Patrick David Belton v The Director of the Assets Recovery Agency
| Jurisdiction | Northern Ireland |
| Judge | Nicholson LJ |
| Judgment Date | 27 January 2006 |
| Neutral Citation | [2006] NICA 2 |
| Date | 27 January 2006 |
| Court | Court of Appeal (Northern Ireland) |
| Year | 2006 |
Neutral Citation no. [2006] NICA 2
Ref:
NICC5456
Judgment: approved by the Court for handing down Delivered:
27/01/06
(subject to editorial corrections)
IN THE COURT OF APPEAL IN NORTHERN IRELAND
________
BETWEEN:
PATRICK DAVID BELTON
Defendant/Appellant
and
THE DIRECTOR OF THE ASSETS RECOVERY AGENCY
Plaintiff/Respondent
________
Before: Nicholson LJ, Campbell LJ and Sheil LJ
________
NICHOLSON LJ
Introduction
[1] By Originating Summons issued on 15 June 2004 the respondent
claimed that (i) property known as 96/97 Concession Road, Crossmaglen, (ii)
property known as 1A Musgrave Manor, Stockman’s Lane, Belfast, (iii) the
sum of £6560.08 held by BDO Stoy Hayward in a receivership account were
held by or on behalf of the appellant and were recoverable property under
Part 5 of the Proceeds of Crime Act 2002 (“the 2002 Act”). Inter alia, a
Recovery Order pursuant to Section 243 and 266 of the 2002 Act was sought.
The summons was grounded on the affidavit of Dee Traynor, a financial
investigator for the Assets Recovery Agency (the Agency), sworn on 10 June
2004. An appearance was entered on behalf of the appellant on 5 October
2004. The appellant swore an affidavit in reply on 12 April 2005.
Interrogatories on behalf of the respondent for the examination on oath of the
appellant were served on 21 April 2005 and further interrogatories were
served on 20 May 2005 without an order of the Court. By summons dated 20
May 2005 the appellant sought an order of the court pursuant to Order 26,
Rule 3(2) of the Rules of the Supreme Court (NI) 1980 compelling the
respondent to withdraw his interrogatories on the grounds that:-
2
(a) the respondent’s claim was an action constituting a penalty against the
appellant; or alternatively
(b) the action was to enforce a forfeiture of an estate in land.
The appellant’s summons was heard by Coghlin J, who in a written judgment
delivered on 26 August 2005 dismissed the summons on the ground that
recovery proceedings under the 2002 Act did not constitute a penalty either in
domestic law or in terms of “the autonomous Strasburg concept”.
[2] The appellant appealed to the Court of Appeal for leave to appeal on
the grounds that:-
1. The learned trial judge (the judge) erred in law in holding that
recovery proceedings in accordance with Section 243 of the 2002 Act do not
constitute a penalty either in domestic law or in terms of the autonomous
meaning of penalty given by the European Court of Human Rights
jurisprudence.
2. The judge erred in law in distinguishing confiscation proceedings and
recovery proceedings when considering whether the latter constituted a
penalty.
3. The judge ought to have concluded that recovery proceedings under
the 2002 Act can constitute a penalty and hence it is not open to a respondent
in such proceedings to compel interrogatories.
Recovery Proceedings under the 2002 Act
[3] The Preamble to the 2002 Act reads as follows:-
“An Act to establish the Assets Recovery Agency
and make provision about the appointment of its
Director and his functions (including Revenue
functions), to provide for confiscation orders in
relation to persons who benefit from criminal
conduct and for restraint orders to prohibit dealing
with property, to allow the recovery of property
which is or represents property obtained through
unlawful conduct or which is intended to be used
in unlawful conduct, to make provision about
money laundering, to make provision about
investigations relating to benefit from criminal
conduct or to property which is or represents
property obtained through unlawful conduct or to
money laundering, to make provision to give
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