The High Court has ruled that half of the money in two joint bank accounts held by a married couple could not be frozen under a restraint order obtained while the husband awaited trial on drug-trafficking charges.
Mr Justice Feeney delivered judgment on April 2, 2009, in proceedings brought by the Director of Public Prosecutions against M.B. His wife, E.B., participated as a notice party.
M.B. had been arrested in January 2008 and charged under the Misuse of Drugs Act. The judgment records allegations concerning approximately 32 kilograms of heroin with an estimated street value of €7 million. The charges remained pending and no finding of guilt was made in these proceedings.
The DPP obtained an ex parte restraint order in February 2008 covering bank accounts and vehicles. A restraint order temporarily prevents dealings with property which may later be available to satisfy a confiscation order following conviction.
Feeney J found reasonable grounds for thinking that a confiscation order might ultimately be made. Financial evidence showed expenditure and savings substantially exceeding the legitimate income disclosed from M.B.'s tiling business. The court rejected the couple's contention that all of the assets could be explained by lawful earnings and accumulated savings.
A separate issue arose over two accounts held jointly by M.B. and E.B. The DPP argued that E.B.'s interest amounted to a gift from her husband and therefore qualified as “realisable property” under the 1994 Act.
The court rejected that argument. It found that E.B. beneficially owned half of the joint accounts and that her interest was not a gift. In reaching that conclusion, Feeney J took account of the domestic arrangement between the spouses, including E.B.'s work bringing up their five children and maintaining the home.
The restraint order was therefore to be varied so that the joint accounts could not fall below the 50% attributable to M.B., leaving E.B.'s half outside the restraint. The court maintained restraint over M.B.'s Tower Tiling account and other identified assets, while leaving one vehicle issue for further submissions.