Re Casey's Patents

The Respondents contend that the Plenary Summons is defective since it contains no claim for substantive relief under Section 4 of the Proceeds of Crime Act and seeks merely interlocutory relief under Section 3 . Accordingly, they argue the proceedings should be dismissed.

Order 4, Rule 1, of the Rules of the Superior Courts provides, inter alia , that:-

Order 11, Rule 1 (g) provides that:-

Later on in the same judgment Finlay C.J. stated:-

The Applicant, however, contends that what he is seeking is a statutory relief, analogous to an injunction under Section 27 of the Local Government (Planning and Development) Act, 1976 as substituted by section 19(4)(g) of the Local Government (Planning and Development) Act, 1992 . This distinguishes it from the kind of injunction in the Caudron case. Moreover, the reason that an injunction was refused in the Caudron case was because it failed the test that "an injunction must be sought in something" , and in that case there was no valid cause of action in the State. The position in the instant case is different. Furthermore they argue, insofar as the judgment in the Caudron case is reinforced by the reasoning in Siskina (Cargo Owners) -v-Distos S.A. [1979] A.C. 210, that decision was explained subsequently in the House of Lords in the case of Channel Tunnel Group Limited -v- Balfore Beatty Construction Limited [1993] 1 All E.R. 664 at 686:

The Applicants, however, maintain that the Respondents should have applied by way of Notice of Motion to have this claim struck out or to set aside the Plenary Summons for irregularity. Under Order 124, Rule 3, any claim to set aside proceedings for irregularity must be brought by way of Notice of Motion. The Applicants point out that although many Motions were brought seeking different types of relief, no such application was brought and that in the circumstances the application to have the proceedings struck out should fail. I agree with the Applicants on this point. The defect in the pleading was of a technical nature and could not conceivably have worked to the prejudice of the Respondents. In my view, it would be quite unfair to allow the Respondents avail of the defect in pleading at this stage.

The Applicants further submit that if an amendment is necessary, the Court should grant it. The Respondents contend, however, that an application to amend the Statement of Claim should be refused in view of the nature of these proceedings, and cite the case of Savvinos [1996] 85 A. Crim. R. 343. That case concerned the Australian crimes (confiscation of profits) Act, 1986 (Vic). That Act made provisions for a forfeiture order, and provided that an application for such an order had to be made within a specified time. Leave to appeal outside that time could be granted, inter alia , where " it is otherwise in the interests of justice to do so" . In the Savvinos case it was successfully argued that the provisions of the act were penal in nature and ought to be construed strictly; that the framework of the Act was designed to impose a strict time limit on the making of an application by the D.P.P. for an Order which would materially affect the interests of the person against whom it was sought, and that leave to bring the application out of time was not to be lightly granted, but only on proof by the Director of Public Prosecutions of circumstances entitling him to the grant of such leave. The following passage is at pp.347/348 of the Report:-

In that case the Court decided how it would use its discretion in relation to a particular provision of a penal statute. It provides little assistance in determining whether an amendment to the Plenary Summons should be granted in the instant case. I cannot see how any unfairness could be occasioned by making the amendments sought. In my opinion, having regard to the purely technical nature of the defect in the pleadings, the lack of prejudice to the Respondents, the hybrid nature of an Order under Section 3 of the Proceeds of Crime Act , and the absence of procedural rules, it would be quite unfair not to allow the required amendments.

Order 11, Rule 8, of the Superior Court Rules provides that "[w]here the Defendant is not, or is not known or believed to be, a citizen of Ireland, notice of the summons, and not the summons itself, shall be served upon him" . In this particular case the service on the Third Named Defendant on the Isle of Man was not in compliance with the Rules in that the Plenary Summons was issued instead of Notice of the Summons. In the case of O'Connor -v- Commercial General and Marine Limited and Others [1996] 1 I.R. 68 Morris J. stated at page 72:

The summons was set aside.

I have also been referred to the following passage at p.310 of Brownlie's Principles of Public International Law (5th Edition, 1998):-

I have been also been referred to the case of Short -v- Ireland [1996] 2 I.R. 188. In that case there was wrongful service, similar to that in the present case, but O'Hanlon J. exercised his discretion to overlook it.

The Applicant contends that an unconditional appearance was entered on behalf of the Third Named Defendant in this case and that in itself cures defects in the service. furthermore, he took the technical point that a Notice of Motion should be served in order to have the service set aside pursuant to Order 124, Rule 3, R.S.C. Thirdly, he pointed out that a service was accepted by Mr. H. on behalf of the Third Named Defendant within the jurisdiction. In my view, the unconditional appearance to the Summons cured any defect in it. Moreover, if I am wrong in so finding, there was a perfectly good service of the proceedings on the Third Named Defendant through his Solicitor, Mr. H.

If I am wrong in both these propositions it seems to me that in all the circumstances of the case including the unconditional appearance and the service on

Mr. H. that, notwithstanding Savvinos , I should overlook any defect in service.

This point can be simply stated. Section 3 of the Proceeds of Crime Act makes provision for the Courts, in certain circumstances, to make Interlocutory Orders "prohibiting the Respondent or any other specified person or any other person having notice of the Order from disposing of or otherwise dealing with" property. Since, by virtue of the appointment of a Receiver, the Respondents are not in "possession or control" of the property (so the argument runs) the Court cannot make an Order under Section 3 . This aspect of the case centres around the construction of the Act and was argued in considerable detail by both sides.

Mr. Forde cited the case of Jeffrey -v- Director of Public Prosecutions (Cth.) (1995) 121 F.L.R. 16, and draws the attention of the Court to the following observations of the Court of Criminal Appeal of New South Wales: -

A legislative intention to take away property without compensation requires expression of that intention with 'irresistible clearness' because it is presumed that the legislature would not ' over-throw fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness' ...

Any statutory ambiguity should be interpreted so as to respect a person's property rights.... Unless no other interpretation is possible, justice requires that statutes should not be construed so as to enable the confiscation of an individual's property without payment of justcompensation. A fortiori where the statute does not provide for any compensation.

In construing a penal statute, and confiscation of property without compensation constitutes a penalty, if there are two reasonable interpretations, the more lenient of which will avoid the imposition of the penalty, that more lenient construction must be adopted" .

The attention of the Court was drawn to the case of Director of Public Prosecutions -v- Logan Park Investments Pty Ltd. and Anor . (1995) A.L.R. 449 and in particular the following passage at page 455:-

The Act establishes a scheme for depriving persons of property rights which they otherwise enjoy by law... Therefore, it can be accepted that the Act, insofar as it manifests ambiguity or obscurity, would have been intended to respect basic property rights.

Provisions for the forfeiture of property have conventionally been construed strictly.

While it is legitimate to have regard to the explanatory memorandum and the purpose of the drafter, and while I would accept that the legislation here is ambiguous, permitting that course, the ultimate duty of a Court is one of fidelity to the language which Parliament has actually used.".

Later in the same judgment at p. 457 the following passage occurs:-

Mr. Forde also cited the case of R. -v- Cuthbertson and Ors. [1981] A.C. 470. In that case the Defendants pleaded guilty to conspiracy at common law to commit certain offences. The commission of the substantive offences could have attracted Forfeiture Orders under Section 27 of the U.K. Misuse of Drugs Act, 1971. In holding that there was no jurisdiction to make forfeiture orders since the conspiracies to which the Defendants had pleaded guilty were not "offences under the Act within the definition of Section 27" . Lord Diplock said at page 480 :

Mr Humphreys cited a number of authorities on the question of construction. In the case of Aamand -v- Smithwick & Anor. [1995] 1 I.L.R.M. 61 Finlay C.J. said at page 67:-

The attention of the Court was also drawn to a passage in The State (Rollinson) -v- Kelly [1984] I.R. 248 at page 255 where O'Higgins C.J. said:-

Also, in relation to statutory construction I have been referred to various passages in the case of Howard -v- Commissioners of Public Works [1994] 1 I.R. 101. At page 151 of the Report Blayney J. cites the following passage:-

At pp. 152-153 Blayney J. goes on to quote from Craies on Statute Law (1971) (7th ed.) at p. 109:-

A passage from Maxwell on The Interpretation of Statutes (12th edition,

at page 29, which was referred to in the judgment of Blayney J. at page 154, has been cited:-

In the course of her judgment in the same case at page 163 Denham J. cited with approval Craies on Statute Law (7th Ed) at page 67 where it is stated:-

She goes on to say:-

Reference was also made to a passage in Hamilton -v- Hamilton [1982] I.R. 466 where the Court refused to read an Act retrospectively.

Applying the criteria set down in all the passages cited above the Respondents contend that following the appointment of the Receiver they were not in 'possession or control' of the money, the subject matter of this application, and accordingly the application should be dismissed.

Counsel for the Applicants also referred me to several authorities concerning statutory interpretation. He first referred me to a passage in the judgment of Mr. Justice Henchy in the case of Nestor v. Murphy [1979] I.R. 326. That case concerned the meaning of Section 3, subsection (1), of the Family Home Protection Act, 1976 . At page 329 Henchy J. stated:-

This approach appears to have been endorsed by McCarthy J. in the case of McCann Limited -v- Ó'Culacháin [1986] 1 I.R. 196 where he said at page 201:-

I was also referred to Alder -v- George [1964] 1 All E.R. 628. The Appellant was convicted of an offence contrary to Section 3 of the Official Secrets Act, 1920 in that being "in the vicinity" of a prohibited place, namely Marsham Royal Air Force Station, he obstructed a member of Her Majesty's Forces engaged in security duty in relation to the said prohibited place. The Appellant entered the station where the offence took place. He argued that he could not be "in the vicinity" of the station since he was in the station itself. Lord Parker C.J. however rejected that argument saying:-

The Applicant placed considerable reliance on the case of D. (a minor) -v Berkshire County Council and Others [1987] 1 All E.R. 20 and contended that the argument in that case was "functionally identical" to that in the present case.

That case concerned the interpretation of certain provisions of The Children and Young Persons Act, 1969, as amended. The House of Lords considered the interpretation of the phrase "his proper development is being avoidably prevented or neglected, or his health is being avoidably impaired or neglected or he is being ill-treated" . It rejected a literal interpretation. Lord Brandon analysed the statute, which provided for a place of safety order, an interim order and, finally, a full care order. He said at pp. 40-41 of the Report:-

Finally, I was referred to a judgment of mine dated the 1st April 1998 in the case of Mullins -v- Harnett & Ors [1998] 2 ILRM 304 and to certain passages from Bennion on Statutory Interpretation and from Maxwell on The Interpretation of Statutes dealing with the principle against doubtful penalisation, the so-called principle of strict interpretation of penal statutes. The following passage occurs at page 382 of the Second Edition of Bennion:-

Maxwell at page 246 of the 12th Edition puts it as follows:-

The concept was expressed succinctly by Henchy J. in Inspector of Taxes -v- Kiernan [1981] I.R. 117, 122:-

In dealing with the submissions made by Counsel on both sides, various passages have been cited to support various canons of construction. Canons of construction may overlap and are not always neatly compartmentalised. Some of the dicta may carry conflicting emphases. The purpose of the rules of construction, however, is to ascertain the intention of the Legislature - as that intention is expressed in the legislation - without adding words to the statute.

Neither the principle against doubtful penalisation - by which a person should not be subjected by law to any sort of detriment unless this is imposed by clear words - nor the rule of strict construction provide any real assistance as to how the words "possession or control" are to be interpreted.

I am entitled to look to the purpose or scheme of the Act. The essential structure of the Act is contained in Sections 2, 3 and 4 which permit a freezing of assets on an interim basis and subsequently on an interlocutory basis, and then their final disposal under Section 4 of the Act. The purpose of the Act is to adapt some concepts which are already available in civil litigation into statutory form.

If the appointment of a Receiver prevented the making of an order under Section 3 of the Act, it would defeat the purpose of the Act. Moreover, there is internal evidence in the Act itself which favours the Applicant's contention. Section 7(1) reads:-

Section 7 therefore envisages the appointment of a Receiver between the interim order under Section 2 and the interlocutory order under Section 3. The Act envisages the making of a Section 3 Order in circumstances where the Receiver has possession of the goods. It is inconceivable that the Act, while permitting the appointment of a Receiver between the interim and the interlocutory order, would nevertheless bring about the destruction of the statutory provisions by preventing the Interlocutory Order being made if the Receiver were appointed.

Section 15(1) of the Act provides that:-

If the literal interpretation contended for by the Respondent is correct, the exercise of powers by the Garda or officer of the Customs and Excise under Section 15, after the making of an Order under Section 2, would preclude the making of an Order under Section 3. This would seem to be an absurd result and frustrate the very purposes of the Act.

Section 13(1) of the Act provides:-

Mr. O'Donnell contends that that provision strengthens his contention that "possession or control" means possession or control prior to the operation of the Act, since he argues that once an Order has been made it is not literally in his control. Certainly, it is difficult to see how a person could be in control of property after a Disposal Order has been made.

Mr. Forde, however, submits that the absence of a Receiver from the provisions of Section 13 strengthens his case. Moreover, he submits that one may have possession and control notwithstanding the making of the Orders. However, dealing with the property after a Disposal Order would render one liable for contempt of Court. I do not accept that a person can be said to be in control of assets after the making of such an Order since that person is manifestly not free to do with them as he may wish.

Mr. Forde, in submitting that the words "possession or control" should be construed as he contends for, argues that his construction would not necessarily make the Act unworkable. Having obtained an order under section 2, he submits that it would be possible to apply for an order under section 3, have that application adjourned and apply for the appointment of a Receiver. In those circumstances the appointment of a Receiver would not preclude the making of an order under section 3, because the Respondent would be in possession or in control at the commencement of the application. Even if this be correct, however, the order might well be resisted on the basis that since possession or control had passed to the Receiver it would be inappropriate to make the order. In interpreting the words I am entitled to have regard to the purpose and structure of the Act. The purpose of the Act has been described byMoriarty J. in the case of M. -v- D. , an unreported judgment of 10th December 1996, where he said:-

The phenomenon was referred to much earlier by T. S. Elliott in 'Macavity: the Mystery Cat':

The scope of the Act is not necessarily confined to such persons. It may also be used against people who are blameless in any respect, but who might be in possession or control of the proceeds of crime and against whom it would not be unjust to make an order.

Having regard to the scheme and purpose of the Act and having regard to all the arguments and having particular regard to the provisions of section 7 of the Act the interpretation argued for by the Applicant, is the preferable, more sensible and correct interpretation. Accordingly, I hold that there was such possession and control in the Respondents as is necessary for the making of an Order under section 3 of the Act. The fact that a Receiver was appointed is no bar to the making of an Order under section 3. It follows from that ruling that it is unnecessary for the Court to consider whether the property is now in possession of Mr.Galvin or of the Court, or to consider the case of The Deputy Commissioner of Taxation -v- Kunz 21 A.T.R. 949 in relation to whether the Court is a "person" for the purposes of the Act.

Moreover, it is also contended that there are some internal indications in the legislation that it is not intended to apply extra-territorially.

The definition of "dealing" includes removing from the State. Moreover, Section 15(1) provides for seizure of property for the purpose "of preventing any property the subject of the order being removed from the State" .

Section 10 of the Act deals with what happens in relation to Orders affecting land and Orders affecting companies and in nine sub-sections dealing with a wide variety of eventualities, there is no mention about what happens in relation to Orders concerning property outside the State.

It is submitted that those are indications in the Act itself that the Act is not intended to have extra-territorial application.

Further, it is argued that this is criminal legislation and that there are presumptions that such legislation does not have an extra-territorial application. Even if the legislation is not criminal in the sense contended for in the constitutional argument, it is still penal legislation and carries the presumption against extra-territorial application. Finally, there is the argument that the State may exercise extra-territorial jurisdiction in accordance with generally recognised principles of international law and if the State can exercise extra-territorial jurisdiction in this case, it is contrary to the principles under international law and the law must be unconstitutional.

Dr. Forde cited the case of The Attorney General of New Zealand -v- Ortiz and Ors. [1984] 1 A.C. 1, which concerned the unlawful exportation from New Zealand of an artefact described characteristically by Lord Denning:-

The issues are set out in the headnote to the Report:-

In the course of his judgment, Lord Denning discussed the territorial theory of jurisdiction as follows:

A point of vast importance

He went on to discuss the circumstances in which foreign laws will be enforced:

Lord Denning then reviewed a number of cases "about tangible things which have been confiscated - or attempted to be confiscated - by a Sovereign Government." The case of Don Alonso -v- Cornero (1611) Hob. 212; 2 Brownl. 29 concerned a confiscation on the high seas of 3,000 lbs of tobacco on behalf of the King of Spain. In proceedings before the English Court of Admiralty the Court refused to enforce the confiscation as it was an act done in the exercise of sovereign authority outside the territory of Spain.

Having reviewed these authorities Lord Denning said:-

Mr. Forde cited the case of Arab Bank plc. -v- Mercantile Holdings Ltd. and Anor . [1994] Ch. 71. Section 151 of the Companies Act, 1985 made it unlawful for a company, or one of its subsidiaries, to give financial assistance for the purpose of acquiring its shares. It was held that the words "any of its subsidiaries" were to be construed as limited to such subsidiaries as were companies incorporated in England.

Millet J. at pp. 80-81 said:-

In that case, if the words had not been given the more limited reading, there would have been interference with the right of a foreign country to legislate for its own company law.

Later in the judgment the following passage occurs:-

Mr. Forde referred to a further passage in Reg. -v- Cuthbertson [1981] A.C. 470 at 485:-

Mr. Forde also referred to the case of Frankfurther -v- W.L. Exner Limited [1947] 1 Ch. 629, which held that an Austrian Decree, giving control of Jewish businesses to Commissars, was a penal law, though not criminal legislation in the strict sense. The Courts in England would not enforce such penal legislation with regard to property in England.

At page 644 Romer J. stated:-

Finally, in relation to the extra-territoriality, Mr. Forde argued that the general principle is that ownership of property is governed by the law of the place where the property is located or lex loci . Furthermore, if the Act were construed to apply to property in England, it could give rise to difficult conflicts; for example, if there were a dispute in Ireland and somebody raised a dispute in England in a parallel matter.

Mr. O'Donnell for the Applicant agrees that the words such as "property wherever situated" or some similar words could have been put into the Act, but says that that is of minimal importance. What matters is the intention or the meaning of the Act. He contends that there is no real extra-territorial issue and says that the word "extra-territoriality" can be used loosely to describe a number of different concepts and issues. It is not, he says, coterminous with the foreign element in a case. He pointed out that the observations of Lord Denning in the Court of Appeal in Attorney General of New Zealand -v- Ortiz were treated as obiter dicta in the House of Lords. Even if he accepts the proposition in the Ortiz case, he argues that it is not relevant to this case. It is authority for the proposition that, in the absence of some specific agreement, one country does not normally enforce, although it recognises, the foreign, criminal, penal or tax legislation of another country. That principle was established in the Irish case of Buchanan Ltd. -v- McVey [1954] I.R. 89. He submits that the issue is whether we can enforce our law against the Respondents, not whether we can ask an English Court to do so.

The Applicant accepted that there is a principle of statutory construction by which acts done wholly abroad are not presumed to be rendered criminal by domestic legislation unless such intention is clearly expressed. It was submitted however, that while that jurisdiction is limited territorially, there is no requirement that the words of general import must be read down - so as to be confined territorially. The reading down of the statute could only be required by some principle of statutory interpretation connected withextra-territoriality. The Applicant contends that there is no such principle. I was referred to the case of Treacy -v- Director of Public Prosecutions [1971] A.C. 537. In that case it was held that the doctrine of autrefois convict or autrefois acquit can be raised in respect of foreign as well as domestic convictions or acquittals. In that case the question arose whether a person could be convicted of making a demand with menaces, contrary to the Theft Act 1968, where a letter was posted making demand in the United Kingdom but addressed to a person in Germany. It was contended that the offence occurred in Germany since the demand was made when received. The question to be determined was whether, in those circumstances a person could be said to have made the demand with menaces. If those words were read subject to a territorial restriction limitation - that is, demand with menaces within the jurisdiction of Britain - he could not have been convicted. The House of Lords upheld the conviction. LordDiplock at page 561 said:-

I was also referred to the case of Bonalumi -v- The Secretary of State for the Home Department [1985] 1 All E.R. 797. In that case the applicants sought to appeal an Order made under Section 7 of the Bankers' Books Evidence Act 1879, whereby the Home Secretary sought evidence from a London Bank in aid of a Swedish prosecution. The Court held that this was a criminal cause or matter. If "criminal cause or matter" within the relevant statute had to be read as limited to a criminal cause or matter in the United Kingdom, this would not have been possible.

He submits that the principle is that an Irish Court does not involve itself, unless it is made very clear by the statute, with matters which occur entirely abroad and where every single component occurs abroad. There is no principle that everything has to occur in Ireland. For an Irish Court to assert jurisdiction, there should be sufficient connection with Ireland, and he submits that there is ample connection in this case. He submits that the fact that there is some foreign element, such as part of the money being abroad, or one of the Defendants being a foreign company, does not raise any question ofextra-territoriality. He cited the following passage from Bennion on statutory interpretation , (2nd Edition 1992) at page 257:-

Mr. O'Donnell's next argument was as follows:-

He submitted that the jurisdiction exercised by Courts to grant injunctions and appoint Receivers, in respect of assets abroad, is itself based on the provision from a statute: that is, Section 28(8) of the Judicature Act (Ireland), 1877. That legislation does not contain any express provision allowing the Courts to appoint a Receiver over properties abroad. Neither does it contain any limitation. It has been interpreted so as not to contain a territorial limitation. In those circumstances there is no justification for seeking to restrict the ambit of the Proceeds ofCrime Act. Whether that legislation was prescriptive or descriptive of the law seems to me to be irrelevant.

Courts of Equity have been prepared to grant injunctions and appoint Receivers in respect of assets which are wholly or partially abroad. In Penn -v- Lord Baltimore (1750) 1 Ves Sen 444 , where a Court of Equity in England granted specific performance of an agreement setting the boundaries of the then colonies of Maryland and Pennsylvania. The principle is stated in paragraph 3.06 of Keane, Equity and the Law of Trusts in the Republic of Ireland (Butterworths, 1988) as follows:

Under this principle a Receiver can be appointed over foreign property . In in re Maudslay, Sons & Field [1900] 1 Ch 602 Cozens-Hardy J. stated at page 611:-

That case has been approved in Bennett Enterprises Inc. & Others -v- Lipton & Others [1999] 1 ILRM 81

The power of the Court to appoint Receivers over assets situated abroad is well established without explicit statutory provision. There is nothing in the legislation to indicate that Receivers appointed under the Proceeds of Crime Act were intended by the legislature to have less powers than other Receivers. Furthermore, there is nothing in the Act that requires the reading down of the words so as to imply that the Act applies to assets within the jurisdiction only. If the powers of the Receiver under the Act were to be limited territorially the legislation would have so stipulated. Nor is there any legal principle or the principle of interpretation that requires such a narrowing down. I cannot agree that there are any internal indications in the Act to suggest intra-territorial application only. The Ortiz case and the cases referred to therein deal with enforceability of foreign laws by the English Courts. The issue in this case is not whether foreign law will be enforced by the Irish Courts. The dictum of Lord Diplock in the Cuthbertson case already referred to, is not in my view directed towards the powers of a Receiver to make in personam orders effecting property abroad. I cannot accept that the judgment in Mahon -v- Butler [1998] 1 I.L.R.M. 284 contains any principle that would justify the Court in holding that a Receiver appointed under the Proceeds of Crime Act cannot be appointed over assets abroad.

In my view there is no constitutional requirement which prohibits the action complained of in this case. I do not accept that the appointment of receivers over property abroad is contrary to any principle of international law. Indeed, the widespread application of similar legislation in other countries to property "wherever situate" or "property abroad" is indicative that there is no prohibition on such terms in international law because those terms are not limited to countries with which the enacting legislature has a treaty arrangement. The principle does not prevent the action taken in the present case. The Receiver was appointed by an Irish Court. The assets were the property of an Irish citizen. They were held in the account of an Irish citizen. The request or demand of the Receiver was made in Ireland of an Irish citizen who had control over the assets which had been transferred to him in Ireland. In those circumstances there is sufficient connection with Ireland for the Court to exercise jurisdiction without offending against the sovereignty of any country. The fact that one of the Defendants is a foreign company does not oust the jurisdiction of the Irish Courts.

Considerations of comity require that Courts of this country refrain from making orders which infringe the exclusive jurisdiction of Courts of other countries but "a mareva injunction operates solely in personam and does not normally offend the principle in any way" per Lord Donaldson M.R. in Derby & Co. Ltd. -v- Weldon (No. 2) [1989] 1 All E.R. 1002 at page 1011. The Proceeds of Crime Act does not purport to make law for a territory outside its jurisdiction in such a way that it becomes part of the corpus juris of the foreign territory. It does not offend against the principle of comity.

The Receivership is subject to attack from the Respondents on a number of grounds. First, it is argued that it is necessary for an Interim Order to be in force before a Receivership Order can be made. It is submitted that in this case the interim Order and the Receivership were made - impermissibly - at the same time. This is factually incorrect. The matter was dealt with in the fourth Affidavit of William P.O'Brien sworn on the 29th of April 1998. At paragraph 25 he states:-

That sequence of events has not been denied. In any event in my opinion there is nothing to prohibit an application being made at the same time for relief under Section 2 and, should such relief be granted, for the appointment of a Receiver.

It is further argued that because of the absence of specific provision in the Proceeds of Crime Act for the appointment of a Receiver ex parte this cannot be done. The case of Mahon -v- Butler [1998] 1 I.L.R.M. 284 was cited as an authority for the proposition. It was submitted that the Proceeds of Crime Act is a self-contained code and should be strictly construed. The Court should not import general equitable principles and practices not expressly provided for in the Act itself. However, I do not accept that Mahon -v- Butler contains any principle which precludes the appointment of a Receiver ex parte or prior to the institution of proceedings. In that case a "quia timet" injunction was refused. Section 27 of the Local Government (Planning and Development) Act, 1976 as substituted by section 19 (4)(g) of the Local Government (Planning and Development) Act, 1992 enables a planning authority or any other person to make an application where:-

There is no reference to future events. It was held that Section 27 provided for a statutory injunction distinct and separate from the general equitable jurisdiction of the Court. The High Court had no jurisdiction to expand the statute by invoking the equitable jurisdiction. However, the Court did not overrule any of the decisions which imported equitable principles in relation to the grant or otherwise of injunctions under Section 27 of the Planning and Development Act. The matter has been helpfully set out in Mr.Galligan, Irish Planning Law and Procedure , (Round Hall Press, 1997) in a number of passages concerning Section 27:-

At page 289 Mr. Galligan cites a passage from the unreported judgment of Barr J., dated April 26th, 1983 in O'Connor and Spollen Group Limited v. Frank Harrington Limited :

The equitable remedy of appointing a Receiver has always been available on an ex parte basis (Wylie's Judicature Acts (1906) page 701). If the intention of the legislature was to impose different rules for Receivers under the Proceeds of Crime Act that would have been specified in the legislation.

However, in this case neither the Applicants or the Respondents seek to have the Receivership set aside. Mr. Forde contended that Mr. Justice Smyth had no jurisdiction to grant the Receivership Order but that this Court cannot remedy the matter now as that would be the equivalent of quashing a decision of a Court co-equal by way of Certiorari . This Court is proceeding on the basis that there is a valid Receivership Order. I accept as correct the decision of McCracken J. in the case of Voluntary Purchasing Group v. Insurco Ltd. [1995] 2 I.L.R.M. 145 where he held that, in the absence of an express statutory provision to the contrary, the Court has an inherent jurisdiction to set aside an ex parte Order if requested to do so by any party affected by that Order. The remaining arguments concerning receivership have already been dealt with in the portion of this judgment dealing with extra-territoriality.

As Acts of the Oireachtas are presumed to constitutional, it is for the Respondents in arguing against the constitutionality of the Proceeds of Crime Act to make and prove that case. It is suggested that, because of the circumstances in which the Act was passed, the presumption of constitutionality in this case is less strong than in other cases. The legislationwas passed after the killing of the journalist Veronica Guerin. It is clear the legislation was originally an Opposition Bill which was taken over by the Government. It is clear that there was considerable high feeling prevalent at the time of the enactment of the legislation. The presumption of constitutionality arises from the respect that the Courts owe to the Legislature and not on the quality or otherwise of the proceedings in theOireachtas. Mr. O'Donnell submits that the Dáil debates have no value in determining the issues that are before me but, without prejudice to his contention, has no objection to my perusing them. I was urged to have regard to them by Counsel for the Respondent. I found the debates to be of no assistance in deciding the issues in this case though they did provide an insight into the background against which the legislation was enacted. In deciding the constitutional issues the Court is bound to act in accordance with the principles set down byWalsh J. in East Donegal Co-operative Limited -v- Attorney General [1970] I.R. 317, and cited in the judgment of McGuinness J. in the Gilligan case at pp. 213/214. The relevant principles were summarised by Hamilton C.J. in Croke -v- Smith (No. 2) [1998] 1 I.R. 101 at pp. 111-112 where he stated that the Court must:-

not declare the impugned provision to be invalid where it is possible to construe it in accordance with the Constitution;

favour the validity of the provision in cases of doubt, and

must have regard to the fact that the presumption of constitutionality carries with it not only the presumption that the constitutional interpretation or construction is the one intended by the Oireachtas but also that the Oireachtas intended that proceedings, procedures, discretions and adjudications which are permitted, provided for or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice".

The Respondents contend that the Proceeds of Crime Act, 1996 is ersatz civil law; it is, in substance, a criminal law with does not afford the protections normally existing in the criminal law, such as the presumption of innocence and the standard of proof required in criminal cases. It is therefore unconstitutional both in failing to provide for due process of law and for fair procedures.

Counsel for the Applicants cited the case of The State (Burke) -v- Lennon [1940] I.R. 136 in support of his contention that in determining whether a particular process is criminal, the Court should have regard to the substance of the matter rather than its trappings.

Gavan Duffy J. stated at p. 147:

Mr. Forde went on to refer to a number of decisions of the European Court of Human Rights in respect of which I adopt the same approach as that of McGuinness J. in the Gilligan case where she said at page 202 of the reported judgment:-

The first of these cases was Öztürk v. Germany (1984) 6 EHRR 409 . This case concerned a German law which allowed minor traffic offences to be treated as "regulatory" offences and dealt with by administrative authorities. It was decided that whether regulatory offences are "criminal" offences depends on:

Of those the second and third factors were of greater weight. In addition "misconduct of the kind in question here is still classified in most States as criminal and is punishable by criminal penalties" .

All of these authorities are of persuasive authority. If and insofar as they are at variance with any of the principles laid down in Melling -v- O'Mathghamhna [1962] I.R. 1. I am obliged to follow the latter. However, I see no such conflict. In particular, they appear to all suggest that not too much weight should be placed on the classification of the legislation.

I was also referred to the case of A.G. -v- Casey [1930] I.R. 163 where penalties for fraudulent tax returns provided for in the Income Tax Act, 1918 were held to be civil rather than criminal. This case addressed the question of criminality predominantly from the point of view of form rather than substance. Mr.Forde also cites passages from The State (Gettins) -v- Fawsitt [1945] I.R. 183.

The Applicant relied on Attorney General -v- Southern Industrial Trust Limited & Simons [1960] 94 I.L.T.R. 161 and submitted that it was of considerable relevance to the present case. Section 5 of the Customs (Temporary Provisions) Act, 1945 provides by subsection (1):-

The goods were seized under the provisions of section 207 of the Act of 1876. The Defendants, the Southern Industrial Trust Ltd., were a hire-purchase company who owned the car and it was common case that they were innocent of any wrong-doing. The Defendants contended:-

That the provisions of Section 5(1) of the 1945 Act, insofar as they purported to authorise the forfeiture of the goods of an innocent party were contrary to the provisions of the Constitution and therefore void and of no effect."

It is useful to apply the criteria used by Davitt J. and to see how they conform with the Proceeds of Crime Act .

At page 167 of the Report of Davitt J. said:-

The judgment of the Supreme Court was delivered by Lavery J. In the course of his judgment he said at p. 174:-

Lavery J. went on to say:-

Counsel for the Respondents have sought to distinguish the Southern Industrial Trust case from the present one in a number of respects. Mr. Forde argued that it is not authority for the proposition that a law which provides for forfeiture is invariably a civil law, but only for the proposition that laws which provide for forfeiture may be a civil law depending on the general context and terms of that law. I agree with this argument but I cannot see how it avails the Respondents in this case.

It is further argued that the case is at most authority for the proposition that penalties imposed in fiscal legislation for the contravention of fiscal laws are not always criminal in nature. The 1996 Act does not purport to be a fiscal law unlike the Customs (Temporary Provisions) Act, 1945 . I cannot accept this contention. The analysis by the Supreme Court took into account the factors that it considered relevant in deciding on whether an act was criminal or otherwise and they were not confined to the fact that it was a fiscal law. In the event, the fact that exporting the car could also be a crime had no bearing on the forfeiture provisions under Section 5 (1) (a) and (3) of the Customs (Temporary Provisions) Act, 1945 ; forfeiture was automatic on an unlicensed export taking place. Thirdly, it was submitted that there was a distinction to be drawn between the Southern Industrial Trust case and the present one in that there could be forfeiture under Section 5 of the 1945 Act in circumstances where the owner had a full defence to a prosecution, for example, where the vehicle had been stolen from him or where he inadvertently took it over the border; by way of distinction, the 1996 Act is invariably predicated on crimes having been committed and the property in question deriving from those very offences. The distinction - even if valid - does not seem to me to be significant. Even if the owner were to have a defence to criminal charges, Section 5 (1)(a) of the 1945 Act specifically refers to goods which have been exported "in contravention of such enactment or statutory instrument" .

It is further submitted that it is fundamental that the criteria expounded in Melling -v- O'Mathghamhna [1962] I.R. 1 were not considered in the Southern Industrial Trust case which was decided four years prior to it. However, the Melling case, although it refers to the Southern Industrial Trust case, does not purport to overrule it.

Reliance is placed by both sides on the case of Melling -v- O'Mathghamhna [1962] I.R. 1 at pp. 24/25. The judgment of Kingsmill-Moore J. identifies three significant features in determining whether an act is criminal in nature or not. Kingsmill-Moore J. refers to what he calls the indicia of crimes:-

There is, in my view, no offence created by the Proceeds of Crime Act . I am not convinced that it creates a money-laundering type offence. Clearly, there is a public dimension to the legislation and it is not argued otherwise. Is the sanction punitive and not merely a matter of fiscal reparation? It is clear that if there is no title to the goods, confiscation could not rightly be said to be punishment. In many, if not all, circumstances, a person will not have any right to the proceeds of crime. A person has no title to stolen goods, and no punishment therefore accrues. A receiver of stolen goods has no title to goods and therefore no punishment accrues. An innocent receiver of stolen goods has no absolute title to the goods which can be recovered against him. Even if a thief sells goods on, he can have the proceeds of his crime taken from him.

If there are at least some situations in which the confiscation of the proceeds of crime cannot be considered a punishment, the Melling test in relation to infliction of punishment cannot be fully applicable. There is only one circumstance where a person gets an indefeasible title and that is where a person is a bona fide purchaser for value without notice.

Mr. O'Donnell submits that it is possible that what the bona fide purchaser for value acquires is not the proceeds of crime, but rather that the proceeds of crime is the money that he paid for the goods because, there are not several different proceeds of the crime. I do not have to decide that. However, while the punishment indicator is difficult to apply to the Proceeds of Crime Act, it is clear that in many, if not most, circumstances the confiscation will not constitute punishment.

The Act itself makes no provision for any finding of guilt by anybody. It is clear that the Act envisages that property could be taken from people who were innocent of any wrongdoing as well as people who were guilty of wrongdoing. Under the Act, the question of guilt does not arise. The contention that if the 1996 Act were to permit forfeiture of propertyowned by entirely innocent parties it would be invalid as an impermissible invasion of private property, cannot be sustained in view of the fact that that is precisely what happened in the Southern Industrial Trust case, where confiscation of property of an entirely innocent party was held to be constitutional.

Mr. Forde argues that the Proceeds of Crime legislation contains features over and above those contained in the Melling case:-

These three points, in my view, do not address the question as to whether this is ersatz civil law.

The use or otherwise of Section 63 of the Criminal Justice Act, 1994 does not impinge on the question as to whether or not this is ersatz civil law. Even if the assistance of the London Metropolitan Police was obtained in this case, that does not address the issue as to whether or not the Proceeds of Crime Act is really criminal legislation. I am not aware that there is any such evidence.

It was further contended that Mr. B. may succeed in demonstrating that the extradition applications that lead to his arrest were orchestrated on behalf of the Plaintiffs herein with reference to these proceedings. This is, in my view, irrelevant to the question as to whether the proceedings are ersatz criminal law.

The Applicant also referred to the judgment in the case of Clancy v. Ireland [1988] IR 326. In that case the constitutionality of an Act providing for forfeiture was upheld. It depended on the Minister certifying that certain monies were the property of an unlawful organisation and they stood forfeited to or invested in the Minister. Provision was made for a person claiming to be the owner of monies to apply to the Court for an Order directing that they be paid to him. Barrington J. said at page 335:-

It is correctly pointed out by Mr. Forde that in Clancy's case it was never argued that the forfeiture provision was intrinsically criminal. It seems to me, however, implicit in the judgment of Barrington J. that he accepted it as being such. Furthermore, while the trappings in which the legislation is dressed are not a conclusive factor, they are something which the Court can take into account in deciding whether legislation is criminal or not. Judging by this criterion there is nothing to indicate that the Proceeds of Crime Act is criminal legislation.

The Court felt that it was significant, though not a determining factor, that none of those indicia were present in dealing with the penalty under the Income Tax Act .

The Court also attached significance to the absence of mens rea . It considered that "most importantly of all, he is never, by reason of the imposition on him of a penalty under this section, in any risk of being imprisoned for default of payment."

I was also referred to the case of O'Keeffe -v- Ferris [1997] 2 I.L.R.M. 161 where the Supreme Court had to consider whether the provisions of section 297 (1) of the Companies Act, 1963 provided for the imposition of a criminal sanction in civil proceedings. Section 297 (1) provided:

The Supreme Court held that:-

All of these remarks could be applied to the Proceeds of Crime Act .

Not only are the trappings of crime such as arrest, detention, charging, remanding in custody or on bail, absent from or not contemplated by the legislation, the essential features of crime are not present either. There is no offence, there is no finding of guilt or innocence, there is no necessity for mens rea and there is not always, and perhaps not even usually, a penalty. I am satisfied that these proceedings are not criminal.

I have been referred by Counsel to a number of American authorities where the question of civil forfeiture has been dealt with. However since the Supreme Court has considered the topic, the United States authorities are of limited assistance. Amongst the cases cited were United States -v- Halper 490 U.S. 435, Austin -v- United States 509 U.S. 602, Department of Revenue of Montana -v- Kurth Ranch 511 U.S. In the case of United States -v- Ursery 518 U.S. 267 these decisions were considered. The Supreme Court held as follows:-

I was also referred to the case of Calero-Toledo -v- Pearson Yacht Leasing Company (1994) 416 U.S. 663 which is authority for the proposition that forfeiture schemes arenot deemed unconstitutional because of their applicability to the property interests of innocent parties.

The U.S. authorities show that some of the concepts in the Proceeds of Crime Act have survived constitutional scrutiny in the United States.

Furthermore, I am strengthened in my decision on the basis that it accords with the careful decision of McGuinness J. on the same point in the Gilligan case. It is contended that she was mistaken in applying the test in Melling's case as being whether the Act has "all the features of a criminal prosecution" . There is nothing in the judgment to suggest that she found that such was the test in Melling's case, nor is there anything to show that she misapplied the tests in Melling's case. The reference to "all the features of a criminal prosecution" is a quotation from the judgment of O'Dalaigh J. (as he then was). It was also contended that the action was not, strictly speaking, an action in rem rather than in personam because if it were, the money itself, would have been referred to in the title of the proceedings. In this jurisdiction many actions have held to be in rem notwithstanding that the res has not been named as defendant.

The learned Judge was also criticised for saying in relation to the money "that its removal could well be viewed in the light of reparation rather than punishment or penalty" . While it is true that there is no provision for the forfeited assets being used to make reparation to any individual or any group, it is clear that a distinction was being made between penalty and punishment on the one hand, and reparation on the other. In that sense, as I have already stated, it is clear that in most, if not all, circumstances the application of the Act will not constitute a penalty.

In relation to the learned Judge's finding that "forfeiture proceedings are civil and not criminal in nature" , it is unfair to construe this statement as meaning that the learned Judge implied that forfeiture proceedings are always civil and not criminal in nature. Indeed, it is true that forfeiture proceedings can take place in the context of criminal offences. However, as is quite clear from the context of the remark, the learned Judge was considering the authorities to which she was referred. She specifically said so. Moreover, to imply that because she said the procedures set out in the Act of 1996 are not criminal in nature indicates a misunderstanding of the issue is quite unfounded since it is quite clear from the rest of the very sentence criticised that the learned trial Judge was "bearing in mind the dicta set out in Melling's case" .

The Respondents complain about delay under different headings. The first contention is that since such delays as occurred in the instant case prior to the present hearing were possible under the Act , the Act is therefore constitutionally infirm. The second contention is that the delays specifically provided for in the Act are too long and unfair and unconstitutional.

In the present case, an Order under Section 2 the Proceeds of Crime Act was granted ex parte on the 28th of July 1997. The hearing of the interlocutory application commenced in November 1998. It is submitted that the fact that the Act permits of such delay makes it constitutionally oppressive. Section 45 of the 1987 Australian Proceeds of Crime Act and Section 41 of the 1991 New Zealand legislation expressly insist on expedition. North Georgia Finishing Inc. -v- Di-Chem Inc. 419 U.S. 601 (1975) is cited as an authority for the proposition that the Defendants are entitled to have the interlocutory application determined with considerable expedition. Calero-Toledo -v- Pearson Yacht Leasing Co. 416 US 663 (1973) fortifies the need for an expeditious hearing because the challenge to seizure "shall be heard without subjection to docket", that is, without having to be listed in the ordinary way. Moreover, under Section 3 of the Offences Against the State (Amendment) Act, 1985 an application claiming monies paid into Court must be made within six months of the day on which the monies were paid into that Court. It is contended that the absence of any such provision in the Proceeds of Crime Act wrongfully permits delays such as occurred in the present case to occur.

In order to deal with this point, it is necessary to refer to the facts. An Order under Section 2 was made on the 28th of July 1997 on consideration of the Affidavits of Michael F. Murphy and William P. O'Brien filed on that day. A Notice of Motion seeking relief pursuant to Section 3 of the Proceeds of Crime Act was filed on the 31st of July 1997, the last day of term. Appearances were entered on the 8th of August 1997. On the 13th of August the matter was adjourned by consent to October for the Respondents to file Affidavits. In October, on the application of the Respondents, the matter was adjourned until the 3rd of December.

On the 3rd of November 1997, the Respondent wanted the Court to deal with the preliminary issue in relation to possession and control. On that day there was still no Replying Affidavits on behalf of the Respondents. The Application commenced but there was an objection on the grounds of privilege, and the "possession and control" point was raised. The motion adjourned for one week. A series of other motions were then brought by the Respondent seeking Discovery, Particulars, Statement of Claim and the joining of the Criminal Assets Bureau as co-Plaintiff. Those matters came on before Shanley J. on the 10th and the 28th of November and were fully argued.

On the 28th of November, Shanley J. made rulings as to what proceedings should follow. He fixed the trial for the 10th of February and ordered that the Respondents file their Affidavits by the 15th of December. On the 15th of December, Mr. B. swore his Affidavit and it was responded to on the 21st of December.

On the 30th of January 1988, G.H. swore a second Affidavit and D. J. M. filed an Affidavit. It was indicated by the Respondents that further Affidavits would be filed (there were the Affidavits of B. McM. and the third Affidavit of P.B. both of which were filed on the 13th February). In those circumstances the Applicant applied for an adjournment and Shanley J. reserved the question as to whether the Applicant should be entitled to costs thrown away because of the necessity to adjourn the case in view of the forthcoming Affidavits of the Respondents.

The Affidavits of Mr. P.B. and Mr. D. J. M. disclosed accounts of how the money was obtained which necessitated the making of considerable enquiries by the Applicant.

On the 23rd of March a Motion was heard by the President seeking various reliefs, including an Order directing some of the Deponents for the Applicant to answer for contempt and an Order for Third Party Discovery and an Order dismissing the proceedings. The reliefs were refused.

On the 12th of June 1998, final replying Affidavits were filed by the Applicants, that is, the Affidavit of William P. O'Brien, Inspector Byrne and Mr. Christopher Laurence Magee, a computer expert. The Applicant was ready to proceed on from the 12th of June but a Motion dated 24th June was brought by the Respondents seeking to exclude the hearsay. On the 22nd of June a Notice of Motion was issued seeking an Order to vacate the Order pursuant to Section 2 and Section 7 . A Motion was brought before me in late July, 1998 seeking to have the proceedings struck out on the basis of delay. I refused such relief. No appeal was taken from that decision.

On a factual basis, the complaint of delay from the Respondents requires a degree of "chutzpah" and is quite devoid of merit. The matter could have been heard at least in February, had it not been for the late filing of Affidavits by some of the Respondents. A delay ensued because of the failure of the Respondents to comply with the Order of Shanley J. Furthermore, it was absolutely essential, given the contents of the Affidavits that the Applicants be entitled to enquire into them. Such enquiries were vital in the interests of justice. Various Judges, in the exercise of their discretion, refused to determine the "possession and control" and/or any other preliminary points separately from the whole action. They were entitled to do so. It was open to the Respondent, if unhappy with any Order made by the Courts, to appeal the same. The responsibility for such delays as have occurred lies mainly with the Respondents.

The Court accepts that excessive delay constitutes a denial of fair procedures. What constitutes excessive delay must depend on the circumstances of each case. I was referred to the cases of Zimmermann and Stéiner -v- Switzerland 6 E.H.R.R. 17 and Guincho -v- Portugal 7 E.H.R.R. 223 in which the European Court of Human Rights considered the question of delay. Those authorities, while of considerable interest in themselves, are of little assistance in deciding this case. The Zimmermann case concerned "single and lengthy period of total inactivity" and the Guincho case "a total cessation of activity during two years" . There was no such lack of activity in the present case. Even had there been a culpable delay, that fact in itself cannot make the Act unconstitutional, unless the Act itself requires that delay or prevents a person alleging prejudice through the delay from seeking redress. The Act has no inbuilt delays other than the time between the making of Orders under Section 3 and Section 4 to which I will refer. Moreover, it was open to the litigants who complain about delay to seek redress in the court. The Respondents in this case availed of such a right. An application to have the proceedings struck out on the grounds of delay failed on its merits. That adjudication was not appealed.

It is argued that there should be some built-in time limits in the Proceeds of Crime Act. If there were built-in time limits, that might indeed be of assistance in some cases. On the other hand, it could cause injustice in certain circumstances. In the present case an over-rigid time scale might well have prevented the necessary investigation into some of the Affidavits filed on behalf of the Respondents, and thereby enabled the Court to have been deceived. Every procedure under the Act is presumed to be done in accordance with constitutional fair procedures. O'Brien -v- Bord na Móna [1983] IR 255 decides that absence of an explicit procedure does not render an Act unconstitutional.

Central to aspects of the dispute were certain submissions in relation to the structure of the Act. The Act envisages a Freezing Order under Section 2. It provides for the appointment of Receivers, for an Interlocutory Order under Section 3 and finally for a Disposal Order under Section 4. The Interlocutory Order under Section 3 differs from the usualInterlocutory Injunction insofar as not only does it have the function of freezing the assets and preventing dealing in them, but it also provides part of the proof necessary for a Disposal Order under Section 4. While the structure contains certain similarities with the mareva- type injunction, the comparison is not an exact one. There is no provision for an undertaking as to damages. Proof of the making of the Interlocutory Order is part of the proof required for a Disposal Order. On an application for a Disposal Order under Section 4 of the Act, a rehearing of the material on which a Section 3 Order was obtained is not envisaged. This is clear from the provisions of Section 4(1) of the Act which provides as follows:-

Section 4(2) provides:-

Section 4(6) provides:-

Section 4(7) reads:

Section 4(8) provides:-

The structure provided for by section 4 does not, in my view, contemplate a rehearing of the material on which a section 3 Order was made. In so finding, I do not intend to imply that the Respondent is precluded from presenting to the Court such evidence as may be relevant.

Thus, a period of not less than seven years must elapse between the making of the Section 3 Order and the Disposal Order under Section 4. On the application of the Respondent or on its own initiative, the Court may adjourn the hearing of an application for a Disposal Orderfor a period not exceeding two years further. Mr. Forde argues that this constitutes an excessive delay because he cannot get a hearing of his substantive case for at least seven years. He argues that he could have difficulty getting his witnesses and the delay might prejudice him considerably. The Act, he submits, "turns the Statute of Limitations on its head ". However, an examination of the structure of the Act reveals this contention to be misplaced. In fact, the seven year period is intended to be in ease of the Respondents. It provides a period of a full seven years in which the Respondent can seek to demonstrate that the assets frozen are not the proceeds of crime, or that it would be otherwise unjust to continue the Section 3 Order. That is the only case they can make on an application for a Disposal Order under Section 4. They are not deprived or prevented or delayed from making their case because it is open to them, any time after the Section 3 Order is made, to make the same case that they could make on the Disposal Order.

The contention of the Respondent is based on the misconception as to the structure of the Act, as explained. The misconception is that the hearing under Section 4 will be akin to the usual form of trial in a civil action. However, the structure of the Act, as has been pointed out, is different. On proof that a Section 3 Order has been in place for not less than seven years the Court may make a Disposal Order on application to it in that behalf by the Applicant. The Court shall make a Disposal Order unless, subject to subsections 6 and 8, it has been shown to its satisfaction that the particular property "does not constitute, directly or indirectly, proceeds of crime and was not acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes proceeds of crime . " Sub-Section 6 provides for an opportunity to be given to any person claiming ownership of the property to be heard prior to the making of a disposal Order, and sub-section 8 provides that the Court shall not make an disposal Order if it is satisfied that there would be serious risk of injustice. The Act does not contemplate a rehearing of the Section 3 application on an application for a Disposal Order under Section 4.

The Respondent claims that he is precluded - in the interval between an application under Section 3 and an application under Section 4 - from relitigating the grounds on which he contended "that there would be a serious risk of injustice" prior to the making of the Order under Section 3(1). Because Section 3(3) refers to "other injustice" it is submitted that it excludes the serious risk of injustice referred to in Section 3(1).

Section 3(3) provides as follows:-

The Respondents object to the use of hearsay evidence in this application. While conceding that hearsay evidence is admissible in normal interlocutory applications, they contend that it should not be allowed in applications under Section 3 of the Proceeds of Crime Act , because they are not interlocutory applications in the accepted sense. Unlike most interlocutory applications there is no requirement for an undertaking as to damages. Moreover, the substantive case cannot be heard for seven years. In the circumstances, the Respondents contend that it is constitutionally unfair that hearsay evidence should be admitted.

By using the words "interlocutory" in the section, in my view the Legislature intended that the provisions of Order 40, Rule 4, of the Rules of the Superior Courts would apply. That Rule provides that:-

The provision for hearsay was commented on by Moriarty J. in M. -v- D. Judgment of 10th December 1996 when he said:-

It is clear, therefore, that the rule against hearsay is a rule of evidence only and is not a constitutional requirement. While it remains "an essential feature" of our legal system it may be modified by statute. I do not accept the contention that it is unfair per se . The unfairness through delay aspect of the argument is based on a misapprehension as to the nature of the proceedings and a misconception as to the processes of the Act (which have already been dealt with). It is open to the Defendant at any time before the bringing of an application under Section 4 for a Disposal Order, to make the same arguments as can be made on that application in order to obtain relief (other than some technical objection that might be taken as to the proof of the existence of the Section 3 Order). It is further contended that if the Act has this structure, the admissibility of hearsay is even more objectionable on the basis that the Disposal Order is achieved, at least indirectly, partly on the basis of hearsay. In that regard, it is necessary to emphasise that the weight to be attached to hearsay evidence is a matter for the Court. The Court is obliged in every case to examine the weight, if any, to be attached to such evidence. If such evidence is challenged in cross-examination its weight could be considerably diminished or indeed rendered at nought. In this case, however, there was no cross-examination of the Deponents in relation to any of the matters of hearsay, notwithstanding that it was open to the Respondents to do so.

Moreover, in my view, there is nothing to prevent the Court, on the application of a party from requiring the attendance of a specified person identified as the source of the Deponents' hearsay evidence to the Court in an appropriate case.

The Defendant's complaint of "unfairness of a seven year Freezing Order obtained on the basis of evidence that cannot possibly be tested on cross-examination" does not accord with either the structure of the Act or the availability of at least the Deponent to be cross-examined on his Affidavit.

It is also worthy of note that the admission of hearsay evidence for an application to forfeit goods survived constitutional scrutiny in the case of United States of America -v- $129,727.00 U.S. Currency and Trujillo 129 F. 3d 486 a judgment of th U.S. Court of Appeals.

Counsel for the Applicant submits that this is to be interpreted as meaning the balance of probabilities but Counsel for the Respondents argues that the standard is that required to obtain an interlocutory injunction. The standard, he submits, is a prima facie / statable case.

In my view the standard of proof required by the Act is the balance of probabilities.

First, the standard of proof required in civil proceedings is generally the balance of probabilities and is understood to be such. In my view that is the most natural interpretation of the subsection.

Secondly, the structure of the Act (to which I have already referred) contemplates the making of a disposal order under section 4 of the Act , on proof of existence of an Order under Section 3 for a period of not less than seven years.

If such a disposal Order could be obtained by virtue of an Order obtained on a lower standard of proof than that of the balance of probabilities - that could be a fundamentally unfair procedure and unconstitutional. I must, therefore, adopt the interpretation which is constitutional - that is the balance of probabilities.

Thirdly, in my view the criteria for obtaining interlocutory reliefs are complex. The evidential standard is stated to be an arguable case but the issue as to the balance of convenience is central to the granting of such an injunction. Moreover, even on such applications, the balance of probabilities arises when the balance of convenience is equal. In those circumstances I agree with Counsel for the Applicant that the "arguable case" criterion set out in Campus Oil Ltd., -v- Minister for Industry and Energy [1983] I.R. 88 is not happily described as a "standard of proof".

The Respondents complain that such a shifting of the onus is unfair and impermissible.

It is contended that while there may be provision in the criminal law for shifting the onus of proof on a particular issue, because of the protection afforded by the standard of proof being beyond a reasonable doubt, there is no justification in so doing in a civil case.

I cannot agree with this contention. In my view, if a procedure is permissible, even under the exacting standards of the criminal law, it may certainly be allowed in civil proceedings. I agree with the submission of Counsel referred to in Clancy v. Ireland [1988] I.R. 326 at page 335 of the Judgment of Barrington J.:-

There are many instances where the onus of proof changes in both civil and criminal law. In O'Leary v. Attorney General [1993] 1 I.R. 102; [1995] 1 I.R. 254 a challenge to certain provisions of the Offences Against the State Acts on the basis that the onus of proof was shifted in certain circumstances failed. The Southern Industrial Trust and Clancy cases are both instances of civil cases where the onus of proof shifts.

Comparison may be made between the procedures and provisions of the Proceeds of Crime Act and those of the Offences Against the State (Amendment) Act, 1985 , which survived constitutional challenge in Clancy -v- Ireland [1988] IR 326. That legislation permitted the freezing of monies by the Minister. In default of application to the Court the monies were forfeited. There were no provisions for ex parte Orders or interlocutory Orders. In that respect, the Proceeds of Crime Act is less stringent in its provisions than the Offences Against the State (Amendment) Act.

It is argued, however, that under the Proceeds of Crime Act the entire onus of proof shifts and not just the onus on "discrete" issues. I do not accept that contention. A Disposal Order under Section 4 of the Act is dependant on the existence of an Order under Section 3 for the requisite period.

In order to obtain an Order under Section 3 of the Act , it is necessary for the Applicant to prove "possession or control" of the specific property in the Respondent. It is also necessary for the Applicant to prove that "the property constitutes, directly or indirectly, proceeds of crime" or that the property "was acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes proceeds of crime".

It is also necessary for the Applicant to prove that the value of the property is not less than [sterling]10,000. Thus, it is clear that the entire onus of proof is not shifted to the Respondent.

It is submitted that the provisions for reversing the onus of proof "compound the other inequalities" of the Act . In my view, there is nothing unfair or contrary to any concept of equality of arms in the onus shifting in a civil action on the attaining of certain proofs. It is quite reasonable in the context where it appears to the Court that the goods are proceeds of crime that the person in possession be asked to account for them. The Respondent is in a unique position to account for the property. The Act also provides safeguards by the provision in both Sections 3 and 4 "the Court shall not make the Order if it is satisfied that there would be a serious risk of injustice" and by the provisions contained in Section 3 for the discharge or variation of the Order.

Mr. Forde submits that because the belief is based on hearsay the Court should not be satisfied that there are reasonable grounds for the belief aforesaid. I cannot accept that proposition. The basis of many beliefs is information gathered from different sources some of which frequently will be based on hearsay. It is illogical to conclude that it is unreasonable to accept such information. One can readily envisage circumstances where it would be quite wrong to refuse to accept - or indeed act on - information merely because it was based on hearsay.

It was further contended that evidence of belief is "plainly unconstitutional if the evidence is that of the Plaintiff himself" . No authority was advanced for this proposition. In these proceedings the Chief Superintendent has no personal interest in the outcome of the case. He is not acting for himself. He is the Plaintiff because under the legislation he is entitled to bring these proceedings. I cannot discern any logical constitutional distinction which would allow the admission of opinion evidence in principle, but exclude it if it were that of the Plaintiff.The admission of opinion evidence cannot properly be objected to on the basis of nemo iudex in causa sua , as was contended. It is clear that the right to give opinion evidence does not make the Chief Superintendent a judge in his own cause. It merely makes him a witness.

It is contended that opinion evidence is unconstitutional because of "extra-ordinary inequality" . It is contended that it is "monstrous" that opinion of the Plaintiff should have a decisive effect in civil proceedings. The admission of evidence of belief provided for in section 8 of the Act does not have the decisive effect contended for. It does not of itself even alter the onus of proof. Opinion of an authorised officer simply becomes admissible as part of the evidence and only if the Court is satisfied there are reasonable grounds for such a belief. Even at that point the onus does not shift to the Respondent unless it appears to the Court that:-

Only on the proof of those matters does the onus shift to the Respondent. Even in those circumstances, the Court "shall not make the Order if it is satisfied that there would be a serious risk of injustice". The requirements that the Court be satisfied that there are reasonable grounds for the belief and the provision that the Court shall not make an Order if it is satisfied that there would be a serious risk of injustice, in my view, provide protection for Respondents and prevent the provisions providing for evidence of belief from being unfair.

It is submitted that the Proceeds of Crime Act is unconstitutionally overbroad. It fails "as far as practicable" to protect the constitutional rights of the citizen and is accordingly impermissibly wide and indiscriminate in the words of Cox -v- Ireland . Proceeds of crime is defined in the Act as "any property obtained or received at any time (whether before or after the passing of this Act ) by or as a result of or in connection with the commission of an offence" . It is submitted that that definition is overbroad particularly in relation to the provisions as to time. Section 3 of the Act empowers the Court in certain circumstances to make an Order where it appears that a person is in possession or control of:-

It is submitted that this very wide definition is unconstitutionally overbroad and that the Act is unconstitutionally disproportionate. There is no doubt that the definition section is indeed broad and that the range of property coming within the ambit of section 3 is likewise very extensive. It is, however, difficult to envisage how an Act with the object of the Proceeds of Crime Act as set out byMoriarty J. in M. -v- D. , already referred to, could in any way be effective without a broad definition. The Court is moreover precluded from making an Order under Section 3 if it is satisfied that there would be "a serious risk of injustice" . The objects of the legislation are legitimate and laudable. For their achievement the legislation has, of necessity, to be widely framed. I am not satisfied that the legalisation is unconstitutional by reason of being overbroad.

By reason of the unjustifiably overbroad definition of property it is argued that there is a failure to protect the rights of a bona fide purchaser for value.

The Respondents in this case claim that the [sterling]300,000.00, the subject matter of this application, was not the proceeds of crime and have attempted to demonstrate to the Court how they came by the money legally. In those circumstances, it is not open to the Respondents to argue the case of a bona fide purchaser for value without notice. They are precluded from so doing by the principle laid down in Cahill -v- Sutton [1980] I.R. 269 that

It is submitted that the constitutional right to fair procedures entails a prohibition on excessive vagueness in statutory provisions. The Court was referred to the case concerning section 4 of the Vagrancy Act 1824 , King -v- The Attorney General [1981] I.R. 233, and in particular to the celebrated passage of Henchy J. at pp. 256 - 257:

It is submitted that the vagueness of the Proceeds of Crime Act is contrary to the right of fair procedures - an unenumerated right under Article 40.3.1 of the Constitution. In this context, the following passage from Kelly The Irish Constitution , Hogan and Whyte eds., (Butterworths, 1994) at page 777 was cited to the Court:

At page 357 of Kelly the following passage from the Judgment of Walsh J. in McDonald -v- Bord na gCon [1965] I.R. 217, (1965) 100 I.L.T.R. 89 is quoted:-

It is argued that the Vagrancy Act is less vague than the Proceeds of Crime Act. It was pointed out that the Vagrancy Act requires at least an overt act whereas mere possession or control of property is encompassed by the Proceeds of Crime Act. Many different categories of people with different states of knowledge can be subject to the Proceeds of Crime Act . The contention is that the Act is excessively vague and thereby contravenes constitutional requirements of fair procedures.

Counsel also referred to a short passage at page 684 of American Constitutional Law by Professor Laurence H. Tribe (Second Edition, 1988):-

The accompanying footnote refers to Lanzetta -v- New Jersey 306 U.S. 451, 458 (1939), where a conviction under a statute that made it an offence to be a 'gangster' was reversed.

It was submitted that the Proceeds of Crime Act is excessively vague in terms of the property to which it refers and the degree of guilt necessary and also that the 'risk of injustice' saver is similarly too vague.

The terms of the property targeted in the Act , while very broad are not vague, and a Respondent will, in any given case, be quite aware of what they are. The argument that the Act is unconstitutionally vague in terms of guilt is based on a misconception of the Act . The Act does not necessarily require any degree of guilt. An essential characteristic of the Act is that it acknowledges a dislocation between the possession of an asset and criminality. The proceeds of crime may frequently be in the possession of an entirely blameless third party such as a financial institution. The concept of guilt is not essential to the application of the Act though it may have a bearing on the question as to whether there would be a risk of injustice in making an Order in a particular case. In those circumstances I reject the contention, also made, that the 'Risk of Injustice' saver in the Act , is also too vague.

It is also alleged the "legislative authority has been devolved by the Courts, contrary to the extended separation of powers" . It is submitted that the Court is expected to "carry out legislation on a case by case basis under the guise of interpretation" . While it is true that some of the definitions in the Act are very broad, and concepts such as "serious risk of injustice" are also wide, in my view neither the width of the definitions or the scope of discretion are such as to persuade the Court that the legislation requires the Courts to legislate rather than to interpret the law.

Two cases were cited to illustrate the concept. In the case of Ruiz-Mateos -v- Spain (1993) 16 EHRR 505 , 541, at paragraph 61, the following passage occurs:-

Paragraph 63 of the Report is as follows:-

I was also referred to the case of Dombo Beheer B.V. -v- The Netherlands (1993) 18 E.H.R.R. 213, where the following passage occurs at paragraph 33 of the judgment:-

In that case, only two persons had been present at a meeting in which an agreement had been reached. Only one of those two persons was permitted to be heard in evidence. The other party to the agreement was precluded by law. The Court held that this constituted an inequality in arms. At paragraph 32 of the judgment it is stated that "the contracting states have greater latitude when dealing with civil cases concerning civil rights and obligations than they have when dealing with criminal cases." The cases cited by Counsel are extreme. In one case, a vital witness to a contract was precluded from giving evidence and, in the other, one of the parties in dispute was precluded from making certain legal submissions. The principles as enunciated in the above authorities do not in my view demand that the same procedures be available to both parties. The principles appear to apply to both criminal and civil law. Clearly the procedures in criminal law do not require sameness from the prosecution and the defence. The standard of proof is unchanging and one-sided. The onus of proof is generally on one side only. The right to pre-trial documentation is generally confined to one side. The contention the equality of arms demands identical resources does not bear scrutiny. There is no requirement forMega-Bucks Incorporated plc to refrain from using its financial resources in litigation against the Widow Quinn. I cannot accept therefore that the provision for hearsay evidence, opinion evidence, the lack of the Statement of Claim, Discovery and Particulars, and the continuation of an Interim Order provided for in section 2 (1)(5) of the Act constitute inequality of arms in the sense contended for. The matters alleged to place the Respondents at a substantial disadvantage, namely, the admission of hearsay and opinion evidence in a section 3 application do not offend against the principle of equality of arms since the deponent who relies on hearsay may be challenged, as may the evidence of belief. The weight attaching to such evidence is likely to be greatly diminished if contradicted on oath or even challenged in cross-examination. Moreover, it must be taken into account that the Respondent in most, if not all, cases is in a unique position to account for property in his possession or control.

It is contended by the Respondents that a number of provisions of the Proceeds of Crime Act constitute an unwarranted interference with the judicial function. As is stated in Buckley and ors -v- A.G. and another [1950] I.R. 67 at page 84, "[t]he effect of that Article [Article 6] and of Articles 34 to 37, inclusive, is to vest in the Courts the exclusive right to determine justiciable controversies..." A number of cases were cited to the Court as authority in support of that contention. In Maher -v- The Attorney General [1973] I.R. 140, a provision in section 44 of the Road Traffic Act, 1968 that a certificate should be "conclusive" evidence as to the concentration of alcohol in a person's blood was found to be unconstitutional as it purported to remove from a judicial determination a matter which was within the judicial domain. In The State (McEldowney) -v- Kelleher [1983] I.R. 289, Section 13(4) of the Street and House-to-House Collections Act, 1962 was held to be unconstitutional. It obliged a District Justice to disallow an appeal under the Act once a statement on oath to a certain effect was given by a police officer. It was held that "[t]he statute creates a justiciable controversy and then purports to compel the Court to decide it in a particular way upon a particular statement of opinion being given upon oath as to whether or not a statutory reason for refusing the permit exists..." ( per Walsh J. at page 306.)

Nor can I accept that the provision for the reception of evidence of belief on the part of the Applicant only and not on behalf of the Respondent is an unwarranted interference with the judicial power to receive evidence. Moreover, as has been pointed out, the right of the Legislature to provide for the admission of evidence of belief has survived constitutional scrutiny even in criminal cases. No authority was cited for this proposition. There is no requirement in law or in justice that requires evidence of belief, if admissible by legislation, concerning any particular matter to becounter-balanced by a similar provision for the opposing party.

Article 34.1 of the Constitution provides that:-

It is contended on behalf of the Respondents that the Proceeds of Crime Act is unconstitutional in that it requires the Court to carry out intrinsically Executive functions. The expropriation of land, it is contended, is intrinsically an Executive rather than a Judicial function. The Respondent cited the case of the Attorney General for Australia -v- The Queen and the Boiler-makers' Society of Australia & Ors [1957] AC 288 . In that case is was held that:-

The following passage from page 317 of the judgment was cited:-

The colourful - and at the time appealing - prospect of a High Court Judge directing traffic with his tipstaff on O'Connell Bridge pursuant to the provisions of a theoretical Road Traffic Act containing legislation to that effect was cited to illustrate the proposition.

The Court was referred to the case of In the Matter of CountyGlen plc. (Under Investigation) [1995] 1 I.L.R.M. 213. In that case, the question arose as to what constituted the administration of Justice. The Inspector appointed to investigate the affairs of a company applied to the Court for a direction as to whether his functions constituted the administration of justice. Murphy J., in the course of hisjudgment at pp. 216-217, said as follows:-

Some of the functions carried on by the Courts in relation to licensing matters are essentially Executive or administrative as has been pointed out in 3rd edition of Kelly The Irish Constitution at p. 50.

In my view, the functions given to the Court under the Proceeds of Crime Act essentially constitute the administration of justice. The granting of injunctions, the appointing of Receivers, the granting of tracing remedies and the determination of ownership of property are clearly matters with which Courts have traditionally been engaged. I do not consider that they may correctly be classified as essentially Executive or administrative functions. The Proceeds of Crime Act envisages findings of fact and determinations by the Court with very far-reaching effects. If and insofar as any of these provisions could be regarded as administrative or Executive functions, they are not thereby automatically removed from the ambit of the Courts. If the Act contains incidental powers conferred on the Courts which are of an administrativenature that does not render the Act or those provisions constitutionally infirm. There is nothing in the doctrine of the Separation of Powers as applied to the Irish Constitution that puts the functions of the Courts into watertight compartments. As noted in Kelly, The Irish Constitution , Hogan and Whyte eds., (3rd Ed. 1994) at page 50 "complete insulation is not a feature of the Legislature", "complete insulation is not a feature of the Executive" and "complete insulation is not a feature even of the Courts".

Objection was taken to the use in these proceedings of certain information obtained under section 63 of the Criminal Justice Act, 1994 in garda investigations. It was argued that it was improper and impermissible that the information so obtained should be used in these proceedings by the Criminal Assets Bureau. The case of Taylor and Ors -v- Serious Fraud Office and Ors [1998] 4 All ER 801 was cited in support of that proposition.

That case concerned the extent to which documents obtained by discovery by reason of their disclosure as unused material in criminal proceedings may be used by a third party in other proceedings. The headnote reads:

It was held that the accused was not entitled without the leave of the Court to provide Mr. Taylor with a letter to allow him use it as the basis of a defamation claim against the Serious Fraud Office.

In his judgment, at page 98, O'Hanlon J. referred to the English case of Marcel -v- Commissioner of Police [1991] 2 W.L.R. 1118, and said:-

The decision of the Vice-Chancellor was set aside by the Court of Appeal which held that a subpoena duces tecum could lawfully be served "on the police for the purpose of compelling production in civil proceedings of documents which they had seized in exercise of their powers under Part II of the Police and Criminal Evidence Act, 1984."

At pp. 101-102 of the Report O'Hanlon J. says as follows:-

This passage in the judgment of O'Hanlon J. was specifically approved by McCarthy J. in the Supreme Court which upheld the decision of O'Hanlon J. He said at page 132 of the Report:

In my view, similar considerations arise in this case. I can see no good reason why the information obtained by the Gardaí in a criminal investigation should not be available in these proceedings - which have a public dimension to them - and while they are not criminal proceedings they are specifically concerned with the proceeds of crime.

It is further suggested that Detective-Sergeant O'Brien was acting in some way mala fides in his application to the District Court for a Production Order obtained under Section 63 of the Criminal Justice Act and referred to in paragraph 4 of his fifth Affidavit which reads as follows:-

Mr. Forde submits that it was 'perfectly clear' from that paragraph that the motive for his particular requests for a Production Order in the District Court was to deal with Mr. H.'s Affidavit. There is no evidence whatsoever to justify that contention and it is worth noting that Detective-Sergeant O'Brien was not cross-examined in this application although he was available for cross-examination.

Furthermore, insofar as it was contended that there was something wrong in Detective-Garda Richardson travelling to England to obtain the money, I reject that contention. She was authorised to go and collect the money and that is what she did. There is no evidence of any contact, much less impermissible contact, with her colleagues in the U.K. It may be appropriate to state that, in my view, there was no requirement on Mr. Galvin to notify Mr. H. of anything prior to his appointment as Receiver.

It is argued that the words 'any further appeal' contemplate or permit an appeal beyond the Supreme Court, and that the lack of such words in section 9 strengthens the argument. If the Act provided for an appeal beyond the Supreme Court it would be contrary to the provisions of Article 34.4.6 of the Constitution which provides that the decision of the Supreme Court shall in all cases be final and conclusive. It is the duty of this Court to construe the Act in accordance with the presumption of constitutionally. In my view, it is quite reasonable to construe the words 'any further appeal' as any further appeal on different issues to the Supreme Court and that is the way the provisions of section 5 (3) of the Proceeds of Crime Act should be read.

The Respondents submitted that on a proper interpretation of the definitions section of the Act it applied to offences prior to the date of coming into force of the Act . Alternatively, he submits that there is an ambiguity concerning the interpretation of section 1 . If there is such an ambiguity the Section must be strictly construed because of the principle of strict construction of penal statutes and also because of the presumption for prospective and against retrospective legislation. I accept that those are the correct principles of interpretation.Furthermore, I accept that "if an enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as being prospective only." I was referred to Section 1 (2) of the Extradition (Amendment) Act, 1994 and Section 31(11) of the Criminal Justice Act, 1994 , both of which specify "before or after the commencement" of the Act or its relevant section. A passage was cited from the judgment of Murphy J. in Chestvale Properties Ltd. -v- Glackin [1993] 3 I.R. 35 at page 43 as follows:-

Or, as Henchy J. put it also in Hamilton -v- Hamilton at page 484 of the Report "unless there is a clear and unambiguous intention to the contrary expressed or necessarily implied ..."

I was also referred to the case of in In re Hefferon Kearns Ltd. (No. 1) [1993] 3 I.R. 177, where the Court declined to apply the statutory provision on reckless trading in relation to matters which predated the Act in default of an express provision for so doing, and to the case of Land Commission -v- Dolan [1930] I.R. 235, where Sullivan P. stated at page 236 that the rule of construction is well established : "[t]he sub-section must not be construed so as to operate retrospectively unless it is clear that the Legislature so intended." Counsel also referred me to the Judgment of Barron J. in O'H. -v- O'H. [1990] 2 I.R. 558.

On the 22nd July 1997 Detective Sergeant Paul O'Brien was investigating and following the trail of certain monies belonging to the first named Respondent, G.M. and in particular, two bank drafts for [sterling]25,000 sterling and [sterling]23,000 sterling respectively which were made out to the first named Respondent. In the course of his enquiries the Detective Sergeant had occasion to search the office of the fourth-named Respondent, Mr. H., a Solicitor, and there he found a file entitled "B -M/D", B being the second named Respondent, M. being the first named Respondent and D being an associate of the first named Respondent in this application. The file contained an attendance indicating that B. was "representing G.M." the first named Respondent. It appeared to Sergeant O'Brien that the monies in question had gone into an account of Mr. H., the fourth named Respondent. On the following day, Sergeant O'Brien asked Mr. H. how much money was being held relative to the file B - M/D which also bore the name of the third named Respondent P.C. Limited. He was told by the fourth named Respondent that the amount was [sterling]300,000. Having sought and failed to obtain an assurance from Mr. H. that the monies would not be moved, application was made to the Court on the 28th July 1997, and an order under section 2 of the Act was made. An order under section 7 of the Act appointing Mr. Galvin as Receiver over the said monies was also made.

On foot of that order Mr. Galvin attended the office of Mr. H. and sought the [sterling]300,000 from him. It then emerged for the first time that the [sterling]300,000 included Irish pounds and pounds sterling, and that a substantial part of the money - [sterling]181,356.20 - was held in Mr. H.'s reserve client account in a branch of the Nat West Bank in London. On being asked Mr. H. said that by means of subtraction from the figure of [sterling]300,000 he must have [sterling]118,643.80 in his Ulster Bank client account in Dublin. On being requested to do so by the Receiver pursuant to the Order of the Court Mr. G.H. signed an authority directly to the bank to give to D/Garda Cliona Richardson a bank draft in the sum of [sterling]181,375.20 sterling payable to Mr. Galvin the Receiver. The document having been prepared, D/Garda Richardson went to London where she collected the relevant funds on behalf of the Receiver. Mr. Galvin obtained from Mr. H. a cheque in the amount of [sterling]118,643.80 drawn on the Ulster Bank Account. Monies from both accounts are lodged in a receivership account.

While this application concerns the [sterling]300,000 already mentioned, it is necessary to examine other transactions in order to determine whether the order under section 3 should be granted or not. Those other transactions can be conveniently divided into transactions concerning a sum of [sterling]75,000 in the London bank account and transactions concerning a sum of [sterling]169,746.36.

A sterling demand draft in the sum of [sterling]25,000 in favour of G.M. the first named defendant and dated the 25th May 1996, endorsed on the back "lodge to H Solicitors" was lodged on the 30th May to the London account ofG.H. The lodgment docket said "credit GM" . This lodgment was made by Mr. H. and appears in the client reserve account for P.B. on the 30th May.

A further sterling demand draft in the sum of [sterling]25,000 dated the 24th June in favour of G.M. and endorsed on the back "pay H. Solicitors" was lodged by bank giro paid in by Mr. H. to the London bank on the 8th July 1996. It appears in the client reserve account for P.B.

Another sterling demand draft for [sterling]25,000 dated July 3rd 1996 in favour of David D. endorsed on the back "pay H. Solicitors" reserve a/c was lodged by bank giro dated the 5th July 1996 by G.H. to the London account and stamped July by the bank on the 9th July 1996. The lodgment appears in the client reserve account for P.B. on the 9th July. Thus [sterling]75,000 emanating from G.M. and David D. was lodged by Mr. H. to the client reserve account for P.B. in the course of approximately six weeks. That money was given to Mr. H. for lodgment by P.B.

On the 18th July 1997 Mr. G.H. sent a fax to the London bank re "GM - our client" asking for a copy of a transfer order in respect of certain monies namely [sterling]10,000 which was to be paid to the credit of G.M. the first named Respondent in a specified account in the Allied Irish Bank in Tallaght, Dublin 24. Of the [sterling]75,000 emanating from G.M. which was lodged in the London bank a sum of over [sterling]34,000 was paid to P.C. Limited the third named Respondent, which is a company owned by Mr. P.B., the second named Defendant. Of that [sterling]75,000 which was lodged, monies were disbursed at the behest of P.B., some to G.M. himself and some to P.C. Limited, the company of P.B. No explanation has been forthcoming for any of these transactions other than that contained in the document found on Mr. H.'s premises on the 22nd July 1997 and dated the 4th July 1996 which read "attendance on P.B. where he confirmed to me that he was instructed by Mr. G.M. and Mr. David D. for whom he was arranging finance to enable them to purchase a property in the United Kingdom. These clients are looking for an investment property in the region of one million pounds" . It is dealt with in the affidavit of Mr. H. as follows:

It was dealt with in the affidavit of Mr. P.B. as follows:

Mr. H. is making the case that G.M. was a potential rather than an actual client. The evidence shows that Mr. G.H. did the following:

He lodged two bank drafts made out to G.M., and one to David D. into the London account.

He flew to London to secure the release of [sterling]10,000 of money which was to be transferred to G.M.'s account in the AIB in Tallaght.

In correspondence with the bank he referred to "our client GM" .

He opened the file 0575 B - M/D which contains instructions from G.M. and D.D. to P.B. concerning the proposed purchase of property in the U.K.

Referring to the letter of instruction to the bank in relation to a transfer of monies to Mr. M, Mr. H. states:

In view of the fact that the letter specifically refers to him as "our client" it is difficult to interpret the said letter in any other way. Even if Mr. H. is correct in that he was acting for P.B. who in turn was acting for G.M. Mr. H.'s affidavit contains the following averment:

I do not accept that testimony in view of the fact that, on his own admission, Mr. H. lodged two bank drafts to G.M. made out to the London account. Moreover, the reason furnished by G.M. for having a foreign sterling account - namely to facilitate customers who would be affected by the exchange rate - is singularly unconvincing. As a Solicitor qualified to practice in England and Wales there is nothing improper with him having a sterling account, or indeed a client account. However, there is nothing to prevent him having a sterling account in this jurisdiction. Moreover, Mr. H. gives no convincing account as to what a Solicitor was doingwith all these monies which had been lodged. He was less than candid with the Court. In this context the rather self-righteous tone of parts of his affidavit ring hollow indeed.

In the Solicitor's accounts print-out used in relation to the Dublin client account of Mr. H. there appears a credit dated the 30th September 1996, it in the sum of IR[sterling]169,746.36. The account given by Mr. H. in his affidavit is that the said sum was transferred to his client account on the instructions of P.B. from the account of solicitors "in connection with his business" . Of that the sum of[sterling]15,000 went to Mr. H.'s firm. Over [sterling]79,000 went to the third named Respondent P.C. Ltd. which is beneficially owned by P.B. Two sums, one of [sterling]50,000.00 and another of [sterling]25,000.00 went to P.B. Two further payments one of [sterling]38,000 and one of [sterling]26,000 were made to P.C. Ltd. and a payment of precisely 1% was made to Mr. H. Mr. P.B. accounts for the monies as follows in his affidavit: (I have used initials instead of names)

This account as Counsel for the Applicant pointed out is "exotic even on its face" and there are no supporting affidavits from either Mr. T. or from Mr. I. Moreover, there is no mention at all of Mr. T. or of this transaction by Mr. H. in his affidavit; yet on the account given by Mr. B., Mr. H. was the safekeeper of Mr. T's money. He merely says that "the sum of [sterling]169,746.46 was transferred into our Client account on the instructions of P.B. from the account of P.F. & Co. Solicitors". There is no credible evidence before the court of any instructions from Mr. T. nor indeed Mr. I. There is evidence of a hearsay nature in the affidavit of Detective Sergeant O'Brien. He says that he was informed and believed by a certain Mr. K. that he was approached by Mr. B. the third named Respondent, who was then a business associate of his. P.B. asked him to lodge money into a solicitor's account. He gave him an envelope. Mr. K. lodged the money with Mr. PF Solicitor. The monies contained a total of [sterling]198,000 which included two drafts for [sterling]25,000 sterling drawn on the AIB in favour of G.M. and [sterling]23,000 drawn on the EBS. He states that he was informed by Mr. F. the Solicitor that he F negotiated certain of the other instruments in the envelope. On the instructions of Mr. K., having reimbursed the amounts negotiated, he lodged a total of [sterling]169,746.36 to the client account of H. and obtained a bank draft in the sum of [sterling]28,000 which he gave to Mr. K. That lodgment included a bankdraft and an E.B.S. cheque payable to the first named G.M.. He was informed by Mr. K. that B. directed him to pay the money into the client account and gave him a number for that purpose. Both F. and Mr. K. told the deponent that they had no dealings with either Mr. T. or Mr. I. On the 11th August 1997 Mr. F received a large white envelope. In it there was a smaller envelope and a letter purporting to come from Mr. D. I. onnotepaper called "Timemarch Construction Northern Limited" purporting to be dated the 23rd August 1996 - almost one year previously - and approximating to the time when Mr. F had received the [sterling]198,000 through Mr. K. The letter corroborates Mr. P.B.'s interest in purchasing diamonds through P.C. Ltd and the deal with Mr. T. On the 15th September Mr. F solicitor received a fax on similar notepaper purporting to come from Mr. I. apologising for the fact that there had been an investigation and asserting that the transaction had been bona fide . Garda Denis O'Leary, a Bureau Officer of the Criminal Assets Bureau received, a fax from Mr. I. denying that he had ever written either letter referred to dated Monday March 23rd 1998. It is worth recording in full.

It would appear, therefore, that the version of Mr. B is in conflict with that of Mr. K., Mr. F and Mr. I. as well as in some particulars with that of Mr. H. Moreover, the former Managing Director of 'Timemarch' Northern Limited informed the Gardaí that, as of the 23rd August 1996 (the purported date of the first letter) the company had ceased trading, and furthermore that it had been struck off the register of companies some ten months before the date of the second letter. Much of the evidence of DetectiveGarda O'Brien is of a hearsay nature. The amount of reliance that could be placed on such evidence varies from case to case. The court must approach such evidence with particular caution and a degree of scepticism. In this case however, it has been amply demonstrated that in relation to these proceedings that much of the evidence of Mr.P.B. is patently untrue and was deliberately cynically manufactured - a topic to which I will return. Secondly, the account given in relation to [sterling]169,000 is inherently unlikely. Thirdly, no effort was made to challenge the evidence of Sergeant O'Brien in this regard. I am satisfied that the account given by Mr. P.B. is untrue and that given by Sergeant O'Brien is correct. This being so, there is evidence of yet more money being given by Mr. P.B. through P.F. & Co. to Mr. H. some of which at least, that is the Bank draft for [sterling]25,000 and the EBS cheque [sterling]23,000, comes from G.M. It was lodged by Mr. H. in the Client account of P.B.

The sum in excess of [sterling]169,000.00 therefore came from monies supplied by Mr. P.B. to Mr. K. Part of those monies consisted of an AIB sterling demand draft made out to Mr. G.M. in the sum of [sterling]25,000.00 and another cheque from the EBS Building Society to Mr. G.M. in the sum of [sterling]23,000.00. Those monies were lodged in Mr. H.'s client account for Mr. P.B. The said monies were disbursed as follows: [sterling]15,000.00 and later a sum of [sterling]1,697.00 (being 1% of the total) were paid to Mr. H.'s firm. Sums of [sterling]79,647.00 and a further sum in excess of [sterling]38,000.00 went to P.C. Ltd., the company controlled by Mr. B. and a sum of [sterling]50,000.00 and a further sum of [sterling]25,720.00 were paid to P.B. himself. The Court has not been told why.

It is in the context of these findings concerning the [sterling]75,000 sterling and the [sterling]169,746.36 that the evidence concerning the [sterling]300,000, the subject matter of this application, must be evaluated.

In relation to the [sterling]300,000 the subject matter of these proceedings, the matter is dealt with in the Affidavit of Mr. B. at paragraph 4:-

The replying evidence of Mr. G.H., Mr. B. McM. and Mr. D.J.M. addresses this allegation. The [sterling]300,000 was not, nor ever has been beneficially owned by G.M. The sum of [sterling]300,000 came from Mr. McM. and from Mr. M. in the sums deposed to in their Affidavits. Neither Mr. H.'s firm nor I have to my knowledge received any money from G.M."

Mr. M. in his Affidavit dated the 30th January 1998 averred that he knows Mr. P.B., the second-named Defendant for over 5 years and was appraised in March 1997 of an investment. A contract proposal was sent. The proposal was exhibited in his Affidavit, and promised high returns and a very little risk to capital.

In January 1997 he had arranged for the sale of a portion of his shareholding in a Liberian logging company and the results of the shares generated [sterling]130,000 sterling, which funds were available for short-term investment. He then exhibited what he called true copies of correspondence relating to this transaction. He stated in April 1997 cash funds were realised and he arranged to visit Dublin to sign the contract and hand the funds to P.B. the second-named Defendant, which he did and he stated that he handed over [sterling]90,000 in cash. These monies were obtained from the sale of his shares in the Liberian Logging Company and had no criminal provenance either direct or indirect. He refers to a copy of the contract dated April 28th 1997. This deponent says that he holds diplomatic status as a consultant. He exhibited a letter fromP.B. on P.C. Limited notepaper with the address of 19 Peel Road, Douglas, Isle of Man, dated 3rd March 1997, he exhibited documentation signed by G.W. Gb. to verify the fact that he had money from Liberia and some further correspondence.

D.J.M. also exhibited a memorandum of the agreement by which he lent

P.C. Ltd., the third-named Respondents, the money. This accounts for [sterling]90,000 of the [sterling]300,000 the subject matter of this claim.

The provenance of the rest was explained in the Affidavit of B. McM. He stated he has known Mr. P.B. for six years and in April 1997 he was approached with the proposal. At the time he was in control of funds belonging to D. Textiles Limited. He consulted with the managing director of D. Textiles and got Power of Attorney. Monies had been generated from the proceeds of six shipments of goods from Latvia to D. Textiles, which shipments were sold primarily to market traders for cash. The proceeds of six shipments were in excess of [sterling]220,000. The deponent exhibited a Power of Attorney and a letter of authority. He referred to the shipping import documents, invoice documents and Customs certificates relating to shipment of goods. He lodged the proceeds of sale generated from the imported goods with G. Financial Services, a company which carries on, inter alia, the business of a Bureau de Change .

During the correspondence with Mr. P.B. and his company, P.C. Limited, he was satisfied with the investment and proceeded to sign an agreement dated the 26th May, 1997 to invest [sterling]180,000 sterling. He obtained that money from D. Textiles's account at G. Financial Services in the form of two cheques for [sterling]90,000 in favour of Messrs. H. Solicitors. He gave those cheques to Mr. B. upon signing the agreement between the parties. He referred to a copy of the agreement. On the 18th June 1997 he obtained [sterling]15,000 cash from G. Financial Services and signed a further contract with P.C. Limited for an investment of that [sterling]15,000. On the 23rd June 1997 he obtained a further cheque from G. Financial Services, again made payable to Messrs H. Solicitors in the sum of [sterling]14,105.00. He added [sterling]895.00 cash and signed a further contract with Mr. B. of P.C. Ltd. for [sterling]15,000. He exhibits a true copy of that agreement.

Amongst the exhibits of Mr. M.'s affidavit is an exhibit showing that the proposal made to him by Mr. B., was contained in a letter dated the 3rd March 1997. It is D.G.M. 1 in his Affidavit.

In the material recovered from a shredder located beside Mr. B's desk in his home on the 6th August 1997 was a handwritten draft of the purported letter of the 3rd March 1997. The presence of a draft of the said letter in a shredder beside the desk of P.B. is unexplained - and inexplicable ofter than in terms of a sham.

Exhibit D.G.M.2 in the Affidavit of Mr. M. is a letter of the 25th February purported to be signed by Mr. G.B. of C. Corporation confirming payment to Mr. M. of [sterling]90,000 sterling. The docket has been reconstructed from the shredder of Mr. B. and it is apparent that this is the same letter as that contained in Mr. D.G.M's letter of the 25th February 1997. It is however unsigned. It is difficult to understand how P.B. would have in his possession in August 1997 a letter from a Liberian company to Mr. M. of the 25th February, but it is impossible to understand how he could have an unsigned version of the document. The unescapable conclusion is that this is a fabricated document has not being contradicted. A further letter, purported date 4th June 1997, was found in the shredder. This is a letter providing updated information to Mr. M. and suggested contracts were signed on the 30th May. What appears to be ahandwritten draft of the letter of the 4th June 1997 was also found in the shredder. As can be seen from the draft, the dates of both the letter and the purported agreement have been subjected to considerable alteration. The Sergeant says that he believes that this shows thecorrespondence and the purported agreement are not genuine but were concocted in late July and early August to provide some explanation for the source of funds in Mr. H.'s account.

A draft letter of the 14th May, an unsigned letter from Mr. M. to P.B. dated the 11th June and an earlier draft of the agreement dated 28th April 1997 were also found in the shredder. No explanation has been forthcoming in relation to these documents.

It is clear from the evidence of D/Inspector Patrick Byrne that the agreements which, according to Mr. P.B., were the source of the[sterling]300,000 the subject matter of these proceedings were all created on his computer in August of 1997. It is equally clear that a Letter of authority and a Power of Attorney referred to in the Affidavit of B. McM. were all documents generated on the computer in Mr. B.'s house. I am quite satisfied that Mr. B. was involved in a premeditated, calculated, sophisticated and outrageous attempt to deliberately mislead this Court. His explanation as to the genesis of the money, the subject matter of these proceedings - is in shreds.

Having regard to the evidence tendered by the Applicant I am satisfied that the Respondents herein are in possession and control of [sterling]300,000 and that that property constitutes directly or indirectly the proceeds of crime or was acquired in whole or in part with or in connection with property that directly or indirectly constitutes the proceeds of crime and that the value of the property is not less than[sterling]10,000. Far from it being shown to the satisfaction of the court on evidence tendered by the Respondent or any other person that the money does not constitute directly or indirectly proceeds of crime and was not acquired in whole or in part with or in connection with property that directly or indirectly constitutes the proceeds of crime or that the value of property is less than[sterling]10,000 the view of the Court is reinforced and strenghtened by the evidence proffered on behalf of the Respondents. Moreover, I am satisfied that there is no serious risk of injustice in making the order. Accordingly, I am prepared to make an Order under section 3 of the Act as sought by the Applicants. It is appropriate to make the Order as against all the Respondents including Mr. H.

As I have already indicated, I am prepared to allow the applicants to amend their pleadings appropriately.

The applicants further seek the appointment of Mr. Galvin as Receiver over the said monies in the event of such an Order being necessary. In my view, it is appropriate that a fresh Order be made and accordingly I make an Order appointing Mr. Barry Galvin Receiver over the monies the subject matter of this application until further Order of the Court.