High Court of Ireland Decisions
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URL: http://www.bailii.org/ie/cases/IEHC/2003/631.html
Cite as: [2003] IEHC 631
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Mck v. F. & Anor [2003] IEHC 631 (24 February 2003) URL: http://www.bailii.org/ie/cases/IEHC/2003/631.html Cite as: [2003] IEHC 631 |
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THE HIGH COURT
NO. 8528P/2000
McK
PLAINTIFF
AND
F AND F
DEFENDANTS
Judiment of Finnezan P. delivered on the 24th day of February 2003.
These proceedings are taken pursuant to the Proceeds of Crime Act 1996. By motion issued on the 2nd December 2002 the Defendants seek an order dismissing the proceedings on the following grounds –
(1) As no longer disclosing a cause of action because in his reply (to Notice for Particulars) of the 26th July 2002 the Plaintiff states that he is not making the case that each item of property the subject of the action was acquired or funded with the proceeds of the commission of a specific offence, or
(2) As being statute barred, insofar as the schedule properties represent proceeds of alleged crimes committed prior to the 26th July 1998, or disclosing no cause of action,
(3) Insofar as the schedule properties represent the proceeds of alleged crime committed outside the State and not contrary to Irish law.
Insofar as the grounds mentioned at (2) and (3) above are concerned it was argued on behalf of the Defendants that the Statute of Limitations 1957 section 11(7) applies to claims under the Proceeds of Crime Act 1996 and that the Act does not apply where the alleged crimes have been committed abroad. I dealt with both these arguments in my Judgment in McK v M 12th February 2002. For the like reasons therein set out hold that the Statute of Limitations 1957 section 11(7) does not apply to proceedings under the Proceeds of Crime Act 1996 and that the Act applies where the alleged crimes are committed abroad.
As to the first ground in Michael Murphy v G.M., P.B., P.C. Limited, G.H. 20014 IR 113 at 130 the Supreme Court dealt with the same argument in the following terms -
"The sixth submission was that an Applicant in proceedings under the Act of 1996 was obliged to identify the crimes in question and when, where and by whom they were alleged to have been committed. It is unnecessary in this case to consider whether and if so to what extent the property, whose disposition he seeks to restrain, is the proceeds of a specific crime. In this case the Plaintiff gave detailed evidence as to the nature of the criminal activity allegedly committed by the first Defendant which were the source of the property sought to be frozen (this evidence was undoubtedly hearsay, but as already noted, such evidence is admissible under section 8). This evidence was accepted by the learned High Court Judge and his findings of fact in this context have not been disputed on the hearing of this appeal. Accordingly no argument on this ground can succeed".
In that case the Defendant, as one of the constitutional grounds, argued that there was no "equality of arms". The Supreme Court at page 155 dealt with this submission in the following terms -
"As to the submission that there was no `equality of arms' between the parties because evidence of opinion was permitted in the case of the Applicant but not in the case of the Respondents, the court is satisfied that no such inequality is being demonstrated: the Respondents to an application under section 2 or section 3 will normally be the persons in possession or control of the property and should be in a position to give evidence to the court as to its provenance without calling in aid opinion evidence. A similar submission was advanced in respect of the extent to which the onus of proof was reversed in applications under the Act, but the court is satisfied that, having regard to its conclusion that these are civil proceedings this did not, of itself render the provisions unconstitutional.
In this connection the court was referred to the recent decision of the Privy Council in Mackintosh v Lord Advocate 2001 3WLR 107. In that case, an issue arose as to whether certain provisions of the Proceeds of Crime (Scotland) Act 1994 were incompatible with Article 6(2) of the European Convention For The Protection of Human Rights and Fundamental Freedoms. Those provisions were in somewhat similar terms to those contained in the Criminal Justice Act 1994 which enable a court to make a confiscation order requiring a person convicted of a drug trafficking offence to pay a certain sum. Those procedures are in contrast to the procedures under the Act of 1996, where the pre condition of the conviction of the person against
whom the freezing order is to be directed does not exist. The court, however would adopt with approval the following passage from the speech of Lord Hope of Craighead as to the approach a court should adopt in considering provisions of this nature, whether in the context of the Constitution or of the European Convention of Human Rights. He said at p.p. 123 and 124.-
'People engage in this activity (drug trafficking) to make money and it is notorious that they hide what they are doing. Direct proof of the proceeds is often difficult if not impossible. The nature of the activity and the harm it does to the community provides a sufficient basis for the making of these assumptions (i. e. assumptions that property held by the accused could in certain circumstances be assumed to have been received in connection with drug trafficking). They serve a legitimate aim in the public interest of combating that activity. They do so in a way that is proportionate. They relate to matters that ought to be within the accused's knowledge, and they are rebuttable by him at a hearing before a Judge on the balance of probability. In my opinion a fair balance is struck between the legitimate aim and the rights of the accused'. "
The Plaintiff in this action does not make the case that the property the subject matter thereof is the proceeds of a specific crime or crimes. These proceedings are civil proceedings and the onus rests upon the Plaintiff. In order to discharge that onus the Plaintiff may rely upon opinion evidence pursuant to the provisions of section 8 of the Act. As noted by the Supreme Court the Defendant should be in a position to give evidence to the court as to the provenance of any property sought to be attached.
However the Act applies not alone to the person alleged to have been involved in the crime but to a person in possession or control of the property. This may make more difficult the task of the Defendant. However it is provided in section 3 of the Act that the court shall not make an order under that section if it is satisfied that there would be a serious risk of injustice and this provision represents an appropriate and sufficient protection for such a Defendant. Having regard to this circumstance and to the decision of the Supreme Court in Michael Murphy v G.M., P.B., P.C. Limited, G.H. I am satisfied that it is unnecessary for the Plaintiff to rely upon specific crimes or to relate items.of property sought to be attached by an order under section 3 of the Proceeds of Crime Act 1996 to the commission of specific crimes and that the Plaintiff can make a sufficient case by relying on opinion evidence that the property in question constitutes directly or indirectly the proceeds of crime or that the property was acquired in whole or in part with or in connection with property that directly or indirectly constitutes the proceeds of crime pursuant to section 8(1) of the Proceeds of Crime Act 1996. The Act in sections 2, 3 and 8 refers to "proceeds of crime": the word "crime" is not preceded by a definite or indefinite article and this clearly indicates that it is the legislative intention that the Act should have application in circumstances where the Plaintiff is unable to show a relationship between the property alleged to be the proceeds of crime and a particular crime or crimes.
In this action it is alleged that the Defendants are in possession or control of property acquired by or in connection with the proceeds of crime by one P F now deceased the Defendants being the widow and son respectively of P F . This may make it more difficult for these Defendants to demonstrate the provenance of the property sought to be attached. However the Defendants are in no different position it seems to me fro the executor or administrator of an estate against which a cause of action survives. Indeed by reason of the proviso in section 3 of the 1996 Act that the court shall not make an order if it is satisfied that there would be a serious risk of injustice it is arguable that they are in a better position.
In this motion the Defendants also seek further and better particulars in reply to a notice for particulars dated 8th May 2002. The notice for particulars is in the following terms -
1. In respect of each of the scheduled properties, please state the following details of each and every offence it is alleged generated the proceeds that directly or indirectly were used to acquire the said properties –
(i) The nature of the offence, stipulating what statutory provisions or common law rule was contravened:
(ii) Exactly when and where was it committed:
(iii) The precise proceeds of that offence:
(iv) What if any connection is it alleged that offence had with the first named Defendant:
(v) How is it alleged that the proceeds of the offence came into the said Defendant's possession or control.
2. In respect of each and every one of the schedule properties, please state exactly how it is alleged that the property was acquired in conjunction with the proceeds of crime, inter alia, regarding each of the alleged offences –
(i) If allegedly acquired in part with such proceeds, the amount of those proceeds and of the said part:
(ii) If allegedly acquired in connection with such proceeds, the exact nature of the connection:
(iii) If allegedly acquired indirectly with such proceeds, exactly what is the link between the proceeds of each particular offence?
The Plaintiff furnished a very full reply to the same on the 26th July 2002. The reply however did not set out the particulars sought at paragraph (1)(ii) to (iv). Having regard to my finding that it is unnecessary for the Plaintiff to rely on specific crimes or to relate particular property to particular crimes it was not necessary that he should do so. Likewise in relation to paragraph 2. With regard to paragraph 1.(v) I understand the position to be that the Defendants maintain a claim to be entitled to the property in which circumstances this inquiry is otiose: however if upon the defence being delivered an issue arises as to possession or control I would consider it appropriate to order the Plaintiff to set out the factual basis upon which it is claimed that the Defendants and each of them are in possession or control of the property. I note that no representation has been raised to the estate of the deceased and agai when such representation is raised it may be appropriate to revisit the particulars sought at paragraph 1.(v)
Accordingly I refuse the Defendants the relief sought.