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Cite as: [2025] IECA 36
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You are here: BAILII >> Databases >> Irish Court of Appeal >> Criminal Assets Bureau v Cash (Approved) [2025] IECA 36 (18 February 2025) URL: http://www.bailii.org/ie/cases/IECA/2025/2025_IECA_36.html Cite as: [2025] IECA 36 |
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THE COURT OF APPEAL
CIVIL
Court of Appeal Record Number: 2024/154
High Court Record Number: 2021/19 CAB
Neutral Citation: [2025] IECA 36
Whelan J.
Faherty J.
Butler J.
IN THE MATTER OF THE PROCEEDS OF CRIME ACTS, 1996 - 2016
BETWEEN/
CRIMINAL ASSETS BUREAU
APPLICANT/ RESPONDENT
- AND –
MARY CASH (NÉE KIELY)
RESPONDENT/ APPELLANT
JUDGMENT of Ms. Justice Butler delivered on the 18th day of February 2025
Introduction:
1. This judgment looks at the exercise of discretion by the High Court in making an order under section 7 of the Proceeds of Crime Act 1996, as amended ("the Act") appointing a receiver with full power of sale over the dwelling house in which the appellant and her infant children resided at the time the order was made. Critically, at an earlier stage in the same litigation, in making orders under section 3 of the Act the High Court determined that a list of property scheduled to the respondent's application constituted the proceeds of crime. That list included, at item number 1, the dwelling house in question. The decision of the High Court determining that the dwelling house constituted the proceeds of crime was upheld on appeal to this court (Noonan J. [2024] IECA 13).
2. The issues raised on this appeal are very net. The appellant focuses on the High Court's treatment of two aspects of the case made on her behalf, namely the likelihood her family would be rendered homeless if the dwelling house were sold and an undertaking she offered to insure the property if orders were not made. She contends that in considering these matters the High Court failed to engage appropriately with the equitable principles originally set out by Feeney J. in Murphy v. J. G [2008] IEHC 33 and adopted by Baker J. on behalf of the Court of Appeal in CAB v. Dean Russell [2020] IECA 61. For convenience I will refer to these as the "Dean Russell principles". In addition, CAB argues that the appeal is moot because, in circumstances where the appellant was unable to secure a stay on the High Court order, she had vacated the dwelling house pursuant to that order by the time the appeal was heard.
3. I will address each of these issues in turn. Before I do so, I purpose to look briefly at the statutory scheme under the Proceeds of Crime Act 1996 in order to place the role of a receiver appointed under section 7 of that Act in its statutory context. I will also briefly outline the history of these proceedings in so far as it is relevant to the issues before the court.
Proceeds of Crime Act:
4. The history of the Proceeds of Crime Act 1996 and the purpose it is intended to serve are well known and have been amply described in many judgments, particularly in the early years of its operation (see for example Moriarty J. in M. v D. [1998] 3 IR 175 and McGuinness J. in Gilligan v. CAB [1998] 3 IR 185). Simply put, the Act recognises that frequently those who benefit most from criminal activity are able to immunise themselves against the likelihood of successful prosecution through, inter alia, the operation of organised criminal groups and/or the laundering of the proceeds of that activity. The Act provides a mechanism for the making of court orders under which property which is determined to constitute the proceeds of crime can be frozen (i.e. preserved) and ultimately disposed of for the benefit of the Exchequer. This has the effect of depriving the holders of such property of the benefit of the criminal activity through which it was obtained.
5. It is key to the operation of the Act that the procedure through which property is determined to be the proceeds of crime, preserved and ultimately disposed of is a civil procedure to which the civil standard of proof applies rather than a criminal procedure which would attract the higher, criminal standard of proof. The term "proceeds of crime" is defined by reference to the connection, whether direct or indirect, between the property and criminal conduct. It is not necessary to establish that the property in question results from the commission of a specific criminal offence. It may be sufficient to establish that those in possession of it are engaged in a pattern of criminal conduct, that the value of the property exceeds that which they might be expected to have acquired based on their lawful or declared income and that they have been unable to provide any credible explanation as to how they came to be in possession of it.
6. An application can be made under the Act against the person in control of property believed to be the proceeds of crime even if that person is not suspected of involvement in criminal activity. This ensures that those who are involved in criminal conduct cannot avoid the consequences of the legislation by transferring property into the names of family members or associates. It is the status of the property and how it was acquired that is significant and not necessarily its legal ownership.
7. The Act is structured to allow for an initial ex parte application which, if allowed, results in the making of an interim order under section 2. A section 2 order prohibits those with notice of it from disposing of or otherwise dealing in the property specified in the order. A section 2 order will lapse 21 days after it is made unless an application for a section 3 order has been made during that period in which case it continues until the section 3 application is determined. In this case, a section 2 order was made by the High Court on 14th December 2021 and CAB made its application for a section 3 order on the same date.
8. An order made under section 3 is described in the Act as an interlocutory order. The applicant, usually CAB, must establish that the person to whom to order is directed is in possession of property which is directly or indirectly the proceeds of crime, or which has been acquired in whole or in part with the proceeds of crime. This is in fact the same test which must be met in respect of a section 2 order but at this stage the respondent is on notice of the application and may dispute CAB's contention that the property constitutes the proceeds of crime. Section 3 expressly provides that evidence relied on by CAB may include evidence admissible under section 8, i.e. hearsay evidence of a member's or an authorised officer's belief that the respondent is in control of property which constitutes the proceeds of crime.
9. In practice, as in this case, such evidence is generally given by way of an affidavit of the Chief Bureau Officer which is based on information which has been provided to him. Typically, such an affidavit outlines the respondent's criminal activity or their connection to those known to engage in criminal activity; the respondent's known sources of income including social welfare payments, if any; the assets in the possession of the respondent including monies in bank accounts and how those assets appear to have been acquired. As in this case, that affidavit will usually be supported by more detailed affidavits sworn by those Bureau officers responsible for aspects of the investigation leading to the application. There may also be affidavits from third parties such as those in this case providing valuations of various items of property the subject of the application or details of transactions involving those items.
10. In this case, CAB's application related to 17 different items of property - the house, a car, 5 items of jewellery, 5 luxury handbags and 5 separate amounts of cash either in specie or in bank accounts. An initial section 3 order was made on 19th July 2023 in respect of items 15 to 17 on the schedule, namely amounts of cash found in various searches. A further section 3 order was made on 28th July 2023 in respect of items 1 to 14 inclusive, i.e. everything else on the schedule. That order included an order appointing a receiver under section 7 with a power of sale in respect of the items listed at items 2 to 13 inclusive in the schedule. This expressly excluded the house listed at item number 1. The receivership was amended in November 2023 to include item 14, a money item.
11. Disposal of property is provided for under section 4 of the Act. A disposal order cannot be applied for until an interlocutory order under section 3 has been in force for seven years. Section 4 is framed so that the making of a disposal order at the end of seven years is almost automatic and mandatory ("the court shall make") unless the respondent shows that the property is not the proceeds of crime (section 4(2)) or the respondent shows cause as to why the order should not be made (section 4(6)) or the court is satisfied the making of a disposal order would cause a serious risk of injustice (section 4(8)). A disposal order can be made on consent under section 4A prior to the expiration of the seven-year period. Obviously, this case has not yet reached the stage where a disposal order can be applied for in the absence of the appellant's consent.
12. Given that there will usually be a delay of seven years between the making of an interlocutory order and the disposal of the property, this necessarily gives rise to an issue as to how the value of the assets can be preserved in the intervening period. The issue is both a practical one and may be a pressing one. Under section 4(4) of the Act, a disposal order operates to deprive the respondent of their rights to the property and to transfer the property to the Minister for Finance. At its mildest, those in possession of property which is very likely to be transferred to the Minister at the end of seven years will have little or no interest in the maintenance, upkeep, security, or insurance of that property. In other cases, the criminal conduct of the respondent or those with whom the respondent is associated may pose a more immediate and direct risk to the property.
13. This is addressed through the power to appoint a receiver under section 7. Section 7(1) provides as follows: -
"7.— (1) Where an interim order or an interlocutory order is in force, the Court may at any time appoint a receiver—
(a) to take possession of any property to which the order relates,
(b) in accordance with the Court's directions, to manage, keep possession or dispose of or otherwise deal with any property in respect of which he or she is appointed,
subject to such exceptions and conditions (if any) as may be specified by the Court, and may require any person having possession or control of property in respect of which the receiver is appointed to give possession of it to the receiver."
Apart from taking possession of property (which seems to follow automatically from the appointment of a receiver), all other actions of the receiver in relation to the property must be in accordance with directions given by the High Court. Significantly, section 7(1)(b) expressly envisages that those directions may include directions as to the disposal of the property in respect of which the receiver is appointed. Where property is disposed of, the proceeds of sale are retained as representing the value of that property for the purposes of any disposal order which may be made years later.
14. In this case it is clear that the High Court judge approached the making of section 7 orders thoughtfully. He differentiated between the directions given to the receiver at the section 2 stage (to take possession of the property) and at the section 3 stage (a power of sale). At the section 3 stage he also distinguished between the items on the schedule to which the power of sale would and would not apply at different times.
History of this Application:
15. Some of the key procedural steps in this application have been mentioned in the preceding section of this judgment. A section 2 order was made in respect of 17 items of property including the dwelling house on 14th December 2021. Subsequent to the making of that order, the appellant applied for and was granted admission to the ad hoc legal aid scheme for the purposes of defending the proceedings. She also filed a number of affidavits in substantive response to the case made against her by CAB.
16. Briefly, the appellant is married to a career criminal who was, at the time of the initial application, serving a prison sentence. He, along with the appellant's brother, is suspected of involvement in over 153 burglaries nationwide. The appellant is suspected of having assisted in some of these burglaries by driving a getaway car and has been convicted of money laundering the proceeds of this criminal activity. The appellant's husband has almost no recorded employment history. The appellant, who is the mother of three young children, has lived on social welfare for extended periods. She also has no employment history.
17. The case made by the appellant on affidavit was that she and her husband had gone to Australia for a period of either 6 months or 12 months at sometime between 2015 and 2016. Although they were on holiday visas, they engaged in casual employment (without paying tax) and, as a result, accumulated sufficient money to buy the dwelling house for cash in 2018. This money was transferred to the appellant's bank account in Ireland. An analysis of the appellant's bank account carried out by CAB showed that monies were transferred from Australia but that these monies had been dissipated by 2017.Thereafter, large cash deposits of unknown origin were made into her bank account in 2017 and 2018 which were used to fund the purchase of the house.
18. The appellant's account of how the purchase of the house was funded was rejected by the High Court in making the section 3 order. That decision was upheld by the Court of Appeal. Consequently, it has been conclusively determined that the property, including the house, constitutes the proceeds of crime. If the appellant wishes to avoid the making of a disposal order under section 4, the onus will lie on her to establish that the property is not the proceeds of crime.
19. In fairness to the appellant, she did not appeal the High Court's conclusion that items 2 to 17 inclusive on the schedule were the proceeds of crime. Her initial appeal to this court was limited to that finding in so far as it related to the house. Similarly, she has not appealed the making of section 7 orders in July of 2023 appointing a receiver nor the conferral of a power of sale on the receiver in respect of the items at numbers 2 to 14 of the schedule. This appeal is limited to the subsequent order made by the High Court on 17th April 2024 appointing a receiver with power of sale in respect of the house. That order was made after the Court of Appeal confirmed (on 18th January 2024) the High Court's earlier order determining the house to be the proceeds of crime.
20. The terms of the section 7 order are relevant to the issues on the appeal. The order appoints the Bureau Legal Officer "forthwith" as a receiver with "full power of sale". The direction specified that the receiver could engage the usual estate agents, valuers and lawyers to give effect to the sale and that the costs of the sale including professional fees can be paid before the balance is to be lodged to a bank account under the control of the receiver. Crucially, the order then requires the appellant to deliver vacant possession of the property with execution on foot of the order to be stayed until 2nd September 2024. No further stay was provided for before the High Court.
21. A notice of appeal was filed by the appellant on 20th June 2024. The appeal was listed before this court for directions on 25th July 2024. Shortly prior to that hearing, on 19th July 2024, the appellant filed an application for an extended stay. That application was grounded on the affidavit of her solicitor which makes the two points which are live on this appeal and which I have identified at paragraph 2 above. It expressly states that the property is the family home of the appellant, her partner and their three children and that she has no other accommodation available to her.
22. This reflects the evidence which the appellant had provided on affidavit in response to CAB's application under section 7 for an order which would allow for the sale of the house by the receiver. She gave a detailed account of the disruption the loss of their home would cause to her children, most particularly to those of school-going age. The local school which they attend provided a glowing reference in respect of both the children and of the appellant as their mother. She professed herself at a loss as to where she could secure accommodation for a family of five. She also stated that although the house is not currently insured, she would give an undertaking that she would ensure that it was properly and validly insured if an order for possession and sale were not granted to CAB.
23. A replying affidavit sworn by the Bureau Legal Officer (who is also the receiver) states that, in his experience, once property has been deemed to be the proceeds of crime, insurance companies generally consider it to be an uninsurable risk. Further, the appellant's husband has four convictions for criminal damage under section 2 of the Criminal Damage Act 1991 and is listed on PULSE (the computer system used by An Garda Síochána) as a suspect in 11 similar offences.
Mootness:
24. Costello J. (as she then was) refused an extended stay on 25th July 2024 and fixed the hearing of the appeal for 9th December 2024. This meant that the initial stay granted by the High Court which required the appellant to vacate the premises by 2nd September 2024 expired before the appeal was heard. The court was informed that the appellant and her family complied with the High Court order and vacated the house before that date.
25. In these circumstances, CAB argued that the appeal was moot. Mootness was not an issue raised in the respondent's notice, but this is not surprising as that notice had to be filed before the stay granted by the High Court expired. CAB's written submissions (filed in October 2024) do make passing reference to the contention that the appeal was moot (at para. 17) but the point is not expanded on. In oral argument it was contended that the appeal was moot because the appellant had vacated the property and that it was not realistic to say that she could get back in.
26. In litigation, a case or an issue within a case becomes moot when its resolution by a court will no longer be of practical benefit to either side. This can occur because litigation takes time and the underlying situation is changing. For example, where a case concerning the custody or welfare of a minor has not concluded by the time the child becomes an adult, the issues will become moot, and the court may lack any further jurisdiction to make the order sought. Mootness can also occur because of actions taken by the parties which have the effect of depriving the relief sought of any purpose. A classic example of this would be ejectment proceedings where a tenant who has initially refused to vacate the premises voluntarily leaves before the action is heard.
27. Presumably CAB wishes to draw an analogy between those types of circumstances and the appellant's vacation of the house before the appeal was heard. I do not accept that the circumstances are comparable. There is an obvious and significant difference. The appellant in this case acted in compliance with a High Court order in respect of which she was unable to secure a stay notwithstanding that she had appealed the order within time. I do not think that an appellant can lose the right to prosecute an appeal because of a change in her circumstances brought about by compliance with the order the subject of the appeal. To so hold would be to unfairly deprive the appellant of the practical benefit of the right to appeal to this court conferred on her by Article 34.4.1 of the Constitution. It might also have the unintended consequence of placing a premium on non-compliance with an extant court order which is the subject of an appeal. On CAB's argument the case would not be moot if the appellant had refused to comply with the direction to vacate the house and possession of it were still a live issue.
28. Further, part of the appellant's objection to the section 7 order is that under its terms the receiver has a full power of sale. Based on the information before the court, that power of sale has yet to be exercised. There are a number of bases, apart from establishing that the property is not the proceeds of crime, upon which a respondent can oppose the making of a disposal order under section 4. Someone in the appellant's position might take the view that it would be more beneficial to her in attempting to make such a case if the property she resided in were still available as a dwelling house at the time the application for a section 4 order was being opposed.
29. Finally, I do not accept that it is necessarily unrealistic to suggest that the appellant might regain the right to reside in the house simply because she has left under the compulsion of a court order. If her appeal were to be successful and the court were to hold that the High Court had not exercised its discretion lawfully, there must at least be some prospect that this finding would require the restoration of the status quo ante pending a further decision of the High Court. This would especially be so if the appellant and her family were still without permanent accommodation. There may well be good reasons why such an order would not be made in light of the existing section 3 order and, clearly, the court would have to decide the issue on the basis of whatever arguments the parties might advance. However, I do not think it can be said at this point that there is absolutely no reality to the prospect of the appellant's return to the property were she to succeed in her appeal.
The Exercise of Discretion under Section 7:
30. There was very little disagreement between the parties as to the principles applicable to the making of an order under section 7 nor the fact that those principles are equitable in nature. In circumstances where the order is a discretionary one, the appellant relies on the adoption by this court in CAB v. Dean Russell (above) of the following statement of Feeney J. at page 13 of his judgment in Murphy v. J.G: -
"Firstly, it is the case that a receiver under Section 7 can only be appointed in circumstances where an Interim or Interlocutory Order under the Proceeds of Crime Act 1996 has been made. Therefore, at the time that the Court comes to consider the appointment of a receiver, there will be in existence an Interim or Interlocutory Order whereby the High Court will have come to an earlier conclusion that the specified property constitutes directly or indirectly the proceeds of crime. That earlier conclusion is a necessary prerequisite to the application of Section 7 and is the context within which the appointment of a receiver must be considered.
Secondly, it is clear that an application to appoint a receiver under Section 7 requires to be considered on equitable principles.
Thirdly, the purpose of a receivership is to preserve the property over which the receiver is appointed for the benefit of the party ultimately found to be entitled to it. The appointment of a receiver is not a penalty but rather a mechanism to endeavour to ensure that property is preserved.
Fourthly, the use of the word 'preservation' is not the use of a precise term but covers a number of different and varying circumstances but unquestionably covers the necessity to ensure that property is properly and validly insured.
Fifthly, in considering the application of equitable principles, the issue of delay, if any, inconvenience and occupation by a family or a family member are factors to take into account.
Sixthly, a further factor a take into account in applying the equitable principles is the existence of pending proceedings seeking to discharge or vary a section 3 Order and the timing and circumstances of such application.
Seventhly, the handing up of possession or use of lands and/or houses after the making of a Section 3 Order or when a Section 4 Order is pending is relevant.
Finally, a factor to take into account is consideration as to whether the appointment of a receiver is appropriate or inappropriate."
Apart from emphasising the equitable nature of the relief, counsel for the appellant places particular reliance on the fourth, fifth and last of these principles. I will return to the fourth when dealing with the question of insurance. The fifth undoubtedly requires the court to consider the occupation of the property by the appellant and her family and the effect making an order would have on them. It is a highly relevant factor that there are three young children involved whose lives and education stood to be disrupted by an enforced move. This in turn requires specific consideration to be given to the appropriateness of making the order sought.
31. CAB does not dispute the relevance of these principles but points in addition to a number of authorities where the courts have confirmed that once it has been determined that a family home is the proceeds of crime, the fact that family members will be deprived of that home cannot operate as a bar to the making of orders under the Proceeds of Crime Act. As Feeney J. put it in CAB v. H (unreported, ex tempore High Court, 17th October 2008) upheld by the Supreme Court ([2011] IESC 10): -
"The fact that the notice party and her family need a home cannot of itself operate to defeat the public interest requirement identified in the legislation of depriving a person of property representing the proceeds of crime. There is no basis for treating a person in a position such as the notice party and her family on a more favourable basis, than a family who lose their home as a result of a possession order following inability to discharge mortgage repayments or as a result of an inability to pay rent. The notice party and her family have no entitlement to the use of a particular premises. If it were not for the use of the premises obtained from the proceeds of crime [,] the notice party would have to have provided for herself [,] or have provided for her alternative accommodation ... A person in possession of premises representing the proceeds of crime has no constitutional grievance if deprived of their use ...".
32. That judgment was cited with approval by the Supreme Court in CAB v. John Kelly and T.T. [2012] IESC 64. That case delt with a disposal of property under section 4 of the Act. An issue was raised as to whether it would be unjust within the meaning of section 4(8) to make an order in respect of the family home in which the separated spouse and children of a person involved in criminal activity resided. MacMenamin J. identified a number of factors to be weighed in the balance in assessing the risk of injustice. The need for that assessment arose directly from the language used in section 4(8) of the Act, but in my view, it would be equally inappropriate for the court to confer a power of sale on a receiver appointed under section 7 if to do so were to give rise to a risk of injustice.
33. The starting point, characterised by MacMenamin J. as "a weighty factor", is the necessity in a democratic society to ensure that individuals do not benefit from assets obtained from the proceeds of crime and are divested of such assets. Thereafter, and of particular relevance in the case of the family home, the court must "take into account the circumstances of each case and will therefore ensure that ... proportionate means are adopted in the making of an order, and so as to take into account how, in what manner and within what period orders will take effect". Constitutional factors such as the protection of women in the home under Article 41.2 of the Constitution and the right to property under Article 40.3.2 and Article 43 of the Constitution along with the respect for privacy and family life under Article 8 of the ECHR are factors to be considered but do not prevent the making of an order, even in the case of a family home. The court should have regard to the extent of a person's knowledge or notice that property was acquired by or through the proceeds of crime. MacMenamin J. regarded "actual knowledge of criminal wrongdoing" as a "substantial factor".
34. In addition to these factors, CAB invokes a further matter on which MacMenamin J. placed significant reliance in Kelly, namely the absence of evidence before the High Court of the anticipated difficulty the appellants would face in securing alternative accommodation. He held that the appellants had failed to discharge the evidential onus on them and that he could not attach any significance to the submission that such difficulties would arise in the absence of relevant evidence.
35. CAB points out that there is no evidence of the appellant's circumstances before the court and that the submissions which were made on the appeal were based on counsel's instructions rather than on evidence. In fairness to counsel for the appellant, in making his submissions he was overtly mindful not to cross the line between making a submission and giving evidence. In circumstances where the appellant had vacated the house after the date of the directions hearing and before the hearing of the appeal, he was asked to and did update the court on the appellant's current circumstances and advised that she and her children were currently residing with family members but in premises which cannot comfortably accommodate that additional number of people.
36. I am not inclined to be as strict as MacMenamin J. as to the absence of evidence regarding efforts made by the appellant to secure alternative accommodation for herself and her children. Unfortunately, between the time the Kelly decision was decided in 2012 and the hearing of this appeal, there has been a significant rise in homelessness in this jurisdiction to the extent that it has become one of the major social and political issues of the day. In those circumstances, I think it reasonable for the court to take judicial notice of the difficulties likely to be faced by the parents of three young children, ostensibly living on social welfare, in seeking to secure alternative accommodation for the family.
37. Counsel for CAB placed some emphasis on the lack of evidence as to whether the appellant is, as she apparently claims, currently estranged from her husband. This is certainly something which has varied from time to time throughout the course of these proceedings not least because her husband appears to have been incarcerated for extended periods since the proceedings began. I do not think the presence or absence of the appellant's husband is particularly relevant as regards the housing issue. If the appellant is not living with her husband at any particular time, then she is the single mother of three young children dependent on social welfare and thus likely to face particular difficulties in the current housing market. On the other hand, if she is living with her husband then, because he is a convicted criminal, the situation regarding access to housing (presumably rental accommodation) is unlikely to improve much.
Analysis of High Court Ruling:
38. In any event, the issues of proof discussed in the preceding two paragraphs are largely irrelevant to the outcome of this appeal. The argument that the trial judge had failed to comply with the equitable principles set out in CAB v. Dean Russell centred on allegedly inadequate consideration given to the fact that the appellant and her children risked homelessness and disruption in their lives if they were required to move from the property. Counsel did not dispute CAB's contention that such difficulties or disruption could not operate as a bar to the making of a section 7 order in appropriate circumstances.
39. The decision from which this appeal is taken is reflected in a brief ex tempore ruling given at the conclusion of a hearing at which the legal representatives for both sides made submissions as to whether the section 7 order should or should not be made. The transcript of the Digital Audio Recording of the entire hearing, including the ruling, was made available to this court. The trial judge's engagement with and understanding of the arguments made is apparent from his exchanges with counsel as the hearing progressed.
40. Counsel for the appellant provided the trial judge with a copy of the Court of Appeal decision in CAB v. Dean Russell and made arguments based on that decision similar to those made before this court. The trial judge noted that the facts of Dean Russell were unusual because there had been a very long interval between the High Court decision and the decision on appeal during which the appellant had remained residing in a premises which was the subject of a section 7 order. In contra-distinction to those facts, he clarified that the purpose of appointing a receiver in this case was to facilitate the sale of the house.
41. At the outset I think it is important to understand that whilst Dean Russell is undoubtedly important in emphasising the equitable nature of the relief available to CAB under the Proceeds of Crime Act, it does not constitute a check-list, each element of which must be referenced by the trial judge in order to show that he has indeed approached the grant of relief on an equitable basis. It is also important to appreciate that in almost all cases where people are being deprived of assets, and in particular of a property in which they or members of their family are residing, this will cause stress, upheaval and inconvenience. The existence of these factors alone is unlikely to be sufficiently persuasive in most cases to justify refusal of relief under section 7 once it has been determined that the assets in question are the proceeds of crime. Additional factors such as illness or disability may have a bearing, as will the extent to which a respondent offers concrete evidence of the disturbance and distress of which they complain.
42. It is clear from the transcript of the trial judge's ruling that he was cognisant of and took account of the difficulties the appellant and her children were likely to face if an order was made allowing the receiver to sell the house. He expressly stated that he appreciated the appellant's position and had a lot of sympathy for her and her family because they would have to find somewhere new and would most likely want to stay close to the children's current school. In those circumstances he proposed to give "some leeway" to the appellant and her family in order to afford them the opportunity to try and arrange their affairs. CAB had proposed a stay of just over two months until 20th June. The stay granted was longer (for a period of four and a half months) and was specifically tailored to allow the children complete the school year in which they were then engaged and to facilitate a move before the beginning of the next school year in September.
43. There was very little to be said in the appellant's favour apart from the argument made on her behalf relating to the position of her young family if they were forced to leave their home. In addition to the insurance issue, which is addressed below, other factors identified by MacMenamin J. in CAB v. Kelly and T.T. (above) as ones which should be weighed in the balance all tended to weigh against the appellant. The appellant was actively involved in her husband's criminal activity and, consequently, clearly had notice of the fact that the house was purchased with the proceeds of crime. Neither a lack of notice nor a lack of involvement will be a bar to the making of an order, but certainly actual notice of and involvement in the relevant criminal activity must constitute strong grounds for making one.
44. The appellant might well feel that the trial judge could have been more sympathetic to her and her family, but no real grounds have been advanced which suggest that he did not appreciate the discretionary and equitable nature of the order, that he did not take into consideration the effect making the order would have on the appellant and her children and that he did not make allowances within the order to facilitate them to the extent he thought appropriate. In those circumstances I dismiss this ground of appeal.
Insurance:
45. The other argument advanced on the appeal is that the trial judge erred in rejecting the undertaking offered by the appellant to ensure that proper and valid insurance was put in place in respect of the property. The fourth of the Dean Russell principles identifies the necessity to ensure that property is properly and validly insured (a necessity mirrored in the language used by the appellant in her affidavit offering the undertaking). However, whilst the absence of insurance may be a decisive factor leading to the making of an order, it does not necessarily follow from the existence of an insurance policy that an order under section 7 should not be made. The lack of insurance may point strongly towards making an order which would enable a receiver to take possession of and deal with a property, but the converse is not necessarily the case. In other words, it does not follow from the existence of insurance that such orders should not be made.
46. In this case, it is clear from the transcript of the trial judge's ruling that he took the view that once orders had been made under section 3, the appellant as nominal owner of the property no longer had an insurable interest. He states as much on three separate occasions in the course of the hearing. Counsel for the appellant contends that it is illogical, on the one hand to require that the appellant insure the property in order to avoid the making of a section 7 order and, on the other, to hold that she does not have an insurable interest in the property by virtue of the making of the section 3 order, the existence of which is a precondition to the making of a section 7 order. However, it is also clear from the exchanges between the trial judge and counsel that he saw the absence of an insurable interest as representing "the strict law" and that it might be possible for something to be done between the appellant and the Bureau and an insurance company, although he suspected that this would still represent a bad risk.
47. Therefore, notwithstanding her undertaking, the evidence before the High Court was that the appellant was unlikely to be able to secure insurance. She had not offered evidence of any insurer or broker prepared to undertake the risk in question which would support the contention that such insurance would be available to her. I take a materially different view as to the need for the appellant to adduce evidence on this issue in order to support the substance of her undertaking than I do on the issue of the difficulties she is likely to face in securing alternate accommodation. I do not think the court can take judicial notice of the insurability of the appellant's interest in the house, such as it may be once the section 3 order was made. The Bureau Legal Officer has given sworn evidence on affidavit of his experience that insurance companies will not offer insurance in these circumstances. If the appellant wished her offer of an undertaking to have substance, the onus was on her to identify a broker or an insurance company that was prepared to provide her with insurance cover for the house notwithstanding the legal position relating to it under the Act. This she singularly failed to do.
48. I note that the trial judge did not make any finding on CAB's assertion that there was an additional risk to the property because of the nature of the criminal offences of which appellant's husband had been convicted. As this was not the basis on which a power of sale was conferred on the receiver, it is unnecessary for me to address it further.
49. Again, no concrete issue has been raised on behalf of the appellant as to why the trial judge erred in the manner in which he treated the insurance issue. In the circumstances I also reject this ground for appeal.
Conclusions:
50. In light of the foregoing judgment, I reject the appellant's appeal. I note that at earlier stages of these proceedings the appellant was granted admission to the ad hoc legal aid scheme and that the existing certificate of legal aid was extended to cover her opposition to the application for a section 7 order in the court below. An order for costs was made against the appellant in relation to her unsuccessful application for an extended stay on 25th July 2024. The directions order notes that the court was informed an application would be made on the appellant's behalf for admission to the ad hoc legal aid scheme for the purposes of this appeal. No such application was moved before the court. In the circumstances I would propose simply making no order as to costs in respect of this appeal. If either party wish to contend for a different order, they have 21 days from the date of perfection of the order to file written submissions (of not more than 1,500 words) and the other party had a further 10 days to respond.
51. My colleagues Whelan J. and Faherty J. have read this judgment in advance of its delivery and have approved it.
Result: Appeal dismissed.