CAB v Murphy: Proceedings under Proceeds of Crime Act 1996 cannot correctly be defined as in rem

In this judgment, Criminal Assets Bureau v Murphy, the Supreme Court held that assets seized under the Proceeds of Crime Act 1996 cannot correctly be defined as evidence; and proceedings for the seizure of such property cannot correctly be defined as in rem (against property).

Where an asset is seized for forfeiture under the 1996 Act in a manner alleged to be in breach of an individual’s constitutional rights, the issue for the court is not exclusion under the exclusionary rule. The question is whether a breach of rights has occurred which warrants that the court refuse an order for forfeiture.

133. Where the issue is raised, the Bureau must bear the burden of establishing on the balance of probabilities that (i) the asset was not seized in circumstances of unconstitutionality, or (ii) that, if it was, it is appropriate nonetheless to make the order sought. In the latter case it is for the Bureau to explain the basis upon which it contends that the order should be made, and to establish any facts necessary to justify such conclusion.

 

Background

In 2009, Gardai searched Murphy’s home on foot of a warrant issued by a Garda Chief Superintendent under s 29 of the Offences Against the State Act 1939. £6,625 Sterling and €9,000 cash was recovered. CAB claims the cash is the proceeds of crime and sought an order for forfeiture under the 1996 Act. Murphy’s father, Murphy Snr, claims ownership of the Sterling.

In 2011, the Supreme Court held that s 29 of the 1939 Act was unconstitutional as it provided for the issuance of warrants without judicial oversight.

In the High Court Murphy Snr argued that, as the warrant was legally defective, CAB’s application should be dismissed under the exclusionary rule (evidence recovered in breach of constitutional rights is inadmissible in court). Granting CAB’s order, the trial judge rejected that argument holding that the proceedings were in rem, relating to the legal status of property rather than the guilt of an accused, and the exclusionary rule does not apply to proceedings in rem.

The Court of Appeal rejected Murphy Snr’s appeal on grounds that the exclusionary rule is not relevant where the cash is not being deployed as evidence in a criminal trial.

 

Supreme Court

The Supreme Court granted Murphy Snr leave to appeal on three questions:

Where a dwelling is entered other than in accordance with law, and that dwelling is not that of a person seeking to assert a constitutional right to the inviolability thereof, may evidence be excluded in proceedings concerning a person not dwelling therein?

Is there any rule of law requiring that evidence obtained in consequence of illegal entry into a dwelling should be excluded from civil proceedings, including proceedings in rem under the Proceeds of Crime Act 1996, as amended?

Is there any rule of law requiring the exclusion of evidence in civil proceedings obtained in consequence of a deliberate illegality, or a mistake amounting to an illegality, or in consequence of the deliberate and conscious violation of the rights of one of the parties?

 

Murphy Snr argued that the distinction between proceedings in rem and in personam provided no basis for different rules of evidence, and that the Court’s decision in DPP v JC is authority that the exclusionary rule is applicable to both criminal and civil cases.

CAB submitted that the exclusionary rule has no application to proceedings under the 1996 Act which are civil, in rem and sui generis; and that the cash is not evidence.

O’Malley J wrote the judgment for a unanimous five judge panel. She completed an extensive review of the case law on the development and application of the exclusionary rule. She concluded that its purpose is to protect important constitutional rights and values: the integrity of the administration of justice; to encourage State organs to comply with the law; and to protect and vindicate personal rights.

O’Malley J concluded that the exclusionary rule is not applicable to these proceedings under the 1996 Act, but the courts must protect the same constitutional values identified. And in some cases the breach of a third party’s rights may be so egregious as to justify the dismissal of proceedings under the 1996 Act.

O’Malley J outlined the applicable test where it is alleged that an asset was seized in unconstitutional circumstances:

133. Where the issue is raised, the Bureau must bear the burden of establishing on the balance of probabilities that (i) the asset was not seized in circumstances of unconstitutionality, or (ii) that, if it was, it is appropriate nonetheless to make the order sought. In the latter case it is for the Bureau to explain the basis upon which it contends that the order should be made, and to establish any facts necessary to justify such conclusion.

 

In the circumstances, O’Malley J allowed Murphy Snr’s appeal and remitted the case for rehearing in the High Court in light of the judgment in this case.

 

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