Cecil Walsh v Director of the Assets Recovery Agency
| Jurisdiction | Northern Ireland |
| Judge | Kerr LCJ |
| Judgment Date | 26 January 2005 |
| Neutral Citation | [2005] NICA 6 |
| Date | 26 January 2005 |
| Court | Court of Appeal (Northern Ireland) |
| Year | 2005 |
1
Neutral Citation no. [2005] NICA 6
Ref:
KERC5186
Judgment: approved by the Court for handing down
Delivered:
26/01/05
(subject to editorial corrections)
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
---------
BETWEEN:
CECIL WALSH
Appellant
and
DIRECTOR OF THE ASSETS RECOVERY AGENCY
Respondent
---------
Before Kerr LCJ, Nicholson LJ and Campbell LJ
---------
KERR LCJ
Introduction
[1] This is an appeal from the decision of Coghlin J whereby he held that an
application made by the Director of the Assets Recovery Agency (the agency)
under Part 5 of the Proceeds of Crime Act 2002 (PoCA) for the recovery of
assets from Cecil Walsh were civil proceedings and did not engage article 6
(2) of the European Convention on Human Rights and Fundamental
Freedoms.
[2] The appeal opened on 7 September 2004 but it quickly became clear that
the appellant’s argument involved a challenge to the compatibility of such of
the provisions of PoCA as purported to classify applications for the recovery
of assets as civil proceedings. It was then necessary to adjourn the hearing so
that a notice under Order 121 rule 2 of the Rules of the Supreme Court
2
(Northern Ireland) 1980 could be served. This notified the Crown that this
court was considering whether to make a declaration of incompatibility. The
hearing resumed on 17 January 2005 and was completed on 18 January.
Background
[3] On 13 June 2003 by direction of Her Honour Judge Kennedy, Mr Walsh
was found not guilty of three charges of obtaining services by deception
contrary to article 3 (1) of the Theft Act (Northern Ireland) 1978 and one
charge of obtaining property by deception contrary to section 15A of the Theft
Act (Northern Ireland) 1969. These offences were alleged to have occurred
between July 2000 and January 2001.
[4] On 16 June 2003 an assistant chief constable in the Police Service for
Northern Ireland (PSNI) made a referral to the agency concerning property
held by Mr Walsh. The referral document included the statement that PSNI
believed that certain property held by Mr Walsh derived from criminal
activity on his part. On foot of the referral, on 27 June 2003 the agency
obtained an order for a Mareva injunction restraining Mr Walsh from
removing from Northern Ireland or from disposing of or dealing with certain
property specified in the order.
[5] On 2 July 2003 the agency caused to be issued an originating summons
under Order 123 rule 4 of the 1980 rules. By this, the agency applied for a
recovery order in respect of the assets that had been specified in the Mareva
injunction. On 10 November 2003 Coghlin J conducted the hearing of a
preliminary issue as to whether recovery proceedings under Part 5 of PoCA
should be classified as civil or criminal. He subsequently delivered a reserved
judgment holding that they were to be regarded as civil proceedings. It is
from that decision that the present appeal is taken.
Statutory History
[6] The Hodgson Committee report, ‘The Profits of Crime and their Recovery,
Howard League for Penal Reform, 1984’ recommended the introduction into
English law of a sentence of confiscation designed to catch the profits of major
crime. Following this recommendation, a confiscation regime in relation to
drug trafficking was introduced in England and Wales by the Drug
Trafficking Offences Act 1986. As well as including the powers of restraint
and confiscation the Act created a statutory assumption that a drug
trafficker’s assets were the proceeds of crime and were therefore liable to
confiscation. In 1988 the Criminal Justice Act provided for a new power to
make a confiscation order in respect of certain crimes other than drug
trafficking. Equivalent provisions to those contained in the 1986 and 1988
Acts were introduced in Northern Ireland by the Criminal Justice
(Confiscation) (Northern Ireland) Order 1990.
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31 cases
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Serious Organised Crime Agency v Gale and another
...apply to proceedings under Part V of the 2002 Act have been rejected by both the Court of Appeal in Northern Ireland ( Walsh v Director of the Assets Recovery Agency [2005] NICA 6), and the Inner House in Scotland ( Scottish Ministers v Doig [2009] CSIH 34). 29 In Walsh the court upheld the......
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Patrick David Belton v The Director of the Assets Recovery Agency
...any person who is proved to have engaged in such conduct; see the judgment of Coghlin J in Walsh v Director of the Assets Recovery Agency [2005] NICA 6, the discussion of this part of his judgment on appeal and the decision of Collins J in Director of Assets Recovery Agency v Jia Jin He and......
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Serious Organised Crime Agency v Gale and another
...incurring". These three factors, and some of the jurisprudence in which they feature, were identified by Kerr LCJ in Walsh v Director of the Assets Recovery Agency [2005] NICA 6, [2005] NI 383, at para 20, where he observed that they tend to blend into each 17 If the proceedings are prope......
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Jerome Jones v Birmingham City Council Respondent
...incurring”. These three factors, and some of the jurisprudence in which they feature, were identified by Kerr LCJ in Walsh v Director of the Assets Recovery Agency [2005] NICA 6, [2005] NI 383, at para 20, where he observed that they tend to blend into each other.” 34 Analysing the decisi......
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1 firm's commentaries
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Proceeds of Crime and the European Convention on Human Rights
...334; in Scotland in Scottish Ministers v. McGuffie [2006] SLT 401; in Northern Ireland in Director of the Assets Recovery Agency v. Walsh [2005] NICA 6. In England and Wales, Laws L.J. went so far as to adopt the submission on behalf of counsel for the Crown that any submission to the contr......
4 books & journal articles
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Designing a civil forfeiture system: an issues list for policymakers and legislators
...Victims Restitution and Compensation Payment Act 2001, s 51 (Alberta).151. Director of the Assets Recovery Agency v. Walsh [2005] NICA 6.152. Murphy v. GM, PB, PC Ltd, and GH, [1999] IEHC 5.153. United States v. Ursery 518 US 276 (1996).154. Proceeds of Crime Act 2002, s 345 (UK) and Procee......
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Civil recovery proceedings under the Proceeds of Crime Act 2002. The experience so far
...NIQB 70.30. Gilligan v. Criminal Assets Bureau (1998) 3 IR 185.31. (2004) NIQB 21.32. (1976) 1 EHRR 647.Civil recoveryproceedings263 33. (2005) NICA 6.34. (2006) NICA 2.35. (2006) CSOH 34.36. (2004) EWHC 3021 (Admin).37. 70 DR 59 (1991).38. 54024/99.39. (2005) NIQB 67.40. (2005) EWCA Civ 58......
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Criminal Labels, the European Convention on Human Rights and the Presumption of Innocence
...Agency vCustoms and Excise Commissioners and Charrington [2005]EWCA Civ 334 at [17]; Walsh vDirector of the Assets Recovery Agency [2005] NICA 6 at [23].138 Gilligan vCriminal Assets Bureau [1998] 3 IR 185, 218.139 A. Ashworth, ‘Social control and “anti-social behaviour”: the subversion of ......
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Civil Asset Forfeiture and the Presumption of Innocence under Article 6(2) Echr
...a matter for the jury if t he accused were charged with a c riminal o ence’. In Cec il Walsh v. Director of the Asse ts Recovery Agency [2005] NICA 6 , p.7 the Court of Appeal in Nort hern Ireland found that many of the cha racteristics identi ed in this passage are present in the cas e ......