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Cite as: [1997] IEHC 68

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D.P.P. v. H. (E.) [1997] IEHC 68 (22nd April, 1997)

THE HIGH COURT

1997 No. 3209P

BETWEEN

DIRECTOR OF PUBLIC PROSECUTIONS

PLAINTIFF

AND

E.H.

DEFENDANT

Note of judgment of Mr. Justice Kelly delivered ex-tempore on 22nd April, 1997 .

1. This is an application to vary an order which was made on the 19th March, 1997 by Moriarty J. pursuant to the provisions of Section 24 of the Criminal Justice Act, 1994.

2. Orders made under that section have far-reaching effects which are rather similar to the effects of the Mareva type orders which have been granted in ordinary civil litigation in this jurisdiction for a number of years.

3. The Mareva orders were always subject to being varied by the Court so as to allow a defendant to draw down from the frozen fund or assets, moneys sufficient to discharge legal and living expenses. The legislature, in enacting Section 24, expressly recognised that the restraint which might be imposed pursuant to orders made under that section could also be subject to variation so as to provide for living expenses and legal expenses (see subsection (2) of Section 24).

4. Indeed it is right to say that the order of Moriarty J. of the 19th March, 1997 expressly provided for an application of the type now before the Court. The defendant seeks a variation of the order so as to permit him to draw down living expenses from the funds captured on foot of the order.

5. When an application to vary so as to provide for living or legal expenses is made, what are the principles applicable in relation thereto?

6. Mr. Murphy has drawn my attention to the decision of the Court of Appeal in England in the case of Re: Peters [1988] 1 QB 871. In the headnote, the following is to be found:-

"The purpose of a restraint order under the Drug Trafficking Offences Act 1986 was the preservation of assets at a time when the Court did not know whether the defendant would be convicted and was closely analogous to the Mareva jurisdiction; that the exercise of the power in accordance with the guidance given in Section 13(2) of the Act of 1986 was consistent with the purpose of maintaining assets to meet a final order if one should be made, and meeting the reasonable requirements of their owner in the meantime but always subject to the legislative purpose of maintaining the value of the realisable property in order for it to be available to satisfy any confiscation order that might ultimately be made".

7. The Court in that case went on to say:-

"Although the exercise of the power to vary a restraint order so as not to disrupt the education of the son of Mr. Peters, and so as to allow for payments for Mr. Peters' clothing and defence on the charges he faced was a permissible variation of the restraint order, the anticipatory discharge of liabilities which could be expected to arise only after the outcome of his trial was known was contrary to the terms of Section 13(2) and the underlying purpose of the Act".

8. I have no difficulty in accepting what the Court of Appeal said by way of drawing an analogy between the relevant restraint type order in England and the Mareva injunction. Neither do I have any difficulty in accepting what the purpose of the restraint order is under the English legislation.

9. In my opinion there is no difference between it and the purpose of the order under the Irish legislation.

10. However, the case cited does not of itself answer the question as to the approach which the Court should take on this or similar applications. It seems to me that assistance in that regard can be gleaned from 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. The headnote to that case reads as follows:-

"The defendants applied for the variation of a Mareva injunction granted against them in proceedings brought by the plaintiffs in order to permit them to pay out of the assets which were subject to the injunction £65,000 for legal costs, likely to be incurred by them in the proceedings. The defendants placed evidence before the Court that they were likely to incur substantial costs in the proceedings but did not adduce any evidence to show whether they had other assets available to pay the costs or if they had, why they were seeking to use the assets subject to the Mareva injunction".

11. Robert Goff J. held that:-

"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 which 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. Since the defendants had failed to adduce evidence to show that they had no other assets out of which they could pay the legal costs, their application was dismissed" .

12. Now what is the state of the evidence in respect of this application? In all, the Defendant seeks permission to expend approximately £735 per month in respect of living expenses. Given the persons for whom he has to provide, namely, I.C. and three children, that sum in itself does not seem to me to be unreasonable. But the evidence establishes that since his release from Garda custody, sums amounting to £17,500 have been withdrawn by him from accounts under his control. These withdrawals of course antedated the order of Moriarty J.

13. Of the sum of £17,500, approximately £12,000 is unaccounted for. The only explanation given for this sum by the Defendant in the course of cross-examination was that it was used by him to repay a business associate or associates. When asked he refused to name that person or persons. He persisted in that refusal even within the context of an in camera hearing before this Court. I find the evidence of the Defendant in this regard to be unsatisfactory. The payment to this third party or third parties remains a mystery. For all I know, the third party or third parties may not exist or if they do, the monies paid to them may still be under the control of the Defendant. If such monies are still under the control of the Defendant, they would certainly be sufficient to pay the monthly expenses for a period well in excess of one year from now.

14. It was also put to the Defendant in cross-examination that whilst in Garda custody he accepted, when questioned by the Gardai, that he had had the use of monies for the purchase of drugs. He did not, in my view, deal with that proposition when put to him in the witness box in a satisfactory manner.

15. In these circumstances it seems to me that the evidence which has been adduced on this application is unsatisfactory. I adopt the test prescribed by Robert Goff J. -

"In order to satisfy the burden placed upon a defendant who seeks such a variation he has to go further than merely to state that he owes money to someone, he has to show that he does not have other assets available out of which the debt would be paid".

16. Here, putting it in the past tense, the Defendant says he has paid money to someone. He cannot or will not tell me who it is. I remain in the dark concerning the identity of that person or the ultimate whereabouts of the money.

17. In my view the Defendant has failed to meet the necessary test required in order to have a variation made in his favour. As the evidence which has been given on this application is unsatisfactory, the application is refused.

18. The Defendant may however bring a further application if he wishes, seeking a variation in the order. He may succeed in such an application provided that he is prepared to put before the Court satisfactory evidence and, in particular, satisfactory evidence dealing with the ultimate whereabouts and the ultimate recipient of the £12,000 which remains unaccounted for.

19. This application is refused.