appellant had sought judicial review of the orders authorising the retention of the cash. The High Court had dismissed this application in a decision in July 2010, which the appellant now sought to appeal on the ground the basis for the orders was not clear.

Held by MacMenamin J (McKechnie J and McGovern J concurring), that to consider the appellant”s appeal, the Court would have to interpret s. 38 of the 1994 Act, as enacted but also the consolidated version. The appellant submitted that the legislation should be interpreted literally, or in the alternative strictly in his favour due to the penal nature.

In considering the legislation literally, the Court considered the meaning given to the legislation should be sensible and avoid an absurdity. The appellant”s submission on this point could not be sustained as the legislation would be rendered absurd if it was accepted.

In regards of a strict interpretation, whilst it could be argued the legislation was not clearly drafted there was no doubt as to the intention behind the legislation. To accept the appellant”s submission on this point would be to negate the clearly intended implications of the legislation. Simple Imports Limited v. Revenue Commissioners [2000] 2 IR 24 distinguished.

The appeal was therefore dismissed.

1 JUDGMENT of Mr. Justice John MacMenamin dated the 27th day of June 2012.

2 JUDGMENT DELIVERED BY MACMENAMIN J [NEM DISS]

3 1. On 27 ^th July 2010, the High Court (Hanna J.), dismissed the appellant's application for judicial review of a number of orders made by the first and second named respondents in the District Court. These orders authorised the continued detention of cash sums which Detective Garda Maguire, the third named respondent, seized from the appellant after searches of his car and home. The orders were made pursuant to Section 20 of the Proceeds of Crime (Amendment) Act 2005, ("the 2005 Act"), which replaced Section 38(1) of the Criminal Justice Act 1994 ("the 1994 Act"). These provisions identify the circumstances in which a District Court may make an order for continued detention of monies seized by An Garda Síochána or Customs Officers which are suspected to be the proceeds of crime. The legal issues in the appeal relate to the evidential and statutory basis upon which a District Court Judge is empowered to make an Order for detention of cash beyond an initial period of 48 hours, and to further extend such Order subsequently, so as to allow further investigation.

4 2. It is only necessary to outline the facts in very brief form.

5 3. On 18 ^th June 2009, members of An Garda Síochána obtained a search warrant pursuant to Section 26 of the Misuse of Drugs Acts 1977 to 1984 to search the appellants home. This warrant was obtained by the third named respondent, Detective Garda Peter Maguire. Some days later, the appellant was driving a car. In the course of an operation targeting serious crime, he was stopped for a drugs search under Section 23 of the Misuse of Drugs Acts. Cash in the sum of €9,300 was found concealed in a cowling on the handbrake of the car. Prior to this, the appellant, had, served a lengthy prison sentence for offences contrary to Section 15A of the Misuse of Drugs Acts. He had not been in gainful employment for a period in excess of 10 years. On the same day, Detective Garda Maguire, and a number of other members of An Garda Síochána, went to the appellant's home, and executed a search warrant which they had obtained. Some €27,200 was found in the house, this was concealed under a duvet in a child's bedroom, which in turn was locked by means of an external padlock. Detective Garda Maguire suspected that the cash directly or indirectly represented the proceeds of crime, and was intended for use by the appellant in connection with criminal conduct. Having formed that suspicion, he seized the money he found in the house in exercise of powers under Section 38(1A) of the Act of 1994 as amended. The precise provisions of the amended Act will be set out later in the judgment. This seizure was to investigate from where the money had been obtained.

6 4. On the 27 ^th June 2009 Detective Garda Maguire appeared before the first named respondent, District Judge John Coughlan. He sought an order permitting the continued detention of the sums of €9,300 and €27,200. He swore two separate informations for this purpose. He testified that he had formed the suspicion that the sums directly or indirectly represented the proceeds of crime. Thereafter, the first named respondent, made orders pursuant to Section 38(2) of the Act of 1994 as amended. The effect of these orders was that the cash was to be detained by An Garda Síochána until 24 ^th September 2009. The application was made on 27 ^th June 2009 was ex-parte. A subsequent application, on 23 ^rd September 2009, was made on notice to the first named respondent, who was then represented. On that occasion, the appellant applied to have the sums in question paid back to him. The second named respondent, District Judge Cormac Dunne who dealt with the matter on that occasion, refused this application, and authorised a further period of detention of the funds in question.

7 5. On 19 ^th August 2009, counsel for the appellant made an application for leave to seek judicial review of the determination made by the first and second named respondents. The appellant's case raises the question as to whether the first and second named respondents acted within jurisdiction in making the impugned orders; and whether, having regard to the provisions of Section 38 of the Act of 1994 as amended, they were entitled to make the orders on the basis of Detective Garda Maguire's evidence that he had formed the suspicion that the cash sums in question directly or indirectly represented the proceeds of crime.

8 6. In his order of 27 ^th June 2009, District Judge Coughlan recited that the cash sums had been seized and detained in accordance with Section 38 of the Criminal Justice Act 1994 as amended by Section 20 of the Proceeds of Crime (Amendment) Act 2005. The form of the order is worded in the first person. It recites that Judge Coughlan had at the time of such seizure and detention, and had at the time of making the order, reasonable grounds for suspecting that: "the cash directly or indirectly...