Judgment Title: Izundu -v- Judge Nolan & Anor
Neutral Citation:  IEHC 361
High Court Record Number: 2012 448 JR
Date of Delivery: 22/07/2014
Court: High Court
Composition of Court:
Judgment by: Barrett J.
Status of Judgment: Approved
Neutral Citation Number:  IEHC
THE HIGH COURT
[2012 No. 448 J.R.]
JUDGE MARTIN NOLAN
THE DIRECTOR OF PUBLIC PROSECUTIONS
JUDGMENT of Mr Justice Barrett delivered on the 22nd day of July, 2014.
1. On 13th March, 2012, a confiscation order in the amount of €412,579.82 issued against Mr. Izundu from the Circuit Court. Mr. Izundu has various concerns about this order, both in terms of the amount ordered and the process that preceded its issuance. He has come to this Court seeking (1) an order of certiorari by way of judicial review quashing the confiscation order; (2) a declaration that any party applying for a confiscation order or otherwise invoking the jurisdiction of the courts pursuant to s.4 of the Criminal Justice Act 1994 is required, in advance of making such application, to communicate to the party alleged to have benefitted from drug trafficking, the amount sought to be confiscated, and an outline of the basis of calculation of that sum; and (3) various other reliefs.
Certain arguments raised
Exercise of right of appeal
Variation of order
Criminal Justice Act 1994
10. Under s.4 of the Act of 1994:
(4) If the court determines that the person in question has benefited from drug trafficking, the court shall determine in accordance with section 6 of this Act the amount to be recovered in his case by virtue of this section and shall make a confiscation order under this section requiring the person concerned to pay that amount.
(5) For the purposes of this Act, a person who has at any time (whether before or after the commencement of this section) received any payment or other reward in connection with drug trafficking carried on by him or another has benefited from drug trafficking.
(6) The standard of proof required to determine any question arising under this Act
(b) the amount to be recovered in his case by virtue of this section,
11. Under s.6 of the Act:
(2) If the court is satisfied that the amount that might be realised at the time the confiscation order is made is less than the amount the court assesses to be the value of his proceeds of drug trafficking, the amount to be recovered in the defendant’s case under the confiscation order shall be the amount appearing to the court to be the amount that might be so realised.”
13. One might perhaps be tempted to ask whether there is any practical significance to the Circuit Court getting matters wrong when it comes to the scale of a confiscation order that it might impose. As it happens a very real practical significance arises for Mr. Izundu by virtue of s.19 of the Act of 1994. Under s. 19(1) a confiscation order falls to be enforced by the D.P.P. as if it were a judgment of the High Court for the payment to the State of the amount specified in the order. Under s.19(2), if the amount ordered goes unpaid, then upon report to this effect being made to the High Court by the D.P.P., the affected individual may be imprisoned by the High Court according to a sliding scale in which the greater the outstanding amount under the confiscation order, the greater the period of imprisonment the individual faces. Section 19(3) requires that an affected individual be given a reasonable opportunity to be heard before an order for imprisonment is made. Section 19(4) provides for a reduction of the term of imprisonment in proportion to any sum(s) that may be paid or recovered from time to time under the confiscation order. The effect of s.19, combined with ss. 4 and 6 of the Act of 1994 is the establishment of a carefully calibrated regime in which a proper application of s.6 is the necessary linchpin to ensuring that the scales of justice are appropriately weighted as regards both the State and the convicted person. If the court making a confiscation order faithfully discharges its obligations under s.6, then a convicted drug trafficker should be deprived of such of his illicit proceeds as might be realised but no more. If the court under-estimates the amount that may be realised, so be it. However, if the court over-estimates the amount that may be realised, there is the potential for injustice under s.19. A key contention of Mr. Izundu in these proceedings is that the Circuit Court in its order of 13th March, 2012, grossly over-estimated the amount that may be realised in his case and so created the potential for a serious injustice that could result in his facing up to five years’ imprisonment on top of the time that he has already served for his primary offence of drug trafficking. So for Mr. Izundu there is a very practical significance to the Circuit Court having gotten matters wrong, if it got matters wrong, when it came to the scale of the confiscation order that it imposed on him. There is also a real significance for the State if it has done some injustice to Mr. Izundu through any failure to observe required and fair procedures in the confiscation order proceedings against him. After all, as Plato writes in Gorgias, doing injustice is a very great wrong; a state with the concern for individual rights which our State so correctly and consistently evinces in its actions would naturally want to see any such wrong remedied if on the facts of a particular case it is found to pertain.
(b) the value of his proceeds of drug trafficking is the aggregate of the values of the payments or other rewards.
(b) it is satisfied that there would be a serious risk of injustice in his case if the assumption were to be made.
(4) The assumptions referred to in subsection (2) of this section are -
(ii) to have been transferred to him at any time since the beginning of the period of 6 years ending when the proceedings were instituted against him, was received by him, at the earliest time at which he appears to the court to have held it, as a payment or reward in connection with drug trafficking carried on by him,
(c) that, for the purpose of valuing any property received or assumed to have been received by him at any time as such a reward, he received the property free of any other interests in it.
Matters preliminary to the Circuit Court proceedings
17. It seems to the court that the second of the D.P.P.’s contentions fully answers the complaint levelled by counsel for Mr. Izundu in this regard. As the confiscation order process established under s.4 of the Act of 1994 is one that is incumbent on the trial court to undertake, it is for that court to ensure that a basic fairness of procedures applies. There are a number of ways in which such fairness of procedure can be attained. Clearly a Star Chamber-style process in which an individual has no advance knowledge of what is to be put to him in confiscation order proceedings would not be permissible under the Constitution. However, it does not appear to the court that the only permissible manner of proceeding is for the trial court to ensure that a defendant is provided in all instances with the type of information that Mr. Izundu’s legal team sought of the D.P.P. On the contrary, it is entirely open to the trial court to be satisfied that a basic fairness of procedures pertains, notwithstanding that, for example, the information sought by Mr. Izundu’s counsel in this case was not provided to them. In this case the confiscation order was made nearly 18 months after Mr. Izundu was convicted. There were two adjournments of proceedings to allow Mr. Izundu time to give answers to the prosecution as to the origins of the monies that washed through his many bank accounts. His counsel were well able to read the Act of 1994 and so knew exactly what would be required of the State at the ensuing proceedings and indeed what would be required of Mr. Izundu to defend himself. It was open to the Circuit Court to find, and it would seem implicit in the fact that it allowed the confiscation order proceedings against Mr. Izundu to continue that it did in fact consider that the proceedings against Mr. Izundu accorded with constitutional requirements as to basic fairness of procedures.
18. For the reasons stated, the court rejects the contention that: (1) consequent upon a request by Mr. Izundu’s legal team so to do, the D.P.P. ought to have indicated in advance of the Circuit Court proceedings the precise amount that the State sought to have confiscated and the basis whereby it had calculated that amount; (2) the State in any guise is required, whether to ensure conformity with constitutional requirements as to fairness of procedures or otherwise, to ensure that pre-trial information of the type sought by Mr. Izundu in these proceedings is made available to a defendant in confiscation order proceedings. It was for the trial judge to ensure that a basic fairness of procedures pertained in the confiscation order proceedings affecting Mr. Izundu; there is nothing to suggest that he did not and neither is there some manifest or inherent deficiency in the procedures operated by the Circuit Court that placed those proceedings in contravention of the Constitution in this regard.
The Circuit Court proceedings
20. It is only in this last regard, i.e. the scale of the confiscation order finally imposed, that the court considers a difficulty to arise with the Circuit Court proceedings. In every other respect the Circuit Court judge appears to have got matters entirely right. However, with regard to the scale of the sum ordered, it does not appear that the requirements of s.6 were wholly complied with. Nor does it appear that they were even substantively complied with. It is worth quoting from the transcript of the Circuit Court proceedings to show how the amount eventually settled upon in the confiscation order was arrived at by the trial judge:
[for the State]: Yes, Judge.
JUDGE: [B]asically, you want then for me, on the basis of your evidence, to make an order, a confiscation order for a certain sum?
MR. COFFEY: Yes, Judge.”
23. Shortly after the revised figure of €412,579.83 was settled upon, the Circuit Court adjourned. It is at this point that one can look backwards and see that at no stage in the Circuit Court proceedings did the Circuit Court undertake a proper s.6(2) analysis. It will be recalled that under s.6(2) of the Act of 1994, if a court to which application for a confiscation order is made:
MR. COFFEY: Well, I’m looking for the Court to assess what are the proceeds of crime, what are the monies that were lodged by the accused and dissipated by the accused…
JUDGE: Now, basically, you then want for me, on the basis of your evidence, to make an order, a confiscation order for a certain sum?
MR. COFFEY: Yes, Judge…
JUDGE: - for a sum that I must estimate as the amount that he has made from drugs?
MR. COFFEY: That has gone through his accounts which we say are from the proceeds of crime.
JUDGE: Is related to drug activities?
MR. COFFEY: That’s correct.”
26. At a later stage, the trial judge summarises his conclusions and, perhaps as a result of the exchange he had with counsel in the earlier part of proceedings, he is clearly concerned in his summary with identifying the amount assessed by the court to be the value of Mr. Izundu’s proceeds of drug trafficking, i.e. the task arising for the court under s. 6(1), and not the amount that might be realised of Mr. Izundu pursuant to any confiscation order made, i.e. the task arising for the court under s.6(2). Thus, per the trial judge:
28. One might perhaps ask where was Mr. Izundu’s counsel in all of this? Did he not think to raise s. 6(2) of the Act of 1994 as a concern? In fact, Mr. Izundu’s counsel expressly raised the issue of s. 6(2) with the trial judge, after which the trial judge remarked as follows:
- declines to grant the declaration requested by Mr. Izundu that any party applying for a confiscation order or otherwise invoking the jurisdiction of the courts pursuant to s.4 of the Act of 1994, is subject to a requirement in advance of any such application to communicate to the party alleged to have benefited from drug trafficking the amount that it is sought to confiscate and the basis for the calculation of such sum.