The High Court has refused a request by Mac Aviation Limited and two anonymised respondents to have a Criminal Assets Bureau application heard in private, finding they had not established a real risk of injustice from a public hearing.
Mr Justice Feeney delivered the ruling on 22 March 2010. The application concerned section 8(3) of the Proceeds of Crime Act 1996–2005 and whether the forthcoming inter-party hearing under section 3 should be held otherwise than in public.
The judge said the respondents had to identify real and appreciable grounds for excluding the public, assessed within the constitutional requirement that justice ordinarily be administered in public. The test did not require exceptional circumstances, but the court had to be satisfied there was a real risk of injustice if the hearing remained public. The judge also distinguished this request to exclude the public from the separate statutory power to restrict publication of information.
The respondents submitted that publicity could seriously damage Mac Aviation’s business and prejudice a possible future criminal trial. They argued that a company’s interests could be harmed by public proceedings and relied on fair-trial concerns. They also pointed to letters the Bureau sent to banks in March 2009, which they said had frozen accounts without prior judicial scrutiny.
The Bureau argued that substantial publicity about the respondents and their business activities had already occurred, including after a US grand jury indictment was unsealed in March 2009. The judgment records that the US authorities had indicated an intention to seek the extradition of the second and third respondents.
The court found that the earlier publicity substantially overlapped with the matters due to be considered in the section 3 application. It also noted there were no criminal proceedings in Ireland and found no factual basis for concluding that a public hearing would imperil a future fair trial there. The judge said the respondents had identified no trade in Ireland to support their claim that a public hearing would put local business activity at risk; the company was based in Ireland but conducted its core business abroad, a substantial portion with Iran.
The judge also considered affidavit evidence alleging that the company’s business records used fictitious names. The judgment states that the allegation had not been explained or denied in affidavits for the company. The court said a public hearing could help expose inaccurate recordkeeping.
The ruling was limited to the request for a private hearing. An interim order under section 2 had previously been made ex parte. The section 3 hearing is to determine, on evidence, whether the respondents possess or control property representing the proceeds of crime. The High Court did not decide that question in this ruling; it refused the section 8(3) application and held that the section 3 application should be heard in public.