Case Law Database

It was not in dispute that the appellant has a long record of the commission of serious crime in the United Kingdom. He was a UK citizen and had no criminal record in Ireland. The Court noted, as the High Court did, that the defendant/appellant would appear to have been almost continuously in prison from 1963 to 1971 and from December 1974 to 14th December 1984. He appears to have been at large from 14th December 1984 to the 20th October 1992. He was again in prison from the 20th October 1992 to the 4th April 2001. The only relevant period of significance during which he was at liberty and so capable of engaging in employment is that from 14th December 1984 to the 20th October 1992.”

The plaintiff gave evidence that he was a Chief Superintendent of An Gárda Síochána (Irish Police) and Chief Bureau Officer of the Criminal Assets Bureau. He was, therefore, an “authorised officer” for the purposes of the 1996 Act. He said that the Bureau became aware of the appellant, as a result of an anonymous letter received in 1999. The Bureau established contact with English police. Two officers came to Ireland. The plaintiff gave evidence that he was satisfied of the accuracy of the information supplied. He said that the appellant had been arrested in 1992 in possession of £300,000 sterling worth of drugs, as well as firearms and about £12,000 cash. He had also been convicted of interfering with a jury who were trying a serious organised criminal group. The plaintiff considered him to be a career criminal and that he was involved in major distribution of drugs in the United Kingdom. The premises were purchase with two bank drafts, valued £11,800 and £94,000, which the appellant had purchased for cash. The plaintiff gave evidence that, in his opinion, the premises constituted directly or indirectly wholly or partly the proceeds of crime and that its value exceeded £10,000. The plaintiff formed his opinion on the basis of the information supplied by English police officers.
The appellant gave evidence on affidavit and was cross-examined. The purpose of his evidence was to show that he had alternative sources of income from which he could have funded the purchase of the premises.
-Regarding the claims that proceedings were statute barred for the purposes of the Statute of Limitations 1957 (which barred forfeiture after 2 years) the Court agreed with the High Court that the proceedings under section 3 of the Proceeds of Crime Act 1996 were not forfeiture proceedings. Section 3 related to the freezing of property not its deprivation or its forfeiture. While under Section 4 it is possible to apply for a disposal order as that was not at issue in this case the Supreme Court declined to give a view as to whether or when Section 4 orders might become statute barred.
-Regarding the issue of 'authorised officer'  hearsay evidence the court agreed the High Court erred in stating it must make the freezing order unless satisfied that the property does not represent the proceeds of crime. That was an incorrect interpretation of Section 3. Rather it is a two stage process. 
Firstly the plaintiff's evidence (from evidence of the English police constable which was based on the appellant’s criminal record and belief that he had no legitimate source of income) should be examined by the Court as to whether it is based on reasonable grounds in accordance with Section 8 of the Act which allows hearsay evidence.  The presence of reasonable grounds for the expression of belief merely renders the evidence admissible and does not discharge the burden of proof. It does not oblige the court to make the order sought unless the evidence is rebutted and this is where the High Court fell into error. The fact-finding function of the court is not abrogated. The shift on to the defendant of the burden of proving that the property does not represent the proceeds of crime occurs only when the court has satisfied itself on the evidence produced. The court cannot abstain from making any judgment on the quality of the plaintiff’s evidence. It is not enough to decide that the plaintiff’s belief was evidence to then to transfer the burden of proof to the appellant. Admissibility of evidence and the quality of the evidence are two different stages. Fennelly J. stated it would allow the appeal given this error of the High Court. However McCracken J. did not agree that the judge had erred in the High Court in applying the test and noted that the trial judge did consider reasonable grounds for the belief that the property was the proceeds of crime.
It also stated that the value of belief evidence is not diminished by being based on hearsay. Regarding so called 'belief evidence' the court recalled previous cases relating to illegal organisations and the view of the courts in those instances that such evidence does not affect the presumption of innocence. Rather hearsay evidence is evidence admissible in certain circumstances which, like other evidence 'it has to be weighted and considered'. Elsewhere in the judgment the court stated that by definition the original criminal source of the property will often be impossible to prove by direct evidence. Surrounding circumstances such as previous criminal history, lack of evidence of legitimate income, known criminal associations, disguising of true ownership and the like may give rise, in the mind of an experienced police officer, to a belief that the property represents the proceeds of crime. It is sufficient that the belief be reasonably grounded. It was noted that Section 8 requires that the evidence in a section 3 (freezing) application be given orally. Thus the defendant has the right to test the belief in cross-examination and to give and to call his own evidence. 
-Regarding the issue of extraterritoriality and definition of ''crime'' the court considered the two opposing positions. It was contended by the plaintiff/respondent that to permit persons who had amassed wealth in Ireland through the commission of crimes in other jurisdictions to escape the effects of the legislation would be contrary to its objective, the freezing and divestment of assets generated in connection with criminal activity. The defendant/appellant argued it would be unjust to apply the Act against the alleged proceeds of crime committed in another State. The court again agreed with the defendant/appellant and allowed the appeal on that ground. It stated while certain behaviour is recognized as being so fundamentally contrary to basic norms that it will always be treated as criminal. On the other hand, states vary in their approach to the regulation of many aspects of social and economic life. Some states criminalize behaviour which remains unregulated in others.  An absurd result of the contrary interpretation of the 1996 Act could be that property could be seised pursuant to the Act if it were the proceeds of activity which was criminal in another state, though perfectly lawful here. Nonetheless the Court also noted the express provisions in other legislation (e.g. drug trafficking legislation) regarding criminal activity conducted in the State or elsewhere. While agreeing that crime is not inherently a transnational concept (it is an act punishable by the State and is not referable to the laws of other states) had the Act made express reference to other jurisdictions it may have had extra-territorial effect -but it did not given the lack of express reference to crimes outside the State or similar such wording. 
-Regarding claims of injustice, delay, claims that he already expunged his debt (by time served in prison in the UK) and the enforcement of the English Confiscation Order, the Court stated that the enforcement of the latter is irrelevant to the operation of the Irish Act.
In sum the court allowed the appeal and set aside the freezing order of the High Court as regards the Irish property.