Evidence – Unrepresented litigants.
In January 2009, the Criminal Assets Bureau of Ireland ("CAB") issued proceedings against Routeback Media and Harry Zeman seeking orders under sections 2 and 3 of the Proceeds of Crime Act 1996 in respect of $651,447.85 in an account which CAB claimed constituted proceeds of a fraudulent internet scheme. A section 2 interim (freezing) order was made on 28 January 2009. Prior to the section 3(1) hearing on 19 January 2011, CAB served notice of intention to cross-examine Zeman, a personal litigant. He, in turn, served notice to cross-examine CAB’s deponents yet failed to attend the section 3(1) hearing. Feeney J admitted Zeman’s affidavits but made the section 3(1) order. Over seven years later, CAB issued a section 4 disposal order application on 6 February 2018. Zeman swore opposing affidavits including expert evidence and in May 2019 he issued a section 3(3) application to discharge the section 3(1) order. In November 2019, Zeman (now represented) served notice to cross-examine all six CAB deponents from the 2011 section 3(1) proceedings. Stewart J ruled those notices invalid for failure to identify specific conflicts and to obtain prior leave under Order 40, rule 31 Rules of the Superior Courts ("RSC"). On 23 May 2022, Stewart J granted the section 4 disposal order in favour of CAB finding no new matter had arisen to alter his previous findings and there was no serious risk of injustice.
On 10 May 2024, the Court of Appeal dismissed Zeman’s appeal, whilst finding some fresh evidence had been adduced by Mr Zeman, it did not warrant overturning the section 3(1) order.
Upon application to the Supreme Court, the court granted leave to appeal on the following issues of general public importance:
(i) whether persons facing final orders based on affidavit evidence by CAB have an entitlement to cross-examine deponents;
(ii) the duty and obligations of judges towards unrepresented litigants;
(iii) whether leave to cross-examine should always be given where a final order is sought; and
(iv) the relevant procedure and interaction between sections 3 and 4 of the 1996 Act.
———Held, by IESC (Charleton, Woulfe, Hogan, Murray, and Collins JJ):
Charleton J delivered the lead judgment; Collins J delivered a fully concurring judgment; Woulfe and Hogan JJ concurred with both; Murray J concurred in result, but differing on certain issues. Appeal allowed. Sections 3(3) and 4 applications remitted to the High Court for reconsideration.
Nature and finality of section 3(1) orders
A section 3(1) order, whilst described as "interlocutory", is in reality a final order because it is the trial of the real issue as to whether property constitutes proceeds of crime. Under section 3(1), where belief evidence by a CAB officer is reasonable and establishes a prima facie case, the burden shifts to the respondent to demonstrate that property is not proceeds of crime. Sections 3(1) and 4(8) share the requirement that courts shall not make such orders if satisfied there would be a serious risk of injustice;
———McK (F) v F (A) [2002] IESC 4; [2002] 1 IR 242, Murphy v M (G) [2001] IESC 82; [2001] 4 IR 113 and McK (F) v F (C) [2001] 4 IR 521 (per Charleton J, paras 51 to 54), applied.
Section 3(3) review applications and threshold requirements
Section 3(3) enables a respondent to apply to overturn a section 3(1) order at any time before final disposal under section 4 by demonstrating that property is not proceeds of crime, or that the order causes injustice. However, a section 3(3) application must be based on new evidence not before the court at the section 3(1) stage. The threshold is that evidence should be apparently credible and bring a new factual focus whereby an ostensibly reasonable case for overturning the section 3(1) order is presented;
———Murphy v Gilligan [2008] IESC 70; [2009] 2 IR 271, applied.
———Henderson v Henderson (1843) 3 Hare 100 and Murphy v Minister for Defence [1991] 2 IR 161 (per Charleton J, paras 61 to 64; Murray J differing and applying Henderson v Henderson, paras 12 to 13 and 29), distinguished.
Section 4 disposal orders and respondents’ rights
Under section 4, where an interlocutory order has been in force for at least seven years, the court may make a disposal order. The proofs required from CAB are production of the certified section 3(1) order and the passage of seven years. Section 4(2) provides that the court shall make a disposal order unless it is shown to the court’s satisfaction that the property does not constitute proceeds of crime. Respondents bear the burden of proof and must produce new evidence. Applications under section 3(3) and challenges under section 4 cannot re-open what the High Court decided on the section 3(1) application. Section 8 admitting belief evidence does not apply to section 4 disposal hearings. (Per Charleton J, paras 34 to 36, 56 to 58 and 108 to 112; Collins J concurring, para 11; Murray J differing, paras 25 to 29.)
Cross-examination rights under sections 3 and 4
Section 8 provides an automatic right to cross-examine any deponent to belief evidence that property results from criminal activity in section 3(1) applications, but that is the limit of any statutory right. Proceeds of crime cases commence by originating notice of motion under RSC Order 40, rule 1 which provides that cross-examination is at the discretion of the court. RSC Order 40, rule 36, which permits notice requiring production of deponents for cross-examination, occurs in the context of trial by affidavit in actions where consent has been given and does not apply to originating motions. Leave of the trial judge must be given. Where there is a section 3(3) application or section 4 challenge, the trial judge will be concerned with new evidence and focus on what is contradictory and which elements will assist towards a just result;
———Cave Projects Ltd v Kelly and Others [2022] IECA 245, RAS Medical Ltd v Royal College of Surgeons in Ireland [2019] IESC 4, [2019] 1 IR 63 and Trafalgar Developments Ltd and Others v Mazepin and Others [2021] IEHC 69; [2021] 1 IR 339 (per Charleton J, paras 65 to 70; Collins J, para 20), applied.
Application
The error in the High Court was not in failing to advise the respondents, but in failing to realise that the interests of justice required consideration of material which the Court of Appeal ruled to be fresh evidence. Sections 3 and 4 put the interests of justice at the forefront, requiring consideration on merit not conformity with Rules. The matter should be reconsidered by the High Court with focus on genuinely new material. (Per Charleton, paras 73 to 76).
The following cases were referred to in the judgment:
Cave Projects Ltd v Kelly and Others (IECA) [2022] IECA 245;
Criminal Assets Bureau v Routeback Media AB and Another (IECA) [2024] IECA 112;
CW v Minister for Justice, Ireland and the Attorney General and the Director of Public Prosecutions (IESC) [2023] IESC 22;
Henderson v Henderson (Ch D) (1843) 3 Hare 100;
Hoey v Waterways Ireland (IESC) [2021] IESC 34;
Kirwan v Connors (IESC) [2025] IESC 21;
McK (F) v F (A) (IESC) [2002] IESC 4; [2002] 1 IR 242;
McK (F) v F (C) (IESC) [2001] 4 IR 521;
McK (F) v GWD (IESC) [2004] IESC 31; [2004] 2 IR 470;
Murphy v Gilligan (IESC) [2008] IESC 70; [2009] 2 IR 271;
Murphy v M (G) (IESC) [2001] IESC 82; [2001] 4 IR 113;
Murphy v Minister for Defence (IESC) [1991] 2 IR 161;
People (AG) v Quinn (IESC) [1965] IR 366;
RAS Medical Ltd v Royal College of Surgeons in Ireland (IESC) [2019] IESC 4, [2019] 1 IR 63;
State, The (Director of Public Prosecutions) v Walsh (IESC) [1981] IR 412;
Stockton Iron Furness Company, In re (Ch D) (1879) 10 Ch D 334;
Tracey t/a Engineering Design & Management v Burton (IESC) [2016] IESC 16;
Trafalgar Developments Ltd and Others v Mazepin and Others (IEHC) [2021] IEHC 69; [2021] 1 IR 339;
Tuesday, 15 July 2025
JUDGMENT
Mr Justice CHARLETON:
1. The focus of this appeal is a claim by the respondents, Routeback Media and Harry Zeman, that the High Court erred in making final orders under the Proceeds of Crime Act 1996 ("the 1996 Act") whereby they were divested of property adjudged to be the proceeds of crime; judgment of Stewart J, 23 May 2022. It is asserted that the High Court: first, wrongly excluded fresh evidence on an application under section 4 of the Proceeds of Crime Act 1996 to dispose of property previously adjudged under section 3(1) to be the proceeds of crime, and; secondly, on a concurrent application under section 3(3), to review and overturn that section 3(1) order, failed to afford fair procedures by refusing the cross-examination of deponents from the Criminal Assets Bureau who had sworn affidavits asserting evidence, including their belief, when the section 3(1) order was made, that the property originated from criminal activity. That judgment was upheld in the Court of Appeal; [2024] IECA 112. This judgment, therefore, addresses the interaction and operation of the main sections of the Proceeds of Crime Act 1996.
Determination
2. Mr Zeman’s application for a further appeal to this court identified a number of issues relating to the interpretation of the 1996 Act. The Bureau opposed that application. By determination of 24 October 2024, [2024] IESCDET 124, this court granted leave to appeal. In the application were: the denial by the judge in the High Court of leave to cross-examine on behalf of Mr Zeman; the nature of a final order under section 4; the threshold whereby a section 3(3) application to overturn a section 3(1) interlocutory order may be brought; the final nature of a section 3(1) order and any power to contest a section 4 final order and the threshold for so doing; and whether an unrepresented person might expect guidance on these procedures at trial or appellate level. The court identified the following issues as meeting the constitutional threshold for a further appeal, that of general public importance:
(i) Whether a person facing a final order in CAB proceedings which is to be based on affidavit evidence has an entitlement to cross-examine those deponents, whether pursuant to the Rules of the Superior Courts or otherwise.
(ii) Where a person facing a final order in CAB proceedings is unrepresented, to what extent is it the duty of a judge to inform that person of the advisability of challenging affidavit evidence by way of their own testimony or through cross-examination?
(iii) Should leave to cross-examine always be given on an appropriate affidavit where a final order is being sought under the Proceeds of Crime Act 1996?
(iv) What is the relevant procedure and interaction between sections 3 and 4 of the 1996 Act with regard to the burden of proof under section 4 and the consequent issues as to cross-examination on affidavit evidence seeking a disposal order?
The orders in this case
3. For concision, the section 2 interim (freezing) order was made against the property of the respondents on 28 January 2009 by Feeney J; the section 3(1) order was made on 20 January 2011, also by Feeney J; the final section 4 order, disposal of the property, was made on 23 May 2022 by Stewart J. Since then, there have been appeals to the Court of Appeal, including of a section 3(3) review application to the High Court which was concurrently heard at the s 4 hearing. These applications by Mr Zeman reflected the sporadic intervention of personal drafting, reflecting the withdrawal, from time to time, of Mr Zeman’s lawyers. In the Court of Appeal, the appeals were finally struck out on 7 October 2022; substantive judgment on 10 May 2024 by Binchy J. Mr Zeman then sought and was granted a further appeal to this court.
The proceedings
4. In January 2009, the Bureau issued proceedings against Routeback Media AB t/a Local Mart and Mr Zeman seeking orders pursuant to section 2 and section 3 of the 1996 Act. Routeback is a Swedish company and Mr Zeman is a Swedish national who was asserted to be a director and shareholder. The orders sought related to the balance, then totalling $651,447.85, with continuing interest, according to submissions by the Bureau, in a Bank of Ireland account in the name of EuroConex Technologies Ltd which the Bureau claimed to constitute the proceeds of crime. Allegedly, these were the proceeds of a fraudulent scheme by Routeback involving sales on the Internet of email accounts at a unit price of $9.95.
5. Routeback had, it was claimed, entered into an agreement with EuroConex to process credit card payments in connection with this business. As soon as that agreement became operational in October 2002 there were claimed to be a very large volume of transactions, with many rejected by the card issuing banks. In light of the very high level of transactions over a short period of time, and level of rejections, EuroConex put a stop on further transactions. Then, on 24 October 2002 EuroConex notified Routeback that it was closing the account. At that point, a substantial number of transactions had been settled, without complaint, and there was a substantial credit balance in the account. Subsequently, however, EuroConex refunded some $150,000 to customers of two US banks who claimed that they had not authorised or initiated any transaction with Routeback.
6. EuroConex reported its concerns to the Swedish police in April 2003. In November 2006 it was informed that the Swedish police had closed its investigation. EuroConex remained concerned that the monies might have been generated by crime. It reported its suspicions to the Garda Bureau of Fraud and to the Revenue Commissioners in February 2007. On 19 January 2011, the section 3(1) application was brought by the Bureau before Feeney J in the High Court. The application was grounded upon a number of affidavits. Mr Zeman swore affidavits replying to those, denying all allegations made by them to the effect that Routeback’s business was fraudulent or that the funds standing to its credit constituted the proceeds of crime. Amongst the points made by Mr Zeman in his affidavit evidence was that out of a total of 79,445 transactions, only 6,914, or about 8.7 per cent, had been disputed by the relevant card-holders, who had all been refunded. The argument posited was that the monies were the proceeds of undisputed transactions to which Routeback was entitled. Some time prior to the section 3(1) hearing date, the Bureau had served notice of intention to cross-examine Mr Zeman on his affidavits. Subsequently, shortly after Mr Zeman’s solicitors had come off record, Mr Zeman had served notice of intention to cross-examine the Bureau’s deponents at the section 3(1) hearing. This was set for 19 January 2011.
7. On the date of hearing, Feeney J dismissed a legal aid application, primarily because Mr Zeman had chosen not to attend. Having then heard counsel for the Bureau in relation to the section 3(1) application, Feeney J indicated that he would adjourn the application to the following day in order to read all of the affidavits. The Bureau had objected to the admission of Mr Zeman’s affidavits on the basis that he had not attended for cross-examination, but Feeney J admitted the evidence as the majority of affidavits that were sworn on the Bureau’s behalf were in response to Mr Zeman’s affidavits and were best understood in the light of what had been said by Mr Zeman. On 20 January 2011, Feeney J made a section 3(1) order in respect of the funds. His reasons were set out in an ex tempore judgment. He identified the following factors as supporting the belief that the property was the proceeds of crime, as averred to under section 8, in the affidavits sworn by the Bureau’s Chief Officer:
The large quantity of transactions that Routeback and Mr Zeman submitted to EuroConex during the course of a couple of days.
On the evidence, it was clear that Routeback and Mr Zeman were not in a position where they could provide the service they were purportedly selling.
The 10,000 transactions which EuroConex could not complete and the 15,000 chargebacks that had been made after the transactions were put forward for processing.
Routeback and Mr Zeman’s failure to provide EuroConex with documentation/information supporting the transactions’ validity.
The information provided by the Swedish police that Mr Zeman was known as someone with previous convictions and having connections to organised crime.
The fact Mr Zeman’s brother had electronic equipment for creating credit card numbers that were fraudulent.
The absence of any records/documents concerning Routeback and Mr Zeman’s service that suggested it existed as something beyond a page on the web which did not lead anywhere and which did not have an instrument for actual services/sales.
8. That section 3(1) order was not appealed. Seven years and more were allowed to pass before there was any reaction from Mr Zeman. On 6 February 2018, the Bureau issued an originating notice of motion seeking a section 4 disposal order in respect of the funds. This is a separate but related action to that under section 3 and section 2. The motion was grounded on an affidavit of the Chief Bureau Officer, Detective Chief Superintendent Patrick Clavin. A lengthy opposing affidavit was sworn by Mr Zeman on 11 June 2018. When Mr Zeman swore this affidavit, neither respondent was represented though they were subsequently granted legal aid by Stewart J on 2 October 2018. Despite being granted legal aid, Routeback and Mr Zeman were not represented at the section 4 hearing. Successive firms of solicitors acting for them had come off record. In March 2019, a point when Routeback and Mr Zeman were represented, their solicitor delivered a further affidavit in opposition to the section 4 application which had been sworn by Enda Murphy, a former AIB bank manager with specialist experience in credit card services. Mr Zeman also filed a further affidavit in March 2019. The Bureau did not seek to reply to this. Instead, on 2 April 2019 the Bureau issued a motion seeking the trial of two preliminary issues as follows:
(1) whether Routeback and Mr Zeman were permitted to argue that the monies were not the proceeds of crime in circumstances where they had been parties to the section 3(1) proceedings, that order not having been appealed; and
(2) whether Routeback and Mr Zeman should be permitted to argue that the making of a section 4 order would result in a serious risk of injustice where it had been held in the section 3(1) proceedings that no serious risk of injustice arose.
9. In response to that, Mr Zeman swore a further affidavit purporting to explain why he had not appeared in court on 19 January 2011, eight years previously, and why Routeback and Mr Zeman had not appealed the section 3(1) order, again made more than seven years before. Mr Zeman also complained of a lack of fair procedures in the section 3(1) proceedings, including an allegation of somehow being unable to obtain legal aid. He also asserted that the alleged criminal conduct did not constitute an offence under Swedish law and that the 1996 Act does not apply to corporate bodies. Further, on 3 May 2019, while the Bureau’s section 4 application was pending, Routeback and Mr Zeman issued an application under section 3(3) for the discharge of the section 3(1) order some eight years after it had been made by Feeney J. That application was grounded on an affidavit sworn by their then solicitor, in which he referred to, and relied on, additional evidence that had been filed in the section 4 application, and particularly the affidavit of Mr Murphy, but also the further affidavits sworn by Mr Zeman.
10. On 20 May 2019, the High Court, Stewart J, heard the Bureau’s motion. The High Court ruled that it was not open to Mr Zeman to re-litigate the section 3 application but that section 4 appeared to allow Mr Zeman to seek to persuade the court that the monies did not constitute the proceeds of crime. She directed the parties to agree an issue paper, with Routeback and Mr Zeman having the responsibility of preparing an initial draft. No issue paper in the form envisaged by the High Court was ever produced. On 8 November 2019 Routeback and Mr Zeman’s then solicitor, Mr John Shanley, served a notice of cross-examination as to all of the six people who, from or at the behest of the Bureau, had sworn affidavits in the 2011 section 3(1) proceedings. At a hearing on 18 November 2019 Stewart J ruled that the notice was invalid because: (a) Routeback and Mr Zeman had failed to identify any specific conflicts of evidence on the affidavits; and (b) they had failed to obtain the leave of the court pursuant to Order 40, rule 31 (now Order 40, rule 36) of the Rules of the Superior Courts.
11. No attempt was made to appeal that ruling but, instead, a further notice to cross-examine was served on 28 November 2019, although dated 2 December 2019. It is unknown how the notices to cross-examine were served. In all probability these were simply handed in to court during some sitting in the ordinary way in which a registrar is asked to receive papers. Nothing adverse arises from that.
12. Both applications came on for hearing before Stewart J on 2 December 2019. On the same date, the then solicitor applied to come off record for the respondents. He was permitted to do so. In the circumstances, the judge adjourned the applications to the following day. While Mr Zeman was present in court on 3 December, he declined to take any part in the proceedings. His stated basis was that he did not consider himself to be capable of representing himself.
Ruling of the High Court
13. The judgment of the High Court was delivered on 23 May 2022. In considering the section 4 application, Stewart J was satisfied on the standard proofs in s 4 applications: (1) that seven years had passed since the section 3(1) order had been made; and (2) that the section 3 order had been proved before her. In her view, there was "no new matter" before the court that had not been before Feeney J when the order was made under section 3(1). As regards the affidavit of Mr Murphy, in her view it did "not advance anything new and or contain anything that would point to new information that was not before the court in 2011"; §82. She went on to observe that it was hard to envisage a situation where a court "could have given any greater opportunity to a litigant to respond to litigation and to be heard" than had been afforded to Routeback and Mr Zeman. There was no "question of a serious risk of injustice nor was any material which would support such a proposition put before the court".
14. Stewart J noted that no steps had been taken to appeal the section 3(1) order, or to seek to vary it, until the seven-year period had elapsed and the section 4 proceedings had been commenced by the Bureau. Since then, she said, Mr Zeman had repeatedly sought to mount a collateral attack on the section 3(1) order and to "revisit, review and castigate" the section 3(1) hearing, despite the court having previously ruled that the section 4 hearing "was not a rehearing of the section 3 application", the section 3(1) order "being final in nature"; §84. The High Court judgment did not specifically address the section 3(3) application to review and potentially overturn the section 3(1) order. Accordingly, a disposal order was made in respect of the monies under section 4 by Stewart J. This judgment, by a notice of appeal drafted by Mr Zeman, was appealed to the Court of Appeal.
Court of Appeal
15. In appealing the judgment and order, Mr Zeman sought to advance five grounds; of which two were struck out on the basis that they related to the section 3(1) application. The other grounds comprised, inter alia, a submission that the High Court erred in determining that there was no new matter before the court that was not before Feeney J, when the section 3(1) order was made, and that the judge erred in deciding that this order was not capable of being challenged at a later point. The third ground related to what Mr Zeman characterised as "the formal objections", namely his contention that the 1996 Act does not apply to corporate respondents and his contention that the conduct giving rise to the proceedings did not amount to an offence under the laws of Sweden which, he contended, was a necessary proof. On 10 May 2024, the Court of Appeal, Binchy J, with whose judgment Donnelly and Ní Raifeartaigh JJ agreed, dismissed Mr Zeman’s appeal; [2024] IECA 112.
16. Binchy J’s judgment considered the scope of section 3(3) and section 4(1) applications, recalling that a section 3(1) order "has the status of a final order" but that a person impacted by a determination that assets constitute the proceeds of crime can challenge it in their response to an application brought under section 4(1) or by bringing an application under section 3(3). A person may be precluded from challenging that determination if it "was made following a substantive hearing and no new evidence is being proffered by the applicant in a subsequent application". Moreover, an application seeking to review an order made under section 3(1) based on the process that led to the order being made will not be entertained by courts, "the appropriate remedy for any such complaint being by way of appeal" (§104) At paras 46 to 60 of Binchy J’s judgment, he summarises the "new evidence" put before the High Court in the section 3(3) and section 4 applications, emphasising that he was not commenting in any way on the provenance or probative value of the evidence.
17. What is, in the ultimate analysis, crucial for the purposes of this appeal is that Binchy J was satisfied that "there clearly was new material" before the High Court even though it related to the same matters that had been raised by Mr Zeman in the affidavits filed in reply to the section 3(1) application (§107). Binchy J suggested that, when Stewart J had stated that there was no new matter before the High Court, what she had meant was that there was nothing of a "material nature" in that new evidence. However, Binchy J continued, the rationale underlying that conclusion was not clear and there was no analysis of the new evidence or a comparison of it with the evidence adduced by Mr Zeman and Routeback at the section 3(1) application. There was new evidence and the reason for the trial judge’s conclusion that there was none, or none that was material, was "unclear" (§110). In his judgment, however, it did not follow that the kind of evaluation of the evidence that Mr Zeman contended ought to have been undertaken by the trial judge was permissible. There were "significant conflicts of fact" as between the affidavits that Mr Zeman was relying on in the section 3(3) and section 4(1) applications and the affidavits relied on by the Bureau from the section 3(1) application (§110). Those conflicts included whether Routeback and Mr Zeman had the capacity to provide the services that they offered for sale and whether they had in fact provided the service, as well as other matters identified by Binchy J at §110.
18. Citing a passage from Delany & McGrath on Civil Procedure (5th Edition; 2024) discussing the effect of this court’s decision in RAS Medical Ltd v Royal College of Surgeons in Ireland [2019] IESC 4, [2019] 1 IR 63, Binchy J stated that the conflicts in the affidavits could only have been resolved by cross-examination and that the responsibility for cross-examination lay on Routeback and Mr Zeman, being the parties bearing the burden of proof. That was so because the starting position in applications under section 3(3) and section 4 was that there was a section 3(1) order in place – an order which was a final order – and the assets to which those applications related had already been determined to be the proceeds of crime. The burden was therefore on any person asserting the contrary to prove so on the balance of probabilities (§112). In the absence of cross-examination, there was no basis on which the High Court could have preferred the evidence advanced on behalf of Mr Zeman and Routeback to the evidence of the Bureau. Binchy J noted that although notices of intention to cross-examine were served by the solicitors that had been acting for Mr Zeman and Routeback, the trial judge had struck down the first of these notices because it failed to comply with the RSC (§113). That ruling had been appealed and even though it had not been pursued at the hearing, it would be unfair to treat it as abandoned. Binchy J was of the view that because the applications were initiated by notice of motion, they came within the scope of Order 40, rule 1 RSC such that both of the parties were incorrect in serving a notice to cross-examine without seeking leave from the court. It was noted that there was nothing in the text of Order 40, rule 36 RSC indicating that it is applicable to proceedings brought under section 3 and section 4 and that the rule’s "detailed procedures" concerning the "exchange of affidavits would suggest otherwise" (§123). That was so even if the determination of both the section 3(3) and section 4 applications would bring finality to the proceedings. Leave was nonetheless required.
19. In this case, Binchy J stated, no formal application for leave to serve notice of cross-examination had been made to the trial judge, although the matter was the subject of argument on 18 November 2019. Even if the submissions were to be treated as such an application, and Binchy J did not consider it correct to do so, it was clear that the respondents in the High Court had failed to satisfy the judge as to the necessity for cross-examination, which was a general requirement (§124). The onus lay on Routeback and Mr Zeman to identify the conflicts of evidence in respect of which cross-examination was necessary – it was not for the trial judge to do so of her own motion (§125). However, Routeback and Mr Zeman had failed to identify any such conflicts, a failure that had to be seen "against the backdrop of the procedural history of this case" (§126). If Mr Zeman wished to argue that Stewart J erred in refusing leave to cross-examine, it was necessary to provide the Court of Appeal with evidence of the application that was made to Stewart J together with the evidence relied on in support of that application. He had not done so and so had failed to demonstrate any error on the part of the trial judge (§127). Binchy J continued:
"129. The upshot of all of this is that the cross-examination that was necessary for the determination of conflicts of facts on the affidavits did not take place, and the responsibility for this rests with the respondents. Since the burden of proof in both applications rested with the respondents, responsibility to ensure that cross-examination took place also rested with them, and since they failed to meet their obligations in this regard, it follows that the affidavit evidence of the Bureau must be preferred to that submitted by the respondents.
130. It follows that Mr Zeman has failed to discharge the burden of proof resting upon him to demonstrate that the Monies are not the proceeds of crime, or that the section 3(1) order made by Feeney J was giving rise to any injustice, or that an order under section 4(1) would give rise to a serious risk of injustice, as referred to in section 4(8) of the 1996 Act …"
20. The Court of Appeal judgment went on to consider and reject the "formal objections" advanced by Mr Zeman. Mr Zeman sought leave in relation to the issue of whether it was necessary for the Bureau to establish that the conduct complained of here was criminal under Swedish law but the court did not grant leave in relation to that issue and therefore it is not necessary to say anything more about this aspect of the Court of Appeal’s decision.
Requirement to address
21. Noting the ruling of the Court of Appeal, that there had been genuinely fresh evidence filed by Mr Zeman on the section 4 application and that this evidence was germane, in addition, to the review application of the section 3 order, simultaneously brought under section 3(3), the issues crystalise. Naturally, as Collins J says in his separate concurring judgment, if a respondent is to dispute a section 3 order on the basis of the evidence put before the court on that section 3(1) application, an appeal to the Court of Appeal, or exceptionally the Supreme Court, is the appropriate remedy. A section 3(3) procedure exists under the legislation where new evidence may be put before the High Court. The novel nature of the legislation requires that this judgment needs to address: the interaction as between an order under section 3(1) to freeze assets, any application to review, meaning remove, that order under section 3(3); and the proofs for a section 4 final disposing of the property order; whether there is a threshold whereby the order under section 3(1) may be challenged under section 3(3) or contested on the final section 4 disposal order; whether a respondent has a right to cross-examine evidence already given on a section 3(1) order and on a section 4 final disposal order; and whether that right is a general right based on the Rules of the Superior Courts as to trial on affidavit or is more limited; and the degree to which a judge dealing with an unrepresented litigant should offer advice or assistance. In that regard, the terms of the 1996 Act give clear guidance. It is to the terms of that legislation that this analysis now turns, firstly in concise terms.
Concise summary of procedure
22. Central to the operation of the 1996 Act are:
section 2 whereby an order may be obtained by the Bureau to freeze assets in the possession or under the control of a respondent on an "interim" basis; in other words in the absence of the respondent, based on a demonstration, ex parte, that property constitutes, in whole or in part, the proceeds of crime;
section 3 whereby an order, if it is not unjust to so order, may be made on an "interlocutory" basis freezing such property pending an application for final disposal under section 4;
and, finally, under section 4 whereby such property, seven years or more later, is actually disposed of, so a "disposal order", that is taken from its apparent possessor, if making that order is not unjust, and becomes the property of the Minister for Finance for the benefit of state funds.
23. One of the difficulties of the complex structure of the 1996 Act is that the legislation provides for two separate, but inter-dependent, phases. Section 3 is the first of these phases which provides for the freezing of the property for a seven-year period. That requires a definitive ruling, on notice to the respondents, that the property is the proceeds of crime. After that seven-year period has expired there then arises the potential for the Bureau to apply for the disposal of the property under section 4; being the second phase, dependent on the order under section 3(1) and the passage of seven years from that order.
24. The very fact that the Oireachtas has chosen to provide for two separate phases is, while unusual, a matter to be respected by, and made workable by, the courts; challenging as it is to accommodate all of this within the standard precepts of civil procedure. These precepts have judicially evolved in civil litigation against the background of one final hearing, subject to appeal, of one cause of action. The very fact, however, that the 1996 Act provides for two separate phases means that the standard principles of bringing all actions and all relevant evidence forward for decision in judicial proceedings exemplified by Henderson v Henderson (1843) 3 Hare 100, or the rules regarding the admission of new evidence on appeal as set out in Murphy v Minister for Defence [1991] 2 IR 161, cannot be directly applied to the second section 4 hearing. Timeliness, the credibility of late revelation of evidence and argument remain universal principles.
25. At the same time the 1996 Act must be given a workable interpretation. Sections 3 and 4 should be construed in a fashion which avoids these provisions operating in an inefficient or unduly burdensome manner by, for example, obliging the courts in the section 4 hearing to traverse issues which have already been fully dealt with in the section 3 hearing. In The State (Director of Public Prosecutions) v Walsh [1981] IR 412 at 426 O’Higgins CJ said that article 34.1 of the Constitution carried with it "both the power and the corresponding duty [of the courts] to act in protection of justice, if its fair or effective administration is endangered or threatened." While these comments were made in the context of contempt of court, these principles were recently applied by this court in Kirwan v Connors [2025] IESC 21 where Hogan J, at para 45, referenced the fundamental judicial duty "to preserve and conserve the administration of justice with which they have been vested by article 34.1." Part of that duty is to protect the process of the courts from abuse and to ensure that hearings are effective and focused. Thus, while the scheme followed in the 1996 Act is akin to that in a private law chancery action, in seeking pre-trial relief to preserve a situation, followed by a trial of the issues, there are significant differences between an ordinary chancery injunction application and the stripping away of the proceeds of crime.
26. Section 2 enables the Bureau to preserve property by applying to court. That is, indeed, comparable to an interim injunction application. This application is by originating notice of motion and is made in the absence of any answer from a respondent. Like in an ordinary injunction application, but here put on a distinct statutory footing, an applicant may seek to preserve the status quo, for example stop a building being demolished, in the absence of any answer or evidence from a respondent. In those circumstances, the courts will act with full consciousness of the need for caution where the other side is yet to be heard.
27. Section 3 enables the Bureau to freeze property in the context of what becomes a contested application; or is so enabled. It becomes a fully contested application if the respondent appears. The respondent is on notice and, in any event, has had notice of any order under section 2 which precedes it. Clearly, for a respondent, if there is something to contest, this is the time to contest it. While described as interlocutory in the legislation, a section 3 order under the 1996 Act is an order where both applicant and respondent will be finally bound. That is different to an interlocutory injunction in a chancery case where a trial will finally determine the rights of the parties. If in a chancery injunction, a reasonable case is made out and the balance of the case requires the order, the party injuncted will be bound not to act, or more rarely required to take some positive step, until there has been a full trial of the issues; Hoey v Waterways Ireland [2021] IESC 34. There, in a chancery interlocutory injunction application, a decision has been made, but only that there is a real issue which requires the status quo to be upheld, or more rarely restored, so that an issue can properly be fully tried. That is an interlocutory order, meaning a decision having heard the parties on both sides; but of its nature it is only a temporary order that is preliminary to a full trial.
28. The order under section 3, in contrast, is also a decision having heard the parties on both sides, but it is a final order. No other trial of the issues is necessary under the 1996 Act as to whether a respondent holds property that is the proceeds of crime. Having heard the parties, if the respondent chooses to be heard, the High Court, under section 3 determines that the respondent is holding property that results from criminal activity. That order is final. Only the disposal order under section 4 remains as a separate but inter-related phase. Because these are linked, considerations of limitations of action through efflux of time do not apply, the legislature having indicated a particular timeframe. In ordinary course, it would be expected that anything that a respondent can say as to property not being the proceeds of crime should be put up before the High Court at that section 3 hearing. This is the trial. In that sense, it is not an interlocutory, but a final, order. The 1996 Act is sui generis, a legislative model of its own making. Furthermore, turns which the entire process can take, enforce that impression. As is stated in the separate judgment of Murray J, and as this analysis emphasises, where a person is given notice of as startling an application as that under section 3, alleging that their property derives from crime, common sense suggests they will urgently respond. If they do not, or seek to agitate later what they were in a position to put forward when the Bureau makes their section 3 application, their credibility will require to be closely examined.
29. In a chancery action, it is possible for a respondent to attack an interlocutory, or an interim, order and to seek to set it aside. Usually, this is on the basis that evidence of significance has been left out and that, hence, the order freezing an action, such as knocking down the building in the example given, or otherwise preserving the status quo pending full trial, has been unjustly granted. A section 3(1) order can be overturned on wider grounds. That ground for overturning what is a final order is wider than is possible in an interlocutory order in a chancery action. But, if there are such grounds to overturn a section 3(1) order, by a section 3(3) application, a question naturally arises before the court hearing that section 3(3) application as to why the section 3 application was not challenged, or if it was, how it might be that new evidence has been brought into consideration much later.
30. Belief evidence is central to the procedure under section 3(1). Section 8 enables proof of belief evidence by an officer of the Bureau on a section 3(1) application, subject to an automatic right in a respondent to cross-examine, that the property sought to be affected "constitutes, directly or indirectly, the proceeds of crime" or that property "in the possession of or control of" the respondent "was acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes proceeds of crime." This belief evidence is an important component of the section 3(1) order. Further, the acceptance of that evidence as reasonable puts the normal burden of proof into reverse. A trial judge on a section 3(1) application should consider, firstly, whether there are reasonable grounds for the belief expressed by the officer of the Bureau that the property is, or was acquired with, the proceeds of crime. Where the trial judge considers that the evidence proffered by the bureau amounts to a prima facie case, on a section 3 application, the burden then shifts to the respondent. He or she then has the task of demonstrating that the property is not the proceeds of crime. If the respondent discharges that burden, the application is dismissed. If, however, the trial judge assesses that the respondent has not demonstrated that the property is not the proceeds of crime, then that judge should assess if there is a serious risk of injustice in making a section 3(1) order. If there is adjudged not to be such a risk, the order under section 3(1) is made. That is the trial of the action. See McK (F) v GWD [2004] IESC 31; [2004] 2 IR 470.
31. Here, it may noted that only rarely is belief evidence admissible in court; as in for example section 3(2) of the Offences Against the State Act 1972. Of its nature, belief evidence is also hearsay evidence. For a witness to say, I believe a fact, in this instance that property is derived from crime or the profits of crime, means that he or she has examined documents not necessarily proffered in evidence or has been given information from a person not in court or has formed an opinion to that effect based on circumstances that may not be fully before the court.
32. Perhaps as a counter-balance to that alteration in the ordinary rules of evidence, the admission of belief evidence and the consequent potential to reverse the burden of proof, a respondent may make an application to overturn the final section 3(1) order on grounds that go beyond that of a respondent attacking an interlocutory chancery injunction. Section 3(3) enables the person subject to a section 3(1) freezing order, to apply, the burden of proof being on that person on the balance of probabilities, to overturn, or partly overturn, meaning in respect of certain but not all of the property enjoined, the section 3(1) order. That application is to revisit an order, not through the otherwise universal civil litigation resort to an appeal to a higher court, but by seeking to set aside an order within the High Court; the jurisdiction that made it. At any time, up to the final disposal order under section 4, some seven or more years after the section 3 order, a respondent may come into court and produce evidence that may potentially convince a judge that the order under section 3 should not have been made. That may be done not just on the basis that there has been some action by an applicant, here the Bureau, in leaving out evidence germane to an interlocutory order, but by the demonstration that the factual matrix of the order should be reassessed on the basis that the respondent can now convince the court that the property is not the proceeds of crime. The belief evidence that property is the proceeds of crime continues to be relevant and remains part of the factual matrix for consideration by the trial judge where a respondent makes an application under section 3(3) to overturn the final freezing order under section 3(1).
33. But, under the statutory scheme, such belief evidence is admissible only on applications under section 2 and section 3; but not on a final disposal under section 4, seven years or more after the section 3(1) order is made by the High Court. Section 4, the separate and related phase to section 3, whereby such property vests in the Minister, does not admit of belief evidence by the Bureau that the property constitutes the proceeds of crime. Under section 4, however, the final nature of the section 3 order becomes even more evident since the only proofs required from the Bureau are that the court has made a section 3(1) order and that the date on the certified copy of the order, which proves itself, is seven or more years previous to the application. Common to section 3(1) and section 4(8) is a requirement that a court should not make such orders "if it is satisfied that there would be a serious risk of injustice." Section 4 orders permit a court to dispossess a respondent "where an interlocutory order [under section 3(1)] has been in force for not less than seven years", thereby transferring the relevant property to the Minister. The relevant sections are quoted below and some further analysis from the case law is offered with a view to clarifying these procedures.
34. Finally, a respondent may decide when the seven years approaches expiry and the Bureau is close to bringing, or may have commenced, a section 4 application, to respond one of two ways: with a contest based on fact, claiming by new evidence that the property adjudged under section 3(1) to be derived from crime was not the proceeds of crime; and also by bringing a section 3(3) application, asserting that the section 3 order should never have been made and that, hence, the section 4 application should not be made in turn. In his separate judgment, Murray J posits that an issue estoppel prohibits the construction of section 4 in such a way that a contest may be mounted by a respondent that the property already adjudicated to be the proceeds of crime is not, in fact, derived from criminal activity. This analysis differs.
35. On this analysis, however, the legislature has enabled a respondent to both bring a section 3(3) application at any time after a final section 3(1) order is made, seeking to overturn that order; and, further, has expressly enabled a respondent facing a disposal order under section 4, to assert, perhaps for the first time, that the property in question did not derive from criminal activity. Embarking, however, on a challenge to the central factual pivot of the 1996 Act, that the property is the proceeds of crime, in the context of the final nature of the section 3(1) order that the High Court has already made, brings into play ordinary considerations of credibility. But, there is nothing in the legislation which permits issues already tried to be tried again. A section 3(3) application cannot be advanced on the basis of the same evidence or arguments as have already been rejected at the section 3(1) stage. It follows that new evidence is required under section 3(3) and to make a challenge that property is not the proceeds of crime, or that it is unjust to continue an order. Under a disposal application under section 4 the Bureau need only offer the standard two proofs, the making of the section 3(1) order and that it was seven years at least before, but if a respondent then contests that the property is the proceeds of crime, that respondent bears the burden and must produce new evidence. Rehashing what has happened before or seeking to cross-examine witnesses who should have been cross-examined on the section 3(1) application cannot be part of the procedure.
36. The conduct of both parties is subject to the over-arching rule that the proceedings of the courts should not be abused. Furthermore, while it is not a bar to making an application late, either under section 3(3) or when the section 4 disposal application is brought, ordinary considerations as to credibility may impact on an apparently delayed challenge and as to any explanation offered as to why new evidence might be deployed at a later stage. Explanations need to be assessed and evidence needs to be assessed as to weight and credibility. What will be applied in that situation is a shrewd assessment of any new evidence against the background upon which it is offered and the history of the proceedings. The separate judgment of Collins J is to the same effect.
Construction of the 1996 Act
37. The legislation is now set out in detail. The 1996 Act was introduced in the aftermath of the murder of the journalist Veronica Guerin in June of that year. Whereas other countries, including the US, had legislation to remove the profits of those engaged in crime, the 1996 legislation was not squarely based on any existing model.
38. Reading the entire Act, it becomes apparent that its overall purpose is to ensure that those who held property or funds that resulted from criminal activity, including taxation offences, and whether that was direct profit or laundered, meaning indirect, assets would be dispossessed in favour of the public purse. Counterbalancing the difficulty in tracing the variegated forms into which property may be metamorphosed and how what may be inferred from lifestyle and level of declared income, or the mysterious upturn in fortune of certain individuals without any obvious legitimate cause, belief evidence is admissible in proving that assets held by a respondent result from ill-gotten gains. The scheme of the Act makes an interlocutory order, so called, a final order, subject to being overturned, either by appeal on the same evidence, or an application to a judge at the same level under section 3(3) where there is genuinely new evidence, with property being frozen for seven years and then a final order being possible only after that under section 4, it also being possible for third parties to intervene to claim legitimate ownership. That section 4 order, while it is perhaps geared more towards innocent third parties whose property ends up in the hands of those who are involved in direct criminality or in laundering or unwitting assistance, enables a judge to consider whether the existing order was one where the property resulted in whole or in part from criminal activity or whether there is a serious risk of injustice in making a section 4 order. At the core of this appeal is when the subject of the section 3(1) order, here Mr Zeman, may properly raise such a case on the final section 4 application by presenting contradictory evidence that the frozen assets were not the proceeds of crime, or that a serious risk of injustice arises.
39. The legislation is founded on certain core tenets. Fundamental to the scheme of the 1996 Act is to move these matters away from proof in the context of criminal law, that of establishing relevant facts beyond a reasonable doubt, and into a realm where the civil standard applies. Hence, orders under section 2 and section 3 may be made where the Bureau establishes, whether by belief evidence or otherwise in the ordinary way, the provenance of property in criminal activity. The legislation also eschews the theory of serious criminal law that the mind must go with the action impugned. Any issues of mental element such as knowledge, intention or recklessness are entirely absent from this scheme, as are the elements of criminal participation through assistance or encouragement. Belief evidence is available to the Bureau to establish that the property in question resulted from criminal activity. That rarely happens in criminal law; one instance is cited above. Further, the criminal law adopts the golden thread standard whereby the assertion of wrong is on the prosecution and that even where a defence is raised on an apparently credible basis, the air of reality test being passed, the nullification of that defence remains on the prosecution; People (AG) v Quinn [1965] IR 366. For an essential element of an offence to be subject to rebuttal by the defence, in criminal law, the prosecution must prove the other elements; CW v Minister for Justice, Ireland and the Attorney General and the Director of Public Prosecutions [2023] IESC 22. Here, the approach differs as to burdens. Once that belief evidence proffered by the Bureau is accepted by the trial judge hearing an application under section 3 as being based on reasonable grounds and if this evidence, and any other evidence, establishes a prima facie case, the onus of proof shifts to a respondent to demonstrate that the assets in question did not result directly or indirectly from criminal activity; McK (F) v GWD.
40. It follows that the distribution of the burdens of proof under the 1996 Act does not follow the maxim in civil law that the party asserting must prove. Rather, these burdens may be reversed onto a respondent to prove a negative; that the property did not have an origin in crime. Once an order freezing property is made under section 3(1), that order is final subject to the respondent bearing the burden of proof under a section 3(3) application to overturn that order and demonstrating that, as a matter of fact, with again no criminal liability concepts based on awareness relevant, the assets did not result wholly or partly from criminality. A similar reversed burden occurs in section 4 where the proofs are, firstly, of the making of the section 3(1) order and, secondly, the passage of seven years since its promulgation. But, neither order is to be made against the interests of justice. This test under section 3(3) requires proof of "any other injustice" resulting from the continued existence of the interlocutory order, whilst section 3(1) and section 4(8) necessitates proof of a "serious risk of injustice" which will result in the court not making a disposal order. While, on the face of the wording, of section 4 seems more generally directed than to uninvolved third parties whose assets have intermingled with those holding the proceeds of crime, there remains a prospect for a respondent whose assets have been adjudged the proceeds of crime by a section 3 order to bring forward some new evidence to assert that the final order should not be made. Albeit, such a respondent is burdened with weighty issues of credibility for not engaging in the final nature of the section 3 hearing. While section 3 is related to section 4, the final disposal order is a fresh application and made by a new originating notice of motion.
41. Since the proceedings are commenced by originating notice of motion, the general run of a section 3 application may be through the exchange of affidavits, supported by affidavits and with replying affidavits from a respondent, Order 40, rule 1 of the Rules of the Superior Courts, requiring the leave of a court to cross-examine on affidavit, such as that of a Bureau witness under sections 2 or 3, or Order 40, rule 36 where cross-examination may be of right for a trial on affidavit, come into play. But, what is already decided cannot, as a matter of core principle in litigation, be served up afresh by a respondent who has already had an issue decided adversely.
42. In the context of that short analysis of the apparent rationale behind the legislation and the manner in which an apparent criminal law enforcement measure differs radically from the fundamental theory of criminal law, it becomes necessary to set out the actual text of relevant provisions of the 1996 Act at this point. The Act is quoted as amended and substituted by the various sections of the Proceeds of Crime (Amendment) Act 2005, section 5, and the Proceeds of Crime (Amendment) Act 2016, section 5. So far as material, section 3, the interlocutory order provision, provides that:
"3(1) Where, on application to it in that behalf by a member, an authorised officer or the Criminal Assets Bureau, it appears to the court on evidence tendered by the applicant, which may consist of or include evidence admissible by virtue of section 8:
(a) that a person is in possession or control of:
(i) specified property and that the property constitutes, directly or indirectly, proceeds of crime, or
(ii) specified property that was acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes proceeds of crime,
(b) that the value of the property or, as the case may be, the total value of the property referred to in both sub-paragraphs (i) and (ii) of paragraph (a) is not less than €5,000,
the court shall, subject to subsection (1A), make an order (‘an interlocutory order’) prohibiting the respondent or any other specified person or any other person having notice of the order from disposing of or otherwise dealing with the whole or, if appropriate, a specified part of the property or diminishing its value, unless, it is shown to the satisfaction of the court, on evidence tendered by the respondent or any other person:
(I) that that particular property does not constitute, directly or indirectly, proceeds of crime and was not acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes proceeds of crime, or
(II) that the value of all the property to which the order would relate is less than €5,000:
Provided, however, that the court shall not make the order if it is satisfied that there would be a serious risk of injustice.
(1A) On such an application the court, with the consent of all the parties concerned, may make a consent disposal order, and section 4A shall apply and have effect accordingly.
(2) An interlocutory order:
(a) may contain such provisions, conditions and restrictions as the court considers necessary or expedient, and
(b) shall provide for notice of it to be given to the respondent and any other person who appears to be or is affected by it unless the court is satisfied that it is not reasonably possible to ascertain his, her or their whereabouts.
(3) Where an interlocutory order is in force, the court, on application to it in that behalf at any time by the respondent or any other person claiming ownership of any of the property concerned, may, if it is shown to the satisfaction of the court that the property or a specified part of it is property to which paragraph (I) of subsection (1) applies, or that the order causes any other injustice, discharge or, as may be appropriate, vary the order."
43. Sections 4 and 4A, the disposal order provisions, provide:
"4(1) Subject to subsection (2), where an interlocutory order has been in force for not less than seven years in relation to specified property, the court, on application to it in that behalf by the applicant, may make an order (‘a disposal order’) directing that the whole or, if appropriate, a specified part of the property be transferred, subject to such terms and conditions as the court may specify, to the Minister or to such other person as the court may determine.
(2) Subject to subsections (6) and (8), the court shall make a disposal order in relation to any property the subject of an application under subsection (1) unless it is shown to its satisfaction that that particular property does not constitute, directly or indirectly, proceeds of crime and was not acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes proceeds of crime.
(3) The applicant shall give notice to the respondent (unless the court is satisfied that it is not reasonably possible to ascertain his or her whereabouts), and to such other (if any) persons as the Court may direct of an application under this section.
(4) A disposal order shall operate to deprive the respondent of his or her rights (if any) in or to the property to which it relates and, upon the making of the order, the property shall stand transferred to the Minister or other person to whom it relates.
(6) In proceedings under subsection (1), before deciding whether to make a disposal order, the Court shall give an opportunity to be heard by the court and to show cause why the order should not be made to any person claiming ownership of any of the property concerned.
(8) The court shall not make a disposal order if it is satisfied that there would be a serious risk of injustice.
(9) An application under subsection (1) may be made by originating motion.
4A(1) Where in relation to any property:
(a) an interlocutory order has been in force for a period of less than seven years, and
(b) an application is made to the court with the consent of all the parties concerned,
the court may make an order (a ‘consent disposal order’) directing that the whole or a specified part of the property be transferred to the Minister or to such other person as the court may determine, subject to such terms and conditions as it may specify.
(2) A consent disposal order operates to deprive the respondent of his or her rights (if any) in or to the property to which the order relates and, on its being made, the property stands transferred to the Minister or that other person.
(a) may sell or otherwise dispose of any property transferred to him or her under this section, and
(b) shall pay into or dispose of for the benefit of the Exchequer the proceeds of any such disposition as well as any moneys so transferred.
(4) Before deciding whether to make a consent disposal order, the court shall give to any person claiming ownership of any of the property concerned an opportunity to show cause why such an order should not be made.
(5) The court shall not make a consent disposal order if it is satisfied that there would be a serious risk of injustice if it did so.
(6) Sections 3(7) and 16 apply, with any necessary modifications, in relation to a consent disposal order as they apply in relation to an interlocutory order.
(7) This section is without prejudice to section 3(1A)."
44. Section 8 of the 1996 Act must also be referenced and it provides:
"8(1) Where a member or an authorised officer states:
(a) in proceedings under section 2, on affidavit or, if the court so directs, in oral evidence, or
(b) in proceedings under section 3, on affidavit or, where the respondent requires the deponent to be produced for cross-examination or the court so directs, in oral evidence,
that he or she believes either or both of the following, that is to say:
(i) that the respondent is in possession or control of specified property and that the property constitutes, directly or indirectly, proceeds of crime,
(ii) that the respondent is in possession of or control of specified property and that the property was acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes proceeds of crime,
and that the value of the property or, as the case may be, the total value of the property referred to in both paragraphs (i) and (ii) is not less than €5,000, then, if the court is satisfied that there are reasonable grounds for the belief aforesaid, the statement shall be evidence of the matter referred to in paragraph (i) or in paragraph (ii) or in both, as may be appropriate, and of the value of the property."
45. As enacted in 1996, section 8(1)(b) referred only to oral evidence. It was amended by section 9(a) of the Proceeds of Crime (Amendment) Act 2005 so as to permit belief evidence to be given on affidavit in section 3 proceedings. In that case, the believer, so to speak, may be called without any other pre-condition, in section 3 proceedings, for cross-examination by a respondent. It should be noticed that Order 40, rule 1 of the Rules of the Superior Courts provides for this, that where evidence is given by affidavit in proceedings, a party may apply to the court for an order that the person who swore the affidavit be required to attend for cross-examination. The rules give the court the power to grant such an application if it consider it appropriate; Cave Projects Ltd v Kelly and Others [2022] IECA 245. This ensures that, even where matters are dealt with by written evidence, there remains a mechanism for testing that evidence through oral examination, leave should be granted when there is a genuine conflict of fact that only limited and focused oral testimony can properly resolve.
46. Some further consideration of the finality of the nature of a section 3 order is now necessary, again emphasising that this is the trial of the issue as to whether property or assets in intangibles held by a respondent are directly or indirectly the proceeds of crime, and that interlocutory is properly used in the legislation as a requirement that both the Bureau and the respondent be heard. As Collins J emphasises in his separate concurring judgment, a section 3(1) order if regarded with dissatisfaction by a respondent may be appealed in the ordinary way. The resort to the section 3(3) procedure in the High Court, at the same level as made the final order under section 3(1), requires new evidence.
Finality of section 3 orders
47. Rulings made by trial judges hearing applications under the 1996 Act must be predicated on the fundamentally different nature of the process mandated by the legislation. Confusion is liable to arise due to the use of terms of legal art, including "interim" which is accurate for orders under section 2, and "interlocutory" which in the context of section 3 does not mean in this context what a chancery lawyer would take from it. In fact, the structure of the Act and all of the decisions on construing the legislation make it clear that what is involved in a section 3(1) order is a final determination, appealable in the ordinary way. But, in addition, with new evidence, that may be subject to review at the same level, meaning that the High Court can review a final order, as granted under section 3(3). Section 3(2) in providing for notice not only to the respondent but to "any other person who appears to be or is affected by it unless the court is satisfied that it is not reasonably possible to ascertain his, her or their whereabouts" acknowledges the possibility of the property of an uninvolved third party being intermingled, through for instance theft or fraud, with the proceeds of crime. Proofs for a final disposal order under section 4 is limited to the proof of that order and the passage of seven years since its making. The imperative vested in the High Court, in both section 3 phases and the inter-related section 4 phases, not to make such orders if the interests of justice so require, adds a layer which does not need to be analysed into complexity. This informs the approach of a judge in making these far-reaching decisions.
Criminal law is not a backdrop
48. It is appropriate to expand on the proposition, stated above, that the 1996 Act is civil in nature and that the making of an order under section 2 or section 3 does not at all mean that the respondent is or was a criminal or a tax dodger; itself a criminal offence. Rather, it simply means that funds represent in whole or in part the proceeds of crime. There is no necessary implication of turpitude in holding criminally-generated assets. That can be achieved naively; if, perhaps, rarely. As decisions prior to this have commented, and as has been the case since probably the spark of human nature first motivated our kind, since criminality engages deception, the securing of funds derived from criminality necessarily engages concealment. Under section 1 of the Act, "proceeds of crime" is to be regarded as "any property obtained or received at any time (whether before or after the passing of this Act) by or as a result or in connection with criminal conduct". In itself "criminal conduct" is defined as any conduct "which constitutes an offence or more than one offence" and includes corresponding offences outside the state. Here, "property" is given a wide meaning that includes "money and all other property, real or personal, heritable or moveable", or interest in property, and "choses in action or incorporeal property", which includes property outside the state where a respondent is "domiciled, resident or present in the state" where all or some of the criminal conduct happens in the state.
49. In Murphy v M (G) [2001] IESC 82; [2001] 4 IR 113 the constitutionality of the 1996 Act was challenged. While the basis of that contention of variance with the fundamental law are not here germane, this court was required to analyse the legislation. Part of the judgment of the court, delivered by Keane CJ, at pp 136–137, is a valuable guide through ostensibly simple sections of an Act that, by reason of that simplicity, may be distorted by inventive argument. In reality, the structure of that legislation can be made clear:
"The effect of the statutory scheme, accordingly, is to ‘
freeze’ property which senior members of the gardaí suspect of representing the proceeds of crime for an indefinite period, subject to the limitations indicated. It is not in dispute – and indeed is a circumstance strongly relied upon on behalf of the appellants – that this unquestionably draconian legislation was enacted by the Oireachtas because professional criminals have developed sophisticated and elaborate forms of what had become known as ‘
money laundering’ in order to conceal from the authorities the proceeds of their criminal activities. In the two cases under appeal, the alleged activities were the importation and sale in this country of substantial quantities of illegal drugs, but the legislation is not of course restricted in its effect to that particular form of criminal activity. The appellants urge that the resultant legislation is a hasty, ill-considered and disproportionate reaction to that particular phenomenon, which unjustifiably and dangerously erodes their constitutional rights.
Unless an order is made under section 4 at the expiration of the seven year period for the disposal of the property, the owner of the property does not cease to be its owner by virtue of anything done in exercise of the powers conferred by the Act. He or she is however, in effect deprived of the beneficial enjoyment of the property even before such a disposal order is made, the only provision for compensation being where the ex parte or interlocutory order is discharged or lapses or is varied, the compensation then being payable solely to the owner of the property. The orders which the court is empowered to make accordingly, under the Act, may equate to the forfeiture of the property in question and the appellants contend that such a procedure cannot be deprived of its essentially punitive and criminal nature by being given a statutory vesture appropriate to civil proceedings."
50. While the legislation seeks to address criminality by undermining profitability through the freezing and seizure of assets, nothing to do with concepts of liability based on culpability intrude into the mechanism established by the legislation. Hence, an order may be made under sections 2, 3 or 4 even though the holder of property is blameless: as might be the case where a spouse genuinely believes that the lifestyle of the family is built on the hard graft, involving many absences from home of the other spouse, whereas in reality the business at hand is criminality. Not only is there no need to resort to the doctrines of participation in crime or to the concept of blameworthiness based on an external element of commission, coupled with coincident knowledge, intent or recklessness; rather these complex elements are strangers to the legislative scheme which renders criminal liability entirely beside the point. What matters is the proof of possession or control of property and the generation of the source of such assets in the probable commission of offences. Hence, in the same case of Murphy v M (G), Keane CJ also commented at p 148:
"The court is, in any event, satisfied that the submission that the establishment of mens rea by the applicant is essential if an order under sections 3 or 4 is to be made, is fundamentally misconceived. Two conditions alone must be met before an order is made under those sections: that a person is in possession or control of a specified property which constitutes the proceeds of crime or was acquired in connection with such property and that its value is not less than £10,000. The orders can be made even though it has not been shown to the satisfaction of the court that there was mens rea on the part of the person in possession or control of the property. This is so, whether mens rea in this context is being used in the sense of ‘a general disposition to do something that was morally wrong in the old canonical sense’ or in the sense adopted in the authorities at a later stage of ‘an intention to commit the particular wrong mentioned in the definition of the relevant offence’. (The distinction between the two forms of mens rea is helpfully discussed in
Criminal Liability by McAuley and McCutcheon.) The fact that the person in possession or control of the property against whom the order is sought may not himself or herself have been in any way involved in any criminal activity and, specifically, may not have been aware that the property constituted the proceeds of crime, would not prevent the court from making the order freezing the property under sections 2 or 3, unless it was satisfied that there would be ‘a serious risk of injustice’. If the legislature had intended that no such order should be made unless it had first been established that the person in possession or control of the property had acquired it with a criminal intent, it would have said so. No doubt the court might decline to make the order in a case where the person in possession or control was in a position to establish that he or she had purchased the particular property in good faith for valuable consideration: it might, on the other hand, make the order in circumstances where an innocent recipient of the property had made no payment for it."
51. It is also clear that the real trial leading to the final order, though labelled "interlocutory", the section 3(1) phase, is in reality not that of a chancery interlocutory injunction hearing. If a respondent wishes to contest the Bureau’s case that he or she holds assets resulting from crime or that there is a serious risk of injustice in making such an order, the appropriate point for finding facts is on the section 3(1) application. In McK (F) v F (A) [2002] IESC 4; [2002] 1 IR 242, Geoghegan J’s analysis of the legislation makes it clear that the trial of fact is at that point and that the applicable nomenclature does not import its meaning from chancery practice. At pp 244–245, he stated:
"Each of the respective orders under sections 2, 3 and 4 of the Act have been given names by the Act. An order under section 2 is called ‘
an interim order’. An order under section 3 is called ‘
an interlocutory order’ and an order under section 4 is called ‘
a disposal order’. The first and the third of these names are genuinely descriptive and give rise to not great difficulty. It is the name given to the section 3 order which causes problems and which has directly led to this dispute. ‘
Interim order’
and ‘
interlocutory order’
are expressions well known to the courts. The interlocutory injunction is the commonest example of an interlocutory order. The jurisdiction to grant such an injunction derives from section 28(8) of the Judicature Act (Ireland) 1877 which by its terms does not use the expression ‘
interlocutory injunction’
but rather ‘
interlocutory order’ which is the exact expression used in section 3 of the 1996 Act. But it is well known to all lawyers that ‘
an interlocutory order’ within the meaning of the Judicature Act and of the Rules of the Superior Courts in their various forms over the years means an order which is not a final order. As Jessel MR said in
In re Stockton Iron Furness Company (1879) 10 Ch D 334 at 349:
‘The rules appear to contemplate two classes of orders: final orders which determine the rights of the parties, and orders which do not determine the rights’.
It must logically follow therefore that an order under section 3 though called in the Act ‘
an interlocutory order’ cannot in fact be an interlocutory order in the normal sense of that term unless the hearing of the proceedings for a disposal order under section 4 is to be regarded as the trial of the action. In
Murphy v Mitchell and
Gilligan v Criminal Assets Bureau (unreported judgment of the Supreme Court, 18 October 2001) Keane CJ at p 77 said the following:
‘As to the claim that the period of seven years which must elapse before a disposal order is made is unduly oppressive, that rests on the misconception that the application for a disposal order can in some sense be equated to the trial of an action in respect of which the legislation earlier provides for interlocutory orders being made. That is clearly not the nature of the scheme provided for in the Act.’
In
FJ McKay v FC ex tempore judgment of this court delivered by Keane CJ on the 23rd of July 2001 the Chief Justice said the following:
‘Given that statutory framework it is evident that in a sense in a practical way the interlocutory order or the application for an interlocutory order is the trial of the real issue in the case and that obviously renders the proceedings of an unusual nature.’
It is abundantly clear therefore that orders under section 3 are final orders even though they can be discharged and not just temporary orders."
52. Similarly, in McK (F) v F (C) [2001] 4 IR 521 at 523, Keane CJ referred to the practical reality that "the interlocutory order or the application for an interlocutory order is the trial of the real issue in the case and that obviously renders the proceedings of an unusual purpose."
53. In all of this, the civil burden of proof applies but in a manner which shifts and is subject to an evidential intrusion unique to non-criminal litigation; that is section 8 whereby if belief evidence is credible the burden of disproving that the assets resulted from criminal activity reverts to the respondent. In applying ex parte, under section 2, the Bureau bear the burden of demonstrating the holding of the relevant assets in consequence of criminal activity that results, directly or even very indirectly, in a respondent holding or controlling assets. Similarly, where the Bureau applies for a section 3(1) order, in ordinary civil cases, the burden of proof is on the asserting party; here, the Bureau. Section 8 enables belief evidence, a concession to the obscure transmission of profits that camouflage direct proof. This is admissible only at this stage, and where a challenge is mounted under section 3(3) by a respondent, and not when a final disposal order may be made under section 4.
54. It is the task of a trial judge under section 3(1) to assess the reasonableness of this belief in order to enable its reception as evidence as to fact. Where a case is made that, coupled with other evidence, the property results from criminal activity, then a respondent cannot make an application of no case to answer. If an order is not to be made, a respondent must indicate an answer whereby a finding on fact may be avoided, that the assets result from crime, or that (perhaps by reason of innocent transmission for full value, or other reason deliberately left open by the scheme of the legislation) it would be unjust to make the order under section 3(1). Hence, in McK (F) v GWD [2004] IESC 31; [2004] 2 IR 470, 491–492, McCracken J proposed this useful scheme for avoiding error where belief evidence is tendered:
"It seems to me that the correct procedure for a trial judge in circumstances such as those in the present case is:
(1) He should firstly consider the position under section 8. He should consider the evidence given by the member or authorised officer of his belief, and at the same time consider any other evidence, such as that of the two police officers in the present case, which might point to reasonable grounds for that belief.
(2) If he is satisfied that there are reasonable grounds for the belief, he should then make a specific finding that the belief of the member or authorised officer is evidence.
(3) Only then should he go on to consider the position under section 3. He should consider the evidence tendered by the applicant, which in the present case would be both the evidence of the member or authorised officer under section 8 and indeed the evidence of the other police officers.
(4) He should make a finding whether this evidence constitutes a prima facie case under section 3, and if he does so find, the onus shifts to the respondent or other specified person.
(5) He should then consider the evidence furnished by the respondent or other specified person and determine whether he is satisfied that the onus undertaken by the respondent or other specified person has been fulfilled.
(6) If he is satisfied that the respondent or other specified person has satisfied his onus of proof then the proceedings should be dismissed.
(7) If he is not so satisfied he should then consider whether there would a serious risk of injustice. If the steps are followed in that order, there should be little risk of the type of confusion which arose in the present case."
55. While the section 3 order is the final order, and while a section 3 order may be bolstered by belief evidence, and of a rationality which puts a burden of disproof on a respondent that property does not result from criminal conduct, the further twist in the legislation is not only may a respondent, at any time after a section 3 application has been granted, and whether that respondent has contested the order or not, challenge that order or invoke an injustice consequent upon its continuation by bringing a section 3(3) application, the wording of section 4 also enables a contest as to the origin of property in crime before a final disposal order is made. This requires some consideration, especially in the light of the separate judgment of Murray J.
Challenges under section 3(3) and to making a section 4 order
56. No legislation is promulgated on the basis that its provisions may be used to play fast and loose with the procedures of the courts. A respondent dissatisfied with a section 3(1) order may appeal in the standard way. Challenges under section 3(3) are envisaged under the legislation as enabling a section 3(1) order to be overturned where the High Court, as the court of trial, is presented with something new. That cannot be on the basis that a respondent, who has no new evidence, and hence evidence-dependent argument, can demand that issues already decided can be opened up again. Section 3(1) applications, the respondent having been put on notice, are there to be contested and then appealed if they go against either side. A respondent can contest the making of a final section 4 order disposing of the assets already adjudged in the section 3(1) application to be the proceeds of crime. But, as with section 3(3) more than a simple assertion in contradiction of what has already been decided is required.
57. In contrast, the respondent has argued that there is no potential fetter to bringing a section 3(3) application to overturn a section 3(1) final order at any time during the seven years from the High Court making that order and that there is no requirement of new evidence to contest a section 4 disposal order. This, if correct, would lead to an absolute entitlement in a respondent to require the original deponents to be called for cross-examination and for a respondent to review the correctness of that section 3(1) order by re-hashing facts that have already been decided. That cannot be correct.
58. It must be restated that the only proofs necessary under the section 4 phase are those set out above: that the Bureau prove the section 3(1) order by certified copy; and that the High Court do the simple calculation on the calendar that it is at least seven years later. It is also clear that section 4 enables, as does section 3(3), a respondent to prove, the burden being on that respondent, through new evidence that the property held or controlled by them was not the proceeds of crime. But that has to be on the basis of new evidence and argument. These applications are in a context where there is already a decided inter-partes ruling that particular property resulted from crime. Applications under section 3(3) and challenges under section 4 cannot be predicated on a right to re-open what the High Court has already decided on the section 3(1) application. In addition, the scheme of the legislation also protects third parties; those who might unjustly be caught by orders disposing of the property. Property may be stolen and transferred to a respondent, whether for value or not. Those the subject of theft or fraud may have proof that a respondent holds their assets. This is an example of where an order in respect of those assets would properly not be made because of a risk of injustice.
59. Notably, section 8 admitting belief evidence, does not apply to section 4 disposal hearings. Where an application is made by a respondent under section 3(3), or a challenge mounted under section 4 through new evidence that the property is not the proceeds of crime, the Bureau may respond. Ordinarily, the order made under section 3(1) and the passage of seven years suffices to proceed to disposal. Further, any new evidence, the burden of overturning the section 3(1) order being on the respondent, to be effective under section 3(3) or in a challenge under section 4, must make a probable case that the property does not derive from criminal activity, or that somehow, the making of such an order would be unjust. Since in challenging the decided case under section 3(1) that the property is the proceeds of crime, the respondent on a section 3(3) application, or in response to a section 4 disposal application, has the burden of proof, that case must be made by probable and credible evidence. There, a respondent’s case cannot be made by seeking the re-opening of what has already been decided. To make such a case, positive evidence is required. To that, the Bureau may respond. Leave may be sought to cross-examine, as will hereafter be explained, by either the Bureau or the respondent. But the focus of such leave is on the new evidence and any response. Those who have sworn affidavits in the section 3(1) application, because of the final nature of the section 3 procedure have caused a final order to be made. It is for a respondent, or an intervening third party, to overturn that order through the production of new evidence.
Unjust order
60. What is of the essence of the 1996 Act, under section 3 and under section 4, is that an unjust order should not be made. An unjust order can be made where an innocent third party’s assets are intermingled with that of a respondent holding the proceeds of criminal activity. It is also possible that a person who has contested a section 3(1) application unsuccessfully, or who could not offer a contest, perhaps because of illness or duress, or through unawareness, may be able later to offer evidence that demonstrates that the property the subject of the order did not derive from criminal activity. Further it might be that there is an innocent third party, or that the respondent, through new and apparently credible evidence, contends that the section 3(1) order should be overturned under section 3(3) or that the section 4 order should not be made, the interests of justice should be considered. This is a fundamental constitutional requirement that Geoghegan J referenced in his treatment of the section 4 order in Murphy v Gilligan [2008] IESC 70; [2009] 2 IR 271, paras 53 and 54:
"53. This brings me to the rest of the machinery. For that very reason and with an eye on the Constitution, the Oireachtas enacted section 3(3) which enabled the respondent in an application under that subsection and in a situation where an order under section 3(1) was already in force to apply to a court to have that order discharged or varied. Such an order could be made if such respondent satisfied the court that the property or a specified part of it was property to which para (I) of subsection (1) applies or in other words that the property frozen or part of it was not directly or indirectly proceeds of crime or if he satisfies the court that the order under section 3(1) ‘causes any other injustice’
. In the proceedings seeking a disposal order under section 4 there is yet another opportunity given.
54. None of this was seriously disputed by counsel for the defendants at the hearing of the appeals and motions though he did, at times in a vague kind of way, reserve his position. At any rate, correspondence and affidavits emanating from the plaintiff seem clearly to accept that a remedy under section 3(3) was available to any of the defendants. As to whether principles of estoppel and, in particular, the principles in
Henderson v Henderson (1843) 3 Hare 100 could be relevant in any given situation is another day’s work. At this stage, I would merely opine that any right to bring later applications and to have them heard is always subject to there being no abuse of the process of the court. Since the substantive issues, if in fact they arise, as to whether the properties are the proceeds of crime or not have never in fact been aired in court by the defendants with a view to the plaintiff’s claim being challenged, it would seem to me that in their case at least there can be no question of estoppel or abuse of process in their bringing their own applications under the Act of 1996 at this stage. As I see it, that is how the Act of 1996 is intended to operate and, therefore, I do not think that any arguments based on the possibility of a succession of appeals can be considered relevant in interpreting the rights under the Act. I now return to the actual matters before this court."
Appropriate threshold for contest
61. Consequently, there must be a threshold that a respondent, or an uninvolved third party who should if possible be given notice of a section 3(1) order under section 3(2), must reach before a section 3(3) application may be considered, or whereby a section 4 hearing requires anything more than the ordinary double proof of the making of the section 3(1) order and of the passage of seven years since that date. That threshold is that the evidence should be apparently credible and should bring a new factual focus to the existing section 3(1) order whereby an ostensibly reasonable case for overturning that order is presented, or whereby a section 4 order should not be made because the property is to be demonstrated as not having a direct or indirect origin in criminal activity, or because a disposal order would be unjust.
62. What is important is shrewd assessment. A judge hearing a section 3(3) challenge will not allow the same material to be reargued. New evidence that may be adjudged credible is required from a respondent under section 3(3) to overturn a section 3(1) order or to raise a contest under section 4 that a disposal order should not be made because the property is not the proceeds of crime. Respondents bear the burden of proof.
63. Here, the legislature has enabled a challenge to a section 3(1) order under section 3(3). But that is in a context where an order has been made as a final order and therefore subject to appeal. Consequently, under section 3(3), or on a challenge to a section 4 order based on a contention that the property does not result from criminal activity, a court will shrewdly analyse any ostensibly fresh evidence and any reason proffered, either by the respondent directly or in answer to a question posed by counsel for the Bureau, for either not contesting the section 3(1) application or for only contending at a late stage that the property is not the proceeds of crime.
64. But, it is not the law that new evidence can only be used if it expressly conflicts with existing evidence. Nor are the strictures enabling the introduction of fresh evidence to overturn a case on appeal applicable. Credibility and timeliness issues arise but not the ordinary rules in Henderson v Henderson, or the rules regarding the admission of new evidence on appeal; Murphy v Minister for Defence. Section 3(3) and section 4 applications are not cast in that form. The resort in the legislation to a test requiring the "interests of justice" to be the final arbiter of orders within section 3 and section 4 cannot mandate any distortion of that test. A challenge under section 3(3) or a contest under section 4, however, does not enable a second running of a section 3(1) decision. Instead, a judge considering why the section 3(1) hearing was not contested, or was contested on a limited basis that did not include the ostensibly new evidence later offered under section 3(3), or to contest a disposal under section 4, should consider why evidence is brought forward at a late stage. That evidence will be considered on its merit and credibility and the hearing focused on whatever new material is proffered.
Limitation on cross-examination
65. There is an automatic right under section 8 of the 1996 Act to cross-examine any deponent to a belief that the property in question results from criminal activity. That evidence, if reasonable, shifts the burden of proof onto a respondent in a section 3(1) application. But that is the limit of any statutory right of cross-examination under the legislation. Here the respondent asserts an unlimited right of cross-examination of every deponent who has sworn an affidavit, at any stage, in support of the Bureau’s case. They contend that since the procedure in proceeds of crime cases involves proof by affidavit, there must be an automatic and unlimited right to cross-examine any deponent. That contention is incorrect. Fundamentally, it mischaracterises the procedure for proceeds of crime cases. This category of case commences, section 3(9) by originating notice of motion under RSC Order 40, rule 1. This provides:
"Upon any petition, motion, or other application, evidence may be given by affidavit, but the court may, on the application of either party, order the attendance for cross-examination of the person making any such affidavit."
66. Plenary actions constitute a type of action where every witness is ordinarily produced and subject to cross-examination. Proceeds of crime cases are mandated on the originating notice of motion procedure. That procedure does not give an automatic entitlement to cross-examine to either side. In that procedure, cross-examination is at the discretion of the court. While the plenary procedure was used when proceeds of crime cases were first taken, as in such cases as Murphy v M (G), that is no longer the type of action. In the procedure which replaced the former plenary nature of these proceedings, the choice of witnesses to be called is at the behest of the trial judge. This makes the procedure simpler and enables a case to be managed away from potential sprawl and establishes a focused structure where only witnesses germane to real issues should be called. In his separate concurring judgment, Collins J has set out the principles upon which a trial judge should consider applications to cross-examine evidence and this judgment draws on those principles and is to the same effect.
67. Cases such as RAS Medical Ltd v Royal College of Surgeons in Ireland [2019] IESC 4, [2019] 1 IR 63 and Trafalgar Developments Ltd and Others v Mazepin and Others [2021] IEHC 69; [2021] 1 IR 339, suggest that even where a trial is held pursuant to the sanction of the Rules of the Superior Courts on affidavit, contradictions as between witnesses as to fact which require resolution may require their production for cross-examination by the other contending party. There may be reasons, such as clear documentary evidence, which nullifies such apparent contradictions. But, in considering that principle, a judge in the High Court hearing a section 3(3) application, or a belated challenge to the justice of making a section 4 order beyond the formal proofs, must focus the hearing on what is expressly relevant. A judge will also bear in mind that a mere contradiction or assertion that is not supported by evidence can have little or no value.
68. The respondent has claimed that RSC Order 40, rule 36 applies to the procedure by originating notice of motion. Read in isolation, Order 40, rule 36 may seem to support the argument for the respondent, but it does not when considered in relation to its purpose and applicability:
"36. When the evidence is taken by affidavit, any party desiring to cross-examine a deponent who has made an affidavit filed on behalf of the opposite party may serve upon the party by whom such affidavit has been filed a notice in writing, requiring the production of the deponent for cross-examination at the trial, such notice to be served at any time before the expiration of fourteen days next after the end of the time allowed for filing affidavits in reply, or within such time as in any case the court may specially appoint; and unless such deponent is produced accordingly, his affidavit shall not be used as evidence unless by the leave of the court. The party producing such deponent for cross-examination shall not be entitled to demand the expenses thereof in the first instance from the party requiring such production. The notice shall be in the Form No 21 in Appendix C."
69. That rule occurs in the context of two separate rules which enable trial by affidavit in an action where oral evidence is otherwise admissible. Its context makes it clear that "consent for taking evidence as between the parties has been given", references a different procedure. In this procedure, leave of the trial judge must be given to require a deponent to appear as a live witness. That should only happen where there is an issue of fact requiring oral testimony.
70. Hence, as Collins J states, there is no automatic right to cross-examine Bureau witnesses, or for that matter witnesses on affidavit proffered by a respondent. The evidence relevant to the section 3(1) application should have been heard at that stage. An application can be brought by a respondent, or the Bureau, to cross-examine at that stage. Where there is a section 3(3) application later or a claim on a section 4 application that property is not the proceeds of crime, a trial judge will be concerned with the new evidence brought by the respondent and any contrary evidence filed by the Bureau. That does not open up the section 3(1) hearing again. The focus is on the new evidence and arguments. It is for the trial judge to assess what evidence is contradictory and which elements of a claim will assist the hearing towards a just result through being tested in oral testimony.
Focus
71. The purpose of the originating notice of motion procedure is to enable affidavit evidence to ground an interim order ex parte under section 2 and, also, to enable the trial of any contest under section 3(1), or under section 3(3), or a late challenge under section 4, whereby what is relevant, what is contradicted by opposing testimony, and what may need to be the subject of oral evidence, may be identified by the judge. Within the management of the court, evidence may be called which will focus the hearing and confine it to what is germane. For instance, it may not be disputed that a grave financial swindle was perpetrated by someone or that a respondent has particular assets. What may be in issue is any connection whereby those assets wholly or in part resulted from criminality. To that end, the trial under section 3(1), should concentrate on the connection between the property, the rationality of any belief evidence and the opposing testimony of a respondent. Where there is genuinely new evidence on a section 3(3) application, or under section 4, evidence in contradiction may be led by the Bureau.
72. Where a third party, who should if possible have notice of the making of a section 3(1) order under section 3(2), makes the case that a section 4 order should not be made, the same considerations apply. What is relevant to that issue, and any evidence from the Bureau in response, should be the focus. If a respondent disputes that a section 4 order should not be made, then it is the material relevant to lack of provenance in criminality in the assets held that should be the subject of any new evidence. Any such testimony may be the subject of contradiction by the Bureau.
Application here
73. The comings and goings of lawyers for the respondents and the reasons therefore are beyond analysis by this court. Leaving that aside, in this case the error in the High Court was not in failing to advise the respondents. Rather the error was in failing to realise that the interests of justice required a consideration of material which the Court of Appeal later ruled to be fresh evidence. The interests of justice did not mandate that the respondent produce a list of contradictions. Any such clashes with the Bureau case should be apparent from a consideration of the papers. And while it was correct that an application to cross-examine should be on notice and supported by short reasons set out of affidavit, what trial judges in these applications should bear in mind is that sections 3 and 4 put the interests of justice at the forefront of decisions. Hence, a consideration on merit and not on the basis of conformity with the Rules was what was required. The Rules are there to serve justice.
74. Here, on a section 3(3) application, the Court of Appeal considered that there was genuinely fresh evidence. The Court of Appeal also held that this should have been the focus of the High Court hearing and not simply dismissed. The interests of justice required the notice to cross-examine to have been treated as an application for leave to cross-examine. That should have been considered in the light of the fresh evidence, however strong or weak and whether an abuse of process or not, and such evidence as might have illuminated the case to be made by the respondent as, bearing the burden of proof in overturning the final order under section 3(1), ought to have been heard.
75. There was no basis for any finding that additional procedures were required, such as the production of a list of contradictions, since if genuine these would be apparent from the new evidence and any response by the Bureau. If there is a section 3(3) application or if there is a challenge to disposal under section 4 based on the core issue, that the property is the proceeds of criminal activity, this is a process that a respondent needs to justify. Further, fresh evidence to overturn a final order is required for a section 3(3) application where an order exists under section 3(1) and will need to meet the burdens of weight and credibility that attach. A respondent may, or may not, be able to promote such a case in light of the credibility issues that come with the, perhaps understandable, or perhaps unjustifiable, late deployment of evidence.
76. But this cannot warrant an automatic entitlement to re-agitate issues. Further, given the respondent has the burden of proof, that calls for evidence and not a speculative plea that if earlier witnesses were cross-examined on their affidavits, something helpful may emerge. In consequence the matter should be returned to the High Court for a reconsideration on that basis. That may involve the calling of whatever strictly limited evidence is necessary to resolve the contentions found in the Court of Appeal to have moment. That does not in any way preclude questions as to late deployment, tactical manoeuvrings or credibility, where relevant.
Limits of assistance by trial judge
77. It may finally be added that it is not the task of a trial judge dealing with unrepresented litigants to solemnly guide them through every procedure; much less to advise them as to what is wise for them to do. Every judge seeks out truth and is mindful that procedures exist to enable truth to more easily emerge. No judge should enter the arena because there they risk the appearance of acting in an adversarial capacity. There is no harm in a judge, however, as is the tradition in these courts, telling a litigant that their turn to ask questions has come or that they may choose to go into the witness box and that unsworn statements from the well of the court have no evidential force, or that legal advice if not dispensed with, or beyond their means, may assist, or that a particular kind of application needs to be made. A judge is there to see that an unrepresented litigant is not taken advantage of. That is the limit of judicial responsibility and whether that is met is to be considered from case to case bearing in mind what are essentially simple principles.
78. Nothing in this case amounted to any failure in that regard by the trial judge. The extent of a judge’s role in these circumstances was outlined by MacMenamin J in Tracey t/a Engineering Design & Management v Burton [2016] IESC 16:
"48. Subject to the Constitution, the administration of justice in public does not debar a court from assisting litigants, and their advisors, by considering the papers in a case beforehand; by sifting through the documentation in order to see what is relevant and what is not; by identifying the issues which truly fall to be decided; and by directing whatever written submissions may be necessary in order to ensure justice is done, effectively and efficiently. Litigants, and their legal representatives, must abide by rulings as to the apportionment of time, or length of submissions, and other matters identified herein, or run the risk of the imposition of proportionate conditions on the litigation, or more radical sanctions, such as wasted costs orders, adjourning proceedings until proper procedures have been carried out, or, in extreme cases, actually striking proceedings out for abuse of process."
Summary
79. In consequence, since the Court of Appeal has decided that there was genuinely fresh evidence to be considered in this case on the section 4 application and on the section 3(3) application, both of which orders were appealed to them, the matter should be reconsidered by the High Court in the light of the principles set out in this judgment.
80. Focus in that court should be on whatever may be genuinely new in the material proffered by Mr Zeman and should proceed on the basis that this may entitle limited cross-examination. This, however, cannot amount under the legislation to a general traverse by cross-examination of all the deponents in the section 2 and section 3 procedure. That procedure is now finished. The task faced by the respondents is to overturn the existing section 3(1) order, or to challenge the making of the section 4 disposal order, by evidence which was not previously deployed in order to demonstrate that the property caught by the section 3(1) order did not result from criminal activity. What is required by the High Court is a focus on the relevant issue and such limited evidence as will enable a decision to be made.
Result
81. In the result, the appeal should be allowed and the matter remitted to the High Court for a limited hearing confined to any genuinely new material, the burden of overturning the section 3(1) order being on the respondent in showing that the assets did not result from criminality or that the interests of justice are inimical to a disposal order in favour of the Minister for Finance on proof of the making of the section 3(1) final order and the undoubted passing of seven years since then.
COMMENTARY
The Irish Supreme Court’s decision in Routeback Media provides the first comprehensive judicial statement on the procedural interaction between sections 3 and 4 of the Proceeds of Crime Act 1996. The case illuminates stark differences between Ireland’s civil recovery regime and that of the regime in the UK under Part 5 of the Proceeds of Crime Act 2002 ("POCA").
Jurisdictional
Ireland’s 1996 Act operates exclusively in the High Court as a civil regime enabling preservation and disposal of property constituting proceeds of crime without the need for an antecedent conviction. Whilst POCA Part 2 operates as a post-conviction confiscation measure, the true equivalent to the Irish regime is POCA Part 5 (Civil Recovery). Like the Irish model, Part 5 proceedings are brought in the High Court and are non-conviction based. However, one key difference is that, while both operate on the civil standard of proof, the UK regime allows for a final determination within a single set of proceedings, whereas the Irish regime is stretched structurally over a statutory period of seven years.
Ireland’s three-stage vs POCA’s single-phase model
The procedural complexities in Routeback Media were arguably created by Ireland’s distinctive three-stage temporal structure. Section 2 interim orders, made ex parte, last 21 days. Section 3(1) interlocutory orders continue until disposal proceedings under section 4 have concluded, subject to section 3(3) challenges. Disposal orders become available only after an interlocutory order has been in force for at least seven years.
By contrast, the POCA Part 5 civil recovery process is unitary. The enforcement authority issues a claim form, and if it is proven on the balance of probabilities that property was obtained through unlawful conduct, the court makes a Recovery Order. Unlike Ireland, there is no mandatory seven-year waiting period. The property vests in the trustee for civil recovery immediately upon the making of the final order.
Belief evidence
Perhaps surprisingly for UK practitioners, are the provisions of section 8 of Ireland’s 1996 Act which permits the admission of belief evidence from a Garda Chief Superintendent to establish that property is derived from crime. Whilst challengeable, if admitted, reverses the burden on to respondents to demonstrate that property is not the proceeds of crime. POCA Part 5 contains no equivalent belief evidence mechanism. The UK enforcement authority must prove, on the balance of probabilities, that the property was obtained through "unlawful conduct." While criminal convictions are not required, the burden remains on the state to prove the connection between the property and the criminality without the statutory shortcut of belief evidence as can happen in Ireland.
No POCA section 3 and 4 equivalents
The central procedural issue in Routeback Media (whether respondents can challenge forfeiture years after the initial determination) has no parallel in POCA. Section 3(3) and 4 challenges require fresh evidence. Respondents cannot re-litigate section 3(1) determinations and must prove new facts.
Murray J would have applied Henderson v Henderson finality principles, holding that unexplained late deployment of available evidence should be fatal. The majority rejected this, noting the Oireachtas (the Irish parliament) created multiple opportunities to challenge findings "with an eye on the Constitution."
This reflects a genuine difficulty reconciling Ireland’s civil forfeiture’s draconian nature with a constitutionally sound procedural economy. POCA’s single civil recovery trial avoids this complexity entirely. At the trial, respondents adduce all supportive evidence and, save for limited statutory safeguards, appellate review is the only subsequent route of challenge. Conversely, Ireland’s seven-year gap creates opportunities for changed circumstances, tactical delay or, indeed, the temptation for mischief.
Cross-examination and procedural safeguards
The Supreme Court held that RSC Order 40, rule 36 applies only to trial by affidavit where consent is given, not to originating motions like proceeds of crime, where leave is required. This arguably creates a gap in procedural protection compared with the UK. Whilst POCA civil recovery proceeds by witness statement, CPR Part 32 has an emphasis on ensuring parties can properly challenge evidence. Whilst Irish courts retain discretion to permit cross-examination where material conflicts exist, the focus for respondents must be on new evidence, not the wholesale re-opening of section 3(1) proceedings.
Practical consequences
The Irish regime splits determination from disposal, with opportunities for review. In contrast, POCA’s Part 5 regime frontloads protections into a single-stage final trial. While similarly non-conviction based, it allows for immediate enforcement, avoiding Ireland’s temporal complexity but offering fewer post-determination routes of challenge. Ireland’s belief evidence and split proceedings create a model that seeks to balance enforcement against property rights, albeit at the expense of the procedural simplicity inherent in the UK’s civil recovery regime.
Ultimately, the Routeback decision serves to highlight the fundamental difference in the two regimes, namely, a freezing order can be obtained on belief evidence in Ireland without a substantive claim by the state. Absent any claim to the contrary within seven years, the interlocutory order will become final. Whereas in the UK, whatever may be established at the restraint stage, the court will require the enforcement authority to prove its case at the substantive stage under the 2002 Act.
Reported by Mark Mulholland, Barrister, Cloth Fair Chambers
