By Clara Finn
A Supreme Court judgment has concluded that a High Court order freezing a County Wicklow house under the Proceeds of Crime Act 1996 should be set aside because the legislation did not apply to proceeds of crimes committed in the United Kingdom.
The High Court had made the order in July 2002 after finding that the house represented, wholly or partly, proceeds of crime. The property had been bought in late 1988 or early 1989 for IR£128,000 without a mortgage.
The appellant, identified only as D, had an extensive criminal record in Britain but none in Ireland. Criminal Assets Bureau evidence linked the house to alleged proceeds of his UK criminal activity. D argued that he had legitimate income from clothing trading and greyhound activities.
Mr Justice Fennelly addressed two decisive issues.
First, he found an error in how the High Court dealt with evidence from an authorised CAB officer. Under section 8 of the 1996 Act, an officer's reasonably grounded belief that property represents crime proceeds may become admissible evidence. But that does not automatically prove the case. The judge must still assess the weight of that evidence before any burden shifts to the property owner.
Fennelly J considered that the High Court had instead treated the officer's evidence as requiring an order unless D proved the property was legitimate. On that basis alone, he said, a retrial would have been required.
More fundamentally, however, he held that the 1996 Act did not apply to proceeds of foreign crime. He contrasted it with other legislation expressly extending to criminal activity abroad and requiring that the foreign conduct also amount to an offence under Irish law.
Because the 1996 Act contained no equivalent provision, Fennelly J concluded that it was directed at proceeds of crime committed in the State. He therefore said the appeal should be allowed and the High Court order set aside, without deciding the remaining delay and oppression arguments.