Volkering and Others v District Judge Gerard Haughton and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Roderick Murphy
• Judgment Date: 15 July 2005
• Neutral Citation: [2005] IEHC 240
• Docket Number: No. 357 J.R./2004
• Court: High Court
• Date: 15 July 2005

[2005] IEHC 240

THE HIGH COURT

No. 357 J.R./2004

VOLKERING & ORS v DISTRICT JUDGE HAUGHTON & MIN FOR JUSTICE

JUDICIAL REVIEW

BETWEEN/

MARCEL BERNARUS JOHANNES VOLKERING, BASTIAAN PAUL MOSTERD CAROLUS NIOLAAS MARIA GROENEWEGEN AND BEHEERSMIJ HELLING BV

APPLICANTS

AND

DISTRICT JUDGE GERARD HAUGHTON AND THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

RESPONDENTS

CRIMINAL JUSTICE ACT 1994 SECOND SCHED

CRIMINAL JUSTICE ACT 1994 S51(4)(4)

CRIMINAL JUSTICE ACT 1994 S51(2)

BANKERS BOOKS EVIDENCE ACT 1879 S4

BANKERS BOOKS EVIDENCE ACT 1879 S5

EEC DIR 91/308 PART VII

COUNCIL OF EUROPE CONVENTION ON LAUNDERING SEARCH SEIZURE & CONFISCATION OF THE PROCEEDS OF CRIME 1990

VIENNA DRUGS CONVENTION 1988

CRIMINAL JUSTICE ACT 1994 S51(5)

BANKERS BOOKS EVIDENCE (AMDT) ACT 1959

CENTRAL BANK ACT 1989 S131(2)(d)

BANKERS BOOS EVIDENCE ACT 1879 S3

BANKERS BOOS EVIDENCE ACT 1879 S9(2)

O'C (J B) v D (P C) AND A BANK 1985 IR 265 1985 ILRM 123

R v JONES 1978 1 WLR 195

R v DADSON 1983 77 CR APP R 91

BARKER v WILSON 1980 1 WLR 884

BANKING ACT 1979 S51(1)

BANKING ACT 1979 SCHED 6 PARA 1

REGINA v JONES (BENJAMIN) 1978 1 WLR 195

CRIMINAL EVIDENCE ACT 1965

SALINAS DE GORTARI v SMITHWICK 1999 4 IR 223

CRIMINAL JUSTICE ACT 1994 S32(3)

DISCLOSURE OF CERTAIN INFORMATION FOR TAXATION & OTHER PURPOSES ACT 1996 S2FINANCE ACT 1983 S18

LARKINS v NATIONAL UNION OF MINEWORKERS 1985 IR 671

JOHNSTON BANKING & SECURITY LAW IN IRELAND 1998 PARA 3.07

GAVIN v JUDGE HAUGHTON & MIN FOR JUSTICE UNREP HIGH MURPHY 27.5.2004 2004 19 4290

BANKERS BOOKS EVIDENCE ACT 1879 S7

COUNCIL OF EUROPE CONVENTION ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS 1959 ART 1

TAX CONSOLIDATION ACT 1997 S907

CENTRAL BANK & FINANCIAL SERVICES AUTHORITY OF IRELAND ACT 2003 S3

CENTRAL BANK ACT 1942 S64(5)

BANKING ACT 1979 (UK) S9(2)

WILLIAMS v WILLIAMS 1987 3 WLR 790

CENTRAL BANK ACT 1971 S7(4)(5)

CASSELL CONCISE DICTIONARY 1997

EVIDENCE

Banker's book evidence

Best evidence - Taking of evidence in State for use outside State - Entry in banker's book - Williams v Williams [1988] QB 161 distinguished - Gavin v Judge Haughton (Unrep, Murphy J, 27/5/2004; [2004] IEHC 209) followed - Criminal Justice Act 1994 (No. 15), s 51 - Bankers' Books Evidence Act 1879 (42 & 43 Vict, c 11) ss 3, 4 & 5 - Central Bank Act 1989 (No. 16), s 131(2) - Certiorai refused - (2004/357JR - Murphy J - 15/72005) [2005] IEHC 240

Volkering v Judge Haughton

Mr. Justice Roderick Murphy

1 The Office of the Public Prosecutor at the District Court of Breda in the Netherlands had requested that certain evidence be taken in aid of a Dutch judicial investigation into the alleged evasion of corporation tax by a company called Flugel N.V. ("Flugel") which is involved in the manufacture and sale of an alcoholic beverage. The applicants, whom it was alleged were closely associated with that company, had been identified as suspects in that investigation. It was alleged that licence fees were wrongly paid by Flugel to an Irish registered company called International Licensing Limited ("ILS"), thereby improperly lowering Flugel's profits and its liability to corporation tax. It was further alleged that those licence fee payments were made into a bank account held by ILS at the Bank of Ireland in Dublin. That account was the subject of the application before District Judge Haughton who had been nominated by the Minister for Justice under s. 51 of the Criminal Justice Act,1994 (hereinafter "the 1994 Act"). The provision, in conjunction with the Second Schedule to that Act, establishes a procedure for the taking of evidence within the State for use in a criminal investigation or prosecution in another jurisdiction.

2 The applicants sought an order ofcertiorari to quash District Judge Gerard Haughton's decisions of 8th March and 31st March, 2004, regarding the receiving of evidence requested. The evidence consisted of documents being bank account opening documentation (exhibit "A") and banker's files with correspondence (exhibit "C"). There was no issue in relation to the receipt of exhibit "B" which were copies of the relevant statements of the applicants held by the Bank of Ireland.

3 Judge Haughton had received "A" and "C" on the ground that the documents constituted an entry in a banker's book, such as would enable them to be proved within the exception to the best evidence rule constituted by the terms of the Bankers” Books Evidence Act, 1879, as amended.

4 There is no issue with regard to the Minister nominating a judge of the District Court "to receive such of the evidence to which the request relates as may appear to the judge to be appropriate for the purpose of giving effect to the request".

5 In addition no issue arises in the present application regarding the Minister being satisfied that an offence under the law of the Netherlands has been committed or that there are reasonable grounds for suspecting that such an offence has been committed and that proceedings in respect of that offence have been instituted in the Netherlands or that an investigation into that offence has been carried on there.

6 The issue is a net one: whether evidence received by the learned District Judge is restricted by reference to the Bankers” Books Evidence Act, 1879, as amended.

7 "Evidence" is defined to include documents and other articles sub-s. 4(4) of s. 51 of the 1994 Act. Is a nominated judge of the District Court in the context of a request for assistance in obtaining bank evidence in connection with criminal proceedings or in connection with criminal investigation limited by reference to the Bankers” Books Evidence Act, 1879, as amended. Alternatively, is the term "evidence" in the 1994 Act such as appears to the nominated District Judge to be appropriate for the purpose of giving effect to the request.

8 The applicants were given leave by Quirke J. on 26th April, 2004 to apply for judicial review on the following four grounds:

9 (e) (i)

10 1. The first respondent is a judge of the District Court, who it is claimed was nominated by the second respondent by notice in writing, pursuant to the terms of section 51(2) of the Criminal Justice Act,1994, to receive certain evidence requested by the Office of the Public Prosecutor at the District Court of Breda in the Netherlands or the Cabinet Examining Judge as Breda in the Netherlands or both, and identified in a letter of request dated the 8th July, 2003 and an additional letter of request dated the 16th December, 2003.

11 2. At a hearing before the first respondent on the 8th March, 2004, the second respondent sought to adduce documentary evidence described as “account opening documentation” in respect of an identified bank account held with the Bank of Ireland comprising,inter alia, a mandate for the operation of the account; a Director's resolution, which is a list of signatories on the account; a second mandate; non- resident declaration; a list of beneficial owners of interests; a certificate of incorporation; memorandum and articles of association and beneficial ownership details. The second respondent argued, and the first respondent accepted over the objection of the applicants, that each of these documents constituted an entry in a banker's book such as would render them admissible in evidence under the exception to the best evidence rule provided under sections 4 and 5 of the Bankers” Books Evidence Act, 1879, as amended. The first respondent allowed the said documents to be admitted in evidence and identified as "Exhibit A".

12 3. At a hearing before the first respondent on the 31st March, 2004, the second respondent sought to adduce documentary evidence described as “the bank's file in relation to the particular customer and the particular bank account” comprising correspondence between the purported account holder and the bank. The second respondent argued, and the first respondent accepted over the objection of the applicants, that each of these documents constitutedan entry in a banker's book such as would render them admissible in evidence under the exception to the best evidence rule provided under sections 4 and 5 of the Bankers” Books Evidence Act, 1879, as amended. The first respondent allowed the said documents to be admitted in evidence and identified as "Exhibit C".

13 4. The said documents do not fall within the definition ofan entry in a banker's book, properly construed, as the said decisions were wrong in law.

14 3.1 The Criminal Justice Act, 1994 made provision for the recovery of the proceeds of drug trafficking and other offences. It created an offence of money laundering and made provision for international co-operation in respect of certain criminal law enforcement procedures and for the forfeiture of property used in the commission of crime. The Act implements Council Directive 91/308/EEC on prevention of the use of the financial system for the purpose of money laundering. Part VII updates existing criminal law procedure powers facilitating international mutual assistance in criminal investigations or prosecutions. The Act enables the State to ratify the Council of Europe Convention on Mutual Assistance in Criminal Matters (1959), the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds of Crime (1990) and the Vienna Drugs Convention (1988).

15 Section 51 is a section under the general heading of International Co-operation. The section provides for the taking of evidence in the State for use outside the State and has been seen as setting in place a new procedure for the taking of evidence for such purpose. While there would appear to be no qualification restricting the operation of the procedure in the case of political offences, as is the case with the Extradition Acts, it requires provision to be made by the...