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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