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You are here: BAILII >> Databases >> Irish Court of Appeal >> Minister for Justice Equality & Law Reform -v- Devine [2015] IECA 182 (31 July 2015)
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Cite as: [2015] IECA 182
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Judgment
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THE COURT OF APPEAL Neutral Citation Number: [2015] IECA 182
Appeal No. 2014 1389 [Article 64 transfer] Peart J. Sheehan J. Mahon J. IN THE MATTER OF THE CRIMINAL JUSTICE (MUTUAL ASSISTANCE) ACT 2008, SECTION 51.
IN THE MATTER OF CRIMINAL PROCEEDINGS BEFORE THE COURTS OF THE UNITED KINGDOM AGAINST BERNADETTE MARGARET ROSE DEVINE IN THE MATTER OF A REQUEST SENT BY THE CROWN PROSECTUION SERVICE OF THE UNITED KINGDOM Between The Minister for Justice, Equality and Law Reform Respondent - and -
Bernadette Margaret Rose Devine Appellant JUDGMENT delivered by Mr. Justice Alan Mahon on the 31st day of July 2015 1. This is an appeal against the judgment of the High Court (Feeney J.) delivered on 18th April 2012 including part of a ruling made in the course of these proceedings before the High Court on 22nd March 2012, and the consequential Orders made by the High Court (Birmingham J.) on 22nd October 2013. The background 3. The appellant was convicted of five counts of Fraudulent Evasion of value added tax contrary to s.72(1) of the United Kingdom Value Added Tax Act 1994 on 6th July 2001 at Middlesex Crown Court. She was sentenced to six years imprisonment. A Confiscation Order was made by Middlesex Crown Court on 5th August 2003 against the appellant in the sum of £1,446,368.68. The fraud perpetrated by the appellant, together with another individual, Mr. Daniel O’Connell, involved the importation into the United Kingdom of certain goods without the payment of VAT. The avoidance of the VAT was facilitated by the provision of documents purporting to show that the goods, computer parts, were to be exported onwards to Ireland. However, what occurred was that some of the goods were indeed exported into Ireland but immediately re-imported into the U.K., and other goods were never exported to Ireland but kept in the U.K. The goods were then sold to U.K. based companies for prices which included VAT. The appellant was the owner of these companies, and these companies then proceeded to reclaim the VAT from H.M. Customs and Excise. Sums close to £19 million were reclaimed in this way. The amount of £1,446,368.68 which was the sum relevant to the Confiscation Order represented only a fraction of the original VAT fraud. The Confiscation Order identified certain assets of the appellant including properties in Counties Sligo and Roscommon which were owned by the appellant or in which she had an interest. 4. On 27th January 2005, the appellant was refused leave to appeal her conviction and an application for leave to appeal against the Confiscation Order was adjourned, pending the outcome of another appeal which raised a similar point of law which was then current before the House of Lords. By 21st December 2005, that appeal had been dealt with by the House of Lords and on 21st December 2005, leave to appeal the Confiscation Order was refused by the Court of Appeal and the respondent notified the United Kingdom authorities of her intention to discontinue her appeal against the Confiscation Order. 5. On 27th November 2006, the High Court in England made an Order converting the Management Receivership Order into an Enforcement Receivership Order with power to realise the appellant’s assets in satisfaction of the outstanding Confiscation Order. 6. On 26th July 2007, the Enforcement Receiver paid the sum of £317,000 into the Court representing the realisation of the appellant’s assets in the U.K. Enforcement proceedings were commenced against the appellant for non payment of the outstanding amount in May 2007 and the appellant failed to attend at a number of hearings and was subject to a Bench Warrant. Finally, on 2nd October 2007 the appellant attended court and was requested to sign a Power of Attorney enabling the Enforcement Receiver to realise the appellant’s assets which were outside the U.K., including assets in Ireland. The respondent refused to do so and, as a result thereof, the judge activated the default sentence of five years imprisonment which formed part of the Confiscation Order of 5th August 2003. By the date that the default sentence was activated, the appellant had completed her initial sentence and had been released from custody. The appellant was imprisoned as a result of the default sentence being activated, and after she had served fifty per cent of the five year sentence she was released from prison on 1st April 2010. 7. Notwithstanding the fact that the appellant had served the default sentence, the debt identified in the Confiscation Order remained due and owing, and the balance, (less the amount of £317,000 paid by the Enforcement Receiver), remains due and owing and continues to accrue interest. The entire amount paid as of August 2010 was £317,658 leaving a balance on the original amount, together with accrued interest, of £1,738,900. Interest continues to accrue thereafter at a daily rate. 8. The first proceedings in this jurisdiction arising out of the conviction and orders made against the appellant in the U.K. resulted from an application by the U.K. to the authorities in Ireland for a Restraint Order over the appellant’s property in this jurisdiction. On 7th March 2005 an order was granted ex parte by the High Court in this jurisdiction pursuant to the provisions of the Criminal Justice Act 1994 (as modified by the provisions of the Criminal Justice Act 1994 (s.46(6) Regulations 1996). The Restraint Order made within this jurisdiction identified various items of property which were claimed to be the appellant’s property including a bank account, various properties, land and assets held by companies of which it was claimed that the appellant was the beneficial owner. 9. By motion dated 15th December 2005, the appellant sought an order from the High Court seeking to set aside the Restraint Order made on 7th March 2005. That motion was granted on an affidavit sworn by the appellant’s solicitor on 14th December 2005, and the basis upon which the order was sought to be set aside was the absence of an undertaking as to damages. That motion was heard by the High Court in June 2006. The High Court held that it had jurisdiction to make an order in the absence of an undertaking as to damages and that the failure by the appellant to furnish an undertaking as to damages did not, per se, invalidate the order, or on its own constitute a reason for setting it aside. 10. The order of the High Court on 27th June 2006 was appealed. That appeal was delayed as the order was not perfected until 2nd April 2007. A Notice of Appeal was served on 23rd April 2007. A certified copy of the judgment was not available until February 2008. Thereafter the books of appeal were lodged. 11. On 1st September 2008, the Criminal Justice (Mutual Assistance) Act 2008 came into force and thereafter the legislation governing international co-operation and mutual assistance. 12. The Restraint Order of 7th March 2005 granted under the Criminal Justice Act 1994 (as modified) remains in force. That order had been made on foot of a U.K. letter of request of 20th September 2004 which identified that, as of that date, the proceedings against the appellant as defendant in the U.K. proceedings relating to the confiscation of her assets had not been concluded. Those proceedings concluded on 21st December 2005, when the appellant notified the U.K. authorities of her intention to abandon her appeal. 13. On 20th May 2010 the appellant brought a motion seeking to strike out the proceedings which were the proceedings in which the ex parte Restraint Order had been made by the High Court in this jurisdiction. The motion of 20th May 2010 sought an order striking out those proceedings for want of prosecution and when those proceedings came before the court on 19th July 2010, the court was advised by counsel for the respondent that a request from the U.K. authorities for a Confiscation Co-operation Order pursuant to the Act of 2008 was anticipated, and on that basis adjourned the motion. 14. A letter of request dated 18th August 2010 was received from the U.K. authorities and was directed to the Irish Central Authority and the Minister for Justice, Equality and Law Reform. That letter sought the assistance of the Irish authorities in securing a court order in support of the U.K. Confiscation Order. On foot of the request contained in that letter of request, the respondent commenced the proceedings on 15th October 2010 and on that date sought an ex parte order by way of motion grounded on affidavits seeking a Confiscation Co-operation Order pursuant to the provision of s.51 of the Act of 2008 An ex parte order was made on 15th October 2010, and the matter was made returnable for 1st November 2010. The appellant did not file any affidavit in response to the application for a Confiscation Co-operation Order and a hearing date of 14th January 2011 was scheduled. On that date the appellant indicated that she intended to rely on a number of legal grounds and, in particular, that the proceedings were barred by virtue of the Statute of Limitations 1957. The matter was adjourned to enable written submissions to be delivered by the parties. The grounds of appeal
(ii) The Confiscation Orders in question are penal orders and are, thus, caught by s.11(7) of the Statute of Limitations, which stipulates a two year limitation period. The appellant maintains that these proceedings are thereby statute barred because, the appellant maintains, the cause of action accrued on 21st December 2005. The respondent, while maintaining that s.11(7) of the Statute of Limitation does not apply to the confiscation proceedings, maintains that in any event the accrual of the cause of action is 31st August 2010 being the date when the U.K. authorities made its request to the Irish authorities. Therefore, the respondent argues, even if s.11(7) of the Statute of Limitations did apply to the confiscation proceedings, such proceedings commenced well within the period of two years after such request was made. 16. The hearing of the action before Feeney J. commenced on 21st March 2012. The learned judge heard legal argument in relation to the contention by Dr. Forde S.C. “that two essential proofs are missing” in relation to the proceedings. One of these concerned s.50(2)(b) of the Act of 2008. 17. Section 50 of the Criminal Justice (Mutual Assistance) Act 2008 provides as follows:-
(2) The external confiscation order shall be accompanied by: (a) a duly certified copy of the order, (b) a statement by or on behalf of the court that made the order:
(ii) that if the person against whom it was made did not appear in the proceedings concerned, notice thereof was received by the person in good time, to defend the proceedings. (d) any required translations, and (e) shall include any further information required by the relevant international instrument.”
(2) The application shall be accompanied by the request, the accompanying documents and any other related documents or by copies thereof. (3) On the application the Court may, subject to subsection (4), make a confiscation co-operation order. (4) The court may not make a confiscation co-operation order unless:- (a) it is satisfied:
(ii) as to the matters mentioned in section 50(2)(b), # (iii) ...”
(ii) that, if the person against whom it was made did not appear in the proceedings concerned, notice thereof was received by the person in good time to defend the proceedings…” (emphasis added).
2. .. 3. Save as otherwise stated, or the context indicates otherwise, I make this witness statement from material on my file that has been supplied to me in the course of the prosecution and confiscation proceedings against the defendant. 4. I am a solicitor employed within the Proceeds of Crime Unit of the Crown Prosecution Service which has since 1st January 2010 incorporated the Revenue and Customs Prosecutions Office. I have conduct of the enforcement function of the CPS in relation to the confiscation order made against the defendant by the Birmingham Crown Court on 5th August 2003. I make this statement pursuant to s.50(2) of the Criminal Justice (Mutual Assistance) Act 2008 and in support of our request to register the external confiscation order against the defendant, to confirm that the defendant’s confiscation order, made on 5th August 2003, is still in force and not subject to appeal. 5. On 5th August 2003 at Middlesex Guild Hall Crown Court, a confiscation order was made against the defendant in the sum of £1,446,368.68 (this being the value of a realisable asset). She was found to have benefited from her offences to the value of £18,759,430. In making the order it was specified that it should be satisfied by 31st August 2004. A term of five years imprisonment was imposed in default of payment. 6. Ms. Devine was refused leave to appeal against her conviction on 27th January 2005. Application for leave to appeal against the confiscation order was postponed pending a decision by the House of Lords relevant to the issues in her case. On 21st December 2005, leave to appeal the confiscation order having been refused by the court of appeal, Ms. Devine notified her attention to abandon the appeal. 7. .. 8. .. The Witness Statement is signed by Ms. Snape. 22. In her statement, Ms. Snape does not identify herself as a representative of the Middlesex Guild Hall Crown Court (or indeed the Courts in England generally), nor does she state that her witness statement, or anything contained therein, is made by her on behalf of the court that made the order. Neither is there a statement from any other individual which on its face, satisfies the requirement of s.50(2) of the Act of 2008. 23. The respondent contends that the s.50(2)(b) requirement is sufficiently satisfied by the witness statement made by Ms. Snape in her capacity as a solicitor with the Crown Prosecution Service, and as an Officer of the Court. That contention is supported by the fact, undoubtedly true, that Ms. Snape was and is fully conversant with the facts and history of these proceedings, from the time of their inception in the U.K. courts and that everything she states is accurate and correct. While the appellant does not dispute the truth or accuracy of what Ms. Snape states, she nevertheless relies on her contention that Ms. Snape did not, and could not, in her capacity as a solicitor with the Crown Prosecution Service make a statement by or on behalf of the court... Dr. Forde S.C. points to the fact that the Crown Prosecution Service is the independent prosecuting authority in England and Wales and undertakes a similar role to that of the Director of Public Prosecutions in this jurisdiction and as such is not ordinarily authorised to make a statement or provide information on behalf of a court. 24. The submissions made on behalf of the respondent by Ms. Butler S.C., both in the High Court and again in this court, in relation to this issue are well illustrated by reference to exchanges as between the learned High Court judge and Ms. Butler S.C. in the course of the hearing of the case on the first and second days, the 21st and 22nd March 2012.
Ms. Butler: You have an affidavit of a solicitor who is, of course, an officer of the court. Feeney J.: Yes, but it is not on behalf of the court, is it? Ms. Butler: Well, I say that it is sufficient to meet the requirement that this matter be put before this court on behalf of the court in the United Kingdom. Put before this court by an officer of the courts in the United Kingdom. Feeney J.: One would normally expect, by or on behalf of the court either to be signed by the court or by the Court Registrar, would you? Ms. Butler: Not necessary, Judge, because if you are asked what the point relates to is the completion of any appeals process, and that is not something which for example, if a judge of the High Court had made an order which was subject to appeal, had been appealed and the parties thereafter settled the appeal or withdrew the appeal. It is not really something which this court would make an order in relation to. .. Feeney J.: Ok. Well, I can hear argument in relation to that. So, you say that an averment by a solicitor that an appeal was withdrawn. Ideally one would have hoped that there would be a copy of the notice of withdrawal would be exhibited as part of the .. Ms. Butler: Yes, Judge, but at this stage what this court has to be satisfied of, and the rationale for the requirement is a confiscation co-operation order that can only be made if there is final confiscation order in the foreign jurisdiction.”
Ms. Butler: In relation to that I reiterate the submission I made yesterday which is that the statement which has been reduced by Ms. Snape, who is a solicitor and an officer of the court, is in fact the best evidence because she has personal knowledge of what has happened in connection with this matter. Feeney J.: But is that a statement on behalf of the court? Ms. Butler: Well, I say that it is and it is sufficient to meet that requirement, particularly in circumstances where there is no dispute but that what she has stated is correct. The reality of the situation is that once the court has made the order and the appeal is taken, only the parties to the appeal or, in fact, the higher court will know what happens to that appeal. It is not something which .. Ms. Butler: And it is the witness statement of Pennie Snape. She is a solicitor for the Crown Prosecution Service with the Proceeds of Crime Unit. She makes the statement in support of a letter of request for assistance on behalf of the Crown Prosecution Service for the confiscation of assets held on behalf of the respondent. The request is sent pursuant to the Proceeds of Crime Act in the United Kingdom to the Secretary of State with a view to it being forwarded to the Government of Ireland. The reference to the appeal is at para. 6 over the page .”
29. Section 50(2) states that certain documentation, including the aforesaid statement by or on behalf of the court shall accompany the external confiscation order. Section 51(2) states that the application to the court (in this case the High Court in Ireland) shall be accompanied by the accompanying documents. Section 51(4) stipulates that the court may not make a confiscation co-operation order unless it is satisfied as to the matters mentioned in section 50(2)(b). 30. In McGrath v. McDemott [1988] I.R.258, Finlay C.J. stated:-
(b) .. (c) the European Arrest Warrant states, where appropriate, the matters required by s. 45 (inserted by s.23 of the European Arrest Warrant) application to third countries (and amendment) and extradition (amendment) Act 2012. (d) .. (e) ..
43. Whether it was appropriate or necessary to impose an obligation to provide a statement by or on behalf of the court.. is not a matter which can be properly considered by this court. It is not suggested that this requirement is meaningless or is impractical or impossible to comply with, or that it renders the operation of the Statute (or any part thereof) sterile or redundant. The fact is that there exists a clear and unequivocal requirement stipulated in legislation, and a failure to comply with that requirement effectively prevents a court from enforcing an external Confiscation Order. Conclusion
(ii) Such a statement is absent from the documentation occupying the external Confiscation Order in this case. The Witness Statement of Ms. Snape does not satisfy this requirement. 46. It is, in these circumstances, unnecessary for this court to consider the additional grounds of appeal herein. |