The High Court has granted the Minister for Justice and Law Reform a confiscation co-operation order to assist enforcement in Ireland of a UK confiscation order against Bernadette Margaret Rose Devine. The court rejected Devine’s argument that the Irish application was out of time under the Statute of Limitations Act 1957.
The judgment, delivered by Mr Justice Feeney on 18 April 2012, concerned proceedings under the Criminal Justice (Mutual Assistance) Act 2008. The court said a confiscation co-operation order preserves property in Ireland that may be needed to satisfy an external confiscation order. A separate application is required before the property can be realised to enforce the order.
Devine had been convicted in England in 2001 of five offences of fraudulent evasion of VAT relating to 1996 to 1999 and sentenced to six years’ imprisonment. In 2003, a UK court determined that she had benefited from the criminal conduct by £18,759,430 and made a confiscation order for £1,446,368.68. The judgment records that £317,000 was later paid into court from assets realised in England and Wales. By August 2010, the outstanding balance, including accrued interest, was £1,738,900, with interest continuing at £247.39 a day.
The Irish Minister applied for the co-operation order in October 2010, following a UK request received on 18 August 2010. Devine did not file an affidavit in response. Her written submissions raised limitation, abuse of process and hearsay; at the hearing, counsel pursued only the limitation argument.
Devine argued that the application was subject to a two-year limit for actions to recover a penalty or forfeiture, and that time ran from December 2005, when she notified UK authorities that she intended to abandon her appeal against the confiscation order. The Minister argued that the 1957 Act did not apply and, alternatively, that any time limit began only when the UK request was received.
The court held that a confiscation co-operation order is neither a penalty nor an order of forfeiture: it freezes property but does not itself deprive its owner of an interest in it. It also concluded that section 11(7) did not apply to proceedings under the 2008 Act. The judge added that, even if the two-year limit applied, the relevant cause of action could not accrue before the request was received in August 2010, so the October application was within time.
The court said it had already ruled in an earlier, ex tempore decision that the necessary proofs had been established. Because limitation was the only remaining issue raised, it granted the order sought. The judgment did not itself determine any later application to realise property.