Annual Report
CriminalC Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 riminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 C iminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Cr minal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual 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2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Ann al Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annu l Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annua Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual eport 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual R port 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Re ort 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Rep rt 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Repo t 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Repor 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 016 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2 16 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 20 6 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 2018 Criminal Assets Bureau Annual Report 201
2018
Criminal Assets Bureau Harcourt Square Harcourt Street Dublin 2 D02 PT89 Ireland
Tel: +353 1 666 3266 Email: [email protected] Twitter: criminalassets Facebook: www.facebook.com/criminalassetsbureau www.cab.ie www.anbiúroumschómhainnícoiriúla.ie
Tá an tuarascáil seo ar fáil as Gaeilge freisin. This report is also available in the Irish language.
© Copyright Government of Ireland. This report was compiled and designed by the CAB Annual Report Committee 2018. Contents
Contents ...... i Letter from Commissioner of An Garda Síochána to Minister for Justice & Equality .... v Letter from Chief Bureau Officer to Commissioner of An Garda Síochána ...... ix Foreword ...... xiii
One: Overview of the Criminal Assets Bureau, its Officers & Staff The Bureau ...... 1 Finance ...... 1 Objectives and Functions ...... 1 Chief Bureau Officer ...... 2 Bureau Legal Officer ...... 2 A Body Corporate ...... 2 Structure of the Bureau ...... 3 Bureau Officers and Staff ...... 3 Authorised Staffing Levels ...... 4 Anonymity ...... 4 Special Crime Task Force ...... 4 Intelligence and Assessment Office ...... 4 Asset Management Office ...... 5 Chief State Solicitor’s Office ...... 5 Joint Policing Committees ...... 6 Divisional Asset Profilers ...... 6 Case 1 ...... 7 Case 2 ...... 8 Case 3 ...... 8 Case 4 ...... 8 Geographical Distribution Map of CAB Targets ... …………………………………..9 Training and Development ...... 10 TACTIC ...... 10 Staff Training ...... 10 Virtual Currencies ...... 11 Organisation Chart ...... 13
Two: Criminal Assets Bureau Investigations Investigations ...... 15 Section 14 ...... 15 Section 14A ...... 16 Applications made during 2018 ...... 16 Section 17 ...... 17
Three: Actions under the Proceeds of Crime Act 1996 to 2016 Introduction ...... 19
i Criminal Assets Bureau Annual Report 2018
Contents
Section 1A Review ...... 20 Detention 1 ...... 20 Detention 2 ...... 21 Detention 3… ...... 21 Cases Commenced ...... 21 Section 2(1) Review ...... 21 Valuation Breakdown ...... 22 Section 3 Review ...... 23 Section 3(3) ...... 24 Geographical Breakdown...... 25 Property ...... 25 Vehicles ...... 25 Luxury Goods… ...... 26 Case 1...... 26 Section 4(1) and 4A ...... 27 Case 1: Operation Loft...... 27 Section 6 ...... 28 Section 7 ...... 28
Four: Revenue actions by the Bureau Overview ...... 31 Tax Functions ...... 31 Tax Assessments ...... 31 Tax Appeals ...... 31 Appeals to the Tax Appeal Commissioners ...... 31 Collections ...... 32 Recoveries ...... 32 Demands ...... 32 Revenue Settlements ...... 32 Circuit Court ...... 32 High Court ...... 32 Judgements ...... 32 Investigations ...... 33 Theft and Fraud ...... 33 Motor Industry ...... 33 Sale and Supply of Illegal Drugs ...... 33 Customs & Excise Functions ...... 33 Smuggling ...... 34 Vehicle Trade and VRT ...... 34 Customs Liaison ...... 35 Revenue Tables ...... 37
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Five: Social Welfare actions by the Bureau Overview ...... 39 Savings ...... 39 Overpayments ...... 39 Recoveries ...... 39 Appeals ...... 40 Section 5(1)(c) ...... 40 Case 1 ...... 40 Case 2 ...... 41 Case 3 ...... 41 Case 4 ...... 41 Social Welfare Tables ...... 42
Six: Notable Investigations of the Bureau Introduction ...... 43 Investigations dealt with during 2018...... 43 Case 1 ...... 43 Case 2 ...... 43 Case 3 ...... 43 Case 4 ...... 43 Case 5 ...... 43 Case 6 ...... 44 Case 7 ...... 44 Case 8 ...... 44 Operation Lamp ...... 44 Operation Thor ...... 45
Seven: Significant Court Judgments during 2018 CAB v. Murphy & Anor ...... 47 CAB v. Connors ...... 91 CAB v. Mannion… ...... 100
Eight: International Developments The International Perspective ...... 135 Asset Recovery Office (ARO) ...... 135 International Operations ...... 135 Europol ...... 135 Interpol ...... 135 CARIN ...... 136 ALEFA ...... 136 International College of Financial Investigation (ICOFI) ...... 137 Virtual Currency Conferences ...... 137 Virtual Currency Symposium ...... 137
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Contents
Relationship with External Law Enforcement Agencies ...... 137 Cross Border Organised Crime Conference ...... 138 Cross Border Joint Agency Task Force (JATF) ...... 138 Visits to the Bureau ...... 139 Visit by Secretary General Mr John McKeon, Dept. of Employment Affairs and Social Protection ...... 139 Visit bya Gard Commissioner Mr Drew Harris ...... 140
Nine: Protected Disclosures Annual Report ...... 141
Ten: Conclusions ...... 143
Appendix A: Objectives and Functions of the Bureau ...... 145
Appendix B: Statement of Internal Controls ...... 147
iv Criminal Assets Bureau Annual Report 2018
Letter forwarding report from the Garda Commissioner to the Minister for Justice and Equality
Dear Minister I am also pleased that the number of asset profiles, submitted in 2018, by In accordance with the provisions of members of An Garda Sióchána Section 21 of the Criminal Assets Bureau nationwide increased to one hundred Act 1996, I am pleased to present to you and eighty four from one hundred and the 2018 Annual Report of the Criminal one in 2017. Assets Bureau. I also wish to acknowledge the increase in This report outlines the activities of the new proceeds of crime cases before the Criminal Assets Bureau during 2018, in High Court (thirty cases in 2018 from the pursuit of its statutory remit, twenty eight cases in 2017). This is the detailing actions brought under proceeds highest number of new cases that the of crime, revenue and social welfare Bureau has brought before the High legislation in successfully targeting the Court in its 23 year history. I also note suspected proceeds of criminal conduct. that in 2018 the Bureau returned in The report demonstrates that the Bureau excess of €5.6million to the Exchequer remains an integral part of the law compared to €4.3 million in 2017. The enforcement response to criminal returns show an increase from all the conduct in Ireland. Bureau’s activities.
2018 was a very busy year for the During 2018, the Criminal Assets Bureau Criminal Assets Bureau. I visited the devoted considerable efforts towards Bureau in September 2018, where I targeting criminal proceeds which were toured the offices and obtained a first‐ generated from a broad range of criminal hand knowledge of its activities. I activity, focussing on all forms of property acknowledge the high level of related crime. In this regard, the Bureau professionalism of the Bureau officers engaged in extensive cooperation with and staff. I note in particular the increase law enforcement agencies in Northern in actions in all areas of activity by the Ireland, including the Police Service of Bureau. I was particularly impressed by Northern Ireland (PSNI), Her Majesty’s the multi‐disciplinary team concept that Revenue and Customs (HMRC) and the CAB has pioneered since its National Crime Agency (NCA). establishment in 1996. In November 2018, officers from the The Bureau has developed its links with Criminal Assets Bureau conducted a local communities through supporting professional workshop at the Cross local Garda management in enhancing Border Crime Conference in Newcastle, the role of the Divisional Asset Profilers Co. Down addressing the penetration of Network. I am pleased to note the the motor trade by organised crime Bureau has provided training to groups. additional Divisional Asset Profilers and commits to further training during 2019. Internationally, the Bureau continues to liaise and conduct investigations with law
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Letter forwarding report from the Garda Commissioner to the Minister for Justice and Equality
enforcement and judicial authorities conducting its search operations which throughout Europe and worldwide in are welcomed by the general public and pursuit of assets deriving from criminal the media. conduct. During 2018, the focus of the Bureau was The Bureau is an active member of the twofold; firstly to take all possible actions Camden Asset Recovery Inter‐Agency to curb the activities of organised crime Network (CARIN) and is effective at groups, and secondly to focus in international level as the designated particular upon the activities of criminal Asset Recovery Office (ARO) in Ireland. gangs involved in burglaries and robberies throughout the State. In pursuing its objectives, the Bureau liaises closely with An Garda Síochána, I am pleased to note that the Bureau has the Office of the Revenue provided briefings to all thirty six Joint Commissioners, the Department of Policing Committees to improve the flow Employment Affairs and Social of information. I also note that the Protection, the Department of Justice Bureau has received great support for its and Equality and all law enforcement actions from the Joint Policing agencies in the State to develop a Committees and am particularly coherent strategy to target assets and heartened by the support shown by proceeds deriving from criminal conduct. locally elected community representatives. The Bureau has The Bureau has been reaching out to promoted its activities through the Garda other investigative bodies such as the Press Office and social media. Office of the Director of Corporate Enforcement (ODCE) and the I welcome the commitment given in the Competition and Consumer Protection Programme for Government 2016 to Commission (CCPC) to seek out further provide new legislation, ensuring opportunities in the public interest. adequate resources and taking the necessary steps to deal with local criminal The Bureau makes significant inroads in targets. I am convinced that the tackling serious criminals including those development and fostering of the involved in drug trafficking which cause Divisional Asset Profiler Network ensures extensive problems within our that the Bureau works hand‐in‐hand with community. In 2018, the Bureau An Garda Síochána and local conducted thirty four search operations communities in furtherance of the consisting of one hundred and ninety two objective of denying and depriving searches in seventeen counties and criminals of assets. obtained High Court Orders under the Proceeds of Crime Act 1996 in respect of I wish the Criminal Assets Bureau every property in seven counties. I am success in the future. impressed by the professionalism demonstrated by the Bureau in
vi Criminal Assets Bureau Annual Report 2018
Letter forwarding report from the Garda Commissioner to the Minister for Justice and Equality
Yours sincerely
J A Harris COMMISSIONER AN GARDA SÍOCHÁNA
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Letter forwarding report from the Garda Commissioner to the Minister for Justice and Equality
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viii Criminal Assets Bureau Annual Report 2018
Letter forwarding report from Chief Bureau Officer to the Commissioner of An Garda Síochána
Dear Commissioner
It is my pleasure to present to you the In addition, actions were taken against 23rd Annual Report of the Criminal Assets persons suspected of involvement in a Bureau for the calendar year 2018. This wide variety of criminal conduct, most report is submitted for presentation to notably in respect of criminal proceeds the Minister for Justice and Equality arising from organised crime groups pursuant to the provisions of Section 21 engaged in burglary operating in rural of the Criminal Assets Bureau Act, 1996. areas of the country. In this regard, the In compliance with its statutory Criminal Assets Bureau has been obligations, the report sets out the providing support to the Garda initiative activities of the Bureau throughout the known as Operation Thor. year in targeting the proceeds of crime. Under new legislation introduced in During the year, the Bureau has 2016, the threshold for invoking the continued to focus on the development Proceeds of Crime Act reduced from of the Divisional Asset Profiler Network. €13,000 to €5,000. The Bureau A series of briefings were provided at recognises that, as a matter of public Garda Regional Management meetings policy, it is also now required to focus on outside of Dublin. Similar briefings were assets of a lower value. This is having an also provided at Regional and Divisional impact through early intervention with Management meetings in the Dublin mid‐level criminals in the expectation to Metropolitan Region. Special focus inhibit their progression. In 2018, the meetings with Detective Superintendents value of assets under the new proceeds and trained asset profilers were of crime cases ranged in value from conducted throughout the State. This has €7,000 to €3.7 million. resulted in an increase in the number of targets submitted to the Bureau. Using the appropriate Proceeds of Crime legislation, the Criminal Assets Bureau The proceeds of crime actions, together forwarded in excess of €2.2 million to the with actions under the Revenue and Exchequer. In addition, in excess of €3 Social Protection provisions, yielded in million was forwarded under the excess of €5.6 million to the Exchequer in Revenue provisions and €323,000 was 2018. recovered in respect of overpayments under Social Welfare provisions. During 2018, thirty new applications were brought before the High Court The Bureau coordinates its activities in a under the Proceeds of Crime legislation. manner which takes cognisance of the This compares with twenty eight such Policing Plan of An Garda Síochána and applications in 2017. Once again, the the strategies of the Office of the majority of these actions were taken Revenue Commissioners, Department of arising from the proceeds of drug Justice and Equality and the Department trafficking.
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Letter forwarding report from Chief Bureau Officer to the Commissioner of An Garda Síochána
of Employment Affairs and Social Many of the Bureau’s investigations have Protection. an international dimension and involve cooperation with law enforcement In addition, during the year, in agencies in other jurisdictions. During conjunction with An Garda Sióchána 2018, the Bureau brought to a successful College, the Asset Confiscation and conclusion, a major investigation relating Tracing Investigators Course (TACTIC) to the Byrne organised crime group. This was progressed. This course is has been welcomed as part of the overall specifically designed to meet the needs of efforts to curb the activities of feuding the Bureau in future years and especially gangs. to enhance its capabilities to emeet th investigative challenges which lie ahead I wish to acknowledge the support and in the context of tracing criminal assets. cooperation afforded to the Bureau Plans are at an advanced stage to seek throughout the year by An Garda external accreditation for this Síochána, the Office of the Revenue professional course. Commissioners, the Department of Employment Affairs and Social The Bureau is committed to the Protection, the Department of Justice continuous professional development of and Equality, the Department of Finance, all personnel. the Department of Public Expenditure and Reform, the Office of the Attorney The Bureau continues to develop its General and the Office of the Director of relationships with Interpol, Europol and Public Prosecutions. the Camden Assets Recovery Inter‐ Agency Network (CARIN). I would also like to particularly acknowledge the expertise and Internationally, the Bureau continues to commitment of the solicitors and staff represent Ireland on the platform of the allocated by the Chief State Solicitor to Asset Recovery Offices. the work of the Bureau. The value of in‐ house independent legal advice and From the beginning, the Bureau has support cannot be over emphasised in received excellent support from contributing to the success of the Bureau. legislators, members of the public and the media. I wish to acknowledge the I am conscious that the increased activity professional assistance provided to the of the Bureau over the past two years in Bureau by the Garda Press Office. particular has put extra pressure on the staff of the Chief State Solicitors Offices In addition, I wish to personally co‐located with us. acknowledge the efforts of the Bureau Legal Officer and Bureau staff in The Bureau acknowledges that the promoting its effort through social media. increased output of activities in 2018 has resulted in significantly more demands on the services of the Chief State
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Letter forwarding report from Chief Bureau Officer to the Commissioner of An Garda Síochána
Solicitors Office attached to the Bureau, Yours sincerely we therefore support, by way of a joint business case, a request for an increase in staffing levels in that Office.
In addition, I want to acknowledge the contribution of legal counsel engaged by PATRICK CLAVIN the Bureau. D/CHIEF SUPERINTENDENT CHIEF BUREAU OFFICER During the year, there were many personnel changes within the Bureau arising from the departure of a number of personnel on promotion, retirement, and transfer. This is an inevitable reality given the structure of the Bureau and as a result it has given rise to an emphasis on maintaining a strong and well‐resourced system for staff training which has been put in place in recent years.
I wish to acknowledge that the Bureau was given increased resources in 2018. The number of Gardaí increased to forty seven in 2018 from forty three in 2017. Extra resources were also given to the Department of Justice and Equality staff seconded to the Bureau rising to twenty staff in 2018 from sixteen staff in 2017.
Finally, I wish to acknowledge the dedication and hard work of all personnel attached to the Bureau past and present. The nature of the work is such that, in many instances, it cannot be publicly acknowledged duee to th requirement for anonymity and security requirements for the personnel concerned relating to their work. I would also like to take the opportunity to welcome new personnel who have joined the Bureau during the year and wish them well in the future.
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Letter forwarding report from Chief Bureau Officer to the Commissioner of An Garda Síochána
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xii Criminal Assets Bureau Annual Report 2018
Foreword
Section 21 Report This is the 23rd Annual Report on the activities of the Criminal Assets Bureau (hereinafter referred to as “the Bureau”) and covers the period from 1st January 2018 to 31st December 2018 inclusive.
The Criminal Assets Bureau Act 1996 and the Proceeds of Crime Act 1996 have both been amended on a number of occasions but most substantially by way of the Proceeds of Crime (Amendment) Act, 2005.
For the purpose of this report, the Criminal Assets Bureau Act 1996 to 2005 will hereinafter be referred to as “the Act” and the Proceeds of Crime Act 1996 to 2016 will hereinafter be referred to as “the PoC Act”. The 1996 Act, together with the 2005 and 2016 Acts, provide a collective title of amendments governing the powers and functions of the Bureau.
This report is prepared pursuant to Section 21 of the Act which requires the Bureau to present a report, through the Commissioner aof An Gard Síochána, to the Minister for Justice and Equality outlining its activities during the year 2018.
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Foreword
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xiv Criminal Assets Bureau Annual Report 2018
Part One Overview of the Criminal Assets Bureau, its Officers and Staff
The Bureau responsibilities which underpin the On the 15th October 1996, the Bureau relationship between the Bureau and the was formally established by the Department. enactment of the Act. The Act provides for (among other matters): The Department of Justice and Equality’s Internal Audit Unit provides support to the objectives of the Bureau; the Bureau in monitoring and reviewing the functions of the Bureau; the effectiveness of the Bureau's the Chief Bureau Officer; arrangements for governance, risk management and internal controls. Bureau Officers;
staff of the Bureau; The Internal Audit Unit conducts an the Bureau Legal Officer; independent audit of the Bureau's anonymity of staff of the Bureau; procedures and processes on an annual offences and penalties for identifying basis. staff of the Bureau and their families; offences and penalties for obstruction Comparison of Accounts for years 2017 / 2018 and intimidation; Amount € CAB search warrants; Descript‐ Budget Total ion CAB production orders. Provision Spent Year Finance 2017 Pay 5,884,000 6,102,000 During the course of the year the Bureau Non‐pay 1,701,000 2,157,000 expended monies provided to it by the Total 7,585,000 8,259,000
Oireachtas, through the Minister for Justice and Equality, in order to carry out 2018* Pay 7,247,000 7,257,000 its statutory functions and to achieve its Non‐pay 1,701,000 1,575,000 statutory objectives. Total 8,948,000 8,832,000 * Awaiting Audit – Subject to Change All monies provided by the Oireachtas as outlined in the table are audited by the Objectives and Functions Comptroller and Auditor General, as is The objectives and functions of the provided for under Statute. Bureau are respectively set out in Sections 4 and 5 of the Act. These A “Corporate Governance Assurance statutory objectives and functions are set Agreement” has been signed between out in full at the Appendix A and may be the Chief Bureau Officer and the summarised as: Department of Justice and Equality covering the years 2017 – 2019. This 1. Identifying and investigating the Agreement sets out the broad proceeds of criminal conduct; governance and accountability framework within which the Bureau 2. Taking actions under the law to operates and defines key roles and deny and deprive people of the
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Part One Overview of the Criminal Assets Bureau, its Officers and Staff
benefits of assets that are the the Bureau in the pursuit of its objectives proceeds of criminal conduct by and functions. freezing, preserving and confiscating these assets; A Body Corporate The Bureau exists as an independent 3. The taking of actions under the corporate body as provided for under Revenue Acts to ensure that the Section 3 of the Act. The status of the proceeds of criminal activity are Bureau was first considered in 1999 by subjected to tax; the High Court in the case of Murphy ‐v‐ Flood [1999] IEHC 9. 4. Investigating and determining claims under the Social Welfare Mr Justice McCracken delivered the Acts. judgement of the High Court on the 1st of July 1999. This judgement is pivotal to Chief Bureau Officer understanding the nature of the Bureau. The Bureau is headed by the Chief Bureau Officer, appointed by the Commissioner The Court set out: of An Garda Síochána from among its members of the rank of Chief “The CAB is established as a body Superintendent. The current Chief corporate with perpetual succession. Bureau Officer is Detective Chief While the Chief Bureau Officer must be Superintendent Patrick Clavin who took appointed from members of An Garda up his appointment on 4th August 2016. Síochána of the rank of Chief Superintendent, nevertheless the CAB is The Chief Bureau Officer has overall independent of An Garda Síochána, responsibility, under Section 7 of the Act, although it has many of the powers for the management, control and the normally given to that body. general administration of the Bureau. ... The Chief Bureau Officer is responsible to The CAB is a creature of Statute, it is not the Commissioner for the performance of a branch of An Garda Síochána. It was set the functions of the Bureau. up by the Oireachtas as a body corporate primary for the purpose of ensuring that This Section also provides for the persons should not benefit from any appointment of an Acting Chief Bureau assets acquired by them from any Officer to fulfil the functions of the Chief criminal activity. It is given power to take Bureau Officer in the event of incapacity all necessary actions in relation to seizing through illness, absence or otherwise. and securing assets derived from criminal activity, certain powers to ensure that the Bureau Legal Officer proceeds of such activity are subject to tax, and also in relation to the Social The Bureau Legal Officer reports directly Welfare Acts. However, it is not a to the Chief Bureau Officer and is charged prosecuting body, and is not a police under Section 9 of the Act with assisting authority. It is an investigating authority
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Part One Overview of the Criminal Assets Bureau, its Officers and Staff
which, having investigated and used its Officers are seconded from their parent not inconsiderable powers of agencies. investigation, then applies to the Court for assistance in enforcing its functions. Staff of the Bureau consist of: The Oireachtas, in setting up the CAB, clearly believed that it was necessary in The Bureau Legal Officer; the public interest to establish a body Professional members; which was independent of An Garda Administrative and technical Síochána, and which would act in an members. investigative manner. However, I do not think it is the same as An Garda Síochána, Officers of the Bureau continue to be which investigates with an aim to vested with their powers and duties prosecuting persons for offences. The CAB notwithstanding their appointment as investigates for the purpose of securing Bureau Officers. assets which have been acquired as a result of criminal activities and indeed The authorised staffing level at the ultimately paying those assets over [to] Bureau comprising Bureau Officers and the State.” other staff stands at ninety one.
Structure of the Bureau Following promotions and retirements The multi‐agency structure of the Bureau, during 2018, three staff vacancies remain which draws together various skill sets at the Bureau at 31st December 2018. from the personnel involved, has the These vacancies include two IT vacancies benefit of enhancing investigative and one Analyst vacancy. capabilities in pursuit of the Bureau’s statutory remit. This is possible under As mentioned in the 2017 Annual Report, Section 5 of the Act detailing the two Inspector vacancies existed at year functions of the Bureau. end 2017 and two Inspector posts were successfully filled by way of competition Bureau Officers and staff in August 2018. As reported in the 2017 Annual Report, one vacancy remained in Section 8 of the Act provides for the the Bureau Analysis Unit. This post was appointment of officers of the Bureau. filled by way of competition in January Members of staff of the Bureau are 2018. appointed under Section 9 of the Act.
Officers of the Bureau are:
A. Members of An Garda Síochána;
B. Officers of the Revenue
Commissioners;
C. Officers of the Department of
Employment Affairs and Social
Protection.
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Part One Overview of the Criminal Assets Bureau, its Officers and Staff
Authorised Staffing Levels The prohibition of identification does not Multi‐agency authorised levels extend to the Chief Bureau Officer, an Acting Chief Bureau Officer, the Bureau
Legal Officer or the Bureau Officers who are members of An Garda Síochána.
47 Special Crime Task Force During 2016, the Garda Commissioner established a Special Task Force to target a number of organised crime gangs based in the Dublin area with particular emphasis on second and third level criminals. As part of the setting up of this 6 unit, which is under the control of the Garda National Drugs d an Organised Crime Bureau, six Gardaí and one Sergeant were seconded to the Bureau to assist in the investigations into the persons identified and to trace and target 21 any assets which have been generated through their criminal conduct.
During 2018, sixteen targets and three organisations were identified and investigations were undertaken by the staff attached to the Special Crime Task 17 Force within the Bureau, bringing the total targets identified and investigated to one hundred and twenty eight at year end.
Anonymity Intelligence & Assessment Office In order to ensure the safety of certain The Intelligence and Assessment Office Bureau Officers and staff, anonymity for (IAO) was established in July 2017 and those members is set out under Section replaced the Criminal Intelligence Office 10 of the Act. Under this section, officers (CIO) which had existed prior to that time. and staff of the Bureau execute their The IAO was established to act as the duties in the name of the Bureau. intelligence centre and to conduct a preliminary assessment of all information Section 11 of the Act provides for criminal received at the Bureau. offences relating to the identification of certain Bureau Officers, staff and their The IAO has established links with other families. State agencies and with law enforcement
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Part One Overview of the Criminal Assets Bureau, its Officers and Staff
agencies internationally in order to ongoing resources to maintain the develop the exchange of information. It property, including in some instances the also has responsibility for dealing with Bureau acting as landlord. national and international requests sent and received from other agencies, In addition to tangible assets retained by including CARIN and ARO. the Bureau, there are also considerable assets in respect of tax debts and The IAO is responsible for assessing repayment of social welfare claims which information received by the Bureau and are payable to the Bureau. These debts conducting preliminary enquiries to are also managed by the AMO with a view establish if the matter comes within the to realising their worth. This office Bureau’s statutory remit. Based on this provides a higher level of governance for assessment, recommendations are made assets under the control of the Bureau. as to what actions may be taken. Chief State Solicitor's Office Additionally, the IAO is responsible for The Criminal Assets Section of the Chief the training and ongoing liaison with the State Solicitor's Office (hereinafter three hundred and seventy eight trained referred to as “the CSSO”) provides legal Divisional Asset Profilers throughout the advice and solicitor services to the country. Bureau.
Asset Management Office The CSSO represents the Bureau in both The Asset Management Office (AMO) was instituting and defending litigation in all established in 2017 in order to manage all court jurisdictions primarily, but not assets under the control of the Bureau. exclusively, with the assistance of The diverse range of assets over which Counsel. In addition, the CSSO provides the Bureau has responsibility representation for all tax and social necessitates the deployment of welfare matters both before the considerable resources to ensure each respective appeal bodies and in the asset is managed to maintain its value, to Circuit and Superior Courts. fulfil the Bureau’s legal obligations and to ensure the optimum value is realised Furthermore, the CSSO provides general value when remitted to the Exchequer. legal advice and solicitor services at all stages of case progression from The PoC Act requires that an asset is investigation to disposal, including the retained for a seven year period following provision of both contract drafting and the decision of the High Court (unless conveyancing services. agreement is received from the parties involved for immediate disposal). In During 2018, the CSSO was staffed as practice, this period can be considerably follows: longer due to appeals and challenges to 2 solicitors such orders. In the case of certain assets, 2 legal executives such as properties, this can involve 2 clerical officers
5 Criminal Assets Bureau Annual Report 2018
Part One Overview of the Criminal Assets Bureau, its Officers and Staff
Many members of Joint Policing While the work of the CSSO is integral to Committees expressed the view that the success of the Bureau, it is noted that their understanding of the Bureau had the authorised staffing complement is no become clearer following the briefings. longer sufficient to maintain increasing It is particularly important for local Bureau outputs. While no criticism can be communities to realise that members of made of the current staff of the CSSO, the public can provide information to the particularly given the figures achieved in Bureau in the strictest confidence and 2018 with depleted numbers, it is clear without any requirement to give that increases in CSSO staff numbers are evidence in court. required to deal with the higher volume of cases being proposed. To this end, a Information can be reported directly to joint business case for an increase in staff the Bureau via phone, email, CAB numbers has been submitted. Facebook and Twitter pages,h throug Crimestoppers or through the locally Joint Policing Committees trained asset profilers at local Garda In 2017, the Chief Bureau Officer and Stations. Bureau Officers began a series of briefings at Joint Policing Committees. In 2018 those briefings continued and by December, had been delivered at all thirty six Joint Policing Committees throughout the State.
The purpose of those briefings was twofold; to provide a situational report to local communities on how the Bureau can assist in dismantling criminal networks in their area and to seek information from Photo of D/Chief Superintendent Patrick Clavin at local communities to assist the Bureau in Clare Joint Policing Committee selecting new targets. Following the briefings, the Bureau has noticed a Divisional Asset Profilers dramatic increase in information received from communities throughout the State. In 2018, the Bureau continued its programme of engagement with Divisional Asset Profilers. During the year These briefings have proven beneficial the Bureau trained an additional ninety and have attracted considerable local and media attention. In most instances, the nine Garda Divisional Asset Profilers to fill Bureau received prominent reporting in vacancies within various Garda Divisions local newspapers including front page which arose from retirements and promotions. At year end, the total articles in many cases. number of Divisional Asset Profilers stood
6 Criminal Assets Bureau Annual Report 2018
Part One Overview of the Criminal Assets Bureau, its Officers and Staff
at three hundred and seventy eight, Divisional Asset Profilers throughout which included: Ireland, as compared to one hundred and one asset profiles received in 2017. 353 Gardaí Ongoing contact and close cooperation 18 Officers of the Revenue will be maintained both Regionally and Commissioners engaged in Customs Divisionally throughout 2019. and Excise duties; 7 Officers of the Department of The engagement with Divisional and Employment Affairs and Social Regional management was followed up Protection by a number of refresher training courses throughout the country. In addition, four people from the Justice Sector, two people from the Insolvency Throughout 2018, Divisional Asset Service of Ireland, two people from the Profilers from the various Regions have Department of Defence and two people continued to engage with the Bureau to from the Competition and Consumer develop and progress investigations that Protection Commission were trained in have significant financial impact on local relation to asset profiling. criminals and, in turn, provide positive feedback within local communities During 2018, Senior Bureau Officers suffering from the activities of these briefed all Garda Regional Management criminals. Teams outside the Dublin Metropolitan Region (DMR) and all Divisional The Divisional Asset Profiler Network will Management Teams within the DMR. continue to be developed in 2019 This included detailed briefing for each through the training of additional Detective Superintendent with Divisional Asset Profilers. responsibility for the pro‐active tasking of the Divisional Asset Profilers within their The following cases provide examples of respective Regions/Divisions. The Bureau investigations that originated purpose of these briefings is to enhance from Divisional Asset Profilers: the role of the Divisional Asset Profilers from an intelligence gathering based Case 1 approach to the pro‐active pursuit of The Bureau commenced an investigation assets of local criminals through the into an apartment in Limerick City gathering of evidence to enable following a referral by a Divisional Asset successful follow up action by the Bureau. Profiler attached to the Clare Division. This referral was made following an This measure will ultimately serve to investigation into brothel keeping and enhance the profile of asset seizure prostitution in the South West area by activity in local communities. Ennis Gardaí.
In 2018, one hundred and eighty four asset profiles were received from
7 Criminal Assets Bureau Annual Report 2018
Part One Overview of the Criminal Assets Bureau, its Officers and Staff
Following the investigation, the Bureau Following eth investigation, the Bureau obtained an order under Section 3 of the obtained orders under Section 3 & 7 of PoC Act in respect of this asset. the PoC Act in respect of these assets.
Case 2 The Bureau commenced an investigation into monies held in a bank account following a referral by a Divisional Assets Profiler attached to the Garda National Economic Crime Bureau (GNECB).
The GNECB were conducting an investigation where an individual fraudulently obtained a UK passport by way of identity theft, and this passport was used to open a bank account in this Case 4 jurisdiction. This bank account was then The Bureau commenced an investigation used to hold monies derived from into the assets of an individual involved in fraudulent acts. the sale and supply of controlled drugs, following the referral by a Divisional Following the investigation, the Bureau Asset Profiler attached to the Limerick obtained orders under Section 3 and 7 of Garda Division. the PoC Act in respect of €211,727.32 held in the bank account. This referral was made following a Garda search of a property in March 2015 which Case 3 resulted in the seizure of €11,260. The Bureau commenced an investigation into the assets of an individual involved in Following the investigation, the Bureau the sale and supply of controlled drugs obtained orders under Section 3 & 7 of following a referral by a Divisional Asset the PoC Act in respect of the €11,260. Profiler attached to Store Street Garda Station.
This referral was made following a Garda search of a premises in June 2016, which resulted in the seizure of an Audi vehicle valued at €13,000, two Rolex watches, valued at €3,800 and €3,000 respectively and one Tag Heuer watch valued at €1,150.
8 Criminal Assets Bureau Annual Report 2018
Part One Overview of the Criminal Assets Bureau, its Officers and Staff
9 Criminal Assets Bureau Annual Report 2018
Part One Overview of the Criminal Assets Bureau, its Officers and Staff
Training and Development Staff Training TACTIC During 2018, the Bureau continued to (The Asset Confiscation and Tracing Investigator's upgrade and enhance the training needs Course) of Bureau Officers and staff. In this regard, the Bureau provided funding for A training needs analysis was carried out staff participation in the following by the Bureau to identify critical training courses: requirements for Bureau members. As a result, the Asset Confiscation and Tracing Corporate, Regulatory & White Collar Investigators Course (TACTIC) was Crime developed by the Bureau to provide TACTIC specific training in Asset Tracing / Compliance Confiscation and Financial Investigations Fraud and e‐Crime Investigation to staff of the eBureau. Th course was Financial Investigation & Intelligence designed in a format which allows its Data Protection tuition to be provided to persons in other Governance agencies who are not Bureau Officers. Computer Forensics and Cybercrime Investigation TACTIC is conducted in conjunction with Code of Ethics the Garda Training College in Criminal Investigative Interview Templemore, Co. Tipperary and covers Training many subjects including: Enhanced Cognitive Interview Training Asset Identification / Proceeds of Expert Witness and Courtroom Skills Crime Procedures Search of Premises Training Financial Profiling & Analysis Senior Investigating Officers Money Laundering (Cross Border / Terrorism) A number of awareness briefings took Profiling and Net Worth Techniques place throughout 2018 to all staff of the Digital Forensics / Cyber Currencies Bureau on relevant topics including White Collar Crime / Bribery & Protected Disclosures Training, Covert Corruption Human Intelligence Source Training, Anti Money Laundering, Donedeal and GDPR. The course is presented over four, week long modules, at the Garda Training
College. To date, thirty seven members of the Bureau have completed the course. The Bureau and the Garda College are currently progressing the course to full accreditation with a third level institution.
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Part One Overview of the Criminal Assets Bureau, its Officers and Staff
Virtual Currencies These forums allow the Bureau to share The Bureau continues to maintain its and enhance their knowledge in this area level of knowledge and investigative and generate global expert contacts in ability in the field of crypto‐currencies this field which benefit future Bureau and their use in criminal conduct investigations. worldwide. The Bureau is one of the foremost law enforcement agencies to The majority of these requests were cost have identified the potential for criminals neutral to the Bureau with the expenses to exploit the characteristics of crypto‐ covered by the requesting authority. currencies to generate and launder the proceeds of crime. Through its investigations, the Bureau has made a number of seizures of various forms of crypto‐currencies including ‘Bitcoin’ and ‘Ethereum’. Of the three investigations of this kind, two have resulted in the forfeiture of amounts of ‘Bitcoin’ and ‘Ethereum’ following the initiation of High Court proceedings. The third investigation is ongoing. The Bureau’s seizure of the crypto‐currency ‘Ethereum’ is the first of its kind by any law enforcement agency worldwide.
In order to maintain the Bureau’s position as one of the foremost recognised law enforcement agencies in its ability to investigate, seize, dretain an dispose of crypto‐currencies, the Chief Bureau Officer sanctioned the attendance of Bureau Officers at a number of training forums in 2018, specifically:
Global Workshop for Financial Investigators on Crypto‐currencies, University of Basel / Faculty of Law in Basel, Switzerland in January 2018 2018 Cyber Summit, Calgary, Alberta, Canada in March 2018 The Crypto Currency Symposium in Phoenix, Arizona in August 2018
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Part One Overview of the Criminal Assets Bureau, its Officers and Staff
In 2018, the Chief Bureau Officer delegations from foreign visiting sanctioned a number of requests for the countries including: provision of training in the area of crypto‐ currencies in criminal conduct. The A delegation from the Asset Recovery receiving authorities included: Bureau, Malta in January 2018 A delegation from the Ukraine in April Presentation to the Pompidou 2018 Group, Dublin Castle, Ireland in April 2018 The Bureau is committed to maintaining Association of Law Enforcement its position as a globally recognised Forensic Accountants (ALEFA), investigative agency in this area through Birmingham, United Kingdom in its knowledge of its use by criminals June 2018 worldwide and its ability to deny and United Nations Office of Drugs and deprive criminals of its benefits. Crime, Law Enforcement, United Nations Headquarters, Vienna, Austria in July 2018 Department of Justice, Anti‐Money Laundering and Compliance Unit in August 2018 Presentation to the European Union Advisory Mission (EUAM), Virtual Currencies Investigations, Kiev, Ukraine in October 2018 The Central Bank, Ireland in Presentation and training given to a delegation November 2018 from Malta (January 2018)
The Bureau has provided a number of training presentations and seminars through the Garda College to members of An Garda Síochána and other associated agencies. These included:
The training of Gardaí at the Garda College Divisional Asset Profilers Course Specialised Units attached to Special Crime Operations The National Drugs Strategy Training Ukraine Delegation – European Union Advisory Mission Ukraine programme – April 2018 Programme
The Bureau continues to provide tuition on crypto‐currency to a number of
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Part One Overview of the Criminal Assets Bureau, its Officers and Staff
Diagram: Organisation of the Bureau
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14 Criminal Assets Bureau Annual Report 2018
Part Two Criminal Assets Bureau investigations
Investigations Region; South‐West Region and East, South‐East Region and also from the During 2018, Bureau Officers continued Investigations and Prosecutions Division. to exercise the powers and duties vested in them under Section 8 of the Act. The Bureau continued to cooperate with the Special Investigation Units of the It is important to note that this Section Department of Employment Affairs and emphasises that Bureau Officers retain Social Protection in respect of their the duties and powers conferred on them investigations in 2018. by virtue of membership of their respective parent organisations. This continued assistance has been critical to the success in targeting the In addition to these powers, the Bureau proceeds of criminal conduct during has particular powers available to it, 2018. namely: Section 14 1. CAB search warrants; 2. Orders to make material Section 14 of the Act provides for CAB available to CAB. search warrants. Under Section 14(1), an application may be made by a Bureau These powers are contained within Officer, who is a member of An Garda Section 14 and Section 14A of the Act and Síochána to the District Court for a the PoC Act, respectively. warrant to search for evidence relating to assets or proceeds deriving from criminal The Bureau conducted its investigations conduct. throughout 2018 with the cooperation and assistance of Garda personnel from Section 14(2) & (3) provides for the issue Garda Divisions and also from Garda of a similar search warrant in National Units such as the Garda National circumstances involving urgency whereby Economic Crime Bureau (GNECB), the the making of the application to the Garda National Drugs and Organised District Court is rendered impracticable. Crime Bureau (GNDOCB), the Garda This warrant may be issued by a Bureau National Bureau of Criminal Investigation Officer who is a member of An Garda (GNBCI), the Emergency Response Unit Síochána not below the rank of (ERU), the Special Detective Unit (SDU) Superintendent. and the Security and Intelligence Section, Garda Headquarters. During 2018, all applications under Section 14 were made to the District Investigations were also supported by Court and no warrants were issued personnel from the Office of the Revenue pursuant to Section 14(2). Commissioners from each of the following regions: Dublin Region (Port & A Section 14 search warrant operates by Airport); Borders, Midlands and West allowing a named Bureau Officer who is a
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Part Two Criminal Assets Bureau investigations
member of An Garda Síochána, instances, the transfer of large amounts accompanied by other such persons as of money between accounts. the Bureau Officer deems necessary, to search, seize and retain material at the As a result of the information gleaned, location named. This is noteworthy in the Bureau nhas bee able to use this that it allows the member of An Garda evidence in ongoing investigations into a Síochána to be accompanied by such number of individuals which were other persons as the Bureau Officer believed to have possession of assets deems necessary, including persons who which represent, directly or indirectly, are technically and/or professionally the proceeds of crime. qualified people, to assist him/her in the search. Applications made during 2018
These warrants are seen as an important During 2018, the following number of tool which allows the Bureau to carry out applications were made under Section 14 its investigations pursuant to its statutory and 14A of the Act and the PoC Act, remit. During 2018, the Bureau executed respectively: a number of these warrants in targeting organised crime groups. In particular, the Applications under Section 14 & 14A CAB Act, 1996 & 2005 Bureau targeted a known organised crime group based in the South of the Applications country. The Section 14 warrants were Description used to search a large number of private 2017 2018 residences as well as professional offices and other businesses. This led to the Search warrants seizure of large amounts of cash, under Section 14 165 171 jewellery and vehicles. CAB Act, 1996 & 2005 Section 14A Section 14A was inserted by the PoC Act Orders to make and provides for applications to be made material available 275 275 by a Bureau Officer who is also a member under Section of An Garda Síochána to apply to the 14A of the CAB District Court for an Order directed to a Act, 1996 & 2005 named person to make material available to the Bureau Officer.
The Section 14A Production Orders have been used primarily in uplifting evidence from a number of financial institutions within the State. The material obtained relates to banking details and in many
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Part Two Criminal Assets Bureau investigations
Section 17 Criminal Justice (Money Laundering and Terrorist Financing) Act, 2010 Section 17(2) of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 allows for members of An Garda Síochána to obtain Orders through the District Court to restrain the movement of money held in bank accounts.
During 2018, the Bureau used this Order on three hundred and fourteen occasions.
These Orders were obtained in respect of thirty eight separate targets currently under investigation by the Bureau. Hublot watch seized during search operation Such Orders remain in force for a period of four weeks which allows time for the Investigating Member to establish if this money is in fact being used in respect of any money laundering or terrorist financing offences. After such time, that Order will either lapse or can be renewed by the Investigating Member in the District Court.
The total amount of funds currently restrained is in excess of €5.8 million, £75,000 Sterling and $600,000 US Dollars.
The making of Section 17(2) Order by the
CAB Search conducted under Section 14 (Search District Court may be challenged in that Warrant), Criminal Assets Bureau Act 1996 Court by making an application pursuant to Section 19 or 20 of the 2010 Act.
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Part Two Criminal Assets Bureau investigations
Search operation conducted by the Criminal Assets Bureau in 2018
18 Criminal Assets Bureau Annual Report 2018
Part Three Actions under the Proceeds of Crime Act 1996 to 2016
Introduction that the affected person should be The Proceeds of Crime Act, 1996 to 2016 notified during this time. (“PoC Act”) provides for the mechanism under which the Bureau can apply to the During 2018, Section 3 proceedings were High Court to make an order (“an interim initiated in all cases brought by the order”) prohibiting a person / entity from Bureau where a Section 2(1) order was dealing with a specific asset, or in other made. Section 3 of the PoC Act allows for words, freezes the specified asset. the longer term freezing of assets. It must be noted that proceedings under The PoC Act further allows for the High the PoC Act may be initiatede in th Court to determine, on the civil burden of absence of a freezing order under Section proof, whether an asset represents, 2(1) by the issuing of an originating directly or indirectly, the proceeds of motion pursuant to Section 3(1). criminal conduct. While Section 3 cases must be initiated In 2005, the PoC Act was amended to within twenty one days of a Section 2 allow the proceedings to be brought in Order, in practice, it may take some the name of the Bureau instead of its considerable time before the Section 3 Chief Bureau Officer. Consequently since hearings come before the High Court. The 2005, all applications by the Bureau have affected person (the respondent) is given been brought in the name of the Bureau. notice of the Section 3 hearing and is entitled to attend the hearing and The High Court proceedings are initiated challenge the case in respect of the by way of an application under Section specified asset. 2(1) of the PoC Act which is grounded upon an affidavit or affidavits sworn by In cases where the respondent has relevant witnesses, including members of insufficient means to pay for legal An Garda Síochána, other Bureau Officers representation, the respondent may and in relevant cases by staff from law apply to the court for a grant of legal aid enforcement agencies from outside the under a Legal Aid Scheme in place for this jurisdictions. purpose. This ensures that the rights of the respondent are fully represented to The PoC Act provides that the originating the highest standards. motion may be brought ex‐parte. This means that the Bureau makes its If it is ultimately shown to the satisfaction application under Section 2(1) of the PoC of the High Court following a Section 3 Act without a requirement to notify the hearing that the asset represents, directly affected person (the respondent). The or indirectly, the proceeds of criminal Section 2(1) order lasts for twenty one conduct then the court will make an days unless an application under Section order freezing the asset. This order lasts 3 of the PoC Act is moved / brought. a minimum of seven years during which Section 2 of the PoC Act also provides the respondent or any other party claiming ownership in respect of the
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Part Three Actions under the Proceeds of Crime Act 1996 to 2016
property can make applications to have b) Is satisfied that there are grounds for the court order varied in respect of the suspecting that the total value of the property. property is not less than €5,000, c) Is satisfied that the Bureau is carrying At the expiration of the period of seven out an investigation into whether or years, the Bureau may then commence not there are sufficient grounds to proceedings to transfer the asset to the make an application to the court for Minister for Public Expenditure and an interim order or an interlocutory Reform or other such persons as the order in respect of the property, and court determines under Section 4 of the d) Has reasonable grounds for believing Act. During these proceedings, all that the property, in whole or in part, relevant parties are again notified and may in the absence of an may make applications to the court. authorisation, be disposed of or otherwise dealt with, or have its Where the period of seven years has not value diminished, before such an expired, a Consent Disposal Order under application may be made. Section 4A of the Act may be effected with the consent of the respondent and During 2018, the Bureau invoked its the court. powers under Section 1A of the PoC Act on three occasions, examples of which Section 1A Review are set out below. The PoC Act was amended by the PoC (Amendment) Act, 2016. This Section 1A detentions amendment provides that where a 6 Bureau Officer is in a public place, or in 5 another place where he is authorised or 5 invited, or is carrying out a search, and 4 finds property that he believes to be the 3 3 proceeds of crime with a value not less than €5,000, then that Officer may seize 2 the property for a period not exceeding 1 twenty four hours.
The Chief Bureau Officer may, during the 2017 2018 twenty four hour period, authorise the detention of the property for a period of up to twenty one days, provided he/she: Detention 1 The Bureau took possession of a vehicle a) Is satisfied that there are reasonable (valued at approx €12,000) belonging to a grounds for suspecting that the member of an organised crime gang property, in whole or in part, directly based in the Dublin South area who are or indirectly, constitutes the involved in committing burglaries proceeds of crime, throughout Leinster. Within the twenty
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Part Three Actions under the Proceeds of Crime Act, 1996 to 2016
one day period of detention, the Bureau At the hearing of the case, the Bureau made an application to the High Court obtained an Order under Section 3 of the and was successful in obtaining Orders PoC Act, which was a final determination under Section 2 & 7 of the PoC Act. ethat th vehicle was in fact, the proceeds of crime. At the hearing of the case, the Bureau obtained an Order under Section 3 of the Cases commenced PoC Act, which was a final determination Thirty new cases commenced during that the vehicle was in fact, the proceeds 2018. Of the cases commenced, twenty of crime. eight were initiated by issuing proceedings by way of originating motion Detention 2 under Section 2 of the PoC Act and two During one of the Bureau’s search directly under the provisions of Section 3. operations, the Bureau took possession of a vehicle (valued at approx €20,000) The Bureau notes that this is the largest belonging to a person involved in the sale number of proceeds of crime cases and supply of controlled drugs. commenced in a single year since the inception of the Bureau. The Bureau has Within the twenty one day period of been engaged in extensive work in detention, the Bureau made an preparing these investigations to allow it application to the High Court and was to bring these cases in 2018. successful in obtaining Orders under Section 2 & 7 of the PoC Act. New POC cases brought before the High Court
45 At the hearing of the case, the Bureau obtained an Order under Section 3 of the 30 PoC Act, which was a final determination 30 28 thate th vehicle was in fact, the proceeds of crime. 15
Detention 3 During another search operation, the Bureau took possession of a vehicle 2017 2018 (valued at approx €12,000) belonging to an individual member of an organised crime gang involved in the sale and Section 2(1) Review supply of controlled drugs. When analysed, the number of assets over which an order was obtained under Within the twenty one day period of Section 2(1) increased in comparison to detention, the Bureau made an 2017 from one hundred assets to one application to the High Court and was hundred and fourteen assets in 2018. successful in obtaining Orders under Section 2 & 7 of the PoC Act.
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Part Three Actions under the Proceeds of Crime Act 1996 to 2016
Assets over which Section 2(1) Orders made
150 100 114 100
50
2017 2018 Drone seized during CAB Operation
During 2018, the Bureau took Valuation Breakdown proceedings in respect of a variety of The value of the one hundred and asset types. For profiling purposes, the fourteen assets frozen under Section 2 of assets are broken down into jewellery, the PoC Act during the year 2018 was property, vehicles, financial and other €8,393,582.30. This figure may be broken matters. down in the table below.
Assets over which Section 2(1) Orders made Analysis of Section 2 Order by Asset Type Breakdown of assets by asset type Description € 2017 2018 Jewellery 112,150.00 67 Property 2,082,855.00 Vehicle 59,750.00 60 Financial 6,018,832.30 Other 119,995.00 44 Total 8,393,582.30 40 34
The figures in respect of jewellery, 20 14 14 property, vehicles and other are based on 1211 the estimated value placed by the Bureau 8 8 on the asset at the time of making the 0 0 application under Section 2(1) of the PoC Jewellery Property Vehicle Financial Livestock Other Act.
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Part Three Actions under the Proceeds of Crime Act, 1996 to 2016
Value of assets frozen under Section 2(1) Section 3 Review €9M €8.4M Section 3(1) Orders are made at the €8M €7.M conclusion of the hearing into whether an €7M asset represents or not, the proceeds of €6M criminal conduct. As such, the date and €5M duration of the hearing is a matter €4M outside of the Bureau’s control. €3M €2M During 2018, twenty seven cases before €1M the High Court, to the value of €6,186,566.39, had orders made under 2017 2018 Section 3(1). The Bureau notes that although the number of orders remains The results for 2018 compared to 2017 the same as 2017, the value of assets has show the value of assets frozen under increased. Section 2(1) has increased by €1.4 million from the previous year where the value Number of cases in which Section 3(1) Orders was €7,020,539.20. The value of assets made. fluctuates depending on assets targeted 35 in each case which can vary from high ranging assets to low ranging assets. The 30 27 27 value of such orders range from €7,000 to 25 €3.7million. 20 The reduction of the threshold under new 15 legislation in 2016 allowed for the seizure of an additional 20% of assets in 2018. 10 5
2017 2018
The number of assets over which orders were made by the High Court pursuant to Section 3(1) increased from fifty one assets in 2017 to one hundred and fourteen assets in 2018.
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Part Three Actions under the Proceeds of Crime Act 1996 to 2016
Assets over which Section 3(1) Orders made. Value of assets frozen under Section 3(1)
€7M 140 €6.2M €6M 120 114 100 €5M 80 51 €4M 60 €3M €2.1M 40 €2M 20 €1M 2017 2018 2017 2018
An increase in assets over which a Section Section 3(3) 3(1) order was made in 2018 led to an Section 3(3) of the PoC Act provides for increase in the value of the orders made. an application to be made to the court The value of such orders increased from while a Section 3(1) order is in force to €2.1 million in 2017 to €6.2 million in vary or discharge the order. The 2018. application can be made by the respondent in a case taken by the Bureau or by any other person claiming ownership of the property. While Section 3(3) largely contemplates the bringing of an application by a respondent in a case, it also provides that victims of crime who can demonstrate a proprietary interest in the asset frozen can make an application for the return of same.
Section 3(3) also provides for a person to Cash found during CAB search operation make a claim in regard to an asset over which a Section 3(1) order has been made Analysis of Section 3 Order by Asset Type whereby, that person can seek the Description € variation or discharge of the freezing Jewellery 150,470.00 order, if it can be shown to the Property 1,056,460.50 satisfaction of the court the asset in Vehicle 645,137.00 question is not the proceeds of criminal Other 38,731.00 conduct. No such orders were made Financial 4,295,767.89 under Section 3(3) of the PoC Act during Total 6,186,566.39 2018.
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Part Three Actions under the Proceeds of Crime Act, 1996 to 2016
Geographical Breakdown an individual enjoying the benefit of The Bureau's remit covers investigation those proceeds may be deprived or of proceeds of crime cases irrespective of denied that benefit, includes that he/she the location of the assets. should be divested of the property.
During 2018, the Bureau obtained Orders This policy of the Bureau may require over assets in respect of proceeds of pursuing properties, notwithstanding the crime in all of the large urban areas, rural fact that in some cases the property communities and foreign jurisdictions. remains in negative equity.
The Bureau remains committed to This is designed to ensure that those actively targeting assets which are the involved in serious organised crime are proceeds of criminal conduct and indeed not put in the advantageous position by wherever they are situated to the fullest being able to remain in the property and extent under the PoC Act. thereby benefit from the proceeds of crime. The Bureau is further developing its national coverage through the Vehicles Commissioner of An Garda Síochána's The Bureau continues to note the interest revised policy on the Tasking of Divisional of those involved in serious organised Asset Profilers. This will ensure that there crime in high value vehicles. However, is a focus on local criminal targets during 2018 the Bureau targeted a throughout the State for action by the number of mid‐range to upper‐range Bureau. valued vehicles. This is, in part, a response to actions being taken by those The Bureau continued to work closely involved in crime to purchase r lowe with local communities by partaking and valued vehicles in an attempt to avoid briefing all thirty six Joint Policing detection. Committees (JPC) Nationwide in 2017 and 2018, the results of which have received very positive feedback.
Property The statutory aims and objectives of the Bureau require that the Bureau take appropriate action to prevent individuals, who are engaged in serious organised crime, benefiting from such crime.
In cases where it is shown that the property is the proceeds of criminal conduct, the statutory provision whereby
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Part Three Actions under the Proceeds of Crime Act 1996 to 2016
An example of the types of vehicles clothing and footwear, examples of which seized by the Bureau under Section 2(1) are shown hereafter. of the PoC Act during the year 2018 were:
Audi A6, A7 Kawasaki Ninja Motorcycle VW Polo VW Passat BMW X5 VW Tiguan
An example of the types of vehicles seized by the Bureau under Section 3(1) of the PoC Act during the year 2018 were:
Yahama Motorcycle Case 1 Dune Buggy This case was nominated as a target by Lexus RX the Special Crime Task Force to be Audi A3, A5 and A6 profiled by the Bureau and was assigned Mercedes CLA & E220 to an investigation team for enquiries to GoCycle Electric Bicycles be conducted. Land Rover Defender Both respondents displayed a lavish lifestyle which included frequent foreign travel and the purchase of luxury items, whilst having a minimal recorded income and obtaining social welfare payments, which have since been disallowed.
During 2018, a Section 4A Order was granted in the High Court in respect of funds held in various bank accounts, four high end designer watches valued collectively in excess of €70,000, two high end designer handbags valued collectively in excess of €3,000, large sum Luxury Goods of cash and a residential property valued at €300,000 approximately. The Bureau is continuing to target ill‐ gotten gains through the purchase of high A collective tax demand in excess of end luxury goods such as mobile homes, €300,000 was also served on the designer handbags, store cards, designer respondents as was a social welfare overpayment of €100,000.
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Part Three Actions under the Proceeds of Crime Act, 1996 to 2016
Section 4(1) and 4A During 2018, a total of €2,271,799.92 was Section 4(1) provides for the transfer of transferred to the Minister for Public property to the Minister for Public Expenditure and Reform under the PoC Expenditure and Reform. This Section Act arising from Section 4(1) and 4A refers to assets which have been deemed disposals. to be the proceeds of criminal conduct, for a period of not less than seven years, Section 4(1) & 4A Breakdown and over which no valid claim has been No. of Description € made under) Section 3(3 of the PoC Act. Cases Section 4(1) 3 184,005.98 Section 4A 19 2,087,793.94 Total 22 2,271,799.92
Case 1 – Operation Loft During 2018, the Bureau obtained orders under Sections 3 & 7 of the PoC Act over Section 4A allows for a consent disposal €529,000 held in various bank accounts order to be made by the respondent in a by an organised crime gang involved in CAB case, thus allowing the property to fuel laundering along the Border area. be transferred to the Minister for Public The granting of the Section 3 orders over Expenditure and Reform in a period these bank accounts finalised the shorter than seven years. This was Bureau’s proceedings taken against this introduced in the 2005 PoC Act. organised crime gang.
Twenty two cases were finalised and The Bureau commenced its investigation concluded under Section 4(1) and 4A in in November 2012 into the assets and 2018. activities of two families based in the Border region of Co. Louth who were Value of assets frozen under Section 4(1) and 4A suspected to be involved in fuel €4M laundering and the laundering of money derived from that criminal activity. €2.3M €1.7M The Bureau carried out a search operation in 2013, with the assistance of €2M Garda Specialist Units including the Emergency Response Unit. The Bureau received considerable assistance from the Police Service of Northern Ireland (PSNI) and Her Majesty’s Revenue and 2017 2018 Customs (HMRC) during this investigation.
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Part Three Actions under the Proceeds of Crime Act 1996 to 2016
The investigation specifically focused on allowing the respondent or any other companies used and controlled by the party: organised crime gang to purchase large quantities of green diesel from oil 1. A discharge of reasonable living or companies. The green diesel was then other necessary expenses; or laundered and sold on as road diesel by 2. Carry on a business, trade, profession “buffer companies”, also controlled by or other occupation relating to the the organised crime gang. property.
In April 2013, the Bureau commenced No appropriate case arose that required PoC proceedings against twenty one the granting of a Section 6 order during individuals and companies resulting in a 2018. large number of bank accounts being frozen. Following the conclusion in 2018 of the Bureau’s proceedings, the total Section 7 amount of money seized by the Bureau Section 7 provides for the appointment, from this fuel laundering enterprise by the court, of a Receiver whose duties amounts to €1.1 million. include either to preserve the value of, or dispose of, property which is already frozen under Section 2 or Section 3 orders.
In 2018, the Bureau obtained receivership orders in regard to sixty seven assets. In everye cas the receiver appointed by the court was the Bureau Legal Officer. These cases involved properties, cash, money in bank accounts, motor vehicles and watches. In some receivership cases, the High Court made orders for possession and sale by the Receiver. A receivership order cannot Section 6 be made unless a Section 2 or Section 3 Section 6 provides for the making of an order is already in place. order by the court during the period whilst a Section 2(1) or 3(1) order is in force to vary the order for the purpose of
28 Criminal Assets Bureau Annual Report 2018
Part Three Actions under the Proceeds of Crime Act, 1996 to 2016
Statement of Receivership Accounts Euro€ Stg£ US$ Opening balance receivership accounts 01/01/2018 11,182,727.68 208,043.38 653,029.57
Amounts realised, inclusive of interest and operational advances 3,604,991.87 2.10 3,393.16
Payments out, inclusive of payments to Exchequer and operational 2,370,266.98 0.00 1,255.46 receivership expenditure
Closing balance receivership accounts 31/12/2018 12,417,452.57 208,045.48 655,167.27
29 Criminal Assets Bureau Annual Report 2018
Part Three Actions under the Proceeds of Crime Act 1996 to 2016
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30 Criminal Assets Bureau Annual Report 2018
Part Four Revenue actions by the Bureau
Overview independent statutory body whose The role of the Revenue Bureau Officers function is hearing and determining attached to the Bureau is to perform appeals against assessments and duties in accordance with all Revenue determinations. Acts to ensure that the proceeds of crime or suspected crime, are subject to tax. TAC is just over two years in existence This involves the gathering of all available and 2018 showed an increase in the level information from the agencies which of engagement with the Bureau. During comprise the Bureau. Thise includes th 2018, TAC admitted ten appeals, Office of the Revenue Commissioners and dismissed fifteen cases and partly information from this Office can be dismissed a further six cases. obtained in accordance with Section 8 of the Act. While the increase in processing new appeals is welcomed, there is a significant Tax Functions number of legacy cases awaiting adjudication. It is acknowledged that the The following is a summary of actions delay in adjudicating on these legacy taken by the Bureau during 2018 and an cases is due to a number of factors not update of the status of appeals. least the large volume of legacy cases
which existed prior to its formation. The Tax Assessments Bureau is positively engaging with TAC Revenue Bureau Officers are empowered with a view to progressing these matters. to make assessments under Section 58 of the Taxes Consolidation Act 1997 Appeals to the Tax Appeal (hereinafter referred to as the TCA 1997) ‐ the charging section. Commissioners Revenue Tables 1 and 2 located at the As part of any Bureau investigation, the end of this chapter summarise the appeal Revenue Bureau Officer will investigate activity for 2018. the tax position of all those linked with st that investigation with a view to assessing At 1 January 2018, thirty five cases were their tax liability, where appropriate. before the TAC for adjudication. During Investigations vary in terms of size and the year, twenty three appeal complexity. applications were referred by the TAC to the Bureau for consideration. Overall During 2018, a total of forty one during the year, the Commission individuals were assessed under various admitted ten appeals and refused fifteen. taxheads, resulting in a total tax figure of st €10.763m. As of 31 December 2018, there were a total of thirty nine cases awaiting hearing / decision. Tax Appeals The Tax Appeals Commission (TAC) was As of 1st January 2018, two appeals in established on 21st March 2016 and is an respect of cases where appeals had been
31 Criminal Assets Bureau Annual Report 2018
Part Four Revenue actions by the Bureau
refused, were awaiting decision. These liabilities with the Bureau by way of two appeal applications were refused by agreement in the total sum of €912,989k. the Inspector of Taxes prior to 21st March 2016. As at 31st December 2018 both Circuit Court cases remain within the appeal process. Circuit Court proceedings were initiated in the Circuit Court in respect of one case Collections in the sum of €58.169k. Revenue Bureau Officers are empowered High Court to take all necessary actions for the High Court proceedings for the recovery purpose of collecting tax liabilities as s of tax and interest in the sum of become final and conclusive. Revenue €13.550m was initiated in twenty one Bureau Officers hold the powers of the cases. Collector General and will pursue tax debts through all available routes. Amount Respondent Collection methods include: Euro Case 1 235,063.82 • The issue of demands – Section 961 Case 2 683,111.36 TCA 1997; Case 3 123,437.75 • Power of attachment – Section 1002 Case 4 87,950.56 TCA 1997; Case 5 243,335.92 • Sheriff action – Section 960(L) TCA Case 6 1,046,555.84 1997; and Case 7 262,270.96 • High Court proceedings – Section Case 8 617,340.64 960(I) TCA 1997. Case 9 146,329.52 Case 10 212,554.68 Recoveries Case 11 316,858.30 Tax recovered by the Bureau during 2018 Case 12 5,477,669.43 amounted to €3.097m from fifty Case 13 41,434.66 individuals / entities. Case 14 614,562.76 Case 15 115,712.43 Case 16 593,097.30 Demands Case 17 373,941.94 During 2018, tax demands (inclusive of Case 18 248,934.70 interest) served in accordance with Case 19 141,495.23 Section 961 TCA 1997 in respect of forty Case 20 68,675.31 five individuals / entities amounted to Case 21 1,899,778.43 €14.990m. Total 13,550,111.54
Revenue Settlements Judgments During the course of 2018, eight High Court Judgments were obtained individuals settled outstanding tax against two individuals for tax liabilities totalling €512,236.17.
32 Criminal Assets Bureau Annual Report 2018
Part Four Revenue actions by the Bureau
In addition to the making of assessments Amount and enforcing the collection of taxes, the Respondent Euro Bureau identified and addressed a Kathleen O’Brien 408,807.52 number of emerging risks in the motor Jason Macken 103,428.65 trade through the imposition of security Total 512,236.17 bonds, compliance visits and other interventions.
Investigations Sale and Supply of Illegal Drugs The Bureau made assessments in 2018 on Theft and Fraud twelve individuals deemed to have During 2018, in support of Operation benefited from profits or gains derived Thor and other anti‐crime strategies from the sale and supply of illegal drugs. employed by partner agencies, the Tax assessments totalling €966k Bureau made tax assessments on twenty excluding interest were made in these two individuals located outside Dublin investigations. During 2018, the Bureau connected with theft and fraud offences. collected €750k, by way of enforcement The total amount of tax, excluding and settlement agreements, from interest featured in the assessments thirteen individuals associated with the amounted to €6.7m. In addition to sale and supply of illegal drugs. assessments made, tax and interest of
€1.5m was collected from twenty nine Other significant tax investigations persons who generated profits or gains conducted by the Bureau in 2018 focused from theft and fraud offences. on profits or gains derived from
smuggling and environmental offences. Motor Industry Throughout 2018, the Bureau continued to target individuals seeking to conceal Customs & Excise Functions the proceeds of criminality through the The Customs & Excise (C&E) functions in motor trade. Tax assessments were the Bureau support all investigations by made for €1.6m excluding interest on two identifying any issues of Customs individuals and two companies involved relevance within the broad range of C&E in the motor trade. The Bureau made legislation, regulations, information and collections amounting to €841k from intelligence. three individuals and two companies involved in the motor trade. The seizure Serious and organised crime groups in of vehicles by Revenue sheriffs, under the every jurisdiction attempt to breach both provisions of Section 960L TCA 1997, Customs regulations and Excise proved particularly effective in enforced regulations in their attempts to make collection actions taken by the Bureau in substantial profits while at the same time 2018. depriving the Exchequer of funds and having a negative impact on society in general.
33 Criminal Assets Bureau Annual Report 2018
Part Four Revenue actions by the Bureau
Customs functions at ports and airports, vehicles, revoked the VRT authorisation in particular, support the Bureau's and directed the closure of the outlet. In investigations into the cross‐jurisdictional two other cases, the Bureau prevented aspects of crime and criminal profits. entry to the trade by new outlets. At year Throughout 2018, in the course of end, a large number of other outlets investigations by the Bureau, a number of remain the subject of active and resolute criminals and their associates were investigation by the Bureau. monitored and intercepted at ports and Aside from the trade aspect, further airports. enforcement of VRT legislation by the Bureau throughout 2018 deprived Smuggling specific individuals of valuable vehicles Throughout 2018, the Bureau provided which were in their possession and operational intelligence in relation to a contravened VRT regulations (Section number of separate smuggling attempts 141, Finance Act 2001). These actions involving large commercial consignments support the Bureau’s statutory objectives of alcohol, cigarettes and substitute (Section 4 of the Act) to deprive those diesel products. The Bureau continued to involved in crime of valuable assets. monitor the activities of criminal organisations involved in the illicit trade The various actions taken under VRT in mineral oils, in conjunction with the legislation, as described above, resulted Revenue Customs Service and An Garda in the seizure of vehicles throughout Síochána, as a means of sustaining the 2018 with an overall value in excess of collective successes of recent years in €914,000 as well as separate VRT, fines interrupting that particular criminal and penalties of over €36,000. activity. The Bureau is aware of, and is monitoring emerging trends in the illicit By year end, there were fifty six cases oil trade. outstanding in which the Bureau had initiated High Court condemnation Vehicle Trade and VRT proceedings (Part 2, Finance Act 2001, as In 2018, the Bureau continued to carry amended by Section 46(1) Finance Act out investigations in the area of VRT 2011). These proceedings relate to the authorisations granted to car dealers seizure of specific high value vehicles (Section 136 Finance Act, 1992). from individual criminals as well as stocks Following robust actions reported in of vehicles from outlets operated illegally previous years, the Bureau again by organised crime groups. identified a number of used car outlets operated by, or on behalf of organised The level of infiltration by organised crime groups. crime groups into the importation and sale of used cars was highlighted by the In one case in 2018, where criminal Bureau at the Joint Agency Cross Border connections were established and Crime Conference held in Northern regulations were contravened, the Ireland in November 2018. The Bureau Bureau seized and removed stocks of turned the focus of law enforcement
34 Criminal Assets Bureau Annual Report 2018
Part Four Revenue actions by the Bureau
agencies on both sides of the border to Joint Agency Cross Border Oil Fraud the use of cars as a form of currency Group and Tobacco Fraud Group. among organised crime groups. In 2018, the Bureau again noted a strong Investigations carried out by the Bureau liaison with Her Majesty’s Revenue & have highlighted the fact that this Customs (HMRC) and has found the infiltration by organised criminals of the inclusion of the Bureau in the provisions used car trade does produce victims of of the UK Serious Crime Act 2007 (Section crime. During the year a number of 85) to be particularly beneficial. This customers were identified who had legislative inclusion strengthened the unwittingly purchased vehicles that provision of evidence from HMRC when traders had knowingly miscategorised UK property, assets or nationals are during registration, resulting in significant involved in CAB investigations. The joint outstanding VRT liability for which the agreement signed in Dublin in 2016 with owner was liable. HMRC continues to underpin this very important assistance given to the The Bureau is currently investigating Bureau’s international investigative cases of falsified documents with a view functions. to pursuing criminal prosecutions. The Bureau will continue to monitor, review Customs Officers attached to the Bureau and take all necessary actions in cases take every opportunity to liaise and work where organised crime groups have, or with colleagues in other Customs Services are attempting to infiltrate and impact on internationally to improve effectiveness the legitimate car trade, with against organised crime groups. Of consequential potential loss of VRT to the particular note in 2018, is the exchequer. strengthening of cooperation with the German Customs Authorities and the Customs Liaison attendance at the Bureau of a senior Fighting organised crime groups German Customs Officer. Similarly, the operating across borders requires Bureau works closely in this jurisdiction cooperation among competent with Revenue's Customs Service, in order authorities on both sides of the border. to use all the State's resources in the Such cooperation extends beyond most efficient way in tackling criminal intelligence sharing and includes the activity. planning and implementation of specific joint operations on an international The Bureau welcomes the operational multi‐agency and multi‐disciplinary assistance provided by the Revenue platform. In such cases, every aspect of Customs Service on a number of large mutual assistance legislation, whether it CAB operations. The Bureau again be Customs to Customs, or Police to acknowledges this increasing broad range Police, is utilised by the Bureau. The of expertise and support including Bureau is an active agency within the Customs Dog Units (drugs and cash), Customs Maritime Units, X‐Ray scanners
35 Criminal Assets Bureau Annual Report 2018
Part Four Revenue actions by the Bureau
and operational staff at Ports and Airports.
CAB Search Operation assisted by the Customs Dog Unit
36 Criminal Assets Bureau Annual Report 2018
Part Four Revenue actions by the Bureau
Table 1: Outcome of appeals at Appeal Commissioner Stage No. of Description Cases Opening Appeals as at 01/01/2018 35 Appeals Lodged to TAC 23 Appeals Admitted by TAC 10 Appeals Refused by TAC 15 Appeals Withdrawn 4 Appeal Determined by TAC 0 *Open Appeals as at 31/12/2018 39 *Excludes appeals admitted by TAC as this figure is included in the figure for appeals lodged to TAC.
Table 2: Outcome of appeals refused by the Bureau (prior to 21/03/2016) No. of Description Cases Opening Appeals as at 01/01/2018 2 Appeals Withdrawn 0 Open Appeals as at 31/12/2018 2
Table 3: Tax Assessments No. of No. of Tax €M Tax €M Taxhead Assessments Assessments 2017 2018 2017 2018 Income Tax 4.761 9.341 216 324 Capital Gains Tax (CGT) 0.041 0.058 4 1 Value Added Tax (VAT) 1.114 1.346 8 11 PAYE/PRSI ‐ ‐ 3 ‐ Capital Acquisition Tax (CAT) 0.086 0.018 ‐ 2 Corporation Tax (CT) ‐ ‐ 1 ‐ Totals 6.002 10.763 232 338
37 Criminal Assets Bureau Annual Report 2018
Part Four Revenue actions by the Bureau
Table 4: Tax and Interest Collected No. of No. of Tax €M Tax €M Taxhead Collections Collections 2017 2018 2017 2018 Income Tax 1.833 2.585 41 42 Capital Gains Tax 0.017 ‐ 1 ‐ Corporation Tax 0.021 ‐ 1 ‐ PAYE / PRSI 0.224 0.033 3 2 Value Added Tax 0.279 0.445 5 5 Capital Acquisition Tax ‐ 0.034 ‐ 1 Totals 2.374 3.097 51 50
Table 5: Tax and Interest Demanded
Tax €M Interest €M Total €M No. of Cases Taxhead
2017 2018 2017 2018 2017 2018 2017 2018 Income Tax 8.000 8.003 3.917 5.202 11.917 13.205 22 36 CGT 0.082 ‐ 0.078 ‐ 0.160 ‐ 3 ‐ CAT 0.046 0.049 0.014 0.002 0.060 0.051 2 2 PAYE/PRSI 0.165 ‐ 0.037 ‐ 0.202 ‐ 1 ‐ VAT 1.368 1.493 0.344 0.241 1.712 1.734 5 7 RCT 0.085 ‐ 0.044 ‐ 0.129 ‐ 1 ‐ Totals 9.746 9.545 4.434 5.445 14.180 14.990 34 45
38 Criminal Assets Bureau Annual Report 2018
Part Five Social Welfare actions by the Bureau
Overview The role of Social Welfare Bureau Officers amounted to €343,004.40. The various is to take all necessary actions under the headings under which these savings were Social Welfare Consolidation Act 2005, achieved are listed at the end of this pursuant to its functions as set out in chapter. Section 5(1)(c) of the Act 1996. In carrying out these functions, Social Overpayments Welfare Bureau Officers investigate and The investigations conducted also determine entitlement to social welfare resulted in the identification and payments by any person engaged in assessment of overpayments against criminal activity. individuals as a result of fraudulent activity. An overpayment is described as Social Welfare Bureau Officers’ are also any payment being received by an empowered under Section 5(1)(d) of the individual over a period or periods of time Act to carry out an investigation where to which they have no entitlement or there are reasonable grounds for reduced entitlement and so accordingly, believing that officers of the Minister for any payments received in respect of the Employment Affairs and Social Protection claim or claims, results in a debt to the may be subject to threats or other forms Department of Employment Affairs and of intimidation. During 2018, there were Social Protection. no new cases referred to the Bureau under Section 5(1)(d). As a result of investigations carried out by Social Welfare Bureau Officers, demands Arising from an examination of cases by were issued against a number of Social Welfare Bureau Officers, actions individuals for the repayment of social pursuant to the Social Welfare remit of welfare debts ranging in individual value the Bureau were initiated against two from €5,000 to €277,000. hundred and nine individuals in 2018. During 2018, overpayments assessed and As a direct result of investigations demanded, amounted to €1,554,081.02. conducted by Social Welfare Bureau A breakdown of which is listed at the end Officers, a number of individuals had of this chapter. their payments either terminated or reduced in 2018. These actions resulted Recoveries in a total savings of €2,220,169.88. This Social Welfare Bureau Officers are can be broken down as follows: empowered to recover overpayments
from individuals. An overpayment is Savings regarded as a debt to the Exchequer. The Following investigations conducted by Bureau utilises a number of means by Social Welfare Bureau Officers in 2018, which to recover debts which includes total savings as a result of termination payments by way of lump sum and / or and cessation of payments to individuals instalment arrangement. who were not entitled to payment
39 Criminal Assets Bureau Annual Report 2018
Part Five Social Welfare actions by the Bureau
Section 13 of the Social Welfare Act 2012 To date, the process requires the amended the Social Welfare Appellant to apply directly to the Social Consolidation Act 2005 in relation to Welfare Appeals Office (SWAO), who recovery of social welfare overpayments would independently adjudicate on their by way of weekly deductions from an case. It was open to the SWAO to either individual’s ongoing social welfare accept or refuse jurisdiction on a case. entitlements. This amendment allows for Should jurisdiction be refused, the a deduction of an amount up to 15% of Appellant was advised in writing to lodge the weekly personal rate payable without an appeal directly with the Circuit Court. the individual’s consent. Following a High Court decision in the The Bureau was instrumental in the case of Bridie Hoey vs Chief Appeals introduction of additional powers for the Officer, Social Welfare Appeals Office and recovery of debts by way of Notice of the Minister for Social Protection (2015 Attachment proceedings. The Social No 614 JR), legislative changes were Welfare and Pensions Act 2013 gives the required to the Social Welfare Act in the Department of Employment Affairs and form of an amendment to progress future Social Protection the power to attach CAB Social Welfare Appeals. A decision amounts from payments held in financial on this proposed amendment to the institutions or owed by an employer to a Social Welfare Act is expected in 2019. person who has a debt to the Department. Section 5(1)(c) of the Act 1996 Case 1 During 2018, Social Welfare Bureau Two members of the same family in the Officers were successful in using these North West of the country had their powers of attachment when they entitlements to means‐tested Social imposed an attachment order in respect Welfare payments reviewed. Both of monies held within a local authority individuals were investigated due to the and due to an individual. This money was existence of a bank account with large instead forwarded directly to the Bureau balances held on deposit. These monies in respect of an outstanding Social were never declared to the Department Welfare overpayment. This is the first of Employment Affairs and Social time this piece of legislation has been Protection. successfully employed. As a result of actions by Social Welfare Bureau Officers, As a result of the investigations a total sum of €323,084.46 was returned conducted, revised decisions were made to the Exchequer in 2018, a breakdown of and the individuals were assessed with which is listed at the end of this chapter. overpayments to the value of €165,000 and €211,000 respectively. There were Appeals no appeals lodged in these cases. A change in process is required for appeals against Social Welfare decisions, made by Social Welfare Bureau Officers.
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Part Five Social Welfare actions by the Bureau
Case 2 Two members of the same family in the to the Bureau to offset against his Mid‐West of the country were outstanding debt. investigated with regard to their Non‐ Contributory Pensions. Independent financial support and a part share in a foreign property were amongst the issues not previously disclosed to the Department of Employment Affairs and Social Protection. Revised decisions were made in respect of both Social Welfare payments, resulting in overpayments, to the value of €127,000 and €27,000 respectively. There were no appeals in these cases.
Case 3 A member of a family in North Dublin had their entitlement to a Non Contributory Old Age Pension reviewed, as a result of undeclared monies held in their bank account. The amount of money lodged on a regular basis was inconsistent with someone whose only declared source of income was their social welfare payments. A revised decision was made and an overpayment was assessed to the value of €170,000. There was no appeal in this case.
Case 4 An individual from the Southern Region with a significant social welfare overpayment had failed to engage with a Social Welfare Bureau Officer with regard to structured repayments of their debt. It transpired that they were due a refund in excess of €16,500 from a local authority. Due to the non‐engagement of this individual, Social Welfare Bureau Officers used powers under the Social Welfare Act to impose an attachment order on this money and for the monies to be returned
41 Criminal Assets Bureau Annual Report 2018
Part Five Social Welfare actions by the Bureau
Table 1: Social Welfare Savings 2017 Saving 2018 Saving Scheme Type € € Child Benefit 23,800.00 14,280.00 Disability Allowance 52,496.00 111,642.40 Jobseekers Allowance 173,802.80 112,656.40 One‐parent family payment 167,606.40 35,577.60 *BASI 53,478.40 68,848.00 Totals 471,183.60 343,004.40
Table 2: Social Welfare Overpayments 2017 Overpayment 2018 Overpayment Scheme Type € € Child Benefit 10,960.00 ‐ Carers Allowance 30,565.11 165,258.40 Disability Allowance 117,389.10 21,020.00 Jobseekers Allowance 696,999.19 1,131,001.68 One‐parent family payment 468,190.30 88,347.60 *BASI & Other 261,370.33 148,453.34 Totals 1,585,474.00 1,554,081.02
Table 3: Social Welfare Recovered 2017 Recovered 2018 Recovered Scheme Type € € Child Benefit 300.00 1,100.00 Carers Allowance 25,795.33 11,887.36 Disability Allowance 77,212.60 37,153.62 Jobseekers Allowance 156,424.27 165,874.24 One‐parent family payment 59,616.79 90,117.20 Other 371.32 16,952.04 Totals 319,720.31 323,084.46
*A Basic Supplementary Welfare Allowance (commonly referred to as BASI) provides a basic weekly allowance to eligible people who have little or no income.
42 Criminal Assets Bureau Annual Report 2018
Part Six Notable investigations of the Bureau
Introduction Case 3 Arising from investigations conducted by The Bureau commenced an investigation the Bureau, pursuant to its statutory into assets held in this jurisdiction by an remit, a number of criminal investigations individual involved in an international were conducted and investigation files fraud. The Bureau identified in excess of were submitted to the Director of Public €870,000 held in an Irish bank account. Prosecutions (hereinafter referred to as The Bureau obtained orders under “the DPP”) for direction as to criminal Sections 3 & 7 of the PoC Act in respect of charges. the monies held in this bank account.
During 2018, two files were submitted to Case 4 the DPP for direction. The Bureau commenced an investigation into assets held in this jurisdiction by an Investigations dealt with during individual involved in the supply of encrypted mobile telephone devices to 2018 persons involved in drug trafficking Case 1 across a number of jurisdictions The Bureau commenced an investigation stretching as far as the United States and into assets held in this jurisdiction by an Canada. The encrypted devices could not individual involved in an international be intercepted by Law Enforcement fraud stretching as far as Australia. The Agencies. The Bureau identified in excess Bureau identified in excess of €35,000 of €530,000 held in two Irish bank held in an Irish bank account. The Bureau accounts. obtained orders under Section 2, 3 and 4 of the PoC Act in respect of the monies The Bureau obtained orders under held in this bank account. Sections 3, 4A and 7 of the PoC Act in respect of the monies held in the two Case 2 bank accounts. In targeting the assets and activities of an organised crime gang based in South East Case 5 Region involved in the commission of In targeting the assets of a family crime in both Ireland and across Europe, member of a leading member of an the Bureau obtained orders under organised crime gang based in the Mid‐ Sections 3 & 7 of the PoC Act over two West area, the Bureau obtained orders Mercedes vehicles valued at under Section 3, 4A & 7 of the PoC Act in approximately €62,000. Revenue and respect of two properties in the Mid‐ Social Welfare actions are also being West area. Revenue actions have also taken against the members of this commenced and are ongoing. organised crime gang and these actions remain ongoing.
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Part Six Notable investigations of the Bureau
Case 6 The Bureau obtained orders under South Dublin area. A major search Sections 3 & 4A of the PoC Act in respect operation was carried out in 2016, of €1.2 million cash seized by Gardaí targeting the assets and activities of this during their investigation of a money crime gang. laundering offence. The €1.2 million cash had been seized by Gardaí from an The Bureau’s investigation involved individual who was attempting to cooperation between law enforcement transport the cash out of Ireland. agencies in the United Kingdom, Spain, Mallorca and Mauritus. Following the Bureau’s investigation into this organised crime gang, orders pursuant to Section 2 of the PoC Act were granted during 2017 over forty eight items of property including twenty nine vehicles, four properties, six designer watches, a bank account with €36,760 and €34,840 in cash. The cumulative value of the property seized is approximately €2.7 million.
As of 31st December 2018, the Bureau Case 7 was awaiting a hearing for an order under The Bureau obtained orders under Section 3 of the PoC Act over the Sections 2, 3 & 7 of the PoC Act in respect remainder of the assets (€1.3 million). of €150,000 cash seized by Gardaí during the search of a house in the Dublin South area during a drugs investigation.
Case 8 The Bureau obtained orders under Sections 3, 4A & 7 of the PoC Act in respect of €200,000 cash and a high powered motorcycle seized by Gardaí in the South East Region during a drugs investigation.
Operation Lamp The Bureau obtained orders under Section 3 of the PoC Act in respect of assets valued at €1.4 million which were seized during the Bureau’s investigation into an organised crime gang based in the
44 Criminal Assets Bureau Annual Report 2018
Part Six Criminal Investigations of the Bureau
Operation Thor Operation Thor is an anti‐crime strategy launched by An Garda Síochána on the 2nd November 2015. The focus of Operation Thor is the prevention of burglaries and associated crimes throughout Ireland, using strategies which are adapted for both rural and urban settings.
The Bureau supports “Operation Thor” through the identification and seizing of the proceeds of suspected criminal activity. The Bureau also supports “Operation Thor Days of Action” by providing Bureau Officers to Divisions for such days of action, where required.
The Bureau’s investigation into Operation Thor targets resulted in the Bureau obtaining one order under Section 2 of the PoC Act, five orders under Section 3 of the PoC Act and three orders under Section 4A of the PoC Act in respect of assets linked to the targets.
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Part Six Notable investigations of the Bureau
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46 Criminal Assets Bureau Annual Report 2018
Part Seven Significant Court Judgements during 2018
During 2018, written judgments were evidence because it was delivered by the courts in the following unconstitutionally or illegally cases: obtained. The respondent (“the Bureau”) has contended, in 1. Criminal Assets Bureau –v‐ Murphy & essence, that any rule excluding Anor evidence on that basis has no 2. Criminal Assets Bureau –v‐ Connors application in in rem 3. Criminal Assets Bureau –v‐ Mannion proceedings. This argument was accepted by the trial judge (see Criminal Assets Bureau ‐v‐ Criminal Assets Bureau v Murphy Murphy & anor [2014] IEHC 583) and by the Court of Appeal (Criminal Assets 27th day of February 2018, High Court: Ms. Justice O’Malley, High Court Record Number 2011/10 CAB Bureau v Murphy [2016] IECA 40). The Court of Appeal held Introduction that the exclusionary rule was 1. The value of the property in intended to prevent the dispute in these civil forfeiture deployment of unconstitutionally proceedings is relatively obtained evidence only in in insignificant ‐ less than €20,000 in personam proceedings against cash ‐ but the litigation raises the person whose rights had important questions. The context been breached, and had no for those questions is that the relevance in in rem proceedings cash, in respect of which the where the issue before the court respondent has obtained orders was the provenance of the under the Proceeds of Crime Act property itself. 1996, was seized from the dwelling of one of the appellants 3. In its determination on the on foot of an invalid search application for leave to appeal warrant and thus in breach of his this Court noted the wide public constitutional rights. The importance of clarifying the law acknowledged difficulty with the on whether any rule as to the warrant was that it had been exclusion of evidence which is issued under the provisions of s. illegally or unconstitutionally 29 of the Offences Against the obtained is applicable in civil State Act 1939, as amended, proceedings. Leave to appeal to before that section was held to this Court was thus granted on be unconstitutional by this Court the following points: in Damache v. Director of Public Prosecutions [2012] 2 I.R. 266.(i) Where a dwelling is entered other than in accordance with 2. The appellants (“the Murphys”) law, and that dwelling is not that have argued that the cash should of a person seeking to assert a have been excluded from constitutional right to the
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Part Seven Significant Court Judgements during 2018
inviolability thereof, may questions posed, which raise the evidence be excluded in possibility that evidence of the proceedings concerning a person cash might be excluded in not dwelling therein? respect of some parties but admitted in respect of others. (ii) Is there any rule of law requiring While this result could be that evidence obtained in accommodated in criminal trials, consequence of illegal entry into it would be absurd in proceedings a dwelling should be excluded of the instant character if, for from civil proceedings, including example, the property seized proceedings in rem under the were to be claimed on the basis Proceeds of Crime Act 1996, as of joint ownership by an amended? occupant and a non‐occupant.
(iii) Is there any rule of law requiring 5. In reality, therefore, the problem the exclusion of evidence in civil is not whether items found and proceedings obtained in seized in such circumstances can consequence of a deliberate be put in evidence, since the illegality, or a mistake amounting Bureau does not intend to do so to an illegality, or in consequence or to prove any matter thereby, of the deliberate and conscious but whether the Bureau was violation of the rights of one of entitled, having regard to the the parties? established illegality, to an order intended to deprive the Murphys 4. I feel it necessary to observe at of the cash. In broader terms, it this stage that couching the seems to me that the question questions in terms of the that the Court should address is exclusion of evidence did not, whether the constitutional perhaps, accurately describe the principles underpinning the central issue to be determined by exclusionary rule have any the Court. The cash was not application in proceedings of this produced before the Court as nature such that the State evidence tending to prove any should, in all or in any disputed issue of factrather, ‐ the circumstances, be denied the evidence in the case was benefit of an action taken by its adduced by the Bureau and by agents in breach of an the Murphys to respectively individual’s constitutional rights. support or undermine the proposition that the money 6. Despite the breadth of the terms represented the proceeds of upon which leave to appeal was criminal activity. The distinction granted, I think it preferable, for becomes particularly apparent in present purposes, to confine relation to the first and third consideration of the issue to
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litigation involving the State and search of a house in Co. Cork on to illegality and breach of rights the 28th May, 2009. There is no arising from the actions of State question but that this house was agents. This is because the the residence of the notice party, instant case involves, as do most who was the girlfriend of Mr. such cases, the use of the Murphy Jr. On the evidence put coercive powers conferred upon before him in the High Court, the elements of the force publique. trial judge considered it proper to The factors that may properly treat it as being the dwelling of influence the Court’s approach to Mr. Murphy Jr. also. the matter will not often arise in purely private litigation and 8. In the course of the search the indeed it seems clear that there gardaí found and seized a are few recorded cases where it number of items, including has. Since private parties sterling and euro sums in the normally lack such legally amount of Stg£6,625 and €9,000 coercive powers, a case where in cash. The second named one party seeks to secure an appellant, Mr. Michael Murphy advantage over the other by the Sr., has asserted ownership of a use of means which violate the certain amount of the cash. He rights of that other will, it seems originally claimed that he owned likely, involve considerations of all of the sterling and that he was the criminal law and/or the law of also entitled to €5,000 out of the tort. To deal with these issues in €9,000 on the basis of a loan the context of the instant made by him to his son. At the proceedings would be to engage hearing of this appeal it was in an undesirable level of confirmed that his claim now hypothetical discussion. relates to the sterling only. Mr. Murphy Jr. claims the remainder. Background facts 7. The Murphys are father and son. The High Court proceedings In May, 2009 a number of 9. In July, 2010 the Bureau obtained firearms were found in the an order pursuant to s.2 of the course of a search of a vehicle Act of 1996 in respect of the two driven by Michael Murphy Jr. He sums of cash and some other was subsequently prosecuted items seized or discovered in the and sentenced for firearms course of the investigation. offences. Following his arrest, Section 2 provides for the making investigating gardaí obtained a of an interim order, on an ex warrant pursuant to s.29 of the parte application, where it is Offences against the State Act shown to the satisfaction of the 1939, as amended, which was Courtt tha the property in relied upon as authority for a question constitutes, directly or
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indirectly, the proceeds of crime. order is to deprive the The Bureau then sought an order respondent of his or her rights (if pursuant to s.3 of the Act. In brief any) in the property concerned summary, that section provides and to transfer it to the Minister that where it appears to the for Public Expenditure and Court, on evidence tendered by Reform, or to such other person or on behalf of the Bureau, that as the Court may determine. The the respondent to the application respondent is entitled to oppose is in possession or control of the application, and the order is specified property that not to be made if the court is constitutes, directly or indirectly, satisfied that there is a serious the proceeds of crime, the Court risk of injustice. is to make an order prohibiting the respondent from disposing of 11. Section 16 of the Act makes or otherwise dealing with the provision for the payment of property unless it is shown to the compensation to a property satisfaction of the Court, on owner in respect of loss caused evidence tendered by the by the making of an order under respondent or any other person, the Act, should it be established that the particular property does that the property was not the not constitute the proceeds of proceeds of crime. crime and was not acquired, in whole or in part, with or in 12. Section 8 of the Act renders connection with property that admissible hearsay evidence constitutes the proceeds of given on the question of the crime. This provision has been respondent’s ownership or interpreted as requiring the control of the property, and its Bureau to make out a prima facie connection with criminal activity, case, following whiche th burden by either a member of the Garda of proof shifts to the respondent. Síochána not below the rank of Section 3 includes a proviso that Chief Superintendent or an the Court shall not make the authorised officer of the Bureau. order if it is satisfied that there Section 16A (inserted by s. 12 of would be a serious risk of the Proceeds of Crime injustice. (Amendment) Act 2005) reduces the normal scope of the hearsay 10. An order made under s.3 can, if rule still further by rendering not discharged or varied for admissible without further proof reasons specified in the Act, the contents of specified types of remain in force for a period of documents. seven years at which point the Bureau may seek a disposal order 13. Section 8(2) stipulates that the under s.4. The effect of such an standard of proof required to
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determine any question arising stated that the search warrant under the Act shall be that had been issued by applicable to civil proceedings. Superintendent Con Corrigan to a Detective Garda Denis Cahill. 14. The s.3 application in this case originally came on for hearing 16. As already noted, the trial judge before the late Feeney J. in decided to treat the house in December, 2012 and January, question as being the dwelling of 2013. Due to the untimely death Mr. Murphy Jr. as well as that of of Feeney J. before he delivered his girlfriend. On that basis, and judgment, the matter was heard having regard to the decision in de novo before Birmingham J. in Damache, he considered the March, 2014. His judgment was argument made on behalf of Mr. delivered in November, 2014. Murphy Jr. that the search of the The relevance of these dates lies premises was unlawful and that in the fact that Birmingham J. was the evidence was dealing with the matter in the unconstitutionally obtained. period between the decisions of this Court in Damache (judgment 17. The trial judge distinguished delivered on the 23rd February, Damache on a number of 2012) and Director of Public grounds. Firstly, he pointed to Prosecutions v. J.C. (No. 1) [2017] the fact that the issue in I.R. 417 (judgments delivered on Damache arose in a criminal the 15th April, 2015). prosecution. Here, he was dealing with a Proceeds of Crime 15. The evidence adduced on behalf Act application. This, he of the Bureau came from its chief considered, was of significance officer Detective Chief because such cases were sui Superintendent Corcoran, a generis. He referred to the Detective Garda Gary Sheridan, a analysis of McGuinness J. in financial crime analyst, a social Gilligan v. CAB [1998] 3 IR 185, welfare officer and a Revenue where it was noted that Bureau officer. D/Chief proceedings under the Act were Superintendent Corcoran gave in rem (being concerned with the evidence as to the grounds for his legal status of the property in belief that the property in issue) as opposed to in question constituted directly or personam. indirectly the proceeds of crime. The affidavit of D/Garda Sheridan 18. Secondly, in Damache the described the arrest, detention warrant was issued by a member and questioning of Mr. Murphy of An Garda Síochána team Jr. He also dealt with the follow‐ involved in the investigation that up search of the house and culminated in the criminal trial.
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Here, while the warrant was rights, of recklessness, or issued as part of the garda shortcut taking or even operation following up on the carelessness. That being so, the firearms seizure, the proceedings policy considerations which before the Court were influenced Finlay C.J. in Kenny, do commenced by the Criminal not arise. It does not seem to me Assets Bureau. that the protection of constitutional rights is advanced 19. The trial judge then considered by condemning the activity of the main authorities on the gardaí following a statutory exclusionary rule as the law stood procedure. It follows from what I at that time (People (A.G.) v. have said, that if this was a case O’Brien [1965] I.R. 142 and DPP v. where there was discretion to be Kenny [1990] 2 I.R. 110). He also exercised as to whether to admit examined judgments dealing evidence, that I would exercise with the possible application of the discretion in order to admit the rule outside the area of the evidence.” criminal proceedings (Kennedy v. The Law Society (No. 3) [2002] 2 20. In paragraph 47 it was asked, IR 458; Competition Authority v. rhetorically, whether contraband The Irish Dental Association items such as firearms, drugs or [2005] 3 I.R. 208 and Universal identifiable stolen property City Studios Incorporated v. would have to be returned to the Mulligan [1999] 3 I.R. 407). householder if seized under the Following analysis of those purported authority of a s.29 decisions, he concluded (at warrant. paragraph 45) that none of them disposed of the question 21. Birmingham J. therefore whether the exclusionary rule determined that in the applied with full force and effect circumstances he was not to the sui generis applications precluded from having regard to under the Proceeds of Crime Act, the outcome of the search by and that the issue was therefore virtue of the Supreme Court free from authority. He decision in Damache. He then continued in paragraph 46: went on to follow the steps prescribed by this Court in McK. “In my view the factors that v. G.W.D. [2004] 2 I.R. 470. militate against extending the Having given detailed rule are that the gardaí who consideration to the evidence he carried out the search were was satisfied that the property following a procedure provided represented the proceeds of by statute. This was not a case of crime. On that basis he made the wilful disregard of constitutional order sought by the Criminal
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Assets Bureau, subject to the evidence. Such proceedings reduction of the total amount by would be very much in personam, a figure that he found to have a and he would be entitled to every legitimate source. available protection and vindication of his constitutional The Court of Appeal rights. They are precisely the kind 22. In dismissing the appeal, Peart J. of proceedings from which the (with whom Finlay‐Geoghegan exclusionary rule evolved and and Irvine JJ. agreed) considered developed. They have a context in that Birmingham J. had been which the issue concerns the correct in deciding that the actual deployment of the exclusionary rule had no evidence in a criminal trial as part application in the circumstances. of the prosecution case. The issue The reference in the High Court in such a case is the guilt or judgment to the exercise of a innocence of the person on trial discretion was in fact for the offence. That context is unnecessary. very different to the present case where the status of the piece of 23. The central factor identified as cash itself is the issue in the case leading to this conclusion was the i.e. whether it is the proceeds of in rem nature of the proceedings. crime.” Peart J’s analysis of the exclusionary rule was that it had 24. While it was accepted that the evolved in the context of criminal exclusionary rule had “found its prosecutions, to protect accused voice” in certain types of civil persons in cases where evidence proceedings, such as Universal to be deployed against them had City Studios Incorporated v. been obtained in breach of their Mulligan and Competition constitutional rights. In a key Authority v. Irish Dental passage he said: Association, the point made again was that in those cases the “There is no doubt that if [Mr. material in question was to be Murphy Jr.] was being prosecuted deployed at trial, where it had for the offence of robbery of the the capacity to affect or even two cash items found during the determine the outcome of the search, and that trial was being proceedings between the heard after the Damache plaintiff and defendant. In decision, the exclusionary rule contrast, the cash recovered in would be in play, since [he] would the present case was not sought face the prospect of conviction to be deployed in evidence for and possible imprisonment on the the purposes of determining basis of arguably some claim by the Bureau, but unconstitutionally obtained was rather the very subject or
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object of the proceedings, the securing an arrest warrant” and issue being its provenance and to the decision of this Court in whether or not it represented the DPP v. Cash [2010] 1 IR 609. In proceeds of criminal activity. Cash, Fennelly J. had concluded that there was no onus eupon th 25. Peart J. thus held (at paras 39‐ prosecution to prove the lawful 40): provenance of the material that gave rise to a reasonable “In my view, the manner in which suspicion justifying the arrest the cash items came into the under challenge. physical possession of An Garda 27. While noting the differing Síochána (while also noting as I context, Peart J. concluded (at have done the provisions of s. 1A para 48) that: of the Act of 1996) is not relevant to the particular issue before the “[I]t is of assistance to my own Court on a s. 3 application. The conclusions to see that even in cash itself is not being deployed the context of a criminal trial, the in evidence in any way which scope of the absolute might implicate the exclusionary exclusionary rule is not all‐ rule. That rule simply does not embracing. It is in full flow in apply in an application under s. 3 relation to the deployment of of the Act. Accordingly, it was evidence at the trial of the unnecessary for either the Court accused, and will permit below or this Court to consider unlawfully obtained evidence to whether to exercise the discretion be excluded either absolutely or to admit evidence that was in the exercise of judicial obtained on foot of a search discretion depending on the facts which was illegal, but not in and surrounding circumstances. breach of constitutional rights, as But the reasonable suspicion in the case of the search of 12 required for an arrest may be Clonard Road.” based on evidence which would be inadmissible if offered in 26. The context of the proceedings support of a prima facie case at was compared with that of the trial. It seems to me that if that be pre‐trial investigation of an the position in a criminal offence. Reference was made to prosecution, it applies a fortiori to Heffernan and Ní Raifeartaigh, the situation herein where what Evidence in Criminal Trials (2014, has been obtained on foot of a Bloomsbury) which noted that warrant that can no longer be the rule “is limited to evidence considered to be a lawful warrant adduced at trial as opposed to is not being deployed as evidence information gleaned for a pre‐ at all ‐ but rather is the very trial investigative step such as property itself whose provenance
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is the subject of the s. 3 of the Privy Council in Kuruma v. application. In my view, the R [1955] AC 197. The result would decision in Damache does not be that no matter how profound speak to proceedings under the the illegality established in a Act of 1996, and the exclusionary particular case, there would be rule is simply inapplicable to such no circumstances in which the applications.” evidence would not be received. Describing the litigation as sui 28. It followed from this line of generis does not, it is urged, reasoning that Peart J. provide a logical basis for considered it unnecessary to conducting the proceedings address certain other matters outside the framework of the such as the impact of the decision rules of evidence. of this Court in DPP v. JC [2017] 1.R. 417; the justification by 30. It is submitted that J.C. is Birmingham J. of the non‐ authority for the proposition that exclusion of the cash recovered the vindication of citizens’ rights on the basis that the Gardaí is an integral part of the carrying out the search were administration of justice in every following a statutory procedure; case before the courts and is not the argument there was no the unique preserve of criminal deliberate breach of courts. Reliance is placed on the constitutional rights, or the fact fact that in J.C., O’Donnell J. that at the time the search was located the basis for an carried out s.29 of the Act of 1939 exclusionary rule in the was still operative and enjoyed administration of justice, and the presumption of when so doing, he explicitly constitutionality. included both civil and criminal trials. Submissions in the appeal 29. The appellants submit that the 31. Counsel has referred to the three distinction between proceedings “core” decisions of Mulligan, in rem and in personam provides Dental Association and Kennedy no basis for differing rules of as demonstrating the evidence, since proceedings in applicability of the exclusionary rem may affect the constitutional rule in civil proceedings. The rights of an individual as much as balancing exercise adopted by any in personam action. It is the majority of the Court in J.C., argued that the ultimate logic of may, it is submitted, be carried the reasoning in the Court of out in civil proceedings taken by Appeal judgment is the adoption the force publique in determining of a “stark inclusionary rule”, whether an earlier breach of harking back to the 1955 decision constitutional rights requires
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remedy within those unconstitutional circumstances proceedings. In this case, it is places on the prosecution an argued that no such exercise was obligation to explain the basis on carried out, since neither the which it is said that the evidence Superintendent who had issued should, nonetheless, be admitted the warrant nor the officer who AND ALSO to establish any facts carried out the search had sworn necessary to justify such a basis. an affidavit for the purpose of these proceedings. (iii) Any facts relied on by the prosecution to establish any of 32. The test established in J.C. is set the matters referred to at (ii) out in the judgment of Clarke J. must be established beyond (at para. 871) as follows:‐ reasonable doubt.
(i) The onus rests on the (iv) Where evidence is taken in prosecution to establish the deliberate and conscious admissibility of all evidence. The violation of constitutional rights test which follows is concerned then the evidence should be with objections to the excluded save in those admissibility of evidence where exceptional circumstances the objection relates solely to the considered in the existing circumstances in which the jurisprudence. In this context evidence was gathered and does deliberate and conscious refers not concern the integrity or to knowledge of the probative value of the evidence unconstitutionality of the taking concerned. of the relevant evidence rather (ii) Where objection is taken to the than applying to the acts admissibility of evidence on the concerned. The assessment as to grounds that it was taken in whether evidence was taken in circumstances of deliberate and conscious unconstitutionality, the onus violation of constitutional rights remains on the prosecution to requires an analysis of the establish either:‐ conduct or state of mind not only of the individual who actually gathered the evidence concerned (a) that the evidence was not but also any other senior official gathered in circumstances of or officials within the unconstitutionality; or investigating or enforcement (b) that, if it was, it remains authority concerned who is appropriate for the Court to involved either in that decision or nonetheless admit the evidence. in decisions of that type generally The onus in seeking to justify the or in putting in place policies admission of evidence taken in
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concerning evidence gathering of right of the State to prosecute the type concerned. crimes is not in issue.
(v) Where evidence is taken in 34. Mr. Murphy Sr. is not in a position circumstances of to claim that any constitutional unconstitutionality but where the right of his was breached by the prosecution establishes that search, since the house was not same was not conscious and his dwelling. However it is argued deliberate in the sense previously on his behalf that the principles appearing, then a presumption sought to be upheld by the Court against the admission of the in J.C. ‐ the proper administration relevant evidence arises. Such of justice, the rule of law and the evidence should be admitted public interest in ensuring that where the prosecution the gardaí do not act outside establishes that the evidence was their powers ‐ are relevant in all obtained in circumstances where cases. It is also submitted that any breach of rights was due to the principles relating to illegally inadvertence or derives from obtained evidence, discussed by subsequent legal developments. Kingsmill Moore J. in O’Brien, are applicable and that the trial judge (vi) Evidence which is obtained or should therefore have exercised gathered in circumstances where his discretion in accordance with same could not have been those principles. constitutionally obtained or gathered should not be admitted 35. The appellants seek to have the even if those involved in the matter remitted to the High relevant evidence gathering were Court for consideration in light of unaware due to inadvertence of the test supported by the the absence of authority. majority in J.C., modified to reflect the lower standard of 33. Counsel submits that the proof applicable in these considerations set out in proceedings. paragraphs (i), (iv), (v) and (vi) can be applied without 36. On behalf of the Bureau, counsel modification to Proceeds of maintains the argument that the Crime Act cases. Paragraphs (ii) exclusionary rule has no and (iii) require modification to application to proceedings under the extent of clarifying that the the Proceeds of Crime Act 1996, standard of proof is the balance which are civil, in rem and sui of probabilities, while it must be generis. While it is conceded that noted in respect of paragraph (ii) the exclusionary rule has been (b) that different considerations applied in certain civil arise in this type of litigation. The proceedings, (although counsel
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does not accept that this is stressing that the cash was the “settled” law) it is submitted, in subject‐matter of the line with the decision of the Court proceedings, and was not of Appeal, that those cases are evidence sought to be adduced clearly distinguishable as the as proof of any disputed factual material in question was to be matter. However, in my view that deployed at trial and had the cannot bee th end of the debate. capacity to affect or determine The real question is whether the the outcome of the proceedings. fact that the cash was seized on foot of an invalid warrant has any 37. The exclusionary rule, it is consequences in the litigation submitted, is designed to exclude between these parties. evidence, and the cash in this Consideration of that question case is not evidence. Counsel requires, firstly, an examination takes what he expressly accepts of the rationale underlying the is an “absolutist” position and exclusionary rule. It is also maintains that it does not matter, necessary to look at decisions of for the purposes of proceedings this Court concerning the impact brought by the Bureau under the upon litigation, other than Act, how the property was criminal trials, of a breach of an obtained. In this case it was taken individual’s rights by an agent of in the course of a garda the State ‐ this includes an investigation, in which the examination of the classification Bureau had no role. of Proceeds of Crime Act cases as in rem. The purpose here is not to 38. In relation to the argument put reconsider the formulation of the forward on behalf of Mr. Murphy test for the exclusion of Sr., it is submitted that even if improperly obtained evidence, this Court finds that, following but to discern the principles the decision in Damache, the trial underlying the existence of such judge did have a discretion to a rule and the extent to which exclude the evidence on the basis those principles have been found of an illegality, no basis had been to be applicable in the established for such an exclusion administration of justice. in his case. The exclusionary rule in criminal trials. Discussion 39. As I said earlier, describing the 40. The development of the legal issue under consideration as the principles according to which applicability of the exclusionary evidence obtained in breach of rule may not have been helpful. constitutional rights may be held The Court of Appeal was correct, to be inadmissible begins with as is counsel for the Bureau, in the judgments of this Court in
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People (Attorney General) v absence of any Irish authority, he O’Brien [1965] I.R. 142. This went on to consider the leading marked the rejection in this decisions from England, Scotland jurisdiction of the proposition, and the United States. He noted affirmed by the Privy Council in that in Kuruma v. R. the Privy Kuruma v R. and accepted in the Council had said that in a criminal Court of Criminal Appeal in case the trial judge had a O’Brien, that relevant evidence discretion to disallow evidence if that was otherwise admissible the strict rules of admissibility could be received by a court no would operate unfairly against matter how it had been obtained. the accused (such as where an That was the rule contended for admission had been obtained by by the Attorney General, means of an unfair trick). He also although it is made clear in the considered the different report that counsel was expressly directions taken by the Scottish instructed to concede that courts and the then current US evidence obtained as a result of authorities, including Weeks v gross personal violence or by United States 232. U.S 383 methods which offended against (1914), Mapp v. Ohio 367 U.S. the essential dignity of the 643 (1961) and Olmstead v. human person could not be United States 277 U.S. 438 admitted. Having noted this fact (1928). Kingsmill Moore J. in his judgment Kingsmill Moore concluded that there were three J. observed (at p.150): possible answers to the question whether illegally obtained “To countenance the use of evidence should be admissible. evidence extracted or discovered Two he rejected as not being by gross personal violence would, sustainable ‐ the admission of all in my opinion, involve the State in relevant evidence without regard moral defilement.” to its provenance, and the 41. At a later point he stated, with exclusion of all evidence reference to Article 40.3.1. and obtained as a result of illegal 40.3.2, that the Attorney action. He went on (at p.160 of General’s concession was the report): entirely consistent with “the spirit of our Constitution”. “Some intermediate solution 42. On the other hand, Kingsmill must be found. As pointed out by Moore J. considered that the the Lord Justice‐General in Lawrie proposition advanced on behalf v. Muir and by Holmes J. in of the appellant ‐ that any Olmstead’s Case a choice has to illegality, however slight, would be made between desirable ends render evidence inadmissible ‐ to which may be incompatible. It is be “clearly too wide”. In the desirable in the public interest
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that crime should be detected of an accused person should be and punished. It is desirable that excluded save where there were individuals should not be “extraordinary excusing subjected to illegal or inquisitorial circumstances”. However he methods of investigation and preferred not to enumerate the that the State should not attempt latter, considering, again, that it to advance its ends by utilising should be left to the discretion of the fruits of such methods.” trial judges.
43. Kingsmill Moore J. considered 46. Lavery and Budd JJ. agreed with that the best answer was to leave Kingsmill Moore J. a discretion to trial judges to determine whether, in the light 47. Walsh J. (with whom O’Dalaigh of all of the circumstances of a C.J. agreed) saw evidence case, obtained by a breach of a constitutional right as being in an “the public interest is best served entirely different category to by the admission or by the evidence that was obtained by exclusion of evidence of facts what might be described as ascertained as a result of, and by “mere” illegality. Dealing with the means of, illegal actions”. latter he expressed scepticism (at p. 167) in relation to the Scottish 44. He also expressed some doubt view that the courts must strive about the suggested exclusion of to reconcile the interests of the evidence obtained by a trick. citizen and the State. Apart from “I am disposed to lay emphasis the issue of a wrongly induced not so much on alleged confession, to which different unfairness to the accused as on considerations applied, his view the public interest that the law was that the rules of evidence should be observed even in the were not to be used as weapons investigation of crime. The nature to deter police illegalities. of the crime which is being investigated may also have to be “Every judge in our Courts is taken into account.” bound to uphold the laws and while he cannot condone or even 45. Commenting specifically on the ignore illegalities which come to judgment of Walsh J. in the same his notice, his first duty is to case, Kingsmill Moore J. said that determine the issue before him in he agreed that evidence accordance with law and not to obtained as a result of a be diverted from it or permit it to deliberate and conscious be wrongly decided for the sake violation of the constitutional (as of frustrating a police illegality, or opposed to common law) rights drawing public attention to it.”
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as a result of a deliberate and 48. The remedies for illegal police conscious violation of the actions lay in the criminal law and constitutional rights of the the law of tort. It was also accused person where no possible for the trial judge to extraordinary excusing draw public attention to the circumstances exist…” illegality. Therefore, in his view, evidence obtained illegally 49. The question in O’Brien was the should not for that reason alone admissibility of evidence in a be excluded. However, his criminal trial, and the judgments approach to evidence obtained in therefore focus solely on that violation of constitutional rights ‐ issue. It seems fair to say that the in the case before the Court, the approach of the majority left it to inviolability of the dwelling ‐ trial judges to balance, in the imposed a different standard. public interest, the competing The reason is encapsulated in the claims of the State and the following passage: individual where the former had breached the rights of the latter “The vindication and the by any form of illegality including protection of constitutional rights the breach of constitutional is a fundamental matter for all rights, with perhaps a Courts established under the presumption in favour of Constitution. That duty cannot exclusion in the latter case. yield place to any other Walsh J. considered that the competing interest. In Article 40 constitutional obligation of the of the Constitution, the State has courts to vindicate personal undertaken to defend and rights must take priority, vindicate the inviolability of the requiring the exclusion of dwelling of every citizen. The evidence obtained by a defence and vindication of the deliberate and conscious breach constitutional rights of the citizen of constitutional rights save in is a duty superior to that of trying extraordinary excusing such citizen for a criminal circumstances, but that the offence. The Courts in exercising courts had no business excluding the judicial powers of merely illegally obtained government of the State must evidence unless it became recognise the paramount apparent that this was necessary position of constitutional rights to secure police compliance with and must uphold the objection of the law. an accused person to the admissibility at his trial of 50. The issue of the admissibility of evidence obtained or procured by evidence obtained on foot of an the State or its servants or agents invalid search warrant did not
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come before the Supreme Court that adopted by the majority in again until 1990, in the case of O’Brien but not as absolute as the The People (DPP) v Kenny [1990] rule laid down in Kenny. 2 I.R. 110. The result of that case ‐ the establishment of what was 52. O’Donnell J. noted that although later described as an absolute (or no cases concerning search near absolute) exclusionary rule ‐ warrants had reached the was overruled in J.C. My purpose Supreme Court between O’Brien in referring to it here is simply to and Kenny there had been a record the basis for the view of number of cases relating to the majority in Kenny that an statements of admission made in absolute rule was necessary. In unlawful detention ‐ People essence, the reason was that the (DPP) v Madden [1977] I.R. 336, obligation of the courts under People (DPP) v O’Loughlin [1979] Article 40.3.1 of the Constitution, I.R. 85 and People (DPP) v Healy to defend and vindicate the [1990] 2 I.R. 73. In each of these personal rights of individuals as cases it was held that evidence far as practicable, required such a obtained as the result of the rule in order to dissuade police unlawful actions should be officers from invading excluded. constitutional rights and to encourage those in authority to 53. In Madden, the Court of Criminal consider in detail the personal Appeal had ruled that, on the rights of citizens as set out in the evidence, the gardaí had Constitution. The view, deliberately continued to detain therefore, was that the the accused past the expiration vindication of constitutional of the statutory period rights required a strongly permitted, without regard to his deterrent rule. right to liberty guaranteed by Article 40. Giving the judgment of 51. In J.C. this Court overturned the the Court O’Higgins C.J. said: decision in DPP v Kenny, finding that it had implicitly (and “This lack of regard for, and wrongly) overturned O’Brien and failure to vindicate, the had erred in imposing an defendant’s constitutional right absolute rule. However, the to liberty may not have induced approach of the Court in O’Brien or brought about the making of was not considered satisfactory this statement, but it was the by the majority for the reasons dominating circumstance set out in their judgments. A new surrounding its making. In the formulation of the test for the view of this Court this fact cannot exclusion of evidence was be ignored. This Court notes with established, more stringent than approval the views of Carroll C.J.
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in Youman v. Commonwealth uphold the integrity of the [189 Ky. 152] (which is cited in the administration of justice (and judgment of Kingsmill Moore J. in therefore the necessity for courts The People (Attorney General) v . to demonstrate respect for O’Brien) when, in relation to constitutional rights) and the evidence obtained as a result of a high constitutional value of search in violation of the law, he vindication of individual rights. said at p.158 of the report:‐ 55. In O’Loughlin, the accused had ‘It seems to us that a practice like been informally (and therefore this would do infinitely more unlawfully) detained and harm than good in the questioned by gardaí in relation administration of justice; that it to an offence past the point at would surely create in the minds which he should have been of the people the belief that charged in relation to a different Courts had no respect for the matter and brought before a Constitution or laws, when court. In the appeal against respect interfered with the ends conviction, the Court of Criminal desired to be accomplished. We Appeal described the practice of cannot give our approval to a “holding for questioning” as “an practice like this. It is much better open defiance of Article 40, s.4, that a guilty individual should sub‐s. 1, of the Constitution”. On escape punishment than that a the facts, the Court could find no Court of justice should put aside a circumstances that excused what vital fundamental principle of the had happened. law in order to secure his conviction. In the exercise of their “It would ill serve respect for the great powers, Courts have no Constitution and the laws if this higher duty to perform than Court, by allowing evidence so those involving the protection of obtained, were to indicate to the citizen in the civil rights citizens generally that the guaranteed to him by the obligation on the State to Constitution, and if at any time safeguard and vindicate the protection of these rights constitutional rights could be should delay, or even defeat, the dispensed with or eased in the ends of justice in the particular circumstances of a criminal case, it is better for the public investigation.” good that this should happen than that a great constitutional 56. Again, the judgment stresses the mandate should be nullified.’" need for the judiciary to uphold respect for the Constitution by 54. This passage, it seems to me, ensuring that the State respects evokes both the necessity to
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the constitutional rights of s.29 warrant) there was no garda individuals. misconduct to be deterred. Dealing with the submission that 57. Healy was a decision of this Court an absolute rule was required by on an appeal by the Director of the constitutional obligation to Public Prosecutions against a respect and vindicate the directed acquittal. The issue in constitutional rights of the the case was the admissibility of citizen, he pointed out that the a statement of admission, in issue in the case was the circumstances where the admission of evidence; that the accused’s solicitor had called to Constitution did not address the the garda station and had been question of admissibility and that refused access to his client. The the admission of evidence could Court unanimously held that the not in itself amount to a breach trial judge had been right to of the inviolability of the exclude the statement, with a dwelling. At paragraph 452 he majority holding that the right of said: access to a solicitor was constitutionally protected. “Perhaps the most fundamental objection to this line of argument 58. In J.C. O’Donnell J., although his is that it assumes that the concern at this point in his question in issue is only the judgment was to trace the vindication of the citizen's right of evolution of the interpretation of inviolability of the dwelling home, the “deliberate and conscious” or other property, save in test, remarked that these accordance with law. In an action decisions were “plainly correct”, for an injunction restraining and were trespass ex ante or seeking damages ex post that might “examples of the courts indeed be the only question. Even performing the function in then, as discussed above, there is ensuring that constitutional no absolute rule. But the rights are respected, upheld and admission of evidence in a vindicated.” criminal trial occurs in a quite different context. The central 59. In rejecting the analysis of the issue there is not the question of Court in Kenny, O’Donnell J. took breach of the rights of the issue with inter alia its rationale householder, but rather the for adopting an absolute rule. performance of the constitutional The Court had relied upon the obligation of the administration necessity to deter misconduct, of justice. That involves a but in a case such as J.C. determination of the guilt or (involving a search on foot of a innocence of an individual…The
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administration of justice under admissibility of evidence is not the Constitution, its truth‐finding engaged in the question of function and its requirement of remedying a breach of the right, the availability of all relevant as a court asked to grant an evidence, is a factor weighing in injunction to restrain a trespass favour of admission of evidence. might be. A criminal or civil trial is Of course, there comes a point the administration of justice. A when the administration of central function of the justice may itself require that administration of justice is fact relevant evidence be excluded, finding, and truth finding. for examplee where th evidence Anything that detracts from the was obtained in circumstances courts' capacity to find out what offensive to the concept of justice occurred in fact, detracts from itself. This would itself be the truth finding function of the offensive to the administration of administration of the justice. As justice which is the fundamental many courts have recognised, obligation of a court. However, where cogent and compelling that calculation involves a evidence of guilt is found but not balance rather than an absolute admitted on the basis of trivial rule.” technical breach, the administration of justice, far from 60. O’Donnell J. returned to this being served, may be brought theme (at para.488) in into disrepute. The question is at addressing, at the level of what point does the trial fall short principle, the question whether of a trial in due course of law the Constitution required an because of the manner in which absolute rule. evidence has been obtained? When does the admission of that “It is of course the case that the evidence itself bring the Constitution does not require the administration of justice into exclusion of evidence in express disrepute? This analysis leads terms, and indeed says nothing inevitably to a more nuanced about the admission of evidence. position which would admit As is often the case, it is evidence by reason of a technical important therefore to identify and excusable breach, but would the correct question to be posed. exclude it where it was obtained If this issue is addressed solely in as a result of a deliberate breach terms of the vindications of a of the Constitution.” right breached, then it is a short step to the exclusion of evidence. 61. Clarke J. analysed the issue in But in my view that is the wrong terms of the competing interests question. A court, whether at stake. On the one hand was criminal or civil, addressing the the principle that society and the
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victims of crime were entitled to test, Clarke J. went on to note have an assessment carried out that while the focus of the debate at a criminal trial of the had been on unconstitutionally culpability of an accused based obtained evidence, there was on proper consideration of all also an obligation on the courts material evidence where that to discourage illegality. He evidence was not more considered that evidence should prejudicial than probative. This be excluded if it was obtained was to be seen as a high illegally (albeit not in breach of a constitutional value. At para.827 constitutional right) in he continued: circumstances properly described as reckless or grossly “However, on the other hand, negligent. there is also a significant constitutional value to be 63. The final judgment for the attached to the need to ensure majority was that of that investigative and MacMenamin J. In agreeing with enforcement agencies (including O’Donnell and Clarke JJ. that the An Garda Síochána) operate judgment in Kenny was wrong, properly within the law. Why do he noted that the decision in that we have elaborate laws case was designed to promote concerning arrest, the power to good garda conduct and deter enter premises, questioning and misconduct. Where the facts other means of what might be were as they were in J.C., he described as non‐voluntary questioned whether the evidence gathering? We do so application of the absolute rule because there is a significant furthered either of these ends, constitutional value in ensuring and whether it correctly that there are clear rules which balanced the constitutional mark the limits of the powers of interests involved. He stressed investigation and enforcement that he and the other members agencies in evidence gathering. of the Court in the majority were Those limits are there to protect not rejecting the importance of us all. There is a high the protection of a suspect, but constitutional value in ensuring were seeking to identify “a that those limits are maintained. harmonious process, giving due It follows that there should be recognition to the rights of consequences, and indeed protection, the duty of significant consequences, where deterrence, and the those rules are broken.” considerations of public policy, and the rights of all citizens.” 62. Having dealt with the formulation of the appropriate
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64. At paragraph 944 he described taken after that arrest. The the deterrence principle as both prosecution proposed to prove a private and a public good the match between the crime precept, and went on: scene prints and those taken when the accused was arrested “It deters individual misconduct for the offence. The defence by protecting the suspect. It cross‐examined as to the basis of maintains a public good in a the arrest, and it was conceded police force that operates under by the prosecution witnesses the rule of law. The rule, as at that they could not prove that present formulated, vests in the the prints in the Garda Technical suspect constitutional rights Bureau had been lawfully taken under Article 40.3.1 of the or retained in accordance with Constitution. The intent in such the relevant statutory provisions. exclusion of evidence, unconstitutionally obtained, is to 66. In a judgment agreed with by a deter misconduct. But Article majority of the Court Fennelly J. 40.3, seen across its entirety, said (at paragraph 64) that the does not ignore the rights of the exclusionary rule laid down in citizen, or the public interest, or Kenny applied, in its own terms, the common good…The duty of a only to the exclusion of evidence court, in all constitutional proffered at a criminal trial. He questions, is not to isolate, or noted the repeated use of the focus on one constitutional words “exclusion” (or its consideration, but rather to cognates) and “evidence”. arrive at an appropriate balance However, he considered it more between the relevant rights and to the point that Finlay C.J. had duties.” been referring to “evidence obtained as a result of the 65. Director of Public Prosecutions v. invasion of the personal rights of Cash [2010] 1 IR 609 was a case a citizen” or which “results from stated in which the defence unconstitutional conduct” sought to extend the range of (emphasis added by Fennelly J.). application of the rule in Kenny. The case had not been concerned The facts, in brief, were that with the lawful provenance of fingerprints found at the scene of evidence used to ground a a break‐in were matched to suspicion, and the Chief Justice’s prints, known to be those of the judgment did not advert to the accused, held at the Garda possibility that the principle Technical Bureau. That formed propounded could apply to such the basis for the suspicion an issue. Fennelly J. said in this grounding the arrest of the regard: accused. His prints were again
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“The object of the rule is to they no longer had the applicant provide positive encouragement in their custody, having handed to state authorities, when him over to officers of the gathering evidence, to consider in London Metropolitan Police who detail the constitutional rights of had been present in the vicinity persons affected by the exercise of the courts with an extradition of their ‘powers of arrest, warrant. Two members of the detention, search and Divisional Court who heard the questioning…’”. case thought that to be a sufficient return. Davitt P. 67. Fennelly J. went on to approve dissented, taking the view that the reasoning of the trial judge the Constitution obliged the (Charleton J.) who had examined Court to conduct an enquiry into in detail the authorities on the a complaint of unlawful meaning of and criteria for detention, and further obliged it, assessing the concept of in the case of injustice done, to “suspicion” and had concluded vindicate the applicant’s that the rules of evidence had no constitutional rightt no to be place in that assessment. It was deprived of liberty save in well established that a accordance with law. At p. 89 of reasonable suspicion, capable of the report he referred to the properly grounding an personal rights guaranteed by investigative step, did not have to Article 40 and said: be based on admissible evidence. “These guarantees are given on Decisions in non‐criminal cases behalf of the State and apply to 68. A few months before its decision all its organs. They apply not in O’Brien the Supreme Court had merely to the Legislature but also delivered judgment in State to the Executive and the (Quinn) v Ryan [1965] I.R. 70. Judiciary. Not merely are the That case was not concerned appropriate laws as enacted to with evidence at all, but with the comply with the requirements of fact that a person who had just these guarantees, but they are, been freed from garda custody so far as their nature permits, to by order of the High Court had be interpreted by the Courts and been immediately removed from administered and enforced by the the Four Courts by gardaí acting Executive with a similar regard to on foot of a plan to take him out the requirements of the of the jurisdiction with no constitutional guarantees.” opportunity for legal challenge. In a subsequent enquiry under 69. This Court took a similar Article 40.4 the return submitted approach to that of Davitt P. It on behalf of the gardaí was that held, firstly, that the legislation
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relied upon by the gardaí (the also an enquiry pursuant to “backing of warrants” provisions Article 40.4 of the Constitution, in the Petty Sessions (Ireland) Act this time into the lawfulness of 1851) was repugnant to the the detention of an Australian Constitution precisely because it national who was wanted in permitted the course of action Australia on very serious charges. that had been taken. Secondly, Egan J. found that the purported the gardaí had acted in disregard suspicion upon which the of the applicant’s constitutional applicant’s arrest had been rights, and could not be allowed grounded was not genuine, but to escape responsibility because was intended to keep him in they had succeeded in custody pending the finalising of preventing him from getting extradition arrangements with relief from the courts. O’Dalaigh Australia. Having referred to C.J. stated (at p.122) that: O’Brien and Quinn, he specifically “[i]t was not the intention of the held that the principle of O’Brien Constitution in guaranteeing the was not solely confined to the fundamental rights of the citizen admission of evidence in a that these rights should be set at criminal case. nought or circumvented. The intention twas tha rights of “Courts have no higher duty to substance were being assured to perform than that involving the the individual and that the Courts protection of constitutional rights were the custodians of these and if at any time the protection rights. As a necessary corollary it of these rights should delay, or follows that no one can with even defeat the ends of justice in impunity set these rights at the particular case, it is better for nought or circumvent them, and the public good that this should that the Courts’ powers in this happen rather than that regard are as ample as the constitutional rights should be defence of the Constitution nullified.” requires.” 72. The detention of the applicant 70. On the facts of the case no relief was tainted by the gross abuse of could be afforded to Mr. Quinn, the power of arrest, which since he was no longer in the amounted to a deliberate and jurisdiction. However the Court conscious violation of his found both the gardaí and the constitutional right to liberty and English police officers guilty of accordingly his release was contempt of court. ordered.
71. The State (Trimbole) v Governor 73. This approach was upheld on of Mountjoy [1985] I.R. 580 was appeal. Finlay C.J. (with whom
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Henchy, Griffin and Hederman JJ. 74. McCarthy J. also referred to agreed) deduced the following Quinn and to the passage from principles from the authorities: the judgment of Davitt P. in the High Court (quoted above) in “The Courts have not only an relation to the rights guaranteed inherent jurisdiction but a by Article 40. He went on: positive duty: (i) to protect “If, then, the Executive itself persons against the invasion of abuses the process of law as in their constitutional rights;(ii) if this case by the wrongful use of invasion has occurred, to restore s.30 of the Offences Against the as far as possible the person so State Act, 1939, and, for what it is damaged to the position in which worth, persists in that abuse by he would be if his rights had not giving false evidence in the been invaded; and (iii) to ensure course of the constitutional as far as possible that persons enquiry, are the courts to turn acting on behalf of the Executive aside and, apart from who consciously and deliberately administering severe strictures to violate the constitutional right of those concerned, appear to citizens do not for themselves or sanction the procedure that has their superiors obtain the been adopted to secure the planned results of that invasion. extradition of an individual to the Notwithstanding the fact, requesting State?” therefore, that of the four cases to which I have referred, three 75. It had been argued on behalf of [People (Attorney General) v. the respondent that, on the facts O’Brien, People v. Madden and of the case, the order for the People v. Lynch] are concerned applicant’s extradition was not with the admissibility of evidence the “fruit” of the wrongful arrest in criminal trials and the fourth (because the original illegality [State (Quinn) v. Ryan] was had been superseded by valid concerned ewith th punishment orders of detention made by the of persons acting in breach of the District Court) and that therefore Constitution where neither the authorities relating to the protection nor reparation to the admission into evidence of the party injured was practical, I am “fruits” of improper conduct on satisfied that this principle of our the part of the Gardaí did not law is of wider application than apply. Finlay C.J. rejected this merely to either the question of submission. admissibility of evidence or to the “If the challenge to the legality of question of the punishment of the prosecutor’s detention had persons for contempt of court by been based on a want of unconstitutional action.” jurisdiction in the District Court, or if the successful challenge to
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the original arrest had been one responsibility that lies upon the of form creating an illegality but Judiciary to ensure t tha not constituting either a constitutional rights are not conscious and deliberate flouted with impunity. The violation of his constitutional release upon what may appear to rights or the abuse of a process of have been a technical ground of the court, then in those instances, an individual "wanted" on serious undoubtedly…the orders of the charges may seem, at first sight, District Court, having been made undesirable and, indeed, contrary within jurisdiction, would justify to public policy; it may seem the ndetentio of the prosecutor highly contrary to public policy irrespective of the method by that elaborate arrangements for which he had been brought extradition should be set at before that court. I have no nought by what may be termed doubt, however, that different an excess of zeal. In my judgment, considerations apply to a however, a far greater principle is challenge arising from the at stake: that part of the discretion at common law to Executive represented by the prevent abuse of the processes of Garda authorities and those the court and the duty under the others responsible for what I have Constitution to vindicate the termed the plan to extradite the constitutional rights of the prosecutor must not be permitted prosecutor.” to think that conduct of this kind will at worst result in a judicial 76. McCarthy J. agreed with the State rebuke, however severe. It will that the cases cited were, largely, result in the immediate concerned with the “fruits” of enforcement, without unlawful actions but considered qualification, of the that the argument made in this constitutional rights of the respect overlooked the individual concerned whatever philosophy, concerning the the consequences may be. If the deliberate violation of consequences are such as to constitutional rights that enable a fugitive to escape justice underlay the authorities. In his then such consequences are not concluding remarks he referred of the courts' creation; they stem to the declaration required of from the police illegality.” judges under the Constitution, noting that no equivalent was 77. Some aspects of these judgments required of any office holder in require comment. It is worth the State other than the pointing out that in this pre‐ President. Kenny case the concept of “This circumstance emphasises, if deliberate and conscious emphasis were needed, the high violation of rights was linked by
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Finlay C.J. to “the planned 79. Trimbole was distinguished in results” of the breach. Secondly, Lynch v Attorney General [2003] the second of the two principles 3 IR 416. In that case, the stated in the first of the appellant was wanted in the paragraphs quoted here from United Kingdom on assault Finlay C.J.’s judgment has not, as charges. He was also suspected in a matter of fact, been applied this jurisdiction of involvement in literally in the subsequent offences relating to stolen jurisprudence. It is clear that the cheques. In the extradition Irish courts never adopted the proceedings it was established in “fruit of the poisoned tree” evidence that he had been told doctrine to its full extent. The by a garda officer that, if he decision in Cash demonstrates provided information relating to this. The taking of a coercive step, the cheques, the warrant for his such as an arrest or a search, for extradition would not be the purposes of finding executed. He argued, in reliance admissible evidence, requires a upon Trimbole, that his state of mind that must be based constitutional rights had been on reasonable grounds. breached. Although this Court However, this is a question of condemned the behaviour of the rationality and logic, and does garda, it held unanimously that not require the investigator to Trimbole was not relevant. put out of his or her mind Denham J. said: material that may not be admissible in court. Finally, it “In this case, whereas the court must be stressed that Finlay C.J. has an inherent jurisdiction and a said that an unlawful arrest, even duty to protect persons against if found to be conscious and the invasion of their deliberate, did not necessarily constitutional rights, there has confer on the person concerned been no constitutional right any immunity from proper identified which has been enforcement of due processes of invaded. Counsel for the law after his necessary release applicant submitted that there from unlawful custody. was a right not to be put under duress by agents of the State, 78. For present purposes, the that the applicant had a right not relevance of the judgments lies in to have his freedom of decision the clear pronouncement that oppressed, his right to silence had the principles according to which been infringed, his right to speak evidence might be excluded in out voluntarily and not under criminal trials were not confined compulsion was in issue and that to that context. these rights related to a right to privacy. However, I am not
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satisfied that a constitutional the rule of law is to be right has been identified in this maintained. But the relief case, nor that there has been a granted in that case was granted breach of a constitutional right of on the basis that the applicant’s the applicant. In addition, The availability for the execution of State (Trimbole) v. The Governor the extradition warrant was the of Mountjoy Prison [1985] I.R. direct consequence of the false 550 may be distinguished as in arrest. It is quite clear that no that case the applicant was relief would have been granted in released because the State had the absence of that causal achieved a result which was relationship.” tainted. In this case the State received no result, tainted or 82. Referring to the observations in otherwise.” the Supreme Court in Trimbole to the effect that its ruling did not 80. In her concluding remarks on this mean that Mr. Trimbole was aspect, Denham J. said that the immune from further conduct of the garda had not proceedings, Hardiman J. said: been such as to nullify the “The underlyingr reason fo that proceedings or to justify the position is as follows. The courts intervention of the courts to stop do not exercise a general the extradition process. disciplinary power over the “That is not, of course, to executive, or the gardaí in determine that there may not be particular. That power is vested circumstances where conduct elsewhere. The role of the courts would be such as to nullify is invoked when, in the course of proceedings. That is not to say properly constituted proceedings, that if there has been a complaint is made that some unconscionable behaviour on the step or thing adverse to an part of a member of a state individual has been taken, or agency that it would not be such come into being, on the basis of circumstances as to stop an illegality or an proceedings. However that is not unconstitutional act on the part the situation in this case.” of his opponents. If this has occurred, the courts will not 81. Hardiman J agreed. Referring to normally permit the opponent to the passage quoted above from have the benefit of what flows the judgment of McCarthy J. in from an unconstitutional act, in Trimbole, he said: the interests of upholding the “No‐one could doubt the Constitution itself. But it will not principles thus eloquently interfere with a procedure, expounded by McCarthy J. otherwise proper, on the basis of Adherence to them is necessary if
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disapproval of some step taken in it could not be proved that it was its general context.” in compliance with the terms of the warrant. However, she 83. However, Hardiman J. added that accepted the evidence of the these comments were posited on garda that he had been in the assumption that the gardaí possession of the warrant and were under effective discipline had acted in good faith. As no and control at the hands of their constitutional right was violated, authorities. If for any reason it she exercised her discretion to were to be demonstrated that admit the evidence. this assumption was unrealistic, and that the authorities were 85. It may be remarked that this is a conniving at or ignoring such straightforward example of the conduct, the situation would be exercise of the discretion to transformed and it would be admit illegally obtained evidence. necessary to recall the words of There is nothing in the evidence O’Dalaigh C.J. in The State to indicate that the discretion (Quinn) v Ryan. should have been exercised in any other way. 84. Universal City Studios v. Mulligan (No.1) appears to be the only 86. Simple Imports v Revenue example in the authorities cited Commissioners [2000] 2 I.R. 243 to the Court of purely civil concerned the seizure of certain litigation. However, even in that material alleged by the Revenue context the issue that is of Commissioners to be indecent or relevance here arose from the obscene. The material had been exercise of garda powers. In an taken from the company’s action for copyright premises on foot of warrants infringement, the plaintiffs relied issued under the Customs in part on evidence relating to a (Consolidation) Act 1876 and the number of videos seized by a Customs and Excise garda in the course of a search of (Miscellaneous Provisions) Act a car in a public place. The 1988, authorising a search for evidence of the garda was that he prohibited goods of a specified had acted on foot of a duly issued nature. In judicial review warrant, but the warrant had proceedings the company subsequently been lost and could succeeded in obtaining a not be produced in evidence. A declaration that the warrants challenge having been taken to were void and of no legal effect the legality of the search, Laffoy (for reasons that are not of J. determined the issue on the concern here), and an order for basis that it should be presumed the return of the property. that the search was illegal, since
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87. It is particularly relevant to note, 89. He referred to the famous case of for the purposes of the instant Entick v Carrington [1765] 2 Wils. case, that the judicial review 275, where Lord Camden C.J. had proceedings were not taken in a said: context of a criminal prosecution, “[O]ur law holds the property of and that the order for return of every man so tsacred, tha no man the property was expressly made can set his foot upon his in the light of that fact, precisely neighbour’s close without his because the issue of admissibility leave; if he does he is a would not be determined in a trespasser, though he does no criminal trial. It is clear that, if the damage at all; if he will tread case were otherwise, the trial upon his neighbour’s ground, he would have been the proper must justify it by law…” forum for deciding the matter. 90. In Kennedy v. The Law Society the 88. Discussing the nature of the Law Society had appointed an power of search and seizure investigatory accountant to Keane J. said (at p.250): examine the applicant’s practice records. The Society had a “Search warrants, such as those statutory power to investigate issued in the present case, entitle the accuracy of a solicitor’s police and other officers to enter accounts, but in appointing the the dwelling house or other accountant it was also pursuing a property of a citizen, carry out “hidden agenda” of looking for searches and (in the present case) evidence of spurious personal remove material which they find injury claims. One of the findings on the premises and, in the in the case was that the Law course of so doing, use such force Society had gone to the lengths as is necessary to gain admission of deceit to conceal this latter and carry out the search and purpose, which it had no legal seizure authorised by the power to pursue. An order was warrant. These are powers which made in the proceedings the police and other authorities quashing the accountant’s must enjoy in defined appointment. circumstances for the protection of society, but since they 91. The judgment of Fennelly J. in authorise the forcible invasion of Kennedy v. Law Society (No.3) a person’s property, the courts [2002] 2 IR 458, delivered on the must always be concerned to 20th December, 2001, is ensure that the conditions concerned with the imposed by the legislature before consequences of that outcome, such powers can be validly in circumstances where the exercised are strictly met.” accountant’s report had been
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used as the basis for an extremely limited. They do not, in investigation by the my estimation, arise here. The Compensation Fund Committee excess of statutory powers was and a referral to the High Court. not a trivial one, but it occurred in It was argued on behalf of the the course of the conduct by the solicitor, in reliance on DPP v. governing body of the profession Kenny and the previous of their supervisory role over authorities, that the quashing of solicitors. No comparison can be the appointment meant that the made with the illegal and hence material gathered by the unconstitutional detention of a accountant could not be used for suspect or an unauthorised any purpose. search of his person or of his dwelling. The applicant has not 92. Fennelly J. noted that there was identified any constitutional right no authority dealing with the of his which was affected by the application of the case‐law on investigation. evidence obtained in violation of constitutional rights to I turn then to the illegality administrative procedures of this attendant on the investigation. nature. The Court in Kenny had Here it is easier to find place for been motivated by the need to the application of the balancing adopt a rule that would act as a test proposed by Kingsmill Moore sufficiently powerful deterrent J. He stressed the need to have against abuse by the police of the regard to all the circumstances. exceptional powers which they He was essentially, however, may exercise while engaged in considering the public interest the investigation of crime. just as was Finlay C.J. in The People (Director of Public “In the investigation of crime, the Prosecutions) v. Kenny [1990] 2 law confers on the police I.R. s110. Wa the obtaining of the extensive powers, not normally evidence, the admissibility of possessed by disciplinary or which is at issue attended with administrative tribunals, to such circumstances of illegality encroach on such fundamental that it would be unconscionable rights. I do not exclude the to allow the authority to use it? possibility that such a situation The questions which Kingsmill may, depending on the facts of Moore J. posed to himself suggest the case, call for the application that a comparatively serious case of those principles in the sphere of intentional illegality has to be of administrative and, in established. I agree that an particular, disciplinary hearings. element of deliberate and But the scope for such situations knowing misbehaviour must be to arise must necessarily be shown, before evidence should be
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excluded. It is not possible to issue arose in the context of render unknown something statutory provisions relating to already known. The courts should international cooperation in be slow to adopt any mechanical criminal investigations. A exclusionary rule which makes it challenge was brought to the easy to prevent disciplinary validity of search warrants that tribunals from receiving and had been utilised for the purpose hearing relevant and probative of finding records relating to a material. The balance should be VAT fraud being investigated in struck between the rights of the United Kingdom. The Bureau individuals and those had obtained orders freezing professional bodies assigned the relevant bank accounts, and it task of supervising their was also proposed to hand over behaviour so as to give careful documents seized in the searches weight to two competing to the investigating authorities in considerations: firstly, the test the UK. Thus, as in Simple adopted should not unduly Imports, the legal issue was a impede the latter types of body claim made for the return of the from performing their duty of items. protecting the public from professional misbehaviour; 95. In discussing the power exercised secondly, members of by the judge issuing the warrant professional body should be Fennelly J. cited Simple Imports protected from such clear abuse and the reference therein to of power as would render it unfair Entick v Carrington. He that the evidence gathered as a considered that the common law result be received.” principle in question had been given express recognition in the 93. The Court quashed the decision Constitution, which granted of the Compensation Fund protection against unjustified Committee that had been based searches and seizures not only to on the unauthorised report. the dwelling of every citizen but While Fennelly J. stressed that to every person’s private the order being made did not property. prevent the Committee from making a new decision based on 96. Having held on the facts of the evidence properly gathered, the case that the warrants must be Law Society would not be quashed, the Court ultimately permitted to rely on evidence of ruled that the documents seized the processing of spurious claims. should be returned to “the true owners”. 94. In Creaven and ors v. Criminal Assets Bureau [2004] 4 IR 434 the
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97. The decision of McKechnie J. in charges, and that the The Competition Authority v. The constitutional rights of the Irish Dental Association related Association had been breached. to a warrant utilised in an Applying the principles in DPP v investigation of allegedly anti‐ Kenny he felt that he had no competitive activities. The discretion to admit the evidence. operative part of the warrant was manifestly defective in that it 99. The potential consequences of an authorised a search for evidence unlawful search in the context of relating to the sale and bankruptcy proceedings were distribution of motor vehicles. In discussed by the Court of Appeal proceedings brought by the in McFeely v Official Assignee Authority seeking declaratory [2017] IECA 21. The official and injunctive relief against the assignee had, without an Association, part of the appropriate warrant, entered submission made on behalf of business premises in a building the Authority was that these that was owned by the appellant were civil proceedings and the but was leased from him by a applicability of the exclusionary company. On the facts of the case rule must be heavily the Court of Appeal held that circumscribed. there had been no invasion of the appellant’s constitutional 98. McKechnie J. agreed that the property rights. However, at issue of how to approach paragraph 30 of his judgment evidence obtained in breach of Peart J. said: the law originally arose in criminal cases. However, it had “I would stress, however, that ‐ as also arisen in civil proceedings illustrated by cases such as such as Universal Studios and Simple Imports and Competition Kennedy. He also acknowledged Authority v Irish Dental the major public interest in the Association [[2005] 3 I.R. 208] ‐ law of regulation and the law of the unlawful entry by agents of competition. He distinguished the State onto business premises Kennedy v. Law Society, is always a very serious matter considering that the competition and nothing in this judgment code should be treated as being should be understood as diluting in a category of its own and was this basic principle, itself a not akin to the proceedings of a cornerstone of personal freedom disciplinary or administrative and the rule of law. An unlawful tribunal. Further differences lay entry onto such premises by an in the fact that the powers of agent of the judicial branch of investigation possessed by the government such eas th Official Authority could result in criminal Assignee is, furthermore, a
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particularly serious matter, given whom the other members of the that all judges have made a Court agreed) was “readily solemn declaration pursuant to prepared to accept” that the Article 34.6.1 of the Constitution protection of the dwelling to uphold the Constitution and conferred by Article 40.5 was not the law. If, therefore, the Official confined to criminal law or its Assignee had unlawfully entered procedural surrounds. However, the business premises occupied while in the context of the by the bankrupt ‐ as distinct from planning code, the fact that the the premises of which he was unauthorised development was a simply the reversionary lessor ‐ dwelling could be a factor in the then rather different exercise of a court’s discretion, it considerations would have come could never be sufficient on its into play.” own to persuade a court to refuse a demolition order. 100. Two other recent decisions of this court concerning Article 40.5 101. In a different context, the Court of the Constitution may be in Moore v. Dun Laoghaire mentioned relatively briefly. In Rathdown County Council [2016] Meath County Council v. Murray IESC 70 considered the proper [2017] IESC 25, the Court relief to grant in a case of rejected a submission that Article unlawful eviction. The housing 40.5 could prevent a planning authority had lawfully obtained a authority from obtaining an District Court order for order pursuant to s.160 of the possession. However, it did not Planning and Development Act, seek to enforce the order for a requiring the developer of an period well in excess of the unauthorised development to period of six months permitted demolish it. The judgment of by the District Court rules. At that McKechnie J. discusses the point it was obliged to return to decision to the contrary effect in court, on notice to the tenants, to Wicklow County Council v apply for a warrant for Fortune (No. 1) [2012] IEHC 406, possession. Instead, it obtained where Hogan J. had held that the the warrant by the simple Constitution required the expedient of writing to the court planning authority to clerk and requesting it. The demonstrate that the necessity sheriff then evicted the tenants. for demolition of the dwelling While this procedure was found was objectively and convincingly in the High Court to have been established. He had based this unlawful, the situation was seen ruling in large measure on the as one for the exercise of rationale of the decision in discretion, and the application of Damache. McKechnie J. (with
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the principle of proportionality. back in her home. However, Relief was refused. having regard to the lapse of time, changes in the appellant’s 102. On appeal it was held, in a joint circumstances and the potential judgment delivered by Clarke, interference with the rights of Laffoy and O’Malley JJ., that third parties that course was not there had been a breach of the pursued. It was indicated that appellant’s rights under Article declaratory relief and an award 40.5 (as well as under the of damages would be considered. European Convention on Human The parties then came to their Rights). The appellant had been own arrangement. deprived of her home otherwise than in accordance with law, and 104. Finally, it may be noted that in indeed in a fundamentally CRH plc v. The Competition and unlawful way. As no explanation Consumer Protection for the procedure adopted was Commission [2017] IESC 34 given to the Court, no issue injunctive relief was granted to properly arose as to whether the restrain a potential breach of housing authority could be privacy in relation to material excused from the consequences lawfully seized under warrant by of the invalidity of the warrant. In the Commission. The plaintiffs the circumstances it would have claimed that much of the required a very significant material was private, confidential countervailing factor before it or irrelevant to the purpose of could have been appropriate to the search. The Commission deny relief. What was at stake accepted that it would not all be was the rule of law. relevant but maintained an entitlement to examine all of it. “In the absence of a significant The order prohibited countervailing factor a local examination otherwise than in authority, which obtains a accordance with an agreed warrant for possession in a procedure. fundamentally irregular way, should not be able to retain the Authorities specific to the Proceeds of benefit of it and a party against Crime Act whom such a warrant for possession is granted should not 105. The constitutionality of the Act be disadvantaged.” was challenged in Gilligan v The Criminal Assets Bureau (the High 103. Had it been appropriate in the Court judgment is reported at circumstances, the Court would [1998] 3 IR 185; for the Supreme have considered making an order Court see Murphy v G.M. and ors designed to put the appellant [2001] 4 IR 113 where Gilligan is
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dealt with in the same judgment). 107. In the appeal, the argument for One of the principal contentions the appellant on the made on behalf of the plaintiff constitutional issue again was that proceedings under the focused on the claim that the Act were, in essence, criminal in proceedings were criminal in nature. The Act was alleged to be nature. Giving the judgment of unconstitutional because it failed the Court (commencing at p.131 to protect the right to a fair trial of the report), Keane C.J. began and fair procedures by assuming, by noting that the presumption without charge, trial, or of constitutionality attaching to conviction, the existence of a the Act included the presumption criminal offence and requiring that any proceedings or the individual concerned to procedures under it would be prove that he was not a criminal conducted in accordance with and that his assets were not the the principles of constitutional proceeds of crime. justice and that any departure from those principles would be 106. It was in this context that restrained or corrected by the McGuinness J., having courts. Later in the judgment, considered in some detail the dealing with an argument that decision of this Court in Melling v the Act was so broad in its sweep O Mathghamhna [1962] I.R. 1, as to amount to an abdication of referred at p. 217 of the report to legislative responsibility, the the argument of counsel for the Court stated that while the State defendants that power to extend relief where proceedings under the Act were, there was “a serious risk of strictly speaking, in rem rather injustice” was undoubtedly wide than in personam. However, it in scope, was immediately made clear that McGuinness J.d considere that “…thatn ca only be in ease of the other aspects were more individuals whose rights may be important to a finding that the affected and the court, in proceedings were not criminal ‐ applying these provisions, will be that is, that there was no obliged to act in accordance with question of arrest, remand in the requirements of custody or on bail, and no specific constitutional and natural penalty of fine or imprisonment. justice.” Nothing in the rest of the judgment flows from the in rem 108. It was accepted by the Court that characterisation, which is dealt if the procedures under ss. 2, 3 with in greater detail in the and 4 of the Act constituted in Supreme Court judgment. substance a criminal trial they would be invalid having regard to
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the provisions of the In general such a forfeiture is not Constitution, given the almost a punishment and its operation complete absence of the does not require criminal presumption of innocence, the procedures. Application of such applicable standard of proof and legislation must be sensitive to the admissibility of hearsay the actual property and other evidence. However, the Court rights of the citizens but in had previously determined in principle, and subject, no doubt, Attorney General v. Southern to special problems which may Industrial Trust (1957) 94 I.L.T.R. arise in particular cases, a person 161 that forfeiture proceedings, in possession of the proceeds of in which no person was being crime can have no constitutional made amenable for a criminal grievance if deprived of their offence, were not criminal. use.” Provided the conditions imposed by the Act of 1996 were satisfied, 110. Keane J. examined the United the property could be forfeited States authorities in some detail without the requirement to show and found in them significant any wrongdoing on the part of support for his conclusion that in the person in whose possession rem proceedings for the or control it was, even if that forfeiture of property were civil person was demonstrably in character. He noted that unaware of the criminal activity, continued reliance on the in rem unless a serious risk of injustice legal fiction, according to which was created. the property itself was deemed to be the defendant, had been 109. The Court was not asked in criticised in the dissenting Murphy v G.M. to review the judgment of Stevens J. in United decision in Southern Industrial States v. Ursery 518 U.S. 267 Trust. Keane C.J. observed that (1996) and also by the House of even if it had, the appellants Lords in Republic of India v. India would not have been assisted Steamship Company Ltd (No.2) thereby. [1998] AC 878, and said (at p. 153): “The eissue in th present case does not raise a challenge to a “It may be, as Holmes pointed out valid constitutional right of in The Common Law, that property. It concerns the right of principles of this nature may the State to take, or the right of a outgrow their origins in a citizen to resist the State in different historical era and would taking, property which is proved now find their justification in on the balance of probabilities to considerations of public policy or represent the proceeds of crime. the common good. It is sufficient,
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however, to say that the secure benefit from assets which were place of the principles as to civil obtained with the proceeds of forfeiture in our law and their crime irrespective of whether the congruence with the Constitution person benefiting actually knew is clearly reflected in the decisions how such property was obtained in Attorney General v Southern with the proceeds of crime but Industrial Trust Ltd (1957) 94 subject to whether or not such I.L.T.R. 161 and McLoughlin v. person may have been a bona Tuite [1989] I.R. 82.” fide purchaser for value, where different considerations may 111. I will consider the current state of arise. the US authorities briefly below. 33. The Act provides for fair procedures to be observed. It 112. In CAB v Kelly [2012] IESC 64 the cannot be seen as arbitrary. It is central issue was whether an designed to achieve a desirable order could be made under the social objective and be Act in respect of a family home, proportionate. It cannot be said alleged to represent the to impinge on a right to private proceeds of crime, occupied by property, as the property was the spouse and family of the acquired unlawfully.” person concerned. The spouse relied inter alia on the absence of 113. The claim to a beneficial interest any allegation of criminality in the home was a matter against her; the fact that she was capable of having weight employed and had her own attached, but on the evidence in income; the fact that she was the the case there were beneficial owner of 50% of the countervailing considerations. house. Echoing the words of The declaration as to the wife’s Keane C.J., MacMenamin J. said:‐ interest was made in unopposed family law proceedings brought, “32. In each case, the courts must it appeared, only because of the be sensitive to the actual Bureau’s proceedings. Property property and other rights of purchased with the proceeds of citizens which arise. But, as has crime could not be transferred to been pointed out, repeatedly, a a spouse in this manner simply as person directly or indirectly in a means to defeat the legitimate possession of the proceeds of objectives of the legislation. crime can have no constitutional grievance if deprived of their The United States position use…There is a strong public 114. The judgment in Murphy v G.M., policy dimension to this as mentioned above, discussed in legislation. That policy is to some detail the United States ensure that persons do not authorities on civil forfeiture,
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referring in particular to the prosecutions, Rehnquist C.J. decisions of the United States quoted the following passage Supreme Court in Calero‐Toledo from Various Items of Personal v. Pearson Yacht Leasing Co. 416 Property v. United States 282 US U.S. 663 (1974) and United States 577 (1931):‐ v. Ursery 518 U.S. 267 (1996). “[This] forfeiture proceeding… is 115. Briefly, the position seems to be in rem. It is the property which is as follows. Forfeiture in criminal proceeded against, and, by resort or quasi‐criminal proceedings will to a legal fiction, held guilty and attract the protection of the condemned as though it were exclusionary rule (One 1958 conscious instead of inanimate Plymouth Sedan v. Pennsylvania and insentient. In a criminal 380 U.S. 693 (1965)). However, prosecution it is the wrongdoer in most of the states have made person who is proceeded against, statutory provision for civil convicted, and punished. The forfeiture. As noted by Keane forfeiture is no part of the C.J., the characterisation of punishment for the criminal proceedings under such offense…” provisions as in rem meant that the constitutionally‐required 117. However, it may be that the view safeguards for criminal of this issue is changing in the proceedings did not apply. In this United States. It is interesting to regard he referred to Calero‐ note a statement by Thomas J. Toledo v. Pearson Yacht Leasing that accompanied a recent Company (which established that refusal of a writ of certiorari by the innocence of the owner was the United States Supreme Court not a defence to forfeiture of a in Leonard v. Texas 580 U.S. thing used to commit a crime) (2017). The case concerned a and United States v. Ursery large amount of money found in (1996) (which confirmed that the a car. The driver’s mother double jeopardy rule did not claimed that the money prevent parallel criminal actions belonged to her and was the and civil forfeiture proceedings, proceeds of a house sale. since forfeiture was not a However in civil forfeiture punishment ‐ that is, it did not proceedings the trial court deprive of either liberty or of accepted, “on the preponderance lawfully derived property). of the evidence”, that it was connected to criminal narcotics 116. In Ursery, after referring to the sales. The mother sought to lengthy history of legislation argue that the forfeiture authorising parallel in rem civil procedures were forfeiture actions and criminal unconstitutional and that the
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Due Process Clause required the 119. The historical reasons for the State to prove its case by clear “unique constitutional and convincing evidence rather treatment” of civil forfeiture are than by a preponderance of the briefly described as deriving from evidence. The petition was English law pertaining at the time denied, because she had not of the founding of the United raised the argument in the lower States. The new State adopted courts. However, the laws subjecting to forfeiture accompanying statement points ships involved in customs to clear concerns about the offences or in piracy. The “in forfeiture procedure as currently rem” concept permitted the operated in some of the states. government to proceed as if the thing itself, rather than the 118. Thomas J. stated that modern owner, was guilty of a crime. civil forfeiture statutes were “plainly” designed, at least in 120. Thomas J. observed that in the part, to punish the owner of absence of such reasons the property used for criminal Constitution “presumably” would purposes. However the require the Court to align the jurisprudence of the Supreme distinct doctrine governing civil Court permitted states to forfeiture with its doctrines proceed both by way of criminal governing other forms of prosecutions and civil forfeiture. punitive state action and In rem proceedings often property deprivation. He enabled the government to seize referred to Bennis v Michigan the property without any 516 U.S. 442 (1996), where he predeprivation judicial process had suggested that a person and to obtain forfeiture of the unaware of the history regarding property even where the owner forfeiture laws “might well was innocent, without the assume that such a scheme is safeguards associated with lawless ‐ a violation of due criminal prosecutions. Partly as a process”, and queried whether result of this distinct legal the historical practice regarding regime, civil forfeiture had in in rem forfeiture could justify the recent decades become broad modern practice. “widespread and highly profitable” and had led to Conclusions “egregious and well‐chronicled 121. Having regard to the range of abuses”. Several documented Irish authorities cited above, it examples of abuses are provided, seems clear that the exclusionary which would certainly give cause rule is not a free‐standing rule for concern. that evolved or exists purely for the benefit of defendants in
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either criminal or civil coercive power of the State was proceedings. While it originated used in breach of the rights of in the context of a criminal trial individuals (Universal City (O’Brien), its broader purpose is Studios); in civil proceedings to protect important initiated by the individual constitutional rights and values. concerned seeking the return of It will have been seen that, at property taken by agents of the different times and dealing with State (Simple Imports, Creaven); different issues, individual judges in civil proceedings taken to have laid greater or lesser protect privacy rights in seized emphasis on particular aspects of material (CRH); and in judicial those rights and values. However review proceedings challenging the common themes are the an unlawful eviction by a housing integrity of the administration of authority (Moore). They have justice, the need to encourage also been found relevant, albeit agents of the State to comply to a lesser extent, in civil with the law or deter them from proceedings relating to breaking it, and the disciplinary or administrative constitutional obligation to tribunals (Kennedy v Law protect and vindicate the rights Society); and to a lesser extent of individuals. These are all again in planning enforcement concepts of high constitutional proceedings (Meath County importance. Each of them, or a Council v Murray). The combination thereof, has been proposition that the principles seen as sufficient to ground a apply only in relation to evidence principle that is capable of sought to be deployed against denying to the State or its agents the individual is therefore not the benefit of a violation of rights borne out by authority. carried out in the course of the exercise of ae coerciv legal 123. The question then is whether power. there is anything about proceedings under the Proceeds 122. These rights and values are not of Crime Act that renders those confined to criminal trials and underlying principles their effect is not confined to the inapplicable in this context. The exclusion of evidence. The Bureau relies upon the underlying principles have been characterisation of those found to be applicable in Article proceedings as in rem rather 40.4 inquiries (State (Quinn) v. than in personam, and it is true Ryan and Trimbole); in that the issue in the case is the extradition proceedings (ditto); provenance of the property. in civil proceedings between However, it is clear from the private parties where the analysis in MurphyM. v G. that
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the importance of that refuse an order where there is a characterisation lay in the debate serious risk of injustice. In my as to whether the proceedings view, it was not contemplated in were criminal or civil. The the course of that challenge that plaintiff’s argument was that the the in rem classification of proceedings were in essence forfeiture meant that the criminal in nature, and that the violation of constitutional rights statute was therefore in proceedings under the Act unconstitutional because it did could pass without response on not provide constitutionally the part of the Court. To borrow required safeguards in relation to a phrase from Thomas J., the presumption of innocence, forfeiture in this jurisdiction is proof of mens rea and the burden not a “lawless scheme”. and standard of proof. This Court held that those particular 125. I indicated at an early stage in this safeguards were essential only in judgment that I felt that labelling criminal trials and, having regard the issue in this particular case as to the authorities on forfeiture, the applicability of the rule that the proceedings were not excluding unconstitutionally criminal. No person was being obtained evidence was made amenable for a criminal unhelpful, because the cash in offence. dIt di not suggest that question was not evidence as this conclusion meant that other such, and treating it as evidence constitutional rights had no for the purposes of the rule could impact ‐ on the contrary, the potentially lead to absurd results judgment (echoed on this point in the event that more than one in CAB v. Kelly) makes it clear that person could mount a claim to the legislation must be applied ownership. A court dealing with with regard to “the actual proceedings under the Act must property and other rights of either make, or refuse to make, a citizens”. finding that the property in question is or represents the 124. In Gilligan and G.M. the Proceeds proceeds of crime. Defined of Crime Act 1996 was subjected consequences flow from a to far‐reaching constitutional finding that it is, and those challenges. It survived those consequences cannot take effect challenges in part because the as against one person but not as characterisation of its against another (save, perhaps, procedures as criminal in nature in the entirely separate case of a was misconceived, but also bona fide innocent holder). because the Act provides for fair procedures and, as a safety net, 126. For the same reason, the confers on the court the power to modified version of the J.C. test
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proposed by the appellants obligation to vindicate personal cannot, in my view, work rights does not apply to that effectively. The question, then, is asset. Refusal of an order the appropriate response of a freezing or confiscating such court where a breach of assets, in the face of evidence constitutional rights is involved in establishing provenance to the the seizure of the assets required extent, should not be concerned in the case. seen as a means of protecting that which does not deserve 127. While the J.C. test is not an exact protection. fit, the general approach of the Court can, I believe, be adapted 129. It seems to me, therefore, that to produce an appropriate the constitutional values response to this issue in primarily under consideration proceedings under the Proceeds will be the integrity of the of Crime Act. administration of justice and the need to ensure compliance with 128. It is necessary to bear in mind the law by agents of the State. It certain of the fundamental is possible to envisage features of the context within circumstances that would lead a which the trial court is operating. court to conclude that, per A hearing undere th Proceeds of Denham J. in Lynch, the Crime Act is not a criminal trial ‐ proceedings should be no person is being punished or “nullified”. This is not an made amenable for a criminal unprecedented proposition in offence. A person accused of a cases under the Act ‐ the High criminal offence has a Court has in the past been known constitutional right to the benefit to discharge the interim order of the presumption of innocence and dismiss the proceedings and of the requirement that guilt because of a failure to disclose be proved beyond reasonable relevant information at the ex doubt (subject to some parte stage. That can be seen as modifications not relevant here), an appropriate response to but it is clear that the scheme of abuse of the court’s process, and the Act is of an entirely different also as a means of vindicating the nature. It must be recalled that, respondent’s right to fair as this Court stressed in G.M. and procedures. Gilligan, a person does not have a constitutional right to enjoy 130. In keeping with the J.C. analysis property that is or represents the the court should, in my view, proceeds of crime. Where an refuse the order sought by the asset is proved to be such, in Bureau if the evidence accordance with the Act, the establishes that the asset was
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seized in such circumstances that therefore, is a question to be the court would be lending its answered at the end of the process to action on the part of a hearing, since it will not arise State agent or agents involving a unless the court first determines deliberate and conscious breach that the asset is the proceeds of of constitutional rights (in the crime. However, to avoid late sense clarified by the Court in challenges raising the possibility J.C.). A reckless or grossly that the court might have to negligent breach of the embark upon a fresh hearing at constitutional rightse of th that stage, the issue must have respondent should create a been expressly raised in the discretion but with a hearing, by reference to evidence presumption in favour of refusal in the affidavits before the court. of the order. The Bureau then has the opportunity of adducing 131. Where the issue concerns evidence relevant to it. evidence in the true sense, the J.C. test (including that part of the 133. Where the issue is raised, the test concerned with evidence Bureau must bear the burden of gathered illegally but not in establishing on the balance of breach of a constitutional right) probabilities that (i) the asset was can be applied subject to not seized in circumstances of alteration of the burden of proof unconstitutionality, or (ii) that, if to the balance of probabilities. it was, it is appropriate Any such issue can, in the normal nonetheless to make the order way and as the trial judge sees fit, sought. In the latter case it is for be dealt with either as a the Bureau to explain the basis preliminary matter or as it arises upon which it contends that the in the course of the hearing. I do order should be made, and to not propose to comment further establish any facts necessary to on this aspect, in case such justify such conclusion. comment should appear to be a gloss on or alteration of the J.C. 134. A respondent should be entitled test. to rely only upon a breach of his or her own rights, unless the 132. Where an alleged breach of rights court is satisfied that the breach concerns the actual asset sought of another person’s rights is so to be seized, the issue is not its egregious as to justify dismissing “exclusion”. Rather, the question the proceedings. Other than in for the court will be whether a those circumstances, breach of breach of rights has occurred the rights of a third party who is such that an order should not be not a respondent should not give made under the Act. This, rise to a refusal of the order ‐
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there is no good reason, given 138. In the circumstances I would the statutory scheme, why a allow the appeal and remit the breach of A’s rights should entitle matter to the High Court for B to retain the proceeds of crime rehearing in the light of this unless the breach is such as to judgment. call into question the integrity of the administration of justice.
135. Similarly, where there is more than one respondent claiming legitimate ownership of the asset, and the constitutional breach affects only one, or at least not all, the court should not refuse an order unless the breach is such as to justify dismissal of the proceedings.
136. It may be that application of these principles will leave unredressed a breach of rights unrelated to the property in question. The affected party will be left with the option of instituting proceedings for such damages.
137. It may be necessary to point out that the result of an order dismissing the Bureau’s application would not in all cases be the return eof th asset to the respondent from whom it had been taken, any more than contraband such as firearms, drugs or manifestly stolen property is returned to an acquitted person after trial. There is, as has been stated several times, no constitutional or legal right to possession of such items.
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Criminal Assets Bureau v 4. Mrs. Connors was later charged Connors with money laundering contrary to s. 7 of the Criminal Justice 29th November 2018, High Court: Composition of Court: Money Laundering and Terrorist Peart J., Irvine J., Whelan J. Financing Act 2010 and her Judgment by: criminal trial is scheduled to Irvine J. High Court Record Number 2016 24 CAB commence on the 27th February next in the Dublin Circuit Criminal 1. This is the appeal of Margaret Court. sShe ha been granted legal Connors, the appellant, against aid for the purposes of defending the order of the High Court those proceedings. (Stewart J.) of the 11th June 2018. 5. Mrs. Connors is, of course, also the respondent to the within 2. By her order, the High Court proceedings brought by the judge refused an application Criminal Assets Bureau under s. 3 made by Mrs. Connors to stay the of the Proceeds of Crime Act within proceedings until:‐ 1996‐2006 ("the CAB proceedings") and that being so, (i) the determination by the High she brought an application Court of her appeal against seeking legal aid under the ad the court's refusal to afford hoc legal aid scheme legal aid to her legal aid under the ad hoc assist her in her defence of CAB's legal aid scheme and/or claim. That application was (ii) the conclusion of certain refused by order of the High criminal proceedings then Court of the 23rd June 2017 and pending before the Circuit her appeal against that refusal is Criminal Court. due to be heard on the 4th February 2019.
Background to the application Submissions on the appeal 3. On the 17th May 2016 Mrs. 6. In support of her appeal against Connors was stopped by An the order of the High Court judge Garda Síochána when driving her refusing to stay the CAB car on the Tallaght bypass. She proceedings, Ms Moloney BL on was arrested and detained under behalf of Mrs Connors, submits the Misuse of Drugs Act (Section that the High Court judge erred in 23). No drugs were detected but law in failing to properly apply she was found to be in possession the principles set out in the of GBP£13,000, €8,000 and decision of the Supreme Court in items of jewellery worth €4,000. Campus Oil v. Minister for These were seized under s. 7 of Industry and Energy (No 2) [1983] the Criminal Law Act 1976. I.R. 88. She maintains that the
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balance of convenience or, the and the subsequent seizure by balance of justice (as she the respondent of the property described the test) clearly that the subject matter of the favoured granting the stay. criminal proceedings. There is, Counsel emphasised the risk of Ms Moloney submits, a risk that prejudice to her client if required any decision made concerning to engage with the CAB the admissibility of that evidence proceedings prior to her criminal could prejudice Mrs Connors in trial, particularly given that Mrs her defence of the criminal Connors would likely not be proceedings. Likewise, there is a legally representede in th CAB risk that she could be prejudiced proceedings. That was to be by her own evidence in the CAB contrasted with the absence of proceedings, apart altogether any prejudice to CAB if the CAB from the fact that she might also proceedings were to be be prejudiced by other findings adjourned for the short period of made by the High Court judge. time that would be required to allow the criminal proceedings be 9. On behalf of Mrs. Connors it is determined. Further, there submitted that the balance of would be no risk to the property justice favoured granting the stay seized by CAB as it would remain which she had sought and for this in its custody allied to the fact reason this court should grant that even if CAB was successful in the stay which was refused at the within proceedings, it might first instance by Stewart J. not be in a position to dispose of the property for another seven 10. Finally, in light of the grounds of years. appeal and the written submissions filed, it is important 7. Ms Moloney also submits that to record that counsel did not the High Court judge erred in law seek to argue that the High Court in refusing the stay in judge had erred in law in circumstances where the concluding, as she did, that Mrs relevant case law cautions Connors was not entitled to seek against core issues that might a stay on the CAB proceedings to arise in the criminal trial being await the outcome of her appeal dealt with in any proceedings against the refusal of a legal aid that might be heard in advance of certificate under the ad hoc the trial. scheme, given that a similar 8. One of the core issues in the CAB application had earlier been proceedings, according to made and had been refused on counsel, will be the admissibility the 22nd January 2018. It of the evidence obtained on foot appears that it has been of the search of Mrs Connor's car belatedly accepted that the High
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Court judge was correct to within proceedings were to be conclude that this issue was, as heard in advance of her criminal was contended for by the trial and she had not done so. The respondent, res judicata. High Court judge had, in her judgement, made rulings 11. On behalf of CAB, it is submitted concerning how the CAB by Mr Dodd BL that the test to be proceedings would be conducted applied by a High Court judge so as to protect against any when faced with an application prejudice that might otherwise to stay civil proceedings pending occur by allowing those the outcome of criminal proceedings be determined prior proceedings is not that which to the criminal trial. emerges from the decision in Campus Oil . That judgment deals 14. Counsel relies upon the fact that with the test to be applied by the in a significant percentage of the court on an application for an claims brought by CAB under s. 3 interlocutory injunction in an of the Act there are co‐existing action where the substantive criminal proceedings. In that rights of the parties will respect there is nothing unique ultimately be determined in the about the facts of the present same proceedings at a plenary case. And, if Mrs Connors can hearing. rightfully maintain an entitlement to have these 12. There is, according to counsel, a proceedings stayed pending the different and distinct line of outcome of the criminal trial, jurisprudence which identifies then all respondents in similar the factors to be considered by a circumstances would enjoy a like court when asked to postpone entitlement, thus significantly civil proceedings to await the slowing down the administration outcome of criminal proceedings. of justice. Reliance is placed upon the decisions in Dillon v. Dunnes Discussion and Decision Stores [1996] I.R. 397, Wicklow 15. The decision in C.G. v. The Appeal Co. Council v. O'Reilly [2006] 3 IR Commissioners, a case in which 623 and C.G. v. Appeal the Revenue (Criminal Assets Commissioners [2005] 2 I.R. 223. Bureau) was the Notice Party, is Accordingly, it cannot be stated instructive on the proper that the High Court judge applied approach to be adopted by a the wrong test. court when faced with an application to adjourn civil 13. Mr Dodd submits that the onus proceedings pending the was on Mrs Connors to establish outcome of criminal proceedings a real risk of prejudice if the concerning the same or similar
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matters. The applicant, C.G., had criminal proceedings. No appealed an income tax considerations of public policy assessment by the Notice Party in are in question." respect of nine periods of assessment. There were also 17. Finlay Geoghegan J. at page 479 criminal proceedings pending of her judgment went on to against him in respect of his state:‐ alleged failure to make tax "Likewise it is common case returns for three of the years between the parties that each relevant to his income tax appeal. application to adjourn Hed applie to the respondent to proceedings of civil nature adjourn his appeal pending the pending the determination of outcome of his criminal trial but criminal proceedings must be that application was refused. C.G. determined on its own then applied to the High Court for facts………., that the onus on the an order of Certiorari quashing applicant is to establish that that refusal and he also sought an there is a real risk of prejudice or injunction restraining the injustice if the tax appeal respondent from proceeding proceeds." with this appeal pending the determination of the criminal 18. In refusing the injunction proceedings. application, the following is what was stated by Finlay Geoghegan 16. In the course of her judgement, J. at para 28 of her judgement Finlay Geoghegan J. set out the concerning the submissions of principles to be applied by a court the respondent: when met with an application to "I am satisfied that each of the stay civil proceedings pending above submissions is well‐ the outcome of criminal founded. On the particular facts proceedings. She took as her of this appeal I do not consider starting point the decision of the that the applicant has Supreme Court in Dillon v. established that there is a real Dunnes Stores [1996] I.R. 397 risk of prejudice or injustice if he where O'Dalaigh C.J. stated as were now to be required to follows:‐ proceed with this tax appeal which warrants this court "As the plaintiff could not have granting an injunction even in had an order to postpone the respect of the appeals relating to criminal proceedings until the the same years' assessment as termination of the civil action, the pending criminal charges. equally the hearing of the civil There is no evidence at present action cannot be required to which suggests that the applicant await the conclusion of the will be required to give evidence
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of a self‐incrimination nature at "It would, therefore, appear that the hearing of the tax appeal. If there is no hard and fast rule as there are different relevant facts to how contemporaneous civil then it is a matter to be and criminal proceedings arising considered and decided by the out of the same matter should be respondent, bearing in mind that progressed. It is clear that the it will be a matter for the trial onus rests eon th party seeking a judge at the criminal trial to stay of the civil proceedings to ensure by appropriate rulings establish the grounds necessary that there is no breach of the to enable the court so to do. In applicant's rights under Article coming to any such assessment 38.1 of the Constitution in the court must, on the one hand, accordance with the above give due recognition to the principles." importance of allowing the plaintiff or other moving party in 19. The principles outlined in C.G. the civil proceedings to achieve a have been approved of in many timely resolution of those more recent decisions including proceedings and obtain the that of Clarke J., as he then was, benefit of any orders which might in Wicklow County Council v. be appropriate. On the other John O'Reilly wherein he hand the court has to balance, as emphasised the importance of against that, the extent to which protecting a plaintiff's right to there may be a real risk that achieve a timely resolution in prejudice might be caused to the their civil proceedings and criminal proceedings. I am confirmed that that the onus is satisfied that in giving on an applicant who seeks to consideration to this latter postpone civil proceedings to matter the court must attempt to await the outcome of criminal analyse the likelihood of there proceedings to establish that being any such prejudice and there would be a real risk of have regard to the extent to prejudice or injustice if the civil which it may be possible by case were allowed to proceed. measures to be adopted in the Each case had to be judged on its criminal process to minimise or own facts to assess whether ameliorate any such prejudices there was a real danger of might arise." causing an injustice in the 20. To the aforementioned criminal proceedings by allowing statement of Clarke J. I would add the civil proceedings advance. that, in my view, the court should Clarke J. summarised the legal also consider the extent to which position at para 35 of his in the course of the proposed civil judgement in the following proceedings the judge might, by terms: reason of any relevant statutory
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provision or otherwise, be in a in the criminal proceedings but position to minimise, ameliorate she would also direct that "any or otherwise further safeguard evidence" given in the course of the applicant from any potential the s. 3 proceedings would not be prejudice in the criminal admissible in the criminal proceedings. proceedings. She did so for the stated reason of seeking to 21. Of particular importance in these protect Mrs Connors from any proceedings is what was stated possible prejudice that might by the trial judge at para 13 of the arise for her in her criminal transcript where she observed proceedings if it happened that that whilst it was customary in she was to be cross examined on the vast majority of contested s. her affidavit in the course of the 3 applications for the respondent CAB proceedings and her to explain on affidavit how the evidence sought to be introduced property the subject matter of in the criminal proceedings. the application came into their possession, that s. 9(2) of the 23. Further, the High Court judge Proceeds of Crime Act 1996, as gave directions that the amended by s. 11 of the Proceeds provisions of s. 8(3) and (4) of the of Crime (Amendment) Act 2005, 1996 Act were to be deployed in provides that any such affidavit is the CAB proceedings and that not admissible in criminal this direction would have the proceedings. The section, insofar effect of protecting Mrs. Connors as it refers to such an affidavit, further from prejudice in the provides as follows: context of her criminal proceedings. The CAB "(2) Such an affidavit is not proceedings would be heard in admissible in evidence in any camera and she woulde mak an criminal proceedings against that order prohibiting the publication person or his or her spouse, of any information in relation to except proceedings for perjury the application. arising from statements in the affidavit." 24. These sections provide as follows: 22. The High Court judge, in the "(3) Proceedings under this Act in course of her ruling, went even relation to an interim order shall further for the purposes of be heard otherwise than in public seeking to protect Mrs Connors and any other proceedings under from any potential prejudice in this act may, if the respondent that she directed that not only are any other party to the would any affidavit sworn by her proceedings (other than the pursuant to s.9 not be admissible applicant) so requests and the
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court considers it proper, be of that trial to ensure, as was heard otherwise than in public. referred to by Finlay Geoghegan J (4) The court may, if it considers it in C.G. "to ensure by appropriate appropriate to do so, prohibit the rulings that there is no breach of publication of such information the applicant's rights under as it may determine in relation to Article 38.1 of the Constitution." proceedings under this act, including information in relation 26. Relevant also, in my view, to the to applications for, the making or exercise by the court of its refusal ofd an the contents of discretion on an application such orders under this act and the as the present one is the fact that persons to whom they relate." it is clear from the Proceeds of Crime Act, 1996 that it is 25. Whilst counsel for Mrs Connors envisaged that there will be both expressed concern that any civil and criminal proceedings finding by the High Court judge relating to the same activities in made in the context of the s. 3 existence at the same time. proceedings concerning the Accordingly, there are significant validity of the search and seizure public policy reasons, in my view, conducted by officers of CAB as to why the civil proceedings, might be admitted to her such as those which emanate detriment in the criminal from s. 3 of the act, should not be proceedings, that is clearly not postponed until the the case. Every element of the determination of any criminal offence with which she has been proceedings concerning the charged under s. 7 of the Criminal same activities. Justice Money Laundering and Terrorist Financing Act 2010 will 27. Having reviewed the evidence have to be established in the that was before the High Court course of the criminal trial and judge and considered the her guilt proved on the higher submissions that were criminal standard. Nothing that apparently made on her behalf, I may occur in the course of the s.3 am first of all satisfied that the proceedings will prejudice Mrs High Court judge applied the Connors in terms of the correct principles when met with arguments she may wish to make Mrs Connors application to stay in the course of the criminal the proceedings pending the proceedings concerning the determination of the criminal lawfulness of the search and proceedings. The test is not that seizure carried out by the officers advised in Campus Oil. It is the of CAB or the admissibility of test identified by Finlay evidence as a result thereof. And, Geoghegan J. in C.G, amongst it will be for the judge in charge other decisions. To that extent I
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would here restate that the onus I have just referred, was correct is on the applicant who seeks to as a matter of law and fact when postpone civil proceedings to she concluded that Mrs Connors await the outcome of criminal had not established that she was proceedings to establish a real at a real risk of prejudice if the s.3 risk of prejudice if the stay is proceedings were heard and refused. It is a high threshold and determined in advance of the one which is not susceptible to criminal proceedings. As already reduction or offset by e th stated, every application must be happenstance that the applicant treated separately by the court may be in a position to establish and decided on its own facts. that the plaintiff in the civil And, Mrs Connors had not proceedings may not be identified any specific facts prejudiced by any delay that pertinent to the s. 3 proceedings might thereby be visited upon to support what was otherwise a the civil proceedings. bald assertion that she would be prejudiced if those proceedings 28. Second, the High Court judge were not stayed pending the correctly considered the manner outcome of the criminal trial. This in which the s. 3 proceedings may well be because she was might impact upon the criminal under the misapprehension that proceedings and in order to she was entitled to a stay once ameliorate any unnecessary risk she could establish that the of prejudice to Mrs Connors gave duration of any such stay as a number of directions in might be granted was likely to be accordance with the provisions of modest and the resultant the 1996 Act which were to her prejudice to CAB insignificant. benefit. After noting that any affidavits sworn by Mrs. Connors 30. Fourth, as was stated by Clarke J. could not be admitted in the in Wicklow Co Council v. O'Reilly criminal proceedings, she the court must give due regard to directed that any evidence given the importance of allowing a in the s. 3 proceedings would not plaintiff move ahead in civil be admissible in the criminal proceedings to achieve a timely proceedings. She also directed resolution of those proceedings. I that the s. 3 proceedings be consider this to be of even heard in camera and imposed greater significance in the reporting restrictions as earlier circumstances of the present advised. case in which the legislation governing the civil proceedings 29. Third, I am satisfied that the High envisages that there will, in many Court judge, particularly having instances, be both civil and regard to the directions to which
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criminal proceedings relating to 32. For all of the aforementioned the same activity. reasons I would dismiss the appeal. Conclusion 31. For the reasons earlier stated in this judgment I am satisfied that the High Court judge applied the correct test when considering Mrs Connors application to stay the s.3 proceedings until the determination of criminal proceedings. On the facts before her the High Court judge was correct to conclude that Mrs Connors could not establish that she would be at risk of real prejudice if the s. 3 proceedings were to be heard and determined in advance of her criminal proceedings. Furthermore, the High Court judge correctly sought to ameliorate the risks to which Mrs. Connors might be exposed in her criminal proceedings arising from the CAB proceedings by directing that no evidence heard in the s. 3 proceedings might be admitted in the criminal proceedings in addition to which she made orders under s. 8(3) and 8(4) of the 1996 Act. As already stated Mrs Connors will also benefit from the further protection which arises by reason of the provisions of s. 9(2) of that Act which precludes any affidavits sworn in those proceedings being admitted in criminal proceedings of the nature outstanding against Mrs O'Connor.
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Criminal Assets Bureau v into custody and interviewed on Mannion multiple occasions. His home was also searched. During interview, 17th December 2018, High Court: Stewart J., High Court Record Number 2016 11 CAB he admitted that the premises was being used as a drug 1. In these proceedings, the distribution centre for the sale of applicant (hereafter referred to controlled substances over the as the Bureau) seeks orders Darknet. He admitted that he pursuant to s. 3 of the Proceeds traded on the Silk Road and of Crime Act 1996 (as amended) Agora websites using the alias of over the property specified in the "The Hulkster". The Hulkster was schedule attached to the notice paid in Bitcoin for the sale and of motion dated 28th July, 2016. supply of these drugs. Following The property comprises of on from this search and seizure, 2,013.96 Ether, known in the Bureau issued proceedings currency terms as Ethereum, and sought orders over funds which was contained in a held by the respondent (CAB v. cryptocurrency wallet found on Neil Mannion (2015/15CAB), the respondent's computer. As of hereafter referred to as the first 28th July, 2016, the contents of set of proceedings). Those funds the wallet were worth included monies contained in approximately €24,852. The bank accounts, credit cards, debit respondent currently resides in cards, gift cards, sums of cash Wheatfield Prison, following his and a substantial amount of conviction for offences contrary Bitcoin. An order pursuant to s. 2 to ss. 3, 15 and 15A of the Misuse of the 1996 Act was made by of Drugs Act 1977. On 21st Fullam J. on 12th October, 2015. December, 2015, he received a A consent agreement was drawn six and a half year sentence for up by the parties and Fullam J. those offences from the Circuit made an order pursuant to s. 3 of Criminal Court sitting in Dublin, a the 1996 Act on 22nd February, sentence which was upheld on 2016. Those proceedings were appeal. thereby d"stayed an settled". The Ethereum did not feature in that Background first set of proceedings. A s. 2 2. On 5th November, 2014, order in respect of the Ether was members of An Garda Síochána made by Fullam J. on 27th July, searched a property situated on 2016, as part of this second set of South Circular Road. That search proceedings. uncovered a number of controlled drugs stored at the 3. Following the respondent's premises. The respondent was arrest, numerous electronic arrested at the premises, taken devices were seized from his
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home and from the property Its monetary value effectively located at South Circular Road. equated to the 1 Bitcoin for These devices included laptops, which it had been originally phones and removable storage purchased, which was worth devices. A forensic image of each approximately €350 at that time. device was made by the The Ether was purchased with Computer Crime Investigation and converted from Bitcoin on Unit of An Garda Síochána. These 5th August, 2014, at a time when images were then delivered to the respondent was, by his own Bureau Financial Crime Analyst admission, heavily involved in the No. 2 (FCA2) for inspection. FCA2 sale and supply of illegal drugs swore an affidavit on 22nd July, over the Darknet. There is a 2016, in which they explained the statutory minimum value manner in which the threshold required by ss. 2(1)(b) respondent's computer system and 3(1)(b) of the 1996 Act, operated. The respondent relied which must be met before an on a number of software order pursuant to the 1996 Act programmes to facilitate his can be made in respect of an item illegal activities, including of property. At the relevant time, Truecrypt software, the TOR this minimum value threshold network, Bitcoin and Ethereum. was €13,000 (The Proceeds of Much like Bitcoin, Ethereum Crime (Amendment) Act 2016 currency is a blockchain lowered this threshold to a technology with programmable minimum of €5,000, as of 12th transaction functionality. It August, 2016). Based on the began trading on 30th July, 2015, evidence adduced before this two months before a s. 2 order Court, it would appear that the was made in the first set of failure to meet this threshold was proceedings by Fullam J. not the reason the Ether was left out of the first set of 4. FCA2's inspection, which proceedings. Rather, the occurred in November, 2014, Bureau's concerns seem to have uncovered cryptocurrency been based on practicality, as a wallets containing the Bitcoin non‐trading currency has no that formed part of the subject established forum in which to sell matter of the first set of it and realise its value. In light of proceedings. The wallet these concerns, the wallet's containing the Ethereum was presence on the respondent's also uncovered. However, at that system was merely noted during time, Ethereum was not trading FCA2's inspection and no further as a currency, meaning that the action was taken in respect of it. contents of the wallet could not be redeemed in the normal way.
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5. In late May, 2016, after the contested the first set of consent order had been made by proceedings on grounds that he Fullam J., FCA2 carried out a case had legitimate funds from past review of the original employment and investment investigation material, so as to which should not be seized by the ensure all matters had been Bureau. The consent agreement properly addressed before the reached between the parties in papers were sent for archiving. In those proceedingsd include the the course of completing that following terms: review, they re‐examined the cryptocurrency wallet containing (a) Consent to an order the Ether. FCA2 noticed that pursuant to s. 2(3) of the Ethereum had commenced 1996 Act releasing 50% of trading and that the Ether could the funds contained in the be sold for a significant sum of respondent's Dundrum money. This issue was brought to Credit Account; the attention of other Bureau (b) Consent to various orders officials and FCA2 was directed pursuant the 1996 Act over by then Assistant Garda the remaining assets listed in Commissioner Eugene Corcoran, the Schedule to the who was also Chief Bureau agreement, including a Officer (CBO) of the Bureau at the disposal order; and, time, to seize the contents of the wallet. FCA2 transferred the (c) Full co‐operation with the Ether from the wallet stored on Bureau in their attempts to the respondent's computer to a realise the full value of the wallet under the sole control of assets contained in the the Bureau. Schedule.
6. The respondent swore affidavits The respondent avers that he on 13th September and 10th understood this consent to act as November, 2016. The first a settlement in full and final affidavit was sworn for the discharge of any liability he had purposes of gaining access to the to the Bureau. In his view, he had Ad Hoc Legal Aid Scheme. Fullam consented to a search of his J. made an order granting him computer by the authorities access to the Scheme on 17th during the course of the initial October, 2016. A similar criminal investigation in application had been made and November, 2014, but had not granted during the first set of consented to an indefinite power proceedings. The second affidavit of search vested in State officers. sets out the respondent's side of He therefore challenges the basis the case. He avers that he on which his computer was
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accessed after the investigation Allegedly, the seizure eof th Ether had concluded. was also conducted in a manner that did not require access to the 7. The respondent avers that respondent's computer. The Ethereum was trading prior to respondent's averment at para. July, 2015, albeit at an extremely 16 of his affidavit is also reduced rate of value when highlighted, wherein he states compared to the value it that the proceeds of his drug currently has. Notwithstanding trafficking formed a part of his his failure to volunteer investment in Bitcoin. Det. Garda information about the Ether or Gallagher challenges the draw An Garda Síochána's suggestion that the Ether was attention to it, he argues that the bought with legitimately wallet was readily discoverable. procured Bitcoin, as the He refers back to the transcripts respondent has failed to produce of his numerous interviews with evidence as to how said members of An Garda Síochána, legitimate Bitcoin was purchased in which he outlined the sources and how it is to be differentiated of his income and the manner in from his illegitimate Bitcoin. Even which his business was carried if such legitimate Bitcoin did out. He avers that any Bitcoin exist, Det. Garda Gallagher secured through illegitimate asserts that it is tainted by the activity was transferred onto money laundering process of prepaid debit cards and was not substitution, as he could never used to purchase the Ether in have accrued these legitimate question. funds if he had not used illegitimate funds to fund his 8. Detective Garda Mark Gallagher daily lifestyle. swore an affidavit on 15th November, 2016, in which he 9. Detective Chief Superintendent highlights that the respondent's Patrick Clavin, who is the current laptop was seized under a CBO of the Bureau following the warrant secured from a District departure of Assistant Court Judge pursuant to s. Commissioner Corcoran, swore 26(1)(b) of the Misuse of Drugs an affidavit on 15th November, Act 1977/84, thereby rendering 2016. He avers that he has his consent irrelevant. He also reviewed all the material in this avers that the respondent's case and firmly believes that the laptop was not continuously Ether constitutes directly or operated by the authorities, as it indirectly the proceeds of crime. was a forensic image of the He proffers that belief to this computer that was interrogated Court as evidence under s. 8 of for the purposes of the review. the 1996 Act.
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The Hearing indicate the conclusion of the 10. Both parties served notices to Bureau's overall investigation. cross‐examine the deponents on His evidence was that a review the contents of their affidavits. At must take place, through which the hearing on 22nd March, the Bureau could be satisfied that 2017, Det. Garda Gallagher, FCA2 all matters within its remit have and the respondent all gave been addressed and that the evidence viva voce and under investigation can be concluded. oath. Det. Garda Gallagher gave He stated that the Bureau were evidence as to the magnitude of unaware, when they commenced this investigation; the enterprise the first set of proceedings, that established by the respondent Ethereum had begun trading was of an entirely different some months prior, as there was character to any that An Garda no continuous review process in Síochána had encountered place to routinely check whether before. A great deal of time and assets previously considered effort went into the investigation worthless had since attained and protocol was rigorously value. In his view, that was a adhered to, in so far as it could be "human error" that had been applied to this new field of addressed in the review process criminality. He highlighted that actually took place. He evidence that illegitimate funds highlighted that such a mistake came to be proliferated outside could readily be explained by the the respondent's debit cards. He fact that An Garda Síochána were also stated that the Hulkster's exploring a new field of criminal activities were recorded as far activity. As for the conclusion back as April, 2014. When reached by the Bureau that the pressed about the respondent's Ether had no value prior to July, legitimate funds, Det. Garda 2015, Det. Garda Gallagher did Gallagher stressed that Bureau not see how the Bureau could officials were open to examining have gone about selling an asset any evidence that the for which there was no respondent could provide to established market or forum of distinguish between legitimate interested buyers. and illegitimate funds, as they had done during the first set of 12. In terms of the procedures proceedings regarding his governing the review process, Dundrum Credit Union Account, Det. Garda Gallagher stated that but none was forthcoming. there were was no policy or procedure in place. Reviews are 11. In Det. Garda Gallagher's view, completed whenever the the conclusion of High Court investigating officers have the proceedings does not necessarily free time to complete them
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and/or whenever they wish to secured the value of the asset free up space in their office. He and all other secondary stated that the review generally purchasers would be left with takes place as close to the nothing. In FCA2's opinion, this conclusion of proceedings as high level of risk rendered the slip possible. Reviews are not carried unsellable in any established during the currency of market. proceedings as there is insufficient time and resources 14. For the purposes of cross‐ for such an arrangement. examination, an order for the production of the respondent 13. In oral evidence, FCA2 provided a from Wheatfield Prison was more in‐depth explanation of the secured from this Court in technological concepts arising in January, 2017. He stated in this matter. They were in full evidence that some of the agreement with Det. Garda monies seized from his Dundrum Gallagher that the Ether did not Credit Union account and have any value prior to July, disposed of under the consent 2015. They stated that the order were not tainted by his respondent had effectively illegitimate funds. He stated that purchased the equivalent of a he had nevertheless consented betting slip; the Ether could only to the orders made by Fullam J. in accrue value if a certain event light of the substitution principle occurred in the future (in this outlined on affidavit by Det. case, the commencement of Garda Gallagher. He argued that, trading for the Ethereum by settling the first case and currency). In their view, there releasing 50% of the funds was no practical reality to contained in his Dundrum Credit securing a buyer for this betting Union account, the Bureau had slip. In contrast to Bitcoin, there acknowledged that she doe have were no block chains in place for some legitimate income from his Ethereum before trading previous employment and from commenced, meaning that there the legitimate trade of Bitcoin. In was no register of ownership. the respondent's view, the Ether Even if a potential purchaser has always had value and could could be sure that the requisite be traded just like Bitcoin in a future event would occur, there private forum between trusted was no way to know whether buyers and sellers. When asked their Ether file had been why he did not mention the Ether duplicated and sold on to during Garda interview or during secondary purchasers. If there his legal aid applications, he were multiple purchasers, stated that he was not aware that whoever cashed the slip in first Ethereum had begun trading. As
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far as he was concerned, the Bitcoin that had been kept in un‐ Ether was only worth €350, so it encrypted wallets. The was not an asset of significant respondent appeared to suggest value that would come to mind that he consented to the disposal when making a legal aid order sought by the Bureau application. because he wished to conclude matters and put the Bureau's 15. The respondent stated that he proceedings behind him. kept the legitimate and illegitimate funds in separate 16. When asked why he had not wallets, so as to prevent cross‐ produced any records to contamination, and that no evidence his legitimate illegitimate business went investments, the respondent through the e‐mail address he argued that the enquiries made used to purchase the Ether. of him by Gardaí were Birmingham J.'s (as he then was) insignificant. Even if they had characterisation of the been significant, he stated that respondent, as set out in the he had not been in a position to Court of Appeal's decision of his produce those records, as a sentencing appeal, was read over freezing order had been secured by counsel on behalf of the over the relevant bank account eBureau. Th respondent directly by the Bureau. When counsel on challenged those findings, as well behalf of the Bureau pointed out as the evidence proffered by the that all relevant records would State during the criminal have been provided to him proceedings, maintaining that during the first set of they were not accurate. He proceedings, had he or his legal stated that any suggestion of representatives asked for them, cross‐contamination or the respondent stated that he substitution made by him during was unsure what material had the course of the Garda been provided.. The respondent interviews was made for the was cross‐examined in detail purposes of accentuating any about the timeline of events that mitigating factors he could rely occurred in 2014. It was on at the sentencing stage of his suggested that the respondent trial. According to his version of had been dealing drugs as far events, all illegitimately earned back as April, 2014, which is a Bitcoin was kept in a separate period of activity three or four wallet under encryption. No months longer than the period he explanation was offered by the outlineds in hi Garda interviews. respondent as to why he had The respondent accepted that he consented in the first set of had been dealing drugs as far proceedings to the disposal of back as April, 2014.
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Submissions judgment in CRH and the ECTHR's 17. The respondent places significant decision in Marper. As for the reliance on the principles appropriate test to apply, the outlined by the Supreme Court in respondent submits that it is the DPP v. JC [2017] 1 I.R. 417 and test in J.C.g In applyin that test, CAB v. Murphy [2018] IESC 12. He the respondent concedes that also relies on the Supreme this was not a deliberate and Court's consideration of privacy conscious breach, as that term is rights, as expressed in CRH Plc v. understood following the J.C. The Competition and Consumer decision. Rather, he submits that Protection Commissioner [2017] the breach was inadvertent. IESC 34. He submits that the Given the complete lack of Supreme Court's views correlate authority for the informal review with the European Court of carried out by FCA2 in breach of Human Rights' (ECTHR) views on the respondent's rights, it its privacy in the criminal context, as submitted that this inadvertence expressed in S & Marper v. is not excusable and the material United Kingdom (2009) 48 EHRR should be excluded. Independent 50. He submits that s. 9 of the of the respondent's arguments Criminal Law Act 1976 addresses under Murphy and J.C., it was that issue in this jurisdiction. submitted that these proceedings are an abuse of 18. The respondent submits that the process, as set out by the rule in criminal proceedings against him Henderson v. Henderson. concluded on 21st December, 2015. In his view, from that date 19. In characterising the nature and onwards, the State no longer had scale of the respondent's the authority under s. 9 of the criminality, the Bureau refer to 1976 Act to retain his computer the Court of Appeal's judgment system or any copies made of it. on the severity of his sentence ( In his submission, the process of DPP v. Mannion [2016] IECA 314), returning the computer and wherein Birmingham P. stated wiping the copies should have that the respondent had engaged commenced after that date. Even in a commercial enterprise on an if the review carried out by FCA2 international scale. Once again, were allowed, the Court's the lack of detail provided by the attention is drawn to the ad hoc respondent about his legitimate and highly discretionary manner investments was underlined by in which State actors are allowed the Bureau. As stated by Det. to conduct themselves in matters Garda Gallagher under cross‐ such as this. It is submitted that examination, activity on the the status quo is completely at Darknet by the Hulkster was variance with the Supreme Court detected from April, 2014
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onwards and the respondent left the owners of seized assets can gainful employment in 2013, apply for the return of those meaning that any Bitcoin assets. No application was made investments after those dates are in this case. They suggest that s. 9 tainted by illegality. The Bureau does not render access of the highlights that the Ether was laptop unlawful after the purchased around the same time conclusion of the proceedings. that a large consignment of However, for the sake of ecstasy tablets was procured by argument, if the Court did find the respondent. As for the that the respondent's rights had respondent's oral evidence that been breached, the Bureau he was unaware of the Ether's submit that it is the Murphy test value, thereby explaining why he that applies, and not the J.C. test. did not declare it during the It is submitted that there was no course of his first legal aid recklessness or gross negligence application, the Bureau does not in this case, nor was the alleged find that suggestion credible, breach deliberate and conscious. given that he was on bail at the Rather, a mere human error time and had full access to the occurred, an error which the internet. respondent alleges he also made, if it is true that he did not know 20. The Bureau place great emphasis Ethereum had begun trading on the public policy principles when he applied for access to the underlying proceeds of crimes legal aid scheme. actions, as expressed in various decisions of the Superior Courts. Discussion A statutory expression of those 21. The applicant Bureau is a principles is referred to in ss. 4 statutory body established by the and 5 of the Criminal Assets Criminal Assets Bureau Act 1996 Bureau Act 1996. It is submitted and the Proceeds of Crime Act that these principles provide the 1996. Its remit is to identify framework within which the assets which it believes represent Bureau exercises its power to the proceeds of crime and take gather evidence. Regarding s. 9 the steps necessary to deny of the 1976 Act, the Bureau persons with access to those highlight that this section assets of their beneficial envisions the retention of entitlements to same. The material until proceedings Bureau is not an injured or conclude, after which an aggrieved party with whom application under the Police settlement can be reached and (Property) Act 1897 can be made. liability discharged. The In their submission, this Act respondent is not liable to the provides a mechanism by which Bureau. The Bureau have reason
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to believe that the respondent para. 121, she refers to the has access to assets that come common themes that guide the within its remit and it has come Judiciary in their application of to this Court to prove its case. the exclusionary rule, which are There is no issue of liability here "...the integrity of the and any averments made by the administration of justice, the respondent suggesting otherwise need to encourage agents of the are misconceived. As for the State to comply with the law or matters actually at issue in this deter them from breaking it, and case, the parties have raised a the constitutional obligation to number of detailed legal protect and vindicate the rights of arguments arising from complex individuals." She continues areas of the law, so it would be of thereafter:‐ benefit for the Court to discuss each issue in turn before setting "…These are all concepts of high out its decision in this matter. constitutional importance. Each of them, or a combination Criminal Assets Bureau –v‐ Murphy thereof, has been seen as 22. The Supreme Court hearing in sufficient to ground a principle Murphy took place the week that is capable of denying to the after the hearing in this matter State or its agents the benefit of commenced on 22nd March, a violation of rights carried out in 2017. Given the potential the course of the exercise of a relevance of the Murphy coercive legal power." decision, counsel suggested at the conclusion of the evidence 23. In addressing the issue of what that legal argument be adjourned impact a breach of rights has on to a date after the Supreme Court the litigation of proceeds of delivered its judgment. This crime applications, O'Malley J. transpired to be a wise states that the correct approach suggestion, as the judgment in is to be assessed in light of the Murphy is highly relevant to this role that the affected item plays matter and serves as a definitive in the proceedings. If the item statement on the law in this area. purports to be evidence "in the O'Malley J. carried out an true sense", a phrase which I take extensive and detailed review of to mean that it has been adduced the authorities and the issues of for the purposes of tending to concern in proceeds of crime prove any disputed issue of fact, cases. She notes the centrality of then the issue at hand is whether fair procedures to such matters the evidence in question should and the requirement that a be excluded from the breach of constitutional rights proceedings. In determining that must have consequences. At issue, the test outlined by the
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Supreme Court in J.C. applies, conscious breach of save for the substitution of the constitutional rights, the order "beyond reasonable doubt" must be refused. Where the standard of proof for the breach was brought about by standard applicable in civil reckless or grossly negligent proceedings. Where the item behaviour, the Court retains a comprises all or part of the discretion to make the order subject matter of the application, sought, albeit with a an entirely different set of presumption in favour of refusal. considerations arise. In those It is also clear that the question of circumstances, the item is not a breach must be expressly raised adduced for the purposes of on affidavit. The question is tending to prove any disputed determined at the end of the issue of fact and the J.C. test has hearing, after the Court has no application. Rather, the Court determined whether the asset is concerned with the question of represents directly or indirectly whether the item was seized in the proceeds of crime. The such circumstances that, by the judgment also addresses who making the order sought, the bears the burden of proof (para. Court would be lending s it 133), the relevance to be found in processes to actions on the part the breach of a third party's of State agents who are rights (para. 134) and allegations discharging their duty in an of co‐ownership (para. 135). I do improper fashion. In such cases, not propose to dwell on the latter the Court must act to vindicate two issues, as they do not arise the respondent's right to fair on the facts of this case. procedures and to prevent its However, there are two issues own procedures from being identified in the decision, which abused. In determining that appear to have been left open for issue, the Court is not guided by the High Court to consider at first the exclusionary rule, but by the instance, that require a brief principles which underlie that examination at this juncture. rule. Those principles were examined in detail over the 25. At para. 137, O'Malley J. states course of O'Malley J.'s decision that an order dismissing the and would include the common Bureau's application would not, themes referred to above. in all cases, result in the return of the asset to the respondent from 24. Much clarity has been brought to whom it had been seized. That the law by the judgment in finding is premised upon the fact Murphy. For example, it is clear that there is no constitutional or that, where the State's improper legal right to property acquired activity involved a deliberate and through the proceeds of crime. It
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is unclear precisely what practice and thereby continue to approach the High Court is deny a respondent the beneficial expected to take in those enjoyment of an asset after a s. 3 circumstances. I would certainly application in respect of that require detailed legal asset has been refused. It may be submissions from all the relevant argued that orders could be parties, should this issue ever sought pursuant to ss. 5 or 7 of arise. It is clear from the the 1996 Act before the interim authorities, not least Keane C.J.'s order lapses pursuant to s. 2(5). decision in Murphy v. G.M. In my view, such an imaginative [2001] 4 IR 113, at p. 137, that the suggestion would afford those respondent remains the owner of sections a reading that is far too the asset in question up until the generous, given the draconian point where an order pursuant to nature of these types of s. 4 of the 1996 Act is made proceedings. The High Court also allowing for the disposal of that does not appear to have the asset. Orders pursuant to ss. 2 necessary discretion to act on its and 3 of the 1996 Act serve only own motion and make an order to freeze the asset and deprive effectively preserving the status the respondent of the beneficial quo. enjoyment to which they would otherwise be entitled. Should the 27. Even if such consequential orders Court ever be satisfied that an could be made, which would order pursuant to s. 3 should not preserve the status quo, it is be made, the provisions of s. 2(5) unclear what is to be done with of the 1996 Act would be the asset afterwards. In light of engaged. Assuming the Court's the Court's finding that the asset refusal to make a s. 3 order was represents the proceeds of not appealed, or, if it was crime, the respondent has no appealed, that said appeal was constitutional or legal right to it. not upheld, the interim order That said, the asset cannot be made pursuant to s. 2 would disposed of in a manner that lapse. The asset in question benefits the State, as to do so would no longer be frozen and would undermine the entire beneficial enjoyment of the asset basis on which the s. 3 would immediately become application was refused (i.e. the evested in th legal owner, i.e. the responsibility of the Court ensure respondent, for them to deal fair procedures, prevent the with as they so wish. abuse of its processes and to step away from State agents who 26. It remains unclear how the misuse their authority and seek Supreme Court's observations at to benefit from a violation of para. 137 are to operate in rights carried out in the course of
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the exercise of a coercive legal the cash in question was not power). So, what, precisely, is to evidence as such, and treating it be done with the asset, if it is not as evidence for the purposes of to be returned to the the rule could potentially lead to respondent? Is the Court entitled absurd results in the event that to exercise its discretion with more than one person could regard to the disposal or future mount a claim to use of the property? Is the asset ownership…Defined to be destroyed? It is possible consequences flow from a finding that some other legislative that [the asset represents the provision provides the answers proceeds of crime], and those to all these questions. However, consequences cannot take effect in reality, I think it more likely as against one person but not as that the 1996 Act will require against another… substantial amendment by the 126. For the same reason, the Oireachtas in order to account modified version of the J.C. test for the Supreme Court's proposed by the appellants observations. cannot, in my view, work effectively. The question, then, is 28. The second point that arises is the appropriate response of a whether or not the s. 3 order court where a breach of should be refused where a constitutional rights is involved in constitutional right has been the seizure of the assets breached, but that breach was concerned in the case. not reckless, grossly negligent or deliberate and conscious (e.g. an 127. While the J.C. test is not an act of inadvertence). It has also exact fit, the general approach of not been specifically stated what the Court can, I believe, be is to be done if the infringement adapted to produce an was legal, rather than appropriate response to this issue constitutional, in nature. In in proceedings under the considering these questions, it is Proceeds of Crime Act." worth referring to paras. 125‐127 of O'Malley J.'s decision, where it In light of those observations, it is is stated: to J.C. that this Court now turns.
"125. I indicated at an early stage Director of Public Prosecutions –v‐ J.C. in this judgment that I felt that 29. In normal circumstances, given labelling the issue in this the lack of direct applicability, particular case as the the Court would consider J.C. applicability of the rule excluding only in a very broad sense and unconstitutionally obtained only as far as was necessary to evidence was unhelpful, because dispose of the application before
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it. However, the respondent has unconstitutionality, the onus submitted that it is J.C., and not remains on the prosecution to Murphy, that sets out the establish either:‐ applicable test in this matter, so the Court will consider the Supreme Court's application of (a) that the evidence was not the exclusionary rule, as gathered in circumstances of expressed in J.C., in a little more unconstitutionality; or detail. The Court notes O'Donnell (b) that, if it was, it remains J.'s circumscription of his appropriate for the court to judgment to the area of search nonetheless admit the evidence. warrants. While O'Donnell J. is a member of the deciding majority in J.C., his is not the majority The onus in seeking to justify the judgment. The majority admission of evidence taken in judgment is that of Clarke J. (as unconstitutional circumstances he then was), and his decision places on the prosecution an makes no reference to a obligation to explain the basis on limitation on the applicability of which it is said that the evidence the J.C. test, save for should, nonetheless, be admitted circumstances where the AND ALSO to establish any facts probity/integrity of the evidence necessary to justify such a basis; is also in question. (iii) any facts relied on by the prosecution to establish any of 30. At para. 871, Clarke J. the matters referred to at (ii) summarises the test as follows: must be established beyond reasonable doubt; "(i) the onus rests on the prosecution to establish the (iv) where evidence is taken in admissibility of all evidence. The deliberate and conscious test which follows is concerned violation of constitutional rights with objections to the then the evidence should be admissibility of evidence where excluded save in those the objection relates solely to the exceptional circumstances circumstances in which the considered in the existing evidence was gathered and does jurisprudence. In this context not concern the integrity or deliberate and conscious refers to probative value of the evidence knowledge of the concerned; unconstitutionality of the taking (ii) where objection is taken to the of the relevant evidence rather admissibility of evidence on the than applying to the acts grounds that it was taken in concerned. The assessment as to circumstances of whether evidence was taken in
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deliberate and conscious 31. Under J.C. , the first issue which violation of constitutional rights the Court must determine is requires an analysis of the whether a legitimate question conduct or state of mind not only has been raised about a piece of of the individual who actually evidence, which challenges the gathered the evidence concerned admissibility of that evidence on but also any other senior official grounds connected with the or officials within the manner in which it was gathered investigating or enforcement or obtained, and not on grounds authority concerned who is connected with its probity or involved either in that decision or integrity. Where that question in decisions of that type generally does relate to probity or or in putting in place policies integrity, it is unclear whether an concerning evidence gathering of entirely different test applies or the type concerned; whether the J.C. test is to be applied to the admissibility (v) where evidence is taken in aspect of the question once the circumstances of issues with probity/integrity have unconstitutionality but where the been disposed of. That issue does prosecution establishes that not arise in these proceedings, so same was not conscious and the Court will not comment deliberate in the sense previously further. It is difficult to define appearing, then a presumption what is and is not a legitimate against the admission of the question. However, I am of the relevant evidence arises. Such view that such a question would, evidence should be admitted at the very least, have to specify where the prosecution not just the evidence under establishes that the evidence was challenge, but also the act which obtained in circumstances where allegedly constitutes a breach of any breach of rights was due to rights and/or the precise right inadvertence or derives from which has been allegedly subsequent legal developments; breached. 32. The next step is to determine (vi) evidence which is obtained or whether the prosecution have gathered in circumstances where established beyond reasonable same could not have been doubt (any reference to "beyond constitutionally obtained or reasonable doubt" in this gathered should not be admitted judgment should be substituted even if those involved in the for "the balance of probabilities" relevant evidence gathering were when dealing with civil matters) unaware due to inadvertence of that said evidence was not the absence of authority." gathered in circumstances of unconstitutionality. Should they
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fail to do so, the Court must then rendered improper by determine whether it was subsequent legal developments. possible to have gathered said Each of these reasons gives rise evidence in a constitutional to significant legal questions and manner. If not, then the evidence differing degrees of discretion, must be excluded under principle which will require detailed (vi) of the J.C. test. If it was exploration if and when they possible to have gathered the become live issues before a evidence in a constitutional court. At para. 20 of his written manner, the prosecution must submissions, the respondent establish beyond reasonable submits:‐ doubt not just the grounds on which it remains appropriate to "…In this regard, while it could admit the evidence, but also the not be said that the breach of the facts which support those respondent's rights was either grounds. deliberate or conscious, equally it is respectfully submitted that the 33. The possibilities for the proper error was "inadvertent" in the gathering of evidence are sense used in [J.C.]…" effectively comprised of the The Bureau haved submitte that, processes or provisions that if this Court were to determine provide for such gathering; if it is that a breach of the respondent's possible to gather evidence rights has occurred, said breach properly, there must be a legal was entirely inadvertent. process or provision allowing for Therefore, it is only the third same. A natural corollary to that reason (an inadvertent act) that proposition is the precise reason requires further discussion on why the State agent(s) failed to the facts of this case. comply with that process or provision. This is effectively the 34. Principle (v) applies to cases first principle that guides the where a court is satisfied beyond Court's determination on reasonable doubt that the breach whether it remains appropriate was not a deliberate and to admit the evidence. It seems conscious act on the part of the to me that the J.C. test allows for State agent or on the part of the four distinct reasons to explain senior officials that guided the such a failure, into which all agent's actions. In those breaches can be categorised: a circumstances, a presumption deliberate and conscious act, a arises against the admission of reckless or grossly negligent act, the evidence. That presumption an inadvertent act or an act that will be rebutted if a court is was proper at the time it was satisfied beyond reasonable carried out but has since been doubt that the breach was
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inadvertent or arises from two concepts. The presence of subsequent legal developments. bona fides is not evidenced by an It is necessary to try and provide absence of mala fides. The two some definition to the term concepts are to be assessed in "inadvertence". It seems clear to the light of the following me that the J.C. test was statement from Clarke J.'s formulated to allow for the judgment, at para. 857:‐ admission of evidence where the breach was brought about by "[857] It might be argued that what O'Donnell J. referred to at permitting the admission of para. 489 as "inadvertence, good evidence taken in circumstances faith or excusable error". This of inadvertent breach could place would include "human error". It a premium on ignorance. seems clear to me that, by Evidence obtained in conscious O'Donnell J.'s use of such a and deliberate violation of collection of terms, the Supreme constitutional rights, in the sense Court envisioned a two‐part in which I have used that term, exercise when construing will be excluded. It might be said inadvertence: the Court must be that it is more easily determined satisfied beyond reasonable that the knowledgeable were doubt firstly ethat th breach was aware of what they were doing inadvertent and secondly that compared with those who may be such inadvertence was ignorant of the relevant law. excusable. The admission of However, it is clear from the evidence on such grounds would sense in which I have suggested only be entertained where the that the term "inadvertence" State agent's bona fides is not in should be used that investigative question. For example, the Court agencies cannot hide behind an would generally have to be unacceptable lack of knowledge satisfied beyond reasonable appropriate to their task for the doubt that the agent had made purposes of pleading an effort to behave in the proper inadvertence. It does not, fashion, which is sufficient to lift therefore, seem to me that the their mistake outside the realm test which I propose, when of inexcusable error (i.e. properly analysed, gives any recklessness or gross comfort to those who might seek negligence). to rely on exaggerated ignorance of the law to escape a ruling in 35. In assessing the bona fides and favour of the admission of excusable nature of the agent's evidence taken in breach of behaviour, it is important to bear constitutional rights." in mind that the Court is actively searching for evidence of those
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36. The Supreme Court has made 37. The Court notes that there would absolutely clear that there is no be appear to be a discretion premium on ignorance. J.C. does vested in the Court as to whether not open the door for senior it should assess conduct or state officials to utilise a professed lack of mind. Certainly, the J.C. test of knowledge in relation to the does not require an assessment matter in order to secure the of both conduct and state of admission of otherwise mind. The relevance and impact improperly obtained evidence. of that discretion, and the For inadvertence to be distinction between the two excusable, there needs to be concepts, are matters that do not evidence of a serious require determination on the engagement with the duties and facts of this case. Det. Garda legal requirements that come Gallagher's evidence was that with holding the position of a there is no policy on the review State agent. The reference by process and that it was a matter Clarke J. to "investigative for the individual officer to agencies" would also indicate address. In circumstances where that, much like cases of there would appear to be no deliberate and conscious breach, directing mind of a senior official there is a systemic element to guiding this process, there is no excusable inadvertence. Where systemic state of mind for the the officer "at the coal face" gives Court to examine. Therefore, an evidence that goes to assessment of senior officials' inadvertence, the Court must conduct is required. In this case, also be satisfied beyond the conduct in question would be reasonable doubt that 1) the their decision 1) not to provide a system in which the officer directing mind, and 2) not to take operated (and the senior officials any directive role in the review who instructed them) had no process at all, thereby leaving it hand, act or part in bringing to the official "at the coal face" to about that inadvertence, or 2) if act in their own discretion. This they did have such a role, that assessment seeks to determine said role was also excusably whether such conduct amounts inadvertent on their part. While to excusable inadvertence, principle (v) does not make assuming of course that the prior explicit reference to an elements of the J.C. test have assessment of conduct or state of been satisfied and it therefore mind, as is contained in principle becomes necessary to perform (iv), I am satisfied that the such an assessment. exercise which the Court must undertake operates in similar 38. In performing this assessment, terms. the margin of excusable
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inadvertence is narrower for DPP v. Murphy [2016] IECA 287, senior officials than it is for the albeit in the context of a breach officer "at the coal face", as of statutory rights, wherein senior officials are expected to be Mahon J. stated that the systemic more knowledgeable about their failure arose from "technical duties. Similarly, I would expect difficulty of giving effect to the the system to be set up in a stated policy of the legislature"). manner that accounts for and That said, the lack of guidance is protects citizens' rights. The a significant factor for the Court Court is not seeking to determine to consider, along with how whether there is a policy of technical or substantial the disregarding citizens' rights (an breach was, whether it was approach that was condemned localised or widespread, whether by the Supreme Court in DPP v. there were multiple breaches Madden [1977] I.R. 336 and etc. referred to by MacMenamin J. at para. 921 of J.C.), but whether 39. It should finally be noted that, there is a policy that seeks to even if excusable inadvertence protect and vindicate the rights by both junior and senior officials of the individual, and thereby is established, and the prevent breaches from occurring presumption outlined in principle in the first place. The lack of any (v) has thereby been rebutted, policy would be a relevant factor this does not automatically mean in the Court's assessment, as the that the evidence must be failure by senior officials to admitted. The first principle of provide guidance naturally any criminal proceeding is a fair increases the chances that a trial in due course of law. If the breach will occur. This is by no State's actions would irreparably means the determinative factor undermine that principle, the on excusable inadvertence. courts must act to vindicate the Unusual and unexpected rights of the accused, no matter scenarios can arise from the most how inadvertent the breach may innocuous of circumstances. It is have been. possible that the State could not have reasonably foreseen that Section 9 of the Criminal Law Act 1976 the system in question would 40. Section 9 of the 1976 Act reads as give rise to a situation that would follows:‐ require guidance in order to prevent a breach of rights. 9.—(1) Where in the course of Furthermore, it is possible that exercising any powers under this the State can provide a reason to Act or in the course of a search justify the current absence of carried out under any other such a policy (See, for example, power, a member of the Garda
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Síochána, a prison officer or a breached, this second set of CAB member of the Defence Forces proceedings would also be finds or comes into possession of relevant for the purposes of s. 9. anything which he believes to be Normally, CAB proceedings do evidence of any offence or not fully conclude for a least suspected offence, it may be seven years, as a s. 4 disposal seized and retained for use as application cannot be made until evidence in any criminal at least seven years have passed proceedings, or in any from the making of the s. 3 order. proceedings in relation to a The Bureau is undoubtedly breach of prison discipline, for entitled to retain all evidence on such period from the date of which it relies until its interest in seizure as is reasonable or, if the case is fully concluded. proceedings are commenced in However, as a s. 4A consent which the thing so seized is order s wa made, that required for use in evidence, until consideration does not arise on the conclusion of the the facts of this case. The 1897 proceedings, and thereafter the Act provides that a member of An Police (Property) Act, 1897, shall Garda Síochána or a claimant to apply to the thing so seized in the the property can make an same manner as that Act applies application to a court of to property which has come into summary jurisdiction for an order the possession of the Garda returning the property to the Síochana in the circumstances owner or, where the owner mentioned in that Act. cannot be ascertained, whatever … order the relevant court deems appropriate. Where the owner In determining the point at which cannot be ascertained and a the Police (Property) Act 1897 competent court has not made applies, s. 9 provides for two any order, the Minister may scenarios: 1) the period from the make regulations for the disposal date of seizure reaches a point of such property. where it is no longer reasonable, 41. The respondent argues that the or 2) the conclusion of point at which the 1897 Act proceedings in which the item applies has been reached. When seized and retained is required reached, he submits that the for use in evidence. On the facts State is required under the Act to of this case, such proceedings return his laptop to him and wipe would include both the criminal any copies that were made of it, proceedings and the first set of unless an order is secured from CAB proceedings. Assuming I am the District Court which directs satisfied that the principles in otherwise. It is worth stating that Murphy and J.C. have not been legal authority eon th operation
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of the 1897 and 1976 Acts was considerations would arise. But not put before this Court, save there is certainly no basis for for para. 46 of CRH, which states suggesting that retention is that the onus is on the rendered illegal as soon as the respondent to make a claim for proceedings conclude. The State the return of his property. I am must be given a reasonable satisfied that these provisions do opportunity to review the facts at not support the meaning that the hand, prepare an application respondent attributes to them. under s. 1 of the 1897 Act (if such The respondent's construction of an application is necessary) and the 1976 Act was that, once the institute that application before 1897 Act applies, the property is the District Court. Such an deemed to be illegally retained opportunity is all the more vital in unless an application is made complex cases such as this. This is under the Act. That is not a an issue which I shall return to correct construction of the law. later on in this judgment. The 1897 Act provides a process through which the ongoing The Decisions in CRH PLC v. CCPC and S & retention of an item by the State Marper v. United Kingdom can be reviewed and, if 43. While both CRH and Marper appropriate, concluded. Section address legal issues that are 1 states that a court of summary similar to those raised in this case jurisdiction may make (the constitutional right to appropriate orders where an privacy and Article 8 of the application is made to it. Section ECTHR) they are both strikingly 2 states that the Minister can dis‐similar in their facts when make regulations to facilitate the compared to the matter disposal of the mite where the currently before the Court. In owner cannot be ascertained and CRH, the legality of the original a court order has not been made. seizure was under challenge and Unless a claimant makes an the State authorities had acted application, the process of review with complete disregard for the provided for under s. 1 is plaintiffs' rights. The dispute also instigated by a member of An related primarily to e‐mail Garda Síochána. Assuming that communications, rather than to the item's initial seizure and the computer itself. In Marper, retention was lawful, the ongoing the challenge arose in the retention remains lawful until the traditional criminal context and process of review is completed. related to DNA and fingerprint samples taken from the 42. If some impropriety arose in the applicants. The Member State carrying out or instigation of the proposed to retain the review process, then different applicants' biological information
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de facto indefinitely, 45. At , para. 29 MacMenamin J. notwithstanding the fact that stated that disproportionality they were legally innocent of any was to be determined "having wrongdoing. I cannot ignore the regarding to whether rational, differing factual matrix of these necessary means were adopted cases. I therefore propose to rely to achieve the statutory on CRH and Marper purely as objectives in question". At para. statements of applicable 55, he states that the right to principle. privacy must be "harmonised with, and may be restricted by, 44. In CRH , MacMenamin J. the constitutional rights of highlighted that the State's eothers, th requirements of the actions must be viewed within common good, and the the precise context of the facts at requirements of public order and hand. The search and seizure morality". The "sphere of life" provisions in consumer into which the State seeks to pry protection legislation, by their is also highly relevant. In the very nature, operate differently context of retention, this would than the provisions applicable to include the sensitivity of the criminal investigations. The information sought to be scope is narrower than it is in retained. At para. 117, criminal matters, as is the degree MacMenamin J. referred to of latitude afforded to the State numerous factors that influence regarding the relevance of what applicable principle at the is seized. Time, urgency and European level, including necessity also run differently. The national security, economic Court must bear these factors in wellbeing and the prevention of mind when assessing the crime. This would coalesce with proportionality of the State's the principles of effectiveness actions and whether it can be and efficiency, as referred to at said that a system of tangible, para. 42 of Laffoy J.'s judgment. independent judicial supervision Overall, the Supreme Court was is in place, as envisioned by the unequivocal in its view that the ECTHR. Both MacMenamin and right to privacy is a right with Charleton JJ. make reference to backbone; it cannot be whittled the lack of a policy or a code of down to nothingness, "or practice in respect of the seizures submerged entirely in common carried out. Indeed, Charelton J. good interests or duties". It is a even went so far as to right that must be vindicated and recommend that a policy be protected from unjust attack. drawn up for future cases. 46. The ECTHR's conclusions in Marper broadly reflect the
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contents of Laffoy J.'s judgment, stated that the Ether was seized where she carefully analysed the without actually interfering with European jurisprudence. Having the laptop or its original data. If determined that there was an this is so, the manner in which interference with the applicants' seizure was achieved was not Art. 8 rights, the ECTHR sought to properly explained to this Court. determine where such While FCA2 may have interference was justified. This interrogated copies of the appraisal operated in the usual respondent's system, there is terms of whether the only one original copy of the interference was in accordance wallet containing the Ether and it with law, whether it served a was stored on the respondent's legitimate aim and whether it computer. Presumably, the was necessary in a democratic original had to be seized in order society. Having concluded that for the asset to be dealt with by review, the Court decided that the receiver appointed pursuant the indiscriminate nature of the to s. 7 of the 1996 Act. Therefore, State's powers failed to strike a it eis th subject matter of this fair balance between private and action that is allegedly tainted public interests, and therefore with illegality, and not any piece the margin of appreciation had of evidence which the Court been exceeded. This constituted could exclude if it were to make a disproportionate interference adverse findings under the J.C. with rights that could not be test. regarded as necessary in a democratic society. On that 48. The Court notes that screenshots basis, the ECTHR found for the of the respondent's computer applicants. system are exhibited to the affidavit of FCA2 and that it is Decision arguable whether some part of The Applicable Test the computer system has been 47. The parties disagree as to which adduced before this Court as test is applicable on the facts of evidence. However, the exclusion this case, the test set out by of those screenshots would not O'Malley J. in Murphy or the test advance the respondent's case set out by Clarke J. in J.C. As very far, as they evidence the stated above, this question is respondent's activities on the Silk answered by examining the role Road and Agora websites. There that the item plays in the is no dispute between the parties proceedings. Is it evidence or is it on that issue. Having considered the subject matter of the action? this issue in the round, it seems The subject matter of this action to me that the appropriate test is is the Ether. The Bureau have the test outlined in Murphy. That
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being so, the procedure that the indeed the evidence of the other Court must follow is clear: it must police officers; first determine on the balance of probabilities whether the subject (4) he should make a finding matter of this action represents whether this evidence constitutes the proceeds of crime and then a prima facie case under s. 3 and, consider whether or not to refuse if he does so find, the onus shifts the order sought on grounds of to the defendant or other unconstitutional activity in the specified person; seizure or retention of that subject matter. (5) he should then consider the evidence furnished by the The Test in F . McK v. GWD defendant or other specified 49. The test for the granting of a s. 3 person and determine whether application is set out by he is satisfied that the onus McCracken J. in the case of F . undertaken by the defendant or McK v. GWD [2004] 2 I.R. 470. He other specified person has been states as follows, at para. 70:‐ fulfilled;
"70 … (1) [The Trial Judge] should (6) if he is satisfied that the firstly consider the position under defendant or other specified s. 8. He should consider the person has satisfied his onus of evidence given by the member or proof then the proceedings authorised officer of his belief should be dismissed; and at the same time consider any other evidence which might (7) if he is not so satisfied he point to reasonable grounds for should then consider whether that belief; there would be a serious risk of (2) if he is satisfied that there are injustice…." reasonable grounds for the belief, he should then make a specific 50. The evidence under finding that the belief of the consideration for the purposes of member or authorised officer is s. 8(1) of the 1996 Act is that of evidence; Assistant Commissioner Corcoran and Det. Chief Supt. (3) only then should he go on to Clavin, as set out in their consider the position under s. 3. affidavits dated 22nd July and He should consider the evidence 15th November, 2016, tendered by the plaintiff, which in respectively. Assistant the present case would be both Commissioner Corcoran swore the evidence of the member or his affidavit as then‐CBO for the authorised officer under s. 8 and purposes of the s. 2 application. Detective Chief Supt. Clavin
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swore his affidavit for the purchase occurred using Bitcoin purposes of this s. 3 application procured with legitimate income. and he adopts the contents of his The Bureau contend that there is predecessor's affidavit in that no relevance to be found in this respect. Both CBOs refer to distinction. In their submission, information and intelligence that even if "legitimate" Bitcoin were has come to their attention over used to purchase the Ether, these the course of their investigations legitimate funds were only into this matter. Assistant available to the respondent Commissioner Corcoran sets out because he used the proceeds of the background to this matter in his crimes to offset the cost of some detail, including the daily living. I would only have to previous proceedings, the determine the issue of respondent's conviction, the substitution if it is possible to operation of his criminal distinguish between the enterprise and the nature of his respondent's legitimate and financial dealings. Having illegitimate monies. considered all of those matters, I am satisfied that there are 52. During cross‐examination, at reasonable grounds for the 2:55PM on the day of the holding of the beliefs referred to hearing, the respondent in s. 8(1) of the 1996 Act. I am admitted that he had been also satisfied that those beliefs dealing drugs from as far back as are evidence for the purposes of April, 2014. This represents a these proceedings. notable change in the evidence, most especially in light of my 51. In considering the evidence observations at paras. 54 and 55 tendered by the Bureau in this below regarding the matter, it is noteworthy how respondent's evidence. Up until little there is in dispute between the day of hearing, the the parties. It is common case respondent had always that the respondent was engaged maintained that he only began in significant criminal activity, dealing drugs three or four that he had access to the months before his arrest in proceeds of that criminal activity November, 2014. The Ether was and that he expended those purchased on 5th August, 2014, proceeds during the period in which is around the same time question. The dispute turns on the respondent had previously whether or not the proceeds stated that he commenced his were expended for the purchase illicit activities. Clearly, the of the Ether that comprises the mixing between legitimate and subject matter of these illegitimate funds would be at a proceedings, or whether that much more advanced stage if
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four months had passed since funds were on the Visa Debit illegitimate funds began to electron cards, that simply accrue, and not merely a few doesn't stand up when placed weeks. against the fact that you admit that €7,000, just shy of €7,000, 53. At the conclusion of the first set was lodged to your Ulster Bank of proceedings, a consent order account in Dundrum on 26th was made over debit cards, bank August and that that was from accounts, sums of cash and 50% the sale of Bitcoin and that the of the funds contained in the Bitcoin was probably related to respondent's Dundrum Credit drugs? Union Account. Irrespective of A: I said that in interview in how much time had passed since Rathmines, there might have the mixing of funds commenced, been some minor cross‐ it is clear that illegitimate funds contamination. I said that infected the respondent's entire because I was of the financial infrastructure. It would understanding that I would let be extremely difficult, if not this go, this money, either cross‐ impossible, to parse between the contamination or substitution Bitcoin purchased through and that that would reflect well legitimate funds and the Bitcoin on me for my sentencing for the procured through illegal activity Section 15(a), which turned out to and illegitimate funds. It would not be the case. But that is correct seem more likely than unlikely that I did say that. that the Ether was purchased using Bitcoin procured through Q: Is it now your evidence that criminal activity and/or with the that wasn't correct, that you now proceeds of crime. I am therefore say that that didn't arrive from satisfied that the evidence ethe sal of Bitcoin? adduced before this Court constitutes a prima facie case A: It did derive from the sale of under s. 3 of the 1996 Act. The Bitcoin and I do accept that it is onus has now shifted to the correct that there be some respondent to satisfy this Court relation to illegitimate funds." that the Ether is not connected with the proceeds of his crimes. This exchange is remarkable in two respects. Firstly, the 54. The following excerpt is taken respondent effectively admits from the hearing, at 2:47PM: that there has been some cross‐ contamination between his "Q: Now I must put it to you, Mr. illegitimate funds and various Mannion, that you are making other monies to which he had the case that all your illegitimate access. The clear blue water that
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supposedly existed between his submitted that his imprisonment two sources of money is a fiction. inhibited his ability to make his Secondly, the respondent has case. The respondent was admitted that the information he granted access to the Ad Hoc provided to the authorities, in so Legal Aid Scheme in both sets of far as it can be considered proceedings. In the first set of reliable, only extended so far as proceedings, his legal team were to bring about a situation more able to prove to the Bureau's advantageous to himself. He was, satisfaction that 50% of the funds in effect, willing to manufacture in his Dundrum Credit Union mitigating circumstances and account did not represent the frustrate the administration of proceeds of crime. Orders to that justice in the process, if effect were made on consent by necessary. This admission Fullam J. If the respondent had reflects the comments of Gardaí truly been as fastidious with his who interviewed the respondent finances as he claims, then his on eleven occasions between legal team would undoubtedly November, 2014 and February, have been able to secure the 2015. The interviewing officers necessary evidence that would make several references to their prove his case. They have not dis‐satisfaction with the done so. There is no substantial, respondent's answers. Having reliable evidence to fulfil the had the opportunity to observe onus undertaken by the the respondent in the witness respondent and thereby rebut box as he gave his evidence, I find the prima facie case made by the myself to be in complete Bureau. That being the case, all agreement with those that remains is to be consider sentiments. At the very least, it whether there would be a serious can be said that the respondent risk of injustice in granting the has been economical with the order sought. Independent of truth. Those economies have any concerns under Murphy, I am been advanced to An Garda not satisfied that any such risk Síochána, the Bureau and several exists in this case. I am therefore members of the Judiciary. disposed to granting the order sought. 55. Given this patent lack of candour on the respondent's part, I Application of the test in CAB –v‐ cannot rely on his evidence with Murphy any degree of certainty unless it 56. The affidavits and submissions is supported by objective proffered by the respondent evidence. No such evidence has raise three issues for the Court to been adduced by the consider in applying the Murphy respondent. The respondent has test: 1) the provisions of the 1897
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and 1976 Acts, 2) a Henderson v. December, 2015, an appellate Henderson objection, and 3) the court is entitled to review all respondent's privacy rights. I evidence and material that was must now assess whether the put before the Trial Judge. It Bureau, as the moving party in would reflect very poorly on the this application, has established State if the Court of Appeal on the balance of probabilities requested sight of a piece of that there was no element of evidence relied on at trial, only to illegality or unconstitutionality in be informed that the State had their dealings with the Ether. deleted it. It is only common sense that all evidence and 57. I am satisfied that neither of the material be retained and scenarios envisioned by s. 9 of preserved until the proceedings the 1976 Act can be said to apply had been brought to a complete to the subject matter of these end. proceedings. Proceedings were instigated by the State against 58. Even if I were of the view that the respondent and there could proceedings concluded in be no question of s. 9 arising until February, 2016, and s. 9 applied those proceedings conclude. The thereafter, this would not help respondent has submitted that the respondent in any proceedings concluded on 21st meaningful way. As set out at December, 2015, when he was para. 42 above, a reasonable sentenced by His Honour Judge opportunity must be afforded to Nolan in the Circuit Criminal the State to prepare and institute Court. In my view, it would be an application under s. 1 of the more accurate to submit that the 1897 Act, if such an application is determination of these matters necessary. The Ether was re‐ concluded at first instance when examined during a review the consent order was made by process carried out in late May, Fullam J. on 22nd February, 2016. 2016, approximately 3 months But, even if that submission had after the first set of proceedings been made, s. 9 would still not concluded. This second set of apply because the criminal proceedings commenced in late proceedings were still in being. July, approximately 5 months The respondent appealed his after the first set of proceedings sentence to the Court of Appeal. concluded. Even if proceedings Proceedings did not in fact come had concluded and s. 9 applied, I to an end until 3rd November, am of the view that a period of 3‐ 2016, when the Court of Appeal 5 months comes within the time delivered its decision. While the period afforded by that criminal proceedings had reasonable opportunity. concluded at first instance in
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59. While the respondent has not material that directly goes to sought to challenge the scope of criminality but also any other the initial seizure carried out by programming or hardware that is Gardaí, that scope informs later required to make the relevant developments and is worth material intelligible and usable. commenting on briefly. In so finding, I would rely MacMenanmin J. found that the primarily on the affidavit State is afforded significant evidence of FCA2, wherein they latitude in terms of seizure during explain the technological criminal investigations (para. 31 background to this matter, of his judgment in CRH). As the including the encryption hub of his criminal enterprise, software employed by the there can be no doubt that respondent. It is clear that Gardaí were entitled to seize and specific programmes, such as retain in full the contents of the Bitcoin "keys" and the TOR respondent's laptop. It is quite browser, are required before the probable that unrelated material criminality engaged in by the was contained on the respondent becomes apparent. respondent's laptop, which did Before any application under s. 1 not need to be seized. But the could proceed, a detailed review facts of this case cannot be of the respondent's computer overlooked. This was not a series system would be required so as of e‐mails that can be keyword‐ to determine what should and searched and filtered, as in CRH, should not be retained. This nor was this an investigation into review would most likely be regulatory misfeasance. This was carried out by someone involved a computer system, wherein one in the investigation, such as programme relies on other FCA2. A review of such programmes in order to function. complexity would naturally The contents of that system went extend the time period of a toward the commission of "reasonable opportunity", as particularly serious criminal referred to above. Until that offences. It is undoubtedly in the reasonable opportunity has interests of justice that the passed, the State's retention of respondent's computer system the material could not be called be retained in full while the into question. I am more than investigation and prosecution satisfied that no issue arises were in progress. under s. 9 of the 1976 Act.
60. If an application under s. 1 were 61. For the sake of completeness, I being made in this case, I would should also note that it will be for be of the view that the State is some other court to consider the entitled to retain not only precise circumstances in which a
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s. 1 application is necessary. That could have sold it. In my view, is not a live issue in this case, as that is not the standard by which the 1897 Act does not yet apply. marketing and marketable value Most particularly, I would leave are assessed for the purposes of over questions regarding the the 1996 Act. An effective precise circumstances in which salesperson can sell anything if the member of An Garda they can only find a person who, Síochána is required to make an on their whims, sees fit to application under the 1897 Act in purchase it. That does not mean order to continue retaining the that the asset has value. If it did, material. Such a requirement is then the minimum value not explicitly stated in either the threshold set out in the 1996 Act 1897 or 1976 Acts, but may arise would be meaningless. Almost on some other legal or any item could be said to come constitutional basis. I would also within the Bureau's remit of refrain from expressing any view seizure, as the Bureau would only as to the status of seized material need to prove on the balance of for which a s. 1 application is probabilities that they can find necessary but is not made by the someone to purchase it at a price Garda member within the in excess of the minimum value reasonable opportunity referred threshold. The marketable value to at para. 42 above. In my view, of an asset is determined using it would be inappropriate to objective criteria that can be make findings of such observed in an established significance until a case comes marketplace. It is this established before the courts in which the marketplace that allows the operation of the 1897 Act is Bureau to carry out its functions directly at issue between the and dispose of assets it has parties. seized. Little relevance is to be found in the practices of 62. With regard to the respondent's alternative, underground fora. In objection pursuant to the rule in light of FCA2's evidence, I am Henderson v. Henderson, this satisfied that no established point is only sustainable if it were market existed for Ethereum possible to sell the Ether before until the currency started trading the consent order was made in in July, 2015. February, 2016. The respondent has raised significant questions 63. Seven months passed between about the marketability of the that date and the making of the Ether in November, 2014. He consent order. During that time, effectively argues that the asset there can be no doubt that a could be bought and sold market existed for Ethereum and because he had bought it and that the Ether had value. An
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application was not made to motivate this Court to make a make the Ether a part of the ruling adverse to the State under subject matter of the Bureau's the jurisprudence in Murphy and first application. This failure J.C. arose not out of some bad faith or improper act on the State's 64. Turning finally to the part, but out of a simple respondent's privacy rights, it is oversight as to the necessary to put the alleged commencement of trading. The breach of rightss in it full and creation of cryptocurrencies was proper context. As stated above, a massive economic and a review of all the material on the technological advancement. respondent's system would be Society as a whole is still necessary before an application grappling with the consequences could be made under s. 1 of the of these developments. The 1897 Act, in which the State failure to notice that Ethereum would set out what material it had started trading did not arise wished to hold on to and what out of negligence, but out of a material it did not intend to failure to prepare for an retain further. From that eventuality that was, up until perspective, a review of the that point, unheard of. The laptop's contents was inevitable. Bureau were engaging with Detective Garda Gallagher's economic infrastructures that evidence is also of relevance. He were themselves still evolving. was extensively cross‐examined The development of Ethereum by counsel for the respondent as did not come with any rules or to the ad hoc nature of the guarantees. It was entirely review process and whye th possible that the currency would review did not take place before never commence trading and its the first set of proceedings were first investors would be left out of settled. Bearing all of this in pocket. The Bureau were dealing mind, it seems to me that with an unknown quantity. As a objection has not been taken to result, an understandable the review process in and of oversight occurred. In my view, itself. The respondent is not the subsequent efforts by the arguing that a review could not Bureau to remedy that oversight have been carried out under any do not constitute a breach of the circumstances. Rather, the rule in Henderson v. Henderson. dispute relates to the timing, Even if they did amount to such a purpose and manner of the breach, and the respondent's review that was carried out. rights had been impacted, I am satisfied that this breach would 65. The review carried out by FCA2 not agitate issues that would occurred after the first set of
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proceedings were settled. I am review was necessary. The satisfied that this did not result in Bureau cannot be said to have a breach of the respondent's acted arbitrarily, dis‐ privacy rights. As stated above, proportionately or improperly for criminal proceedings against the failing to carry one out, nor can respondent were still in being in the post‐conclusive review that May, 2016. A review was actually took place be so perfectly legitimate at any time described. before the criminal proceedings concluded and before the 66. As for the manner of review, it reasonable opportunity referred cannot be denied that there is no to at para. 42 above had expired. policy on the issue. Reviews are As for the purpose of review, effectively left to the discretion FCA2 re‐examined the computer of the officer. The European system for the purpose of courts have been particularly ensuring all matters had been critical of the failure to provide satisfactorily addressed and the guidance and proper procedure Bureau's investigation could be in the exercise of the State's formally concluded. That is a powers, and they have found in perfectly legitimate reason for favour of applicants where such carrying out a review of the case failures occur. That said, the material. Indeed, had the 1897 respondent's submissions on this Act applied, this same purpose point were unrealistic in the would be relied on to justify extreme. If his argument were reviewing the material and correct, then the State would be preparing a s. 1 application. This obligated to meticulously plan review was carried out to ensure out policies and procedures for that the Bureau had fulfilled its every eventuality or act that statutory duties and legal could ever arise, no matter how obligations. I can find no fault in unusual or banal they may be. If that. Of course, it would have they fail to do so, they would risk been ideal had a review occurred an adverse judicial finding at before Fullam J. made the some point in the future. Such a consent order in February, 2016. task is not only burdensome; it is But there is a great deal of impossible. There is no way to difference between a less than foresee every possibility that approach and an illegal could arise in the future and plan approach. I am satisfied that the for it. Nor is it possible to Bureau's actions in this case can construct a policy or procedure be characterised as the former, that accounts for every banal or rather than the latter. There trivial act a State agent commits were no grounds on which to in the course of carrying out their believe that a pre‐conclusive duties. There is, of course, an
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expectation that the State would unwarranted or improper provide guidance to its officers interference in this case. Even if where State powers are being there had been, those exercised in a significant way on interferences would not justify a a regular basis, or where there is ruling against the Bureau. The a foreseeable clash between test in Murphy in quite clear. State activity and citizens' rights. There are basic constitutional In my view, a final review of all principles that the State is material validly seized, retained required to respect and vindicate and relied upon in the course of a in the exercise of its powers. criminal investigation does not Where State agents fail to uphold give rise to such an expectation. I those principles, the courts must am therefore satisfied that the act. Having reviewed the actions manner in which this review was of the State agents in this case, it conducted did not give rise to a cannot be said that this Court is breach of the respondent's lending its processes to action on privacy rights. the part of State agents who are discharging their duty in an 67. This does not mean that the State improper fashion. I am satisfied agent enjoys a carte blanche to that the Bureau has properly act as they wish if no guidance is performed its statutory duties. provided to them. Every State agent has a general obligation to Concluding Remarks abide by the law and respect 68. The State tagents tha were personal rights in the exercise of involved in this case have, in my their powers and duties. This is view, conducted themselves with not a case where it can be said commendable diligence and with that this general obligation has due regard to their constitutional been breached, inadvertently or obligations. As stated by Det. otherwise. The review of this Garda Gallagher, An Garda laptop and the material it Síochána broke new ground in contained was, at all stages, this case. That said, the perfectly legitimate. On the facts investigation into the criminal of this case, the respondent's activities of the respondent was right to privacy in respect of this not without flaw. I have found device must yield to the State's against the respondent on the right to tackle serious criminal issues that he raised during the activity. The necessary procedure course of the hearing. His to bring that about has been constitutional and legal rights followed and there has been no were not breached and there is breach or improper act that no need to further consider the would bring same into disrepute. test in Murphy. But the There can be no suggestion of an arguments made by the
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respondent were not without merit. A great deal of time and effort was put into this investigation and the State's endeavours were potentially undermined by the intricacies of data privacy rights and cryptocurrency exchanges. While those complications did give rise to legitimate questions on the respondent's part, they did not give rise to a breach of rights. On the unusual facts of this case, the Bureau have established that the asset was not seized or retained in circumstances of unconstitutionality. That is not to say that a breach could not arise in a future case. It would be prudent to prepare for these potential difficulties going forward.
69. For the reasons outlined above, I would make the orders sought by the Bureau in respect of the Ether which comprises the subject matter of this action.
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134 Criminal Assets Bureau Annual Report 2018
Part Eight International developments
The International Perspective International Operations As a front line agency in the fight against From an operational perspective, the criminality, the Bureau's capacity to carry Bureau continues to be involved in a out this function, together with its number of international operations. The success to date is, to a large degree, Bureau’s engagement in such operations based on its multi‐agency and multi‐ can vary depending on the circumstances disciplinary approach, supported by a of the case. It may include providing unique set of legal principles. The Bureau ongoing intelligence in order to assist an continues to play an important role in the investigation in another jurisdiction. context of law enforcement at an More frequently, it will entail taking an international level. active role in tracking and tracing individual criminal targets and their Asset Recovery Office (ARO) assets in conjunction with similar agencies in other jurisdictions. As stated in previous reports, the Bureau is the designated Asset Recovery Office (ARO) in Ireland. Following a European Europol Council Decision in 2007, Asset Recovery The Bureau continues in its role as the Offices were established throughout the lead Irish law enforcement agency in a European Union to allow for the number of ongoing international exchange of intelligence between law operations which are being managed by enforcement agencies involved in the Europol. These operations target the investigation, identification and activities of transnational organised confiscation of assets deemed to be the crime gangs, who recognise no borders proceeds of criminal conduct. and attempt to exploit the opportunities presented by freedom of movement As part of its commitment as an Asset across international frontiers in their Recovery Office, the Bureau has attended criminal activity. three meetings held in Europe to discuss the work and cooperation of the Asset Interpol Recovery Offices. These meetings were Interpol is an agency comprised of the held in Brussels. membership of police organisations in one hundred and ninety countries During 2018, the Bureau received fifty worldwide. The agency’s primary requests for assistance. The Bureau was function is to facilitate domestic able to provide information in respect of investigations which transcend national these requests. The requests were and international borders. The Bureau received from thirteen different has utilised this agency in a number of countries within the European Union. The investigations conducted in 2018. Bureau itself sent eighty requests to twenty seven different countries from which it has received replies.
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Part Eight International developments
CARIN During 2018, the Bureau remained as a In 2002, the Bureau and Europol co‐ member of the Steering Groupd an hosted a conference in Dublin at the attended the Annual General Meeting rd Camden Court Hotel. The participants which was held in Warsaw on the 23 – th were drawn from law enforcement and 25 May 2018. judicial practitioners. ALEFA Logo of CARIN (Association of Law Enforcement Forensic Accountants) The ALEFA Network is a European funded project which has been established to develop the quality and reach of forensic accountancy throughout law enforcement agencies so as to better
assist the courts, victims, witnesses, The objective of the conference was to suspects, defendants and their legal present recommendations dealing with representatives in relation to the the subject of identifying, tracing and investigation of alleged fraud, fiscal, seizing the profits of crime. One of the financial and serious organised crime. recommendations arising in the workshops was to look at the Logo of ALEFA establishment of an informal network of contacts and a co‐operative group in the area of criminal asset identification and recovery. The Camden Assets Recovery Inter‐agency Network (CARIN) was established as a result.
The ALEFA Network involves all of the EU The aim of CARIN is to enhance the Member States and invites participation effectiveness of efforts in depriving from the USA, Canada and Australia. criminals of their illicit profits. During 2018, the Bureau as a member of The official launch of the CARIN Network the ALEFA Steering Group, was involved of Asset Recovery agencies took place in developing the EU Internal Security during the CARIN Establishment Congress funded project entitled “Financial in The Hague, in September 2004. Investigation as a means to combat Trafficking in Human Beings (THB)”. The CARIN permanent secretariat is based in Europol headquarters at The The aim of the project is to improve Hague. The organisation is governed by a financial analysis techniques and to Steering Committee of nine members enhance tracing and confiscation of the and a rotating Presidency. proceeds of THB crimes. The ALEFA
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Part Eight International developments
Steering Group presented a THB financial Virtual Currency Conferences investigation training event for financial Virtual Currency Symposium investigators and forensic accountant’s The Bureau was invited to provide a delegates at Europol HQ in The Hague presentation to the “Crypto Currency during April 2018. Symposium” which took place from 6th – 10th August 2018 in Phoenix, Arizona, In that regard, the Bureau participated in USA. This conference was organised by Steering Group project meetings The National Cyber Investigative Joint developing the content of the training Task Force (NCIJTF) in the United States event. Subsequently, the ALEFA Steering of America. Group, with Bureau participation, has produced a handbook and leaflet for The conference is aimed at law financial investigations in THB, which will enforcement personnel with an be published and submitted to the EU in intermediate to advanced level early 2019. knowledge of virtual currency and experience working with these types of International College of investigations. Attendees consisted of Financial Investigation (ICOFI) representatives from various Federal Law The Bureau provided an instructor on the Enforcement and Regulatory Agencies in ICOFI conference on “LEA perspective on the United States as well as international Virtual Currencies”, which took place partners which includes the Bureau. from the 20th – 23rd November 2018 at the International Training College in The event addressed the latest crime Budapest, Hungary. trends, tracking, attribution and cooperation between Law Enforcement The Bureau’s instructor provided details and the relevant private sector. on the Bureau’s experiences in detecting and seizing crypto‐currencies deriving The conference was highly beneficial to from criminal conduct. The instructor the Bureau in expanding our knowledge covered an end‐to‐end investigation into and capacity in the investigation of virtual Darknet drug dealing and related lessons currencies. learned during the case. Logo of ICOFI Relationship with External Law Enforcement Agencies The Bureau has a unique relationship with the authorities in the UK, given the fact that it is the only country with which Ireland have a land frontier and the relationship has developed between the two jurisdictions over the years.
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Part Eight International developments
Cross Border Organised Crime Cross Border Joint Agency Task Force Conference (JATF) The Cross Border Organised Crime The establishment of the Cross Border Conference provides an opportunity for Joint Agency Task Force was a all law enforcement agencies from both commitment of the Irish and British sides of the border to get together and Governments in the 2015 Fresh Start review activities that have taken place in Agreement and the Task Force has been the previous year, as well as planning for operational since early 2016. the forthcoming year. The conference provides the opportunity to exchange This Joint Agency Task Force consists of a knowledge and experience and identify Strategic Oversight Group which best practice in any particular area of identifies and manages the strategic collaboration. priorities for combatting cross‐ jurisdictional organised crime and an In November 2018, Senior Bureau Operations Coordination Group which Officers attended the Cross Border coordinates joint operations and directs Organised Crime Conference which was the necessary multi‐agency resources for held in Northern Ireland. those operations.
As part of the Cross Border cooperation, The Cross Border Joint Agency Task Force Senior Officers from the National Crime brings together the relevant law Agency (NCA) visited the Bureau on the enforcement agencies in both 24th July 2018. Similarly, Senior Bureau jurisdictions to better coordinate Officers visited the National Crime strategic and operational actions against Agency’s offices in Belfast in December cross border organised crime gangs. The 2018. Task Force comprises Senior Officers from An Garda Síochána, PSNI, Revenue Customs, HMRC, the Bureau and the NCA (who have the primary role in criminal assets recovery).
On occasion, other appropriate law enforcement services are included, (such as environmental protection agencies and immigration services) when required by the operations of the Task Force.
D/Chief Superintendent Patrick Clavin, Mr Declan The Bureau attended four operational O’Reilly, Bureau Legal Officer and Detective meetings in 2018 in relation to the Joint Sergeant Fergal Harrington of the Criminal Assets Agency Task Force and are involved in a Bureau meeting with Senior Officers of the National Crime Agency on 24th July 2018 number of operations being conducted under the Joint Agency Task Force.
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Part Eight International developments
Visits to the Bureau Visit of Secretary General of the The success of the Bureau continues to Department of Employment Affairs attract international attention. During and Social Protection (DEASP), Mr 2018, the Bureau facilitated visits by John McKeon on 16th May 2018. foreign delegations covering a range of The Secretary General of the Department disciplines, both national and of Employment Affairs and Social international. Protection, Mr John McKeon visited the Bureau Offices on Wednesday 16th May The Bureau’s continued involvement in 2018 where he was briefed on the investigations having an international operation of the Bureau and in particular, dimension presents an opportunity to the work of the Social Welfare Bureau both contribute to and inform the Officers. international law enforcement response to the ongoing threat from transnational organised criminal activity. In addition, this engagement provides an opportunity for the Bureau to share its experience with its international partner agencies.
The Bureau welcomed Mr Anthony Cook, Special Agent / Attaché, Money Laundering and Criminal Tax, Department of Treasury, IRS Criminal Investigations, American Embassy, London on 25th September 2018 and was provided with an overview of the work of the Bureau and discussed areas of mutual interest D/Chief Superintendent Patrick Clavin, Mr John McKeon, Secretary General and Mr Declan and cooperation. O’Reilly, Bureau Legal Officer, 16th May 2018
The Bureau also welcomed Mr Hervé Mathevet, French Customs Attaché to the UK and Ireland on the 1st November 2018. The purpose of this meeting was to exchange briefings on the roles and functions and areas of common interest.
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Part Eight International developments
Visit of Garda Commissioner, Mr Drew Harris on 21st September 2018
On Friday 21st September 2018, the newly appointed Garda Commissioner, Drew Harris visited the Bureau Offices. Commissioner Harris met with the Chief Bureau Officer, Bureau Officers, Bureau staff and staff of the Chief State Solicitors Office co‐located at the Bureau’s Offices. The Commissioner was briefed on the operation of the Bureau and engaged in a walk‐through of the offices where he engaged with all officers and staff.
D/Chief Superintendent Patrick Clavin and Garda Commissioner Mr Drew Harris, 21st September 2018
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Part Nine Protected Disclosures Annual Report
Protected Disclosures Act 2014 Section 22 of the Protected Disclosures Act 2014 requires every public body to prepare and publish a report, not later than the 30th June, in relation to the preceding year’s information, relating to protected disclosures.
No protected disclosures were received by the Bureau in the reporting period up to the 31st December 2018.
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Part Ten Conclusions
Throughout 2018, the Bureau has The investigations conducted by the exercised its independent statutory remit Bureau and the consequential to pursue the proceeds of criminal proceedings and actions resulted in sums conduct. In order to do this, the Bureau in excess of €2.2 million being forwarded has, in addition to exercising powers to the Exchequer under the Proceeds of under the criminal code, drawn on the Crime legislation. In addition, in excess of provisions of the Proceeds of Crime Act €3 million was collected in Revenue and 1996 as amended, together with Revenue €323,000 in Social Welfare overpayments and Social Welfare legislation. was recovered.
The Bureau welcomes the additional At an international level, the Bureau has powers and changes affected by the maintained strong links and has commencement of the Proceeds of Crime continued to liaise with law enforcement (Amendment) Act, 2016 which have been and judicial authorities throughout successfully used. The provisions of the Europe and worldwide. Criminal Assets Bureau Act, 1996 as amended, provide for the exercising of The Bureau continues to develop its the Bureau functions using a multi‐ relationship with a number of law disciplinary approach. enforcement agencies with cross‐ jurisdictional links, most notably, The Bureau continued to target assets Interpol, Europol, Her Majesty’s Revenue deriving from a variety of suspected & Customs (HMRC), the National Crime criminal conduct including drug Agency in the UK and the CARIN Network. trafficking, fraud, theft, laundering / As the designated Asset Recovery Office smuggling of fuel and illegal tobacco. (ARO) in Ireland, the Bureau continues to develop law enforcement links with other The Bureau also targeted new emerging EU Member States. trends such as the use of the motor trade to conceal criminal assets as well as eth In pursuing its objectives, the Bureau use of crypto‐currency for asset transfer continues to liaise closely with An Garda and international fraud. Síochána, the Office of the Revenue Commissioners, the Department of Throughout 2018, the Bureau placed Employment Affairs and Social Protection particular emphasis on targeting the and the Department of Justice and criminal gangs engaged in serious and Equality in developing a coherent organised crime, as well as property strategy to target the assets and profits crime, such as burglaries and robberies. deriving from criminal conduct. This A particular focus of the Bureau's strategy is considered an effective tool in activities centres upon rural crime and a the overall fight against organised crime. number of the Bureau’s actions were in support of law enforcement in regional During 2018, in excess of €5.6 million was locations. forwarded to the Central Fund as a result of the actions of the Bureau.
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Part Ten Conclusions
The heart of the CAB model continues to be the multi‐disciplinary team where professionals work together for the common purpose of denying and depriving criminals of their ill‐gotten gains.
The Bureau continues to evolve and develop in response to the threat posed by local, national and international criminals.
One of the key strengths of the Bureau is its reach into other organisations to support its activities. The Bureau could not undertake its activities without the support of many sections of An Garda Síochána including units under the Special Crime Operations, the Emergency Response Unit, Regional Armed Support Unitl and loca Divisional personnel.
In addition, the Bureau receives excellent assistance from many sections of the Office of the Revenue Commissioners including the Disclosure Office and Customs Units. Officers from various sections of the Department of Employment Affairs and Social Protection assist the Bureau in matters of mutual interest. For this reason, the Bureau can extend its reach beyond its modest size.
Officials from the Department of Justice and Equality provide excellent advice and support to the Bureau in terms of finance, governance and audit and risk. The Department take on board suggestions for legislative and policy changes in support of the statutory remit of the Bureau.
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Appendix A Objectives & functions of the Bureau
Objectives of the Bureau: freezing, preservation or seizure Section 4 of the Criminal Assets of assets identified as deriving, or suspected to derive, directly or Bureau Act 1996 & 2005 indirectly, from criminal conduct,
4.—Subject to the provisions of this Act, (b) under the Revenue Acts or the objectives of the Bureau shall be— any provision of any other enactment, whether passed (a) the identification of the before or after the passing of this assets, wherever situated, of Act, which relates to revenue, to persons which derive or are ensure that the proceeds of suspected to derive, directly or criminal conduct or suspected indirectly, from criminal conduct, criminal conduct are subjected to tax and that the Revenue Acts, (b) the taking of appropriate where appropriate, are fully action under the law to deprive applied in relation to such or to deny those persons of the proceeds or conduct, as the case assets or the benefit of such may be, assets, in whole or in part, as may be appropriate, and (c) under the Social Welfare Acts for the investigation and (c) the pursuit of any determination, as appropriate, of investigation or the doing of any any claim for or in respect of other preparatory work in benefit (within the meaning of relation to any proceedings Section 204 of the Social Welfare arising from the objectives (Consolidation) Act, 1993) by any mentioned in paragraphs (a) and person engaged in criminal (b). conduct, and
Functions of the Bureau: Section (d) at the request of the Minister for Social Welfare, to investigate 5 of the Criminal Assets Bureau and determine, as appropriate, Act 1996 & 2005 any claim for or in respect of a benefit, within the meaning of
Section 204 of the Social Welfare 5.—(1) Without prejudice to the (Consolidation) Act, 1993, where generality of Section 4, the functions of the Minister for Social Welfare the Bureau, operating through its Bureau certifies that there are Officers, shall be the taking of all reasonable grounds for believing necessary actions— that, in the case of a particular
investigation, Officers of the (a) in accordance with Garda Minister for Social Welfare may functions, for the purposes of, the confiscation, restraint of use,
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Appendix A Objectives & functions of the Bureau
be subject to threats or other forms of intimidation, and such actions include, where appropriate, subject to any international agreement, co‐operation with any police force, or any authority, being an authority with functions related to the recovery of proceeds of crime, a tax authority or social security authority, of a territory or state other than the State.
(2) In relation to the matters referred to in subsection (1), nothing in this Act shall be construed as affecting or restricting in any way—
(a) the powers or duties of the Garda Síochána, the Revenue Commissioners or the Minister for Social Welfare, or
(b) the functions of the Attorney General, the Director of Public Prosecutions or the Chief State Solicitor.
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Appendix B Statement of Internal Controls
Scope of Responsibility The system of internal control, which On behalf of the Criminal Assets Bureau I, accords with guidance issued by the as Chief Bureau Officer, acknowledge Department of Public Expenditure and responsibility for ensuring that an Reform has been in place in the Criminal effective system of internal control is Assets Bureau for the year ended 31 maintained and operated. This December 2018 and up to the date of responsibility takes account of the approval of the financial statements. requirements of the Code of Practice for the Governance of State Bodies (2016). Capacity to Handle Risk The Criminal Assets Bureau reports on all I confirm that a business plan is agreed audit matters to the Internal Audit Unit in annually by the Senior Management the Department of Justice and Equality Team (SMT) and is submitted to the and has in place a Bureau Audit and Risk Assistant Secretary, Department of Committee (ARC). The ARC of the Bureau Justice and Equality for information. met on 4 occasions during the year 2018.
I confirm that a Corporate Governance During 2018, the Internal Audit Unit of Assurance Agreement between the the Department of Justice and Equality Bureau and the Department of Justice carried out audits on financial and other and Equality covering the years 2017 – controls in the Criminal Assets Bureau, in 2019 is in place and is subject to ongoing line with its annual programme of audits. review. The ARC has developed a risk I confirm, that the Annual Report and management policy which sets out its risk Compliance Statement has been appetite, the risk management processes submitted to the Minister for Justice and in place and details the roles and Equality. responsibilities of staff in relation to risk. The policy was issued to all Managers Purpose of the System of within the Bureau who were advised of the necessity to alert management of Internal Control emerging risks and control weaknesses The system of internal control is designed and to assume responsibility for risk and to manage risk to a tolerable level rather controls within their own area of work. than to eliminate it. The system can therefore only provide reasonable and not absolute assurance that assets are Risk and Control Framework safeguarded, transactions authorised and The Criminal Assets Bureau implemented properly recorded and that material a Risk Management System which errors or irregularities are either identified and reported key risks and the prevented or detected in a timely management actions taken to address, manner. and to the extent possible, to mitigate those risks.
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Appendix B Statement of Internal Controls
A Risk Register is in place in the Criminal deficiencies were communicated to those Assets Bureau which identifies the key responsible for taking corrective action risks facing the Bureau and these are and to management, where relevant, in a identified, evaluated and graded timely way. I confirm that the following according to their significance. The monitoring systems were in place in register is reviewed and updated by the respect of the Criminal Assets Bureau: ARC on a quarterly basis. The outcome of these assessments is used to plan and key risks and related controls have allocate resources to ensure risks are been identified and processes have managed to an acceptable level. The Risk been put in place to monitor the Register details the controls and actions operation of those key controls and needed to mitigate risks and report any identified deficiencies; responsibility for operational controls an annual audit of financial and assigned to specific staff. other controls has been carried out by the Department of Justice and In respect of the Bureau, I confirm that a Equality’s Internal Audit Unit; control environment containing the reporting arrangements have been following elements is in place: established at all levels where responsibility for financial • procedures for all key business management has been assigned; processes are documented; regular reviews by senior • financial responsibilities are management of periodic and annual assigned at management level with performance and financial reports corresponding accountability; take place, which indicate • an appropriate budgeting system is performance against budgets/ in place, with an annual budget forecast. which is kept under review by senior management; Procurement • systems aimed at ensuring the I confirm that the Criminal Assets Bureau security of the information and has procedures in place to ensure communication technology systems compliance with current procurement are in place; rules and guidelines and that during the • systems are in place to safeguard the year 2018 the Criminal Assets Bureau Bureau’s assets; complied with those procedures. • the National Shared Services Office
provide Payroll Shared Services to the Bureau Review of Effectiveness I confirm that the Criminal Assets Bureau has procedures in place to monitor the Ongoing Monitoring and Review effectiveness of its risk management and During the period covered by this control procedures. The Bureau’s Financial Statement, formal procedures monitoring and review of the were implemented for monitoring and effectiveness of the system of internal control processes and control
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Appendix B Statement of Internal Controls
control was informed by the work of the internal ARC, the Internal Audit Unit of the Department of Justice and Equality and the Comptroller and Auditor General. The ARC, within the Criminal Assets Bureau, is responsible for the development and maintenance of the internal control framework.
During 2018 the Internal Auditt Uni of the Department of Justice and Equality conducted an audit at the Criminal Assets Bureau to provide assurance to the Audit Committee of Vote 24(Justice).
Internal Control Issues No weaknesses in internal control were identified in relation to 2018 that require disclosure in the Financial Statements.
______Patrick Clavin Chief Bureau Officer May 2019
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Appendix B Statement of Internal Controls
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Criminal Assets Bureau Harcourt Square Dublin 2 D02 PT89 Ireland