Devine, In re [1999] NIQB 7; [1999] NIJB 128 (26th March, 1999)
COGE2772
COGE2772 26 March 1999
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN'S BENCH DIVISION (CROWN SIDE)
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IN THE MATTER OF AN APPLICATION BY JOSEPHINE DEVINE FOR
JUDICIAL REVIEW
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COGHLIN J
1. The applicant in these proceedings, Josephine Devine,
seeks a Judicial Review by way of certiorari of the following decisions:
(a) An order of His Honour Judge Russell, dated 6 September 1996,
authorising the appointment of a financial investigator.
(b) A decision of Mr Clery, Learned Resident Magistrate, dated 22
September 1997, convicting the applicant of failing to answer certain questions
at interview with the financial investigator.
(c) A decision of His Honour Judge Hart dismissing the applicant's appeal
against conviction and increasing the applicant's sentence.
(d) A decision of His Honour Judge Hart, dated 14 May 1998, refusing the
applicant's application to set aside or vary the ex parte order obtained before
His Honour Judge Russell.
(e) A requirement, dated 12 March 1998, that the applicant should attend
for interview by a financial investigator in accordance with the provisions of
the Proceeds of Crime (Northern Ireland) Order 1996 ("the 1996 Order").
Background to the proceedings
2. The 1996 Order came into operation on 25 August 1996 by
virtue of Article 1(2) thereof. Article 49 of the 1996 Order permits an officer
of the Royal Ulster Constabulary, not below the rank of superintendent, to apply
to a County Court Judge to authorise "a financial investigator" to participate
in an investigation by the RUC as to whether a person has benefited from conduct
to which the Order applies or the extent of whereabouts of the proceeds of any
such conduct and, for the purposes of the investigation, to exercise the powers
conferred by Schedule 2. In accordance with the provisions of Schedule 2, the
investigator may, for the purposes of the investigation, require a person to
attend before him to answer questions, fairly specified information or to
produce specified documents. Failing to comply with a requirement imposed by an
investigator under paragraphs 2 or 3, without reasonable excuse, constitutes a
criminal offence contrary to paragraph 5 in respect of which a person is liable
to be fined or subject to imprisonment for a term not exceeding 6 months on
summary conviction. Paragraph 8(1) of Schedule 2 provides that:
"The Secretary of State shall made a code of practice in connection with the
exercise by financial investigators of the powers conferred by the Schedule".
3. A draft code of practice was prepared and, on 19 June
1997, the draft was circulated amongst various individuals and bodies who were
required to submit any relevant comments or representations to the Office of the
Secretary of State by
30 July 1997. A final draft was ultimately laid before both Houses of Parliament
and came into operation on the day of 19
4. On 30 October 1996 the applicant was arrested by the
police and taken to Castlereagh Police Office where she was interviewed between
30 October and
1 November 1996 in relation to allegations of her involvement in financially
assisting or retaining finances for a terrorist organisation, namely, the IPLO.
It appears that the police had arrested a number of male persons, one of whom
was the boyfriend of the applicant, who were suspected of having been involved
in carrying out robberies on behalf of that organisation and that the police
also suspected that the applicant's bank account had been used as a means of
retaining the proceeds of those crimes. The applicant was subsequently released
without charge.
5. On 6 December 1996 the RUC made an ex parte application
to the Learned Recorder of Belfast, for the authorisation of a financial
investigator to assist with the police investigation in accordance with the
provisions of Article 49(2) of the 1996 Order. The Learned Recorder duly
authorised a person known by the pseudonym of John Armstrong to act as a
financial investigator and to exercise the powers conferred by Schedule 2 of the
1996 Order for the purposes of the investigation.
6. On 9 December 1996 the financial investigator issued a
requirement in writing in accordance with paragraph 2(1) of Schedule 2 of the
1996 Order requiring the applicant to attend for interview by the investigator
at Grosvenor Road Police Station on 17 December 1996. The requirement was served
upon the applicant on 12 December 1996 and she duly attended for interview on 17
December accompanied by her solicitor.
7. As a result of the applicant's alleged failure to answer
certain questions during the interview by the financial investigator on 17
December 1996 a summons was issued in accordance with paragraph 5(1) of Schedule
2 of the 1996 Order and, on the 22 September 1997, the applicant was convicted
at Belfast Magistrates' Court by Mr Clery the Learned Resident Magistrate of an
offence contrary to paragraph 5(1) of Schedule 2 and was fined [sterling]750.
The applicant appealed against the said conviction and the appeal was heard by
the Learned Recorder of Belfast, Judge Hart, on 3 March 1998. The Learned
Recorder affirmed the conviction made by the Learned Resident Magistrate but
substituted for the [sterling]750 fine a term of one month imprisonment
suspended for 12 months.
8. On 12 March 1998 the financial investigator issued a
further requirement in accordance with paragraph 2(1) of Schedule 2 of the 1996
Order requiring the applicant to attend for interview at Antrim Road Police
Station on 1 April 1998 at 2.30 pm and this requirement was served upon the
applicant on 27 March 1998. At 2.40 pm on 1 April 1998 the applicant's
solicitors telephoned the financial investigator at Antrim Road Police Station
to inform him that the applicant was ill and could not attend the interview.
Accordingly, the investigator rearranged the interview with the applicant for
10.00 am on Friday 10 April 1998 at Antrim Road Police Station. The applicant's
solicitors were duly notified of this further arrangement but, on 7 April 1998,
the applicant's solicitors wrote to the financial investigator informing him
that Friday 10 April 1998 was a holy day of obligation upon which most offices
would be closed and that it was a most unsuitable day to arrange an interview.
The applicant's solicitors suggested 17 April 1998 at 11.00 am as an alternative
and this was accepted by the financial investigator. At 11.00 am on 17 April
1998 the applicant, together with her solicitor, attended at Antrim Road Police
Station but the financial investigator was informed by the applicant's solicitor
that the applicant would not be attending any interview or answering any
questions in view of her pending Judicial Review application.
9. On 27 April 1998 the applicant applied to the County
Court for an Order setting aside or varying the ex parte authorisation obtained
by the police in accordance with Article 49 of the 1996 Order on 6 December
1996. This application was heard by the Learned Recorder of Belfast, His Honour
Judge Hart, on 14 May 1998 and was refused.
The challenged decisions
10. The proceedings before this court encompass
consolidated applications in which the applicant seeks Judicial Review of the
following decisions:
(1) The original authorisation of the financial investigator granted ex
parte by the then Recorder of the City of Belfast, His Honour Judge Russell, on
6 December 1996.
(2) If the court sees fit to grant an Order of certiorari quashing the
original authorisation of the financial investigator, the applicant submits that
Orders of certiorari should also follow in respect of the decision of the
Learned Resident Magistrate convicting the applicant on 22 September 1997, the
decision of the Learned Recorder of the City Belfast, His Honour Judge Hart,
dismissing the applicant's appeal against the said conviction and, the decision
of the said Learned Recorder of the City of Belfast, dated 14 May 1998, refusing
the application to set aside or vary the ex parte authorisation.
(3) An Order of certiorari quashing the requirement issued by the
financial investigator in accordance with paragraph 2(1) of Schedule 2 to the
1996 Order dated 12 March 1998.
The parties' submissions
11. On behalf of the applicant, Mr Lavery QC, who appeared
with Mr Treacy, submitted that there were two grounds for setting aside the ex
parte authorisation of the financial investigator.
12. In the first place, Mr Lavery QC drew the attention of
the court to the fact that when the ex parte authorisation of the financial
investigator had been authorised by the then Learned Recorder of the City of
Belfast on 6 December 1996, in accordance with Article 49 of the 1996 Order, no
code of practice, draft or otherwise, had been made by the Secretary of State in
accordance with paragraph 8(1) of Schedule 2 to the Order. Mr Lavery QC argued
that the scheme of Schedule 2 to the 1996 Order was to regulate the powers which
the financial investigator was authorised to exercise as a result of the ex
parte Order and that paragraph 8(1) of Schedule 2 clearly placed the Secretary
of State under a mandatory duty to bring into operation a code of practice in
connection with those powers. Mr Lavery QC accepted that failure to comply with
any provision of such a code of practice would not render the financial
investigator liable to criminal or civil proceedings but pointed out that, by
virtue of paragraph 8(7) of Schedule 2, the provisions of such a code were to be
admissible in evidence in both criminal and civil proceedings and could be taken
into account by any court or tribunal in so far as they appeared to be relevant
to clear the determination of any question arising in such proceedings. Mr
Lavery QC suggested that the provisions of such a code might well be relevant to
determining whether or not it was reasonable to fail to answer a question or
series of questions during the course of an interview by a duly authorised
financial investigator. Mr Lavery QC's basic submission in relation to this
aspect of the application was that the original authorisation of the financial
investigator was ultra vires the 1996 Order because it could not have been the
intention of Parliament that the investigator should be authorised to proceed to
exercise the Schedule 2 powers without the guidance of a code of practice.
13. Secondly, Mr Lavery QC argued that the ex parte
authorisation of the financial investigator should be quashed as being unfair in
so far as the investigator was afforded anonymity by use of a pseudonym. He
emphasised that this was not a case in which the investigator was referred to by
way of a letter or a number, a practice which would clearly indicate that
anonymity was being claimed, but that, at all material times, the applicant and
her legal advisers had no reason to doubt that the investigation was being
carried out by a person whose real name was John Armstrong. Mr Lavery QC argued
that such anonymity deprived the applicant's advisers of the ability to
independently test whether the investigator complied with the provisions of
Article 49(1) of the 1996 Order, whether there were any grounds for believing
that he or she might be biased and was in obvious breach of the important
general principle of open justice.
14. Mr Lavery QC attacked the requirement of 12 March 1998
as being unfair in that it appeared to have been issued without any real hope or
expectation that a further interview would yield additional or fresh
information. He submitted that it was quite clear from the first interview with
the applicant that she was not prepared to answer questions which she had
already been asked by the police and there was nothing to indicate to the
investigator that she might have changed her mind. He further argued that the
powers of interview should be exercised promptly and that the delay between
December 1996 and April 1998 was indefensible, the only excuse offered namely,
awaiting the outcome of the criminal proceedings, was, in his view, inadequate
and unreasonable. Mr Lavery QC suggested that such a cause of action left the
investigator open to the suspicion that his powers were really being exercised
punitively or for the purposes of harassing the applicant.
15. In reply, Mr Bernard McCloskey on behalf of the
respondent, submitted that the issue of a code of practice by the Secretary of
State in accordance with paragraph 8 of Schedule 2 of the 1996 Order was not an
essential prerequisite either to the validity of an authorisation of a financial
investigator in accordance with Article 49 or to the subsequent issue of a valid
requirement in accordance with paragraph 2 of Schedule 2 of that Order. He
further argued that, if Parliament had intended a substantial and significant
part of this legislation to remain in abeyance pending the promulgation of a
code of practice such an intention would have been expressed in clear and
unambiguous statutory language. Mr McCloskey contended that, in essence, the
submission made by Mr Lavery QC, would entail a fundamental re-writing of the
1996 Order.
16. Dealing with the applicant's criticism of the use of a
pseudonym for the financial investigator, Mr McCloskey submitted that the court
should be cautious before making too close an analogy with the criminal and
civil cases dealing with the principle of "open justice". In his view, the
financial investigator was in a different position from the witness or party
required to give evidence during the course of a public hearing. Mr McCloskey
submitted that the procedure adopted during the course of the ex parte
application before the then Learned Recorder of the City of Belfast provided
sufficient safeguards in the circumstances and that there was sufficient
material available to the Learned Recorder to justify the making of the
authorisation.
17. In relation to the applicant's argument that the
imposition of the second requirement was unfair and an abuse of the financial
investigator's powers,
18. Mr McCloskey submitted that there was clear
justification for this action. In his submission, it was perfectly reasonable
for the investigator to await the outcome of the criminal proceedings which
might or might not have effected his approach to the issue of any further
requirement. He argued that the provisions of Schedule 2 to the 1996 Order
clearly contemplated that the powers might be exercised more than once, from
time to time and that it might well be necessary to repeat the questions in the
course of doing so. Mr McCloskey suggested that the court should be slow to
interfere with the judgment of the specialist financial investigator in the
course of carrying out his duties.
Conclusions
1. The statutory code of practice
19. The Northern Ireland Order of 1996 repealed and
re-enacted, with certain amendments, the Criminal Justice (Confiscation)
(Northern Ireland) Orders of 1990 and 1993 relating to the confiscation of the
proceeds of drug trafficking and other serious crime and, in doing so, it
produced provisions which were generally equivalent to those contained in the
Criminal Justice
Act 1993 and the
Proceeds of Crime
Act 1995 in England and Wales. Articles 4-43 of the 1996 Order contain
provisions relating to Confiscation and Restraint Orders while part 3,
comprising Articles 44-48, deal with offences in connection with proceeds of
criminal conduct including failing to disclose knowledge or suspicion of money
laundering, assisting others to retain the benefit of criminal conduct,
concealing the proceeds of criminal conduct, acquiring or using such proceeds
and "tipping off". The investigative powers which are the subject of these
proceedings are contained in Article 49, part 4 of the Order, under the heading
"Miscellaneous and Supplemental". In 1996 investigative powers of the type
contained in Article 49 were not generally available in the other parts of the
UK for use in relation to the proceeds of drug trafficking and other crime.
However, similar powers did exist to assist investigations into the resources,
funding and proceeds of terrorism and were contained in Article 57 and Schedule
5 of the Northern
Ireland (Emergency Provisions) Act
1991. Article
57 of the 1991 Order provided for an application in writing to be made by an RUC
officer not below the rank of superintendent to the Secretary of State for the
appointment of an investigator who was not a constable and who was named in the
application. As in the instant case, the powers of the authorised investigator
were contained in Schedule 5 which, inter alia, provides at paragraph 7(1), that
the "Secretary of State shall make a code of practice in connection with the
exercise by authorised investigators of the powers conferred by this Schedule".
20. Essentially the applicant's argument is that, in the
context of a mandatory obligation on the part of the Secretary of State to bring
into force a code of practice which, prima facie, is likely to provide some
degree of guidance and protection for the interviewee, Parliament cannot have
intended that the powers of investigation should be exercised until such a code
had been published. It seems clear from the provisions of paragraph 8 of
Schedule 2 of the 1996 Order that Parliament envisaged that the code of practice
would not come into operation until some time after the Order itself in so far
as provision was made for the preparation and publication of a draft,
consideration of any representations, the drafting of any appropriate
modifications and the laying of the draft before both Houses of Parliament. The
1996 Order as a whole was brought into operation on 25 August 1996 in accordance
with the provisions of Article 1(2). It would have been a simple and
straightforward matter for Parliament to have provided, by way of a subsequent
commencement order or other appropriate device, that Article 49 should not come
into operation until publication of an appropriate code of practice. No such
provision was made and, as I have already noted, Article 49, together with the
remainder of the 1996 Order, came into effect on the 25 August 1996. In such
circumstances, adopting the applicant's argument, Parliament must have intended
to enable the police to secure the appointment of financial investigators whose
Schedule 2 powers would be effectively suspended until such time as the
Secretary of State effected the publication of a code of practice. The
publication of such a code of practice may take place some considerable time
after the coming into force of the enabling enactment. For example, the codes of
practice in accordance with Section 61(1) (connected with the detention,
treatment, questioning and identification of persons detained under the
Prevention of Terrorism (Temporary Provisions) Act 1989) and paragraph 7(1) of
Schedule 5 (connected to the exercise by authorised investigators of the powers
conferred by that Schedule) of the
Northern Ireland
(Emergency Provisions) Act 1991 did not come into force until 1 January 1994
almost two and half years after the original Act. Both the 1991 Act and the 1996
Order were concerned with affording the authorities formidable and extensive
powers of investigation and I am satisfied that, if such had been its intention,
Parliament would have employed clear and precise words to indicate that such
powers should remain in suspension until the relevant code of practice came into
operation. Accordingly, I reject the applicant's submission that the exercise by
the investigator of his power to interview the applicant was ultra vires in the
absence of the relevant code of practice.
2. The use of a pseudonym by the investigator
21. The second limb of Mr Lavery QC's attack upon the
Article 49 authorisation was that the permission for the investigator to use a
pseudonym was so unfair as to render the authorisation invalid. While Mr Lavery
QC was prepared to accept that paragraph 4(2) of Schedule 2 to the 1996 Order
permitted an investigator to withhold his name when producing evidence of his
authority, provided that such evidence contained some other means of
identification, he submitted that this provision did not, of itself, provide a
blanket authority for concealing the identities of investigators. He emphasised
the fundamental importance of the principle of "open justice" to which there
should be permitted only those exceptions which the appropriate tribunal found
to be necessary after carefully balancing the interests of justice. As I have
earlier noted Mr Lavery QC also drew the attention of the court to the fact that
the use of an apparently ordinary name, such as "John Armstrong", by way of a
pseudonym rather than a number or letter not only secured the anonymity of the
investigator but also prevented the applicant and her solicitor from being aware
that the investigators true identity was being withheld.
22. In the context of the sustained and unremitting
campaign of violence to which those institutions that seek to uphold the rule of
law in Northern Ireland have been submitted by various terrorist organisations,
it is hardly surprising that, in recent times, the principle of "open justice"
has been a fairly frequent topic of judicial discussion in this jurisdiction.
The subject was fully discussed by Kelly LJ in R v Murphy & Maguire
[1990] NI 306 and, in the course of that judgment, at page 333 he cited the well
known passage from the speech of Lord Diplock in Attorney General v Leveller
Magazine [1979] AC 440 at 449H. The current practice in Northern Ireland was
summarised by the then Lord Chief Justice in Doherty v Ministry of Defence
[1991] 1 NI JB 68 when he observed, at page 91:
"In conclusion I add that for many years the courts in Northern Ireland have
permitted military witnesses and other witnesses, who would be at risk from
terrorist attack if their names were given in open court, not to be named and to
give their evidence as soldier A or witness B: see, for example, the report of
Farrells case in the House of Lords [1980] NI 78. If there should be any
information in relation to the witness which would be discreditable to him or
helpful to the other party, counsel who calls that witness furnishes the
information to counsel for the other party. This is an entirely properly
practice and counsel for the plaintiff in this case made it clear that he had no
objection to the names of the military witnesses not being given in open court
but being described by letter".
23. The equivalent considerations to be observed by a judge
in a criminal trial were discussed in some detail by Evans LJ in the course of
giving the judgment of the Court of Appeal in R v Taylor [1994] TLR 484.
In Re Jordan [1996] (unreported) MacDermott LJ dealt with the relevant
common law background in the following terms:
"It is a fundamental aspect of jurisprudence throughout the United Kingdom that
courts should conduct their business openly and in public. In recent years
largely because there have been so many terrorist related cases it has been
quite common for applications to be made that witnesses be granted anonymity or
be screened when giving evidence. Such applications are founded in the fear of
the witness that they or their families might be endangered if they were seen or
known to give evidence adverse to some person who has often an allegedly
terrorist background. Such fear is understandable and the courts recognise that
it is not in the public interest that a suspected terrorist should escape
conviction because a witness may be deterred by fear from giving evidence or by
giving evidence to be exposed to hostile action or the fear of such action. In
every case a judge faced with an application for anonymity (and it is also an
aspect of the wider concept of screening) will have to balance between an
adherence to the primary requirement for justice to be open and the fears and
anxieties of a witness involved in the criminal process".
24. The circumstances in which the investigator was
permitted to use a pseudonym have been set out in the affidavits of Miss Hamill,
the Assistant RUC Legal Adviser, and Detective Superintendent Lagan in relation
to the ex parte application to the then Recorder of Belfast. It is clear from
these affidavits that the Recorder was informed of the two identities of the
investigators in respect of whom authorisations were sought and that he was also
apprised that the reason for the use of pseudonyms was the apprehension of their
own personal safety should their true identify be disclosed. The Recorder was
also informed that, in the event of granting the application, the orders
appointing the investigators would bear their photographs. It appears from the
affidavit of Miss Hamill that the Recorder asked a number of questions for the
purpose of clarifying the grounds upon which he was being requested to appoint
financial investigators who would use assumed names and Chief Superintendent
Lagan has averred that he was asked to elaborate on certain aspects of the
offences, offenders and investigation with which he was concerned. The Chief
Superintendent also gave evidence before the Recorder confirming that he was
familiar with the backgrounds and previous experience of the investigators in
respect of whom authorisation was being sought and for satisfying that they were
fit and proper persons to be appointed. The circumstances of the ex parte
application have also been deposed to by the financial investigator at
paragraphs 3 and 4 of the affidavits sworn by him on 22 April 1998.
25. As I have already noted above paragraph 4(2) of
Schedule 2 to the 1996 Order contemplates that a financial investigator need not
identify himself or herself by name and, having regard to the general principles
set out above, I am satisfied that the Recorder had an inherent discretionary
jurisdiction to extend anonymity to the financial investigator when granting the
relevant authorisation in accordance with Article 49 of the 1996 Order. The
affidavits sworn on behalf of the respondent by Ms Hamill, Chief Superintendent
Lagan and the financial investigator confirm that evidence was placed before the
Recorder indicating that the circumstances of the offenders and offences under
investigation were such as to give rise to a justifiable fear for the personal
safety of the financial investigator and that the Recorder made appropriate and
relevant enquiries for the purpose of arriving at a properly balanced decision.
26. The use of an ostensibly ordinary name by way of a
pseudonym, as opposed to a letter or number or some other more obvious means of
achieving anonymity, is not a device which I have previously experienced within
this jurisdiction but I note that it was recently discussed in the Court of
Appeal decision of R v Myles & Anors (unreported: Court of Appeal
Transcript 16 June 1998). In that case the defendants had been convicted of
involvement in a number of gang related robberies and murders and the trial
judge had permitted witnesses not only to give evidence from behind screens but
also to use pseudonyms. The fact that the witnesses were using pseudonyms was
undisclosed to the jury. On behalf of one of the appellants it was accepted that
neither the use of screens nor the use of pseudonyms could, in itself, found a
complaint and it was also excepted that the trial judge had scrupulously
followed the authority of R v Taylor. Nevertheless, it was argued that,
in the context of such crucial witnesses relating to a murder count, the use of
pseudonyms was unfair and unjust. In the course of giving the leading judgment
the Vice President, Rose LJ, referred to the increasing difficulty in persuading
witnesses to come forward, particularly in cases in which gang warfare was
involved and went on to observe, at page 13:
"Trial judges have a difficult balancing exercise to conduct when applications
for anonymity or for screens, or for both, are made between, protecting, so far
as possible, the interest of the defence and the interest of the public that
appropriate prosecutions should be pursued. In the present case, we find it
impossible to say that the judge, in carrying out that difficult balancing
exercise, in anything other than reach the entirely right conclusion".
27. On behalf of another of the accused in the case of R
v Myles & Anors it was argued that the use of a pseudonym was "objectionable
in principle". This was not an argument which had been addressed to the trial
judge and the issue was whether, at the appeal stage, it could be argued that
the judge, in permitting the use of pseudonyms, not objected to at the time of
trial, so unfairly conducted the trial that the verdicts should be regarded as
unsafe. In confirming the view of the Court of Appeal that this was "a wholly
impossible contention" Rose LJ went on to say:
"What a case of this kind requires in relation to anonymity, the use of letters,
the use of false names, or otherwise, is, again, essentially a matter for the
exercise of discretion by the trial judge in the particular circumstances of the
case".
28. I fully accept that there may well be significant
differences between the circumstances of a full blown criminal trial and the
activities of a financial investigator authorised in accordance with Article 49
of the 1996 Order. For example, it is not difficult to understand why those who
advised the accused in R v Myles & Anors might not have wished the jury
to be alerted to the fact that witnesses had sought the protection of anonymity
and, indeed, this appears to have been the view of those advising the defendant
Myles. By contrast, the advisers of the applicant in these proceedings
have specifically objected that the use of the pseudonym is in conflict with the
principle of open justice. However, having given the matter careful
consideration, I am satisfied that the existence of such a conflict was fully
appreciated by the Recorder of Belfast during the course of the ex parte
application and that he conscientiously carried out an appropriate balancing
exercise before deciding to authorise the financial investigator to carry out
his duties under a pseudonym. Accordingly, I reject the submissions made on
behalf of the applicant in relation to this aspect of the case.
3. The issue of the second requirement
29. The applicant in this case has condemned the imposition
of the second notice of requirement, dated 12 March 1998, as unlawful and an
abuse of the process of the court on the ground that it is identical to the
earlier requirement of 9 December 1996 which founded the applicant's subsequent
conviction on 22 September 1997. Mr Lavery QC criticised the second requirement
as having been issued without any real hope or expectation of obtaining any
further information from the applicant or making any further progress with her
at the interview. He also maintained that the power to issue requirements should
be exercised promptly and the delay between December 1996 and April 1998 was
indefensible in so far as the only excuse put forward on behalf of the
respondent was that it was necessary to await the outcome of the criminal
proceedings pending against the applicant. Mr Lavery QC condemned this excuse as
"inadequate and unreasonable". Mr Lavery QC submitted that these powers should
be exercised reasonably and with proper motive and that there was at least a
prima facie suspicion that, in waiting for the determination of the criminal
proceedings, the investigator was playing "cat and mouse" with the applicant by
waiting until the completion of the criminal proceedings. He characterised the
powers as being both draconian and penal in nature and cautioned against any
possibility that they might be used as a means of "punishing" "unco-operative"
interviewees.
30. The foundation for the issue of the further notice of
requirement on 12 March 1998 has been set out in some detail by the financial
investigator at paragraph 12 of his affidavit sworn on 22 April 1998 where he
provided the following explanation:
"12. I had determined not to issue any further Requirement pending the outcome
of the criminal proceedings. On 12 March 1998, in the exercise of my statutory
powers, I issued a further Requirement to the applicant whereby she was to
attend on 1 April 1998 for further interview by me to answer questions or
otherwise furnish information appearing to me to relate to the aforementioned
investigation. I did so because I continue to have reason to believe that the
applicant had information which appeared to me to relate to certain matters
relevant to the investigation. In so doing it was my intention (a) to put
to the applicant again certain of the questions which she had refused to answer
satisfactorily or at all during the first interview on 17 December 1996, (b)
put to a certain further questions arising out of developments which have
occurred and information which I have acquired since the first interview and (c)
to further put to her a number of documents which I had obtained subsequent to
that interview".
31. After carefully considering this aspect of the case, it
does not seem to me that the applicant has established even prima facie evidence
that the financial investigator has in anyway abused his statutory powers or
acted as a consequence of improper motive. In the absence of any such evidence,
it seems to me that the conduct of the investigation and of any interviews
related thereto is essentially very much a matter for the discretion of the
financial investigator. I consider that it was perfectly reasonable to await the
outcome of the criminal proceedings since the content and determination of those
proceedings had the potential to significantly effect the subsequent course
which the financial investigator was likely to adopt. I have no doubt that the
investigator was entitled to question the applicant about the developments which
had occurred and the information which he had acquired since the initial
interview and to put to her the additional documents which had come into his
possession.
32. Accordingly, since none of the submissions advanced on
behalf of the applicant have succeeded, this application will be dismissed.
COGE2772
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN'S BENCH DIVISION (CROWN SIDE)
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IN THE MATTER OF AN APPLICATION BY JOSEPHINE DEVINE FOR
JUDICIAL REVIEW
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JUDGMENT
OF
COGHLIN J
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