High Court of Ireland Decisions
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Cite as: [2014] IEHC 627
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Judgment
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Neutral Citation: [2014] IEHC 627 THE HIGH COURT JUDICIAL REVIEW [2012 No. 865 J.R.] BETWEEN DANIELLE FLANAGAN APPLICANT AND
JUDGE MARTIN NOLAN RESPONDENT AND
THE DIRECTOR OF PUBLIC PROSECUTIONS NOTICE PARTY JUDGMENT of Mr. Justice McDermott delivered on the 19th day of December 2014 . 1. The applicant seeks an order of certiorari by way of judicial review to quash the order of the respondent made on 16th July, 2012, in proceedings bearing Bill of Indictment No. DUCB0879/2011, and a declaration that the order of the respondent was made in excess of jurisdiction. The applicant was granted leave to apply for judicial review (Peart J.) on 15th October, 2012, on the grounds set forth in para. (d) of the statement of grounds dated 2nd July. These were:
(ii) The respondent failed to discharge his duty to give reasons in ruling on the submissions made on behalf of the applicant. The applicant submitted to the respondent that there was no jurisdiction arising out of the absence of a seizure having been made under s. 38 of the 1994 Act. The respondent did not specifically rule on the issue but merely held that “in the interests of justice . . . the State are entitled to their money”. In so doing, he failed to engage with the issues raised and merely held that the applicant’s “remedy lies elsewhere”. This represents a failure on the respondent to discharge the duty to give reasons. (iii) The respondent failed to properly exercise (his) discretion under s. 16 of the Courts of Justice Act 1947, to state a case to the Supreme Court. The issue was pending before the respondent and the application to state a case related to an issue in which there were substantial, weighty and solid grounds which called for a decision of the Supreme Court on the issue.” 2. On 13th March, 2005, a “tiger” kidnapping occurred during which the family members of a Securicor driver were forcibly detained by a number of raiders in their family home in Raheny. The family was taken to a wood known as Cloon Wood, County Wicklow, while the driver was forced to assist the raiders by delivering cash to them in return for the release of his family. When the driver went to work on 14th March, 2005, he informed his fellow team members in the security transit van that his family had been abducted and showed them photographs of his family held by the raiders at gunpoint in their home. The driver and his colleagues obeyed the instructions given to him to leave the cash, a mobile phone given to him by the raiders, and the photographs of his family held by the raiders in the ‘Angler’s Rest’ car park, Knockmaroon near Strawberry Beds, Dublin. The sum of €2,800,000 was stolen. The Securicor team raised the alarm by pressing the panic alarm in the security van at 10.00am. 3. The Garda Siochána, in the analysis of phone traffic to mobile phones belonging to the suspects associated with the crime, identified a number of phone numbers as being connected with the offence. Gerard Grant was believed to have been using a mobile phone connected with this offence, in a period of 24 hours surrounding the kidnapping and movements of the family and the transfer of money to the kidnappers. Mr. Grant received 17 calls on his phone from a Mark Farrelly who was convicted for the false imprisonment of the family and the robbery of money from Securicor by Dublin Circuit Court on 30th July, 2009. The court notes that his conviction was set aside by the Court of Criminal Appeal on 24th May, 2012. 4. Investigations also revealed that Mr. Grant made and received a considerable number of calls to and from other persons suspected of involvement in the robbery, including Jason Kavanagh and Alan Costello. Investigations also revealed that the phone connected with Mr. Grant was in the Raheny area on the night of the kidnapping and in the Castleknock area the following morning at around the time the money was handed over to the kidnappers at Strawberry Beds. The garda investigators believed that Mr. Grant remained in the driver’s home with him overnight along with two other gang members, Jason Kavanagh and Mark Farrelly. The investigators also believed that Mr. Grant made two phone calls during the night from the house to another accused person believed to have been in Glencree with the other members of the family. 5. They obtained CCTV footage from a Shell petrol station in Beaumont on 5th March, 2005, showing Mr. Grant putting a “top up” code into an identified mobile phone number. This topped up phone was given to the driver during his captivity in the family home so that he could speak to his wife at 2.35am on 14th March. She was, at that stage, held captive at Cloon Wood, County Wicklow. The mobile phone used by her on that occasion was identified as belonging to one of the other accused persons in the Securicor robbery. 6. Mr. Grant is a native of Dublin and in 1996 was sentenced to ten years imprisonment for an armed robbery at an AIB Bank in Limerick. He was released on 21st December, 2004. 7. On 27th April, 2005, Detective Sergeant Kelly, accompanied by several gardaí, called to 22, Glynn Avenue, Coolock, Dublin 5, the home of Gerard Grant, and pursuant to a search warrant issued under s. 29 of the Offences against the State Act 1939, searched the premises. Mr. Grant was arrested on suspicion of having unlawful possession of firearms at the driver’s house in Raheny on 13th March, 2005. He was interviewed at Whitehall garda station but maintained silence throughout his interviews. 8. On 2nd February, 2006, a red Mitsubishi Lancer was intercepted by a garda unmarked patrol car. The driver of the car failed to pull over, initially, when requested by the gardaí, eventually stopping in the middle of the road in a cul de sac into which he had driven. The passenger, Mr. Grant, got out of the car and was informed by Detective Garda Keith Horgan that he wished to search him and the vehicle under s. 23 of the Misuse of Drugs Acts 1977/1984. Detective Garda Horgan observed Mr. Grant swallow a number of tablets from a tissue and give the driver a “nod of his head” which the Detective interpreted as a signal that he was not going to cooperate with gardaí. A struggle ensued between the driver of the car and the other garda present. Detective Garda Horgan, in an affidavit sworn on 4th July, 2011, in support of the confiscation application described what happened:
11. As I attempted to prevent Grant from swallowing any further tablets, a struggle ensued between us. He then became engaged in behaviour that was threatening and violent, shouting and roaring and resisting arrest, pushing and shoving me away from him, with the intent of being reckless as to provoke a breach of the peace, and in an attempt to make good his escape and evade arrest, he tried to run away but was apprehended a short distance away. I succeeded in handcuffing Grant on one arm, but he continued to resist arrest and continued in his acts of violence towards me. After informing him a number of times to desist, I drew my baton and struck him over the upper body. He subsequently desisted in his actions and he was handcuffed accordingly. I brought Grant to the front of the patrol car and then assisted Sergeant Curtin in the apprehension of Costello. I arrested Mr. Grant for breaches of s. 6 of the Criminal Justice (Public Order) Act 1994, and s. 21 of the Misuse of Drugs Act 1977/84.”
10. Mr. Grant died in the Philippines on 24th March, 2011, and his body was returned to Ireland on 3rd April. Letters of administration to the estate of the late Gerard Grant issued on 2nd February, 2012, to his daughter, who is the applicant in these proceedings. 11. In the meantime, a notice of motion dated 4th July, 2011, was issued on behalf of the Director of Public Prosecutions in proceedings: “The Circuit Court, Dublin Circuit, County of Dublin In the Matter of an Application Pursuant to Section 39 of the Criminal Justice Act 1994 Bill No. DUCB0879/29011
The Director of Public Prosecutions Applicant And
The Estate of Gerard Grant Respondents” 12. The main relief sought in the notice of motion was:
(b) Mr. Grant refused to give any explanation for the €15,000 seized from him in February 2006. (c) Mr. Grant was summonsed in relation to this offence but failed to appear and a warrant was issued for his arrest. (d) Mr. Grant was closely associated with the Securicor robbery because of the voluminous amount of telephone calls made by him to a number of accused persons connected with that offence. These phone numbers were (numbers given) . . . phone number (number supplied) which has been identified as Mr. Grant’s phone played a central role in the commission of the Securicor crime in 2005. (e) Mr. Grant had serious previous convictions of his own . . . (f) Mr. Grant is closely associated with Alan Costello who has a long list of previous convictions of his own . . . (g) Mr. Costello’s sister’s house was searched after the Securicor case and over €25,900 was seized along with an Alpha Romeo car. Ms. Costello admitted that both her brother and Mr. Grant were in her house around 1st to 3rd April 2005. (h) The carrying of large sums of money by Mr. Grant in such a fashion, nearly a year after the Securicor robbery, is indicative of the way that criminals carry such sums around to prevent detection by the prosecution authorities. (i) Mr. Grant had no recorded work history in this State from which he could have generated this sum of money.”
14. The motion first came before the Circuit Court on 4th October, 2011, and was thereafter adjourned from time to time. On 21st February, 2012, the applicant swore an affidavit to ground an application for legal aid to defend the s. 39 applications which was granted on 22nd March. A short supplemental affidavit of Inspector Scott was sworn on 15th July, 2012, and on 16th July, the application was heard and His Honour Judge Nolan granted the order sought. The transcript of that hearing was exhibited in these proceedings. 15. In the course of the hearing on 16th July, Counsel for the applicant, having been a notice party to the application under Part V of the Act, submitted that the Court had no jurisdiction to deal with the application under s. 39 because the cash was not seized in accordance with section 38. It was not contended that the €15,000 was Mr. Grant’s money. Part VI of the Criminal Justice Act 1994 (as amended by Part IV of the Proceeds of Crime (Amendment) Act 2005)
(a) the person is importing or exporting, or intends or is about to import or export, an amount of cash which is not less than the prescribed sum, and (b) the cash directly or indirectly represents the proceeds of crime or is intended by any person for use in connection with any criminal conduct. 1(A). A member of An Garda Síochána or an officer of the Revenue Commissioners may seize and in accordance with this section detain any cash (including cash found during a search under subsection (1)) if - (a) its amount is not less than the prescribed sum, and (b) he or she has reasonable grounds for suspecting that it directly or indirectly represents the proceeds of crime or is intended by any person for use in any criminal conduct. (2) cash seized by virtue of this section shall not be detained for more than 48 hours unless its detention beyond 48 hours is authorised by an order by a Judge of the District Court and no such order shall be made unless the Judge is satisfied - (a) that there are reasonable grounds for the suspicion mentioned in subsection (1) of this section, and (b) that detention of the cash beyond 48 hours is justified while its origin or derivation is further investigated or consideration is given to the institution (whether in the State or elsewhere) of criminal proceedings against any person for an offence with which the cash is connected… (6) If at a time when any cash is being detained by virtue of the foregoing provisions of this section - (a) an application for its forfeiture is made under section 39 of this Act; or (b) proceedings are instituted (whether in the State or elsewhere) against any person for an offence with which the cash is connected, the cash shall not be released until any proceedings pursuant to the application or, as the case may be, the proceedings for that offence have been concluded. 39. (1) A Judge of the Circuit Court may order the forfeiture of any cash which has been seized under section 38 of this Act if satisfied on an application made while the cash is detained under that section, that the cash directly or indirectly represents the proceeds of crime or is intended by any person for use in connection with any criminal conduct. (2) Any application under this section shall be made or caused to be made by the Director of Public Prosecutions. (3) The standard of proof in proceedings on an application under this section shall be that applicable to civil proceedings; and an order may be made under this section whether or not proceedings are brought against any persons for an offence with which the cash in question is connected. 40. (1) This section applies where an order for the forfeiture of cash (in this section known as “the section 39 order”) is made under section 39 of his Act. (2) Any party to the proceedings in which the section 39 order is made (other than the Director of Public Prosecutions) may, before the end of the period of 30 days beginning with the date on which it is made, appeal in respect of the order to the High Court. (3) An appeal under this section shall be by way of rehearing…” 17. The hearing of this motion took place on 16th July, 2012. The affidavits of Det. Garda Horgan and Inspector Scott were relied upon by counsel for the Director of Public Prosecutions. There was no replying affidavit from the notice party, Ms. Flanagan. A claim was not made that the late Mr. Grant owned the monies seized or that it was part of the assets of her later father’s estate which she was obliged to gather in or administer as the administratrix of his estate. Counsel on behalf of the notice party made a legal submission to the effect that in order to exercise jurisdiction under Part VI, the court must be satisfied that the money was seized on 4th July, 2011, by Inspector Scott under s. 38 of the Act as amended. Counsel drew the court’s attention to Det. Garda Horgan’s evidence that he seized the money found in the late Mr. Grant’s underwear on 2nd February, 2006, following a search under s. 23 of the Misuse of Drugs Act 1997/1984, while Inspector Scott averred that he seized the cash on 4th July, 2011, from Garda McArdle at Coolock Garda Station, who had possession of it at the time. At the time of the 2006 seizure, Det. Garda Horgan stated that he believed that the money was part of the cash stolen in the robbery and placed it in a secure locker in Coolock Garda Station for the investigation team. It was submitted on behalf of the notice party that it was a legal fiction to suggest that the money was purportedly seized from Garda McArdle by Inspector Scott under s. 38. Mr. Grant died in the Philippines some four months earlier. 18. Counsel for the Director of Public Prosecutions submitted that Det. Garda Horgan did not exercise a power under s. 38 and that the money was seized under the section by Inspector Scott on 4th July, 2011, when he took possession of it from Garda McArdle. The learned judge inquired whether seizure implied taking without consent, but counsel submitted that this was not necessarily so and that in this case, the investigation was ongoing and the cash could not have been seized under s. 38 because it was physically an exhibit in two very long trials. At the conclusion of the criminal proceedings, and when it was clear that the criminal aspect of the case had been disposed of, Inspector Scott seized the money and was entitled to do so. The learned judge ordered that the money be forfeited under s. 39 and stated:-
19. The applicant in this case claims that the respondent failed to discharge his duty to give reasons when making the above ruling, and failed to engage with the issues raised in the course of argument. The single point at issue before the respondent was that set out in Ground (i) of this application. It is perfectly clear from the transcript that the very short submissions on this net point from both parties were received and considered by the learned trial judge. The facts were not contested by the applicant. The respondent clearly rejected the submissions made by counsel for the notice party. The learned judge accepted that the actions of Inspector Scott constituted a lawful seizure of the money by him on 4th July 2011 and that he was entitled to do so under s. 38 of the Act. The attempt to rely on the phrase “I don’t know about the technicalities”, fails to have full regard to the fact that it was crystal clear what the issue was, and that the submissions of counsel for the Director of Public Prosecutions and the reasons as to why the forfeiture order should be made as set our earlier, were accepted by the trial judge. This was understood by both sides at the time and enabled counsel for the applicant to frame the basis for a case stated to the Supreme Court and Ground (i) of this application. To isolate the phrase upon which the applicant now focuses, fails to have sufficient regard for the reality of what transpired and was understood to have transpired at the hearing. 20. The court accepts that in the circumstances of this case the reasons for the finding made by the learned trial judge were obvious to the parties involved in the light of the case made to the court and the evidence and submissions made in respect of the core issue. The Court is satisfied in the circumstances that the short statement by the learned trial judge as to his conclusion left no one present in doubt as to his acceptance on the balance of probabilities of the evidence adduced and the submissions made on behalf of the Director of Public Prosecutions. The Court respectfully adopts and applies principles as set out in Lynch v. Judge Collins [2007] IEHC 487, Sisk v. Judge O’Neill [2010] IEHC 96, Kenny v. Coughlan [2008] IEHC 28 and EMI Records (Ireland) Ltd v. The Data Protection Commissioner [2013] IESC per Clarke J at para. 7.4. I am satisfied that the case is distinguishable from a case that might require more detailed reasoning as considered in O’Mahony v. Ballagh [2002] 2 IR 410 (subsequently discussed in the Kenny case above). Ground (i) 22. It is clear that the money was originally seized in the course of a search of the late Mr Grant under s. 23 of the Misuse of Drugs Act 1977 as amended. Apart from permitting the seizure and detention of anything found in the course of the search which appears to the Garda to be something which might be regarded as evidence in proceedings for an offence under the Act, s.23 (2) provides that nothing in the section operates to prejudice any power to seize or detain property which may be exercised by a member of Garda Siochana apart from this section. The late Mr Grant was undoubtedly at the time of the search a suspect in the investigation of the robbery and false imprisonment offences as outlined above. Detective Garda Horgan retained the money for the proper investigation of these offences and clearly there were reasonable grounds to do so having regard to the suspicions which he held. Ultimately, the money was lawfully retained and preserved as an exhibit for use as evidence in the prosecution of these offences in the Circuit Criminal Court (see s. 9 of the Criminal Law Act 1976 and Dillon v. O’Brien & Davis [1887] 20 LRIR 300 per Palles C.B at pp. 316-318, Dunne v. Director of Public Prosecutions [2002] 2 IR 305 and McLoughlin v. Avis Insurance (Europe) [2011] IESC 42). 23. It is clear that during the period in which criminal proceedings were contemplated, initiated and conducted the late Mr Grant could not have sought the return of this cash successfully under the provisions of the Police (Property) Act 1897 or otherwise. Following the conclusion of the criminal trials relevant to these matters and the death of Mr Grant, the money was seized by Inspector Scott. An appeal against conviction by Mark Farrelly, one of the alleged culprits, was allowed on 24th May 2012. 24. The Court is satisfied that the amendment of the Act by the insertion of s. 38 (1) (A) widened the basis upon which a seizure might take place under s. 38. It gave a power to seize cash but did not require that this take place as a result of a search of a place or person. Section 38 (1) (A) empowers a member of An Garda Siochana to “seize” and in accordance with the section detain any cash including cash found under a search under subs. (1) “…if or he or she has reasonable grounds for suspecting that it directly or indirectly represents the proceeds of crime or is intended by any person for use in any criminal conduct.” 25. The lawfulness of the Inspector’s “seizure” did not depend upon the exercise of a power of search as was previously required under s. 38 (1) before the insertion took place. Thus cash found in a discarded or hidden parcel in a public area may depending on the circumstances be seized by a Garda who has reasonable grounds for suspecting that it represents the proceeds of crime. For example, cash discovered in a bin but left there as ransom in a kidnapping could be “seized” under the section as could cash found in an abandoned car. The court is satisfied therefore that it was not necessary for the seizure to be made directly from Mr Grant under s. 38 (1) (A) as a matter of law. 26. The applicant contends that the word “seize” used in the section requires that the cash be forcibly taken into possession and this could only have occurred when the late Mr Grant was searched under s. 23. It is submitted that this is the only basis upon which a seizure could have taken place in respect of this money under the Act. Consequently, as in the Circuit Court, it is submitted the only lawful seizure under s. 38 that could have been made was by Detective Garda Horgan who did not purport to make it under s. 38, and that even if it were a lawful seizure at that time, if it was intended to hold on to the cash beyond 48 hours, an application should have been made to the District Court for lawful authority so to do. It is further submitted that the learned judge had no jurisdiction to entertain the application under s. 39 unless that procedure was followed and that otherwise the intention that there be judicial supervision of a seizure made under s. 38 would be frustrated. 27. The applicant also claims that s. 38 (1) (A) does not contemplate that following the seizure of cash and its retention by the Gardai for use in respect of criminal proceedings, a member of An Garda Siochana might at some future date “seize” it from the exhibits officer in the case on the grounds set out in the section. 28. The court is satisfied that the money was seized and retained lawfully by Detective Garda Horgan following a search under s. 23 because he believed it to be the proceeds of the robbery and false imprisonment cases under investigation. He did not and does not purport to have seized the money pursuant to the provisions of s. 38(1) (A). The money was in the possession of An Garda Siochana and was ultimately retained and preserved as an exhibit by Garda McArdle in respect of criminal proceedings when she was, as deposed to by Mr Brady Solicitor, the exhibits officer in the course of those cases. The money was properly and lawfully preserved as an exhibit until 4th July 2011. At this point the money was handed over by Garda McArdle to Inspector Scott. No issue was raised in the Circuit Court or in this court concerning Inspector Scott’s evidence that he had reasonable grounds for believing that the €15,000 was the proceeds of crime. It is submitted that the circumstances of the seizure could not amount to a seizure as contemplated under s. 38 (1) (A) because there was no element of force involved as is required by law. Inspector Scott attended at a garda station and met with Garda McArdle from whom he purported to “seize” the money. Reliance is placed upon the definition of “seizure” by Cave J in Johnston v. Hogg [1883] 10 QBD 432 in the absence of any more recent authorities. 29. In Johnston, in an action on a policy of insurance upon a ship in which the subject matter was warranted “free from capture and seizure and consequences of any attempt thereat” it was proved that during the continuance of the risk some “natives” took forcible possession of a ship “The Cypriot” on the Brass River, Nigeria, plundered the cargo and damaged the ship. It was contended that the intention of the attackers was to plunder the ship and not to keep it. Cave J held that the acts of the attackers constituted “seizure” within the meaning of the warranty and the underwriters were not liable in respect of such a seizure. He stated that “an ordinary and natural meaning of “seizure” is a forcible taking possession”. However he also acknowledged that while the word must be taken in its ordinary and natural meaning it was capable depending on the circumstances of assuming a very wide meaning:-
32. Inspector Scott was invoking a statutory power separate and in addition to that which had been exercised up to that point by Detective Garda Horgan and Garda McArdle and took possession of the cash from Garda McArdle in accordance with the power vested in him under s. 38 (1) (A). Up to that point on the 4th July 2011, the cash was retained as an exhibit in respect of criminal proceedings in accordance with common law and/or s. 9 of the Criminal Law Act 1976. The fact that Garda McArdle on the exercise of the appropriate authority by Inspector Scott handed over the cash as requested and without the necessity for any force on the part of Inspector Scott is irrelevant to the lawfulness of the seizure when the word “seize” is understood in this way. 33. The court is therefore satisfied that the sum of €15,000 was lawfully seized and taken into his possession by Inspector Scott on the 4th July 2011 in the proper exercise of the power vested in him under s. 38 (1) (A) of the Act. The court is not satisfied that the applicant is entitled to relief in respect of ground (ii). Ground (iii)
36. It was accepted by counsel for the applicant that if the money had been seized on 4th July, 2011, as was averred by Inspector Scott, the application was properly before the court under s. 39. As a matter of fact and law the learned judge accepted that the Inspector had “seized” the money on 4th July under section 38. If the interpretation of s. 38 adopted by the learned trial judge was incorrect, the appropriate remedy was to appeal the matter under s. 40 of the Act to the High Court by way of full rehearing. There is no doubt that the entire case made by the applicant in these proceedings could have been made on such an appeal, or an appeal confined to the net point raised by counsel. An order of forfeiture could only have been made if a seizure had been made under section 38. It was a matter for the court to consider at first instance or on appeal, whether such a lawful seizure had taken place under section 38. If the essential proofs in that respect were not established, the application would inevitably fail. (See O’Connor v. the Private Residential Tenancies Board [2008] IEHC 205). 37. The court does not consider that the learned judge lapsed into any jurisdictional error in declining to state a case to the Supreme Court. He indicated to the applicant’s counsel that if he disagreed with the determination made, he had his remedies: the primary remedy was a right of appeal under section 40. There is no basis upon which to grant leave by way of judicial review in respect of the exercise of the court’s discretion under section 16. Discretionary Relief Conclusion |
