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M. (M.F.) v. B. (M.) [1998] IEHC 174; [1999] 1 IR 122; [1999] 1 ILRM 540 (11th December, 1998)
THE HIGH COURT
M.F.M.
APPLICANT
AND
M.B.
& ORS
RESPONDENTS
JUDGMENT
of Mr Justice O'Higgins delivered the 11th day of December, 1998
1. This
is an application for an order pursuant to the provisions of Section 6(1)(a) of
the Proceeds of Crime Act. Section 6(1) provides:
"At
any time while an interim order or an interlocutory order is in force, the
Court may, on application to it on that behalf by the Respondent or any other
person affected by the order, make such orders as it considers appropriate in
relation to any of the property concerned if it considers it essential to do so
for the purposes of enabling
(a) the
Respondent to discharge the reasonable living and other necessary
expenses
(including legal expenses in or in relation to proceedings
under
this Act) incurred or to be incurred by or in respect of the
Respondent
and his or her dependants"
2. In
this case an order under Section 2 of the Act was made in relation to the
Applicant. The Applicant looks for a payment out of £20,000 in respect of
legal fees. Solicitors for the Applicants have undertaken to provide invoices
and have the costs taxed if necessary. There is an
ad
hoc
legal aid scheme which provides for legal representation in these cases. The
question I have to decide is which is the more appropriate, to grant legal aid
under the
ad
hoc
scheme, or to make an order releasing some of the monies under Section 6 of The
Proceeds of Crime Act. I was referred to the case of
D.P.P.
-v- EH
a note of an ex-tempore judgment of Mr. Justice Kelly delivered 22nd April,
1997. That case concerned Section 24 of the Criminal Justice Act, 1994, which
had a provision similar to the provisions under the Proceeds of Crime Act for
payment out of monies that were frozen for living expenses and legal expenses.
He accepted an analogy between the relevant restraint order and a mareva
injunction. Deciding what approach the Courts should take on this type of
application Mr. Justice Kelly cited with approval a decision of Robert Goff J.,
as he then was, in the case of
A
and Anor -v- C and Others
[1981] 2 AER 126:
"Although
the Court had jurisdiction to qualify a Mareva injunction where the defendant
satisfied the Court that assets subject to the injunction were required for a
purpose that did not conflict with the policy underlying the Mareva jurisdiction,
in
order to satisfy that burden the defendant had to go further than merely to
state that he owed money to someone and had to show that he did not have any
other assets available out of which the debt would be paid.'"
3. The
judgment of Kelly J. is of limited assistance in so far as that was dealing
with money owed by the Defendant, and does not afford much assistance on the
question as to whether the payment out for legal fees should be made under the
Act rather than under the ad hoc Legal Aid Scheme. Mr. Beatty cited the case
of the
Customs
& Excise Commissioners -v- Norris
[1991] 2 QB 293. The footnote reads in part:
"Where
....the applicant who had been convicted of drug trafficking offences and
required to comply with a confiscation order, appealed against his unsuccessful
application to the judge for release of funds subject to a restraint order for
the prosecution of an appeal against conviction .... -
Held,
allowing the appeal, that although the fund preserved by the restraint order
was required in its totality to meet the confiscation order, neither order
would survive if the appeal succeeded; and that, accordingly, it was
appropriate to release monies in a specified amount to enable the applicant to
meet the legal expenses of the forthcoming appeal."
4. He
cited in particular a passage at 296 from the judgment of Donaldson M.R. who
referred to Counsel's argument in the following terms.
"Alternatively,
he says, 'legal aid will be available in a situation in which manifestly,
subject to this application, Mr. Norris has no funds. That is, no doubt, true,
but it would be an odd position if the Court was forcing somebody to qualify
for legal aid who would not otherwise qualify for legal aid. There is also
this policy consideration (which perhaps might appeal to H.M. Customs &
Excise rather than Mr. Norris) that, if he is forced on to legal aid then the
cost of the defence will come out of public funds whether the conviction is
sustained or whether it is not. If, on the other hand, this money is released
and
is
spent on the costs of his appeal, there will be that much saving for the legal
aid fund and, if the appeal succeeds, it will be Mr. Norris' money that paid
for the appeal, subject, of course, to any order for costs which might be made
by the criminal division of this Court. So, if there is any advantage in terms
of public money (which is not perhaps a consideration which we should take into
account) it lies in favour of releasing these funds to enable
Mr.
Martin Norris to prosecute the appeal at his own expense."
5. Mr.
Beatty also referred me to an Australian case
the
D.P.P. -v- Kunz
115
ALR 197. restraining orders were made under Section 423(E) of the Australian
Customs Act, 1901, restraining dealings in the Respondent's property and
vesting the Respondent's property in the official trustee in bankruptcy. The
relevant law provided, inter alia,
"Where
the Court makes, or has made, a restraining order .... against property of a
person .... the Court may .... make such orders in relation to that property as
the Court considers just."
6. In
that case the Court in its discretion varied the original restraining order and
at page 84 of the judgment the following passage occurs:
"The
possibility of practical impairment of the capacity of an individual to defend
himself fully against serious criminal charges by reason of economic
disadvantage must be viewed with considerable concern in any situation.
Presumably, if the source of the funds presently available to the respondent
were to be denied to him by the granting of the application, he would then
become either reliant upon an already over burdened legal aid service funded
out of the public purse, or left without adequate resources. In the case
before the Court, at this level the matter involves a relatively
straightforward choice between the interest of the revenue and those of a
person facing criminal
charges
to have access to those funds. In my opinion in such a conflict the rights of
the respondent should prevail and the application be dismissed."
7. Mr.
Murphy resisting this application referred me to Section 6(1) and the wording
and drew the Court's attention to the fact that the Court may make the order
only if it considers it
"essential".
8. While
both the Australian decision in the
Kunz
case and the decision in the
Norris
case are of persuasive authority only, I would be disposed to follow them but
for the wording of this Section which puts a very heavy onus on the Applicant.
In order to succeed, the Applicant has to satisfy the Court that it is
"essential"
to
make the order for the purpose of enabling him to discharge his legal expenses.
Because of the existence of the
ad
hoc
legal aid scheme I cannot come to the conclusion that it is essential to make
the order sought. It is to be noted in this regard that the wording of the
discretion envisaged in the U.K. drug traffic offences Act, 1985 is expressed
differently. Section 8(5) merely says:
"a
restraint Order may be discharged or varied in relation to any property"
.
There is no stipulation as to how that discretion should be exercised. While
in the course of argument, it emerged that there might be some technical
difficulties in the Court adjudicating on the sum of money to be paid out,
should the Applicant be unsuccessful, I want to make it clear that such
difficulties would not be a bar to the making of the order.
© 1998 Irish High Court
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