The Supreme Court considered whether the Minister for Justice had to give an undertaking to pay damages as a condition of continuing an Irish restraint order over assets linked to UK criminal proceedings against Bernadette Margaret Rose Devine. In a judgment delivered on 26 January 2011, Justice O’Donnell set out why he would have allowed the Minister’s appeal to a limited extent. He noted that the High Court decision had been upheld by the majority of the Supreme Court.
The restraint order was made ex parte by the High Court in March 2005 under the Criminal Justice Act 1994 and regulations made in 1996. It covered 12 identified properties and assets in Ireland. The UK proceedings concerned VAT fraud. Devine had been convicted in England in 2001 on five counts of fraudulent evasion of VAT. In 2003, Middlesex Crown Court determined that she had benefited by £18,759,430 and made a confiscation order for £1,446,368.68. She withdrew her appeal against that order in 2005, making it final.
Devine later applied to set aside the Irish order, arguing that the absence of an undertaking meant it had been made without legal authority. The High Court rejected that argument but required the Minister to give an undertaking limited to the Minister’s own actions, excluding those of the UK requesting authority. It also made an undertaking a condition of continuing the order. The judgment records that this decision was upheld by the Supreme Court majority.
Justice O’Donnell said the legislation did not impose a general rule requiring an undertaking whenever a statutory restraint order was made. He considered the court had discretion and that the starting presumption should be against requiring one. He pointed to statutory compensation provisions, including section 65 of the 1994 Act, which allow compensation in limited circumstances involving serious default. He said that if compensation provisions applied in this case, no undertaking should be required; if their application was unclear, any undertaking should be limited along the lines of section 65.
The judge did not decide whether Irish or UK statutory compensation provisions applied to Devine’s case, saying the issue had not been fully argued. He would not have required an undertaking as a condition of continuing the order after the inter partes hearing, given that no substantive ground for setting it aside or possible injustice had been identified. His judgment addressed the 1994 Act and 1996 Regulations, which had since been repealed; he said any application of his reasoning to the later 2008 Act would need to be considered separately.