THE SUPREME COURT IN THE MATTER OF SECTION 38 OF THE COURTS OF JUSTICE ACT, 1936 IN THE MATTER OF SECTIONS 38 AND 39 OF THE CRIMINAL JUSTICE ACT, 1994

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1 THE SUPREME COURT Murray C.J. 153/06 Hardiman J. Macken J. IN THE MATTER OF SECTION 38 OF THE COURTS OF JUSTICE ACT, 1936 and IN THE MATTER OF SECTIONS 38 AND 39 OF THE Between: CRIMINAL JUSTICE ACT, 1994 THE DIRECTOR OF PUBLIC PROSECUTIONS and Applicant/Respondent DAVID ANTHONY ENGLAND Respondent/Appellant JUDGMENT of Mr. Justice Hardiman delivered the 16 th day of May, 2011.

2 - 2 - This is a case stated pursuant to s.38(3) of the Courts of Justice Act, The question posed by the learned High Court judge will be more comprehensible if certain facts are first set out. Factual background. On the 15 th May, 1998, at Dublin airport, the applicant David Anthony England was found to be in the possession of the sum of 79, in cash. A customs officer subsequently informed Mr. England that he was seizing the monies referred to pursuant to the powers vested in him by s.38 of the Criminal Justice Act, Later on the same day, the 15 th May, 1998, the relevant customs officer swore an information before a judge of the District Court who, pursuant to the said s.38, permitted the detention of the sum of money referred to for a period of three months from that day. On the 13 th August, 1998 a further application was made pursuant to s.38 and an order authorising the detention of the cash for a further period of three months was made. A similar application was made on the 12 th November, 1998 with the same result.

3 - 3 - On the 5 th February, 1999 a further application was made pursuant to s.38 and an order was granted permitting the continuing detention of the cash seized for a further three months. Each of these orders was made within three months of the preceding order. The last order expired on the 5 th May, 1999: to judge from the written submissions this appears to be common case. Neither party claims that any further order pursuant to s.38 was made in the District Court, after that of 5 th February, Accordingly, this issue would not have arisen at all if the application of the D.P.P. had actually been brought before the Judge of the Circuit Court in advance of the expiry, on 5 th May, 1999, of the Court Order for the detention of the funds. Alternatively it would have been open to the D.P.P. to apply for a further period of detention of the funds, before the then existing order expired. Subsequently, the Director of Public Prosecutions issued a notice of motion bearing the date 23 rd April, 1999 but apparently served under cover of a letter dated 2 nd June, This letter enclosed a Notice of

4 - 4 - Motion in which Mr. England was named as respondent. The first paragraph of this read as follows: Take notice that at 10am on the 29 th day of June, 1999 or so soon thereafter as counsel may be heard, counsel for the applicant in the above entitled proceedings will apply to this honourable court [i.e. the Circuit Court] sitting at Court 24, Chancery Place, Dublin 4. There follows a statement of the relief sought, in the nature of forfeiture. The appellant has not been charged with any offence relating to the sum of 79,960.00, or any offence in relation to which that sum is evidence. Statutory provisions. It is necessary, in order to make legal sense of the foregoing recital, now to consider the relevant statutory provisions, which are Sections 38 and 39 of the Criminal Justice Act, They provide as follows: 38. (1) A member of the Garda Síochána or an officer of customs and excise may seize and, in accordance with this section, detain any cash which is being imported into or exported from the State if its amount is not less than the prescribed sum and he has reasonable grounds for suspecting that it directly or indirectly represents any person's proceeds of, or is intended by any person for use in, drug trafficking. (2) Cash seized by virtue of this section shall not be detained for more than forty-eight hours unless its detention beyond forty-eight

5 - 5 - hours is authorised by an order made by a judge of the District Court and no such order shall be made unless the judge is satisfied ( a ) that there are reasonable grounds for the suspicion mentioned in subsection (1) of this section, and ( b ) that detention of the cash beyond forty-eight hours is justified while its origin or derivation is further investigated or consideration is given to the institution (whether in the State or elsewhere) of criminal proceedings against any person for an offence with which the cash is connected. (3) Any order under subsection (2) of this section shall authorise the continued detention of the cash to which it relates for such period, not exceeding three months beginning with the date of the order, as may be specified in the order, and a judge of the District Court, if satisfied as to the matters mentioned in that subsection, may thereafter from time to time by order authorise the further detention of the cash but so that ( a ) no period of detention specified in such an order, shall exceed three months beginning with the date of the order; and ( b ) the total period of detention shall not exceed two years from the date of the order under subsection (2) of this section. (4) Any application for an order under subsection (2) or (3) of this section may be made by a member of the Garda Síochána or an officer of customs and excise. (5) At any time while cash is detained by virtue of the foregoing provisions of this section a judge of the District Court may direct its release if satisfied ( a ) on an application made by the person from whom it was seized or a person by or on whose behalf it was being imported or exported, that there are no, or are no longer, any such grounds for its detention as are mentioned in subsection (2) of this section, or ( b ) on an application made by any other person, that detention of the cash is not for that or any other reason justified.

6 - 6 - (6) If at a time when any cash is being detained by virtue of the foregoing provisions of this section ( a ) an application for its forfeiture is made under section 39 of this Act; or ( b ) proceedings are instituted (whether in the State or elsewhere) against any person for an offence with which the cash is connected, the cash shall not be released until any proceedings pursuant to the application or, as the case may be, the proceedings for that offence have been concluded. 39. (1) A judge of the Circuit Court may order the forfeiture of any cash which has been seized under section 38 of this Act if satisfied, on an application made while the cash is detained under that section, that the cash directly or indirectly represents any person's proceeds of, or is intended by any person for use in, drug trafficking. (2) Any application under this section shall be made, or caused to be made, by the Director of Public Prosecutions. (3) The standard of proof in proceedings on an application under this section shall be that applicable to civil proceedings; and an order may be made under this section whether or not proceedings are brought against any person for an offence with which the cash in question is connected. The question. The question posed by the learned trial judge in his case stated dated the 7 th April, 2006 is as follows: Am I correct in determining that where an initial detention order in respect of the sum of IR79,960 seized on the 15 th May, 1998, which was authorised later that day pursuant to

7 - 7 - s.38(1) of the Criminal Justice Act, 1994 and which detention order was subsequently extended on the 13 th August, 12 th November 1998, and the 5 th February, 1999 (which order expired on the 5 th May, 1999), was lawfully detained within the meaning of s.38 of the Criminal Justice Act, 1994 so as to ground a jurisdiction for an order for forfeiture under s.39 of the Criminal Justice Act, 1994 being made when an application came before the learned Circuit Court Judge on the 29 th June, 1999 on foot of a Notice of Motion dated and filed the 23 rd day of April, 1999? The issue. It is plain from the statutory provisions cited above that the jurisdiction created by s.39 to order forfeiture of cash seized under s.38 requires that an application for such forfeiture be made while the cash is detained under that Section (i.e. s.38). The applicant says, quite simply, that the application was made on the 29 th June, 1999 and that, on that date, the cash was not detained under s.38, the last order under s.38 authorising its detention having expired on the 5 th May, The Director of Public Prosecutions, at para. 5 of his written submissions agrees that the only issue arising is the construction of the phrase application made in s.39. The Director of Public Prosecutions, on the other hand, contends that the phrase application made is broad enough to include the act of

8 - 8 - the issuance of the Notice of Motion of the 23 rd April, The appellant strongly disputes this pointing out that, in its own terms, the document the Director of Public Prosecutions issued on that date is merely a Notice of an application and that the document specifically states that counsel on the Director s behalf will apply to this honourable court on the 29 th June, That date is the date on which the Director said the application would be made and it is also the date on which the application was in fact made. It is indisputable that date is outside the expiry of the last District Court order because it is after the 5 th May, It can be seen from the above summary that this case raises a net question of statutory interpretation. It is exceptionally hotly contested. The applicant contends that the words of the Sections including the words of s.39, should be given their ordinary and natural meaning; the Director says that they should be given a broad purposive meaning and that care should be taken not to construe the words of a statute so as to make the process it provides for inoperable, or difficult to operate. He refers to s.5 of the Interpretation Act, 2005 in that regard. The appellant, on the other hand points out that Section 5 is introduced as follows:

9 - 9-5(1) In construing a provision of any Act other than a provision that relates to the imposition of a penal or other sanction. (Emphasis added) The appellant by no means concedes that, even if s.5 of the 2005 Act applies, that the Director s interpretation of s.38 is open. But he says that in fact it does not apply, and that this is clearly a penal statute. The Director of Public Prosecutions by no means concedes that, even if s.5 does not apply, the appellant will therefore succeed, but he stoutly contends that s.38 is not of a penal nature and that these proceedings are not penal, even though they are for forfeiture. That is the basis upon which issue is joined between the parties. Service. By a registered letter dated the 2 nd June, 1999 the Revenue Solicitor, who was acting for the applicant, sent a Notice of Motion returnable for the 29 th June, 1999 to the appellant, who was in the United Kingdom. It will be noted, firstly, that this form of service (which had apparently been authorised by an order of His Honour, Judge O Donnell, judge of the Circuit Court of the 18 th May, 1999, was effected after the

10 expiration of the District Court order. Indeed, both the service and the proceeding application for substituted service took place after the expiration of the last District Court order. It is also clear, and was in fact agreed on the hearing of the appeal that in correspondence with the Director s solicitor the applicant denied the involvement in drug trafficking and positively asserted a claim to the money in question. The Notice of Motion. The Notice of Motion served as described above described Mr. England as the respondent and told him that on the 29 th June, 1999 at 10am or at the first opportunity thereafter, counsel on behalf of the Director of Public Prosecutions will apply to this honourable court [i.e. the Circuit Court] for the relief sought. Bearing in mind the nature of this document, and equally its contents, it appears to be very difficult to regard the issuance of document in itself, or the document as served, as the making of an application. As to the nature of the document, it does not in its own terms even purport to be either an application for a particular relief or even a motion

11 in such an application. Instead, it describes itself as a notice of motion. This is consistent with what follows: the respondent to the motion is informed that counsel will apply on a particular time and date for the relief envisaged by s.39 of the Act. This, as it happens, is the date two months after the date which the motion bears and about four weeks after the date on which it was apparently served. However, counsel for the Director of Public Prosecutions submits that a broad and purposive view of the words of s.38 should be taken so as to interpret the words an application made while the cash is detained under [s.38] as including the issuing a motion. The respondent says that this can be done by having regard to s.5(1) of the Interpretation Act, This provides as follows: 5. (1) In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction) (a) that is obscure or ambiguous, or b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of (i) in the case of an Act to which paragraph (a) of the definition of Act in section 2 (1) relates, the Oireachtas, or (ii) in the case of an Act to which paragraph (b) of that definition relates, the parliament concerned,

12 the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole. The appellant takes the point that s.38 is clearly a penal Section, envisaging as it does the forfeiture of a sum of money to which the appellant lays claim. But even apart from that possibility, which I do not find it necessary to address, it will be seen that it is a precondition to the application of the Section that the provision being interpreted be obscure or ambiguous or such that a literal interpretation would be absurd or fail to reflect the plain intention of the legislature as ascertained from the Act as a whole. I do not consider that either of these criteria has been met. The words of s.38 do not appear to me to be either obscure or ambiguous and during the hearing counsel for the respondent did not suggest a verbal basis for any viable alternative meaning for the form of words quoted. That being so, it appears to me, even apart from the question of whether the statute is or is not penal, no case has been made for the application of any rule or canon of construction other than the usual one: that the words used, one presumes advisedly, by the Oireachtas will be interpreted in the ordinary and natural meaning of those words. It is in this way, and no other, that the legislators plain intention is expressed.

13 While there is no authority immediately or directly helpful on the question of construction raised, there are two matters that might be considered of oblique relevance. Firstly, I should like to refer to Order 136 of the Rules of the Superior Courts which Rule is entitled Proceeds of Crime and Financing of Terrorism. On the hearing of this appeal neither side contended that this Rule was capable of application by analogy to the proceedings which took place in the Circuit Court in this case, in the absence of any specific provision in the Rules of the Circuit Court. Nevertheless it is oblique relevance in the following way. It will be seen that Order 136 Rule 2 provides: (1) Subject to sub-rule (2), an application by a member, an authorised officer, or the Bureau for an order under s.2(1) of the Principal Act shall be made by originating motion ex parte. The said originating motion shall be entitled [the form of entitlement is set out] and shall, in the body thereof, specify the relief sought under s.2(1) of the Principal Act. (Emphasis added) The Principal Act in Rule 136 means the Proceeds of Crime Act The relevance of this provision, oblique though it is, is that it provides an example of the making of an application by originating motion. If an originating motion of the kind envisaged by Order 136

14 were in question in this case, then the making of the application would indeed be accomplished by the making of the motion. But that would be by reason of the specific provisions of Order 136, which are absent from the Act of In the particular case of an application under s.39 no Rules of Court such as those which, by s.41, could have been made by the Circuit Court Rules Committee had in fact been made at the time this application was brought before the Court. It is, indeed, possibly a defect in the Act that the legislature contented itself with setting out the sort of relief which could be granted, and when, and left the procedures to be followed, including the necessity to make a person interested in the money a party to the proceedings and requiring him to be served, to the rule makers. This approach, certainly, reduced the immediate labours of the Parliamentary draftsman, but at some price. Counsel for the appellant referred the Court to the case of KSK Entrerprises Limited. v. An Bord Pleanála [1994] 2 IR. There, the Supreme Court was construing a statutory requirement, sub-section 19(3)(b) of the Local Government Planning and Development Act, 1992, which required that an application to the Court should be made in a

15 particular time by a Motion on Notice. Finlay C.J. said, at p. 136 of the Report: Under Order 84 providing for the judicial review procedure, an application for leave to apply for judicial review was to be made by a motion ex parte. The provision for a motion on notice is inserted in the Act of 1992 in regard to planning decisions. There can be no doubt in my mind that an application to the Court by a motion ex parte cannot be said to be made until it is actually moved in court. In the case of a motion on notice which is what is provided for in this subsection, I am quite satisfied that it could not be said to have been made under any circumstances until notice of it had been given to the parties concerned I have considered carefully whether the filing of a motion on notice to all the parties concerned is sufficient and whether there are any good grounds for differentiating in the interpretation of this Section between the making of an application for leave to apply for judicial review by a motion ex parte, and by a motion on notice. I am satisfied that as a matter of general construction, where a restriction is being imposed upon the exercise of a right in a statute such as this subsection involves, that it is desirable to the extent of being almost imperative that it should be capable of being construed and should be construed in a clear and definite fashion. (Emphasis added) In the present case the respondent, the Director of Public Prosecutions, did not concede that it was necessary, or always necessary, to serve the person appearing to be interested in the monies with a motion under s.38 at all. He said this on the basis of hypothetical or imagined circumstances where it might be impossible to identify, or to serve, such person. But, through counsel, he conceded that in the circumstances of

16 this case, in which the person appearing to be interested (i.e. the person from whom the money was taken) had actively corresponded from a specific address and had energetically laid claim to the money, that it was necessary to serve such person i.e. Mr. England. This concession is sufficient to establish that, at least in the circumstances of the present case, the motion seeking forfeiture required to be a motion on notice. The relevance of this, in turn, is that it makes the case more directly analogous to that of KSK Enterprises, although, of course it is not wholly analogous. The effect of the reported case, and the Rule of Court, which I have cited are not dispositive of the present case. But they are the authorities most germane to it to which we have been referred and are quite consistent with the ordinary and natural meaning of the words of the Section. I would add that, in my view, something quite extraordinary would require to be established in evidence before it would be possible to proceed with an application under s.38 without putting the person appearing to be interested on notice. That is not, however, to exclude the possibility that, in circumstances of urgency, an ex parte application

17 might first be made on which the Court, for example, could taken any necessary steps to preserve the status quo. Conclusion. In the circumstances, I believe that the application, notice of whose proposed making was given to the person appearing to be interested in early June, 1999, was not itself an application made while the money to which it related was detained under s.38. Accordingly I would answer the question of the learned trial judge in the negative.