Circuit Court has jurisdiction over Social Welfare Act appeals even if Criminal Assets Bureau Act is cited.

[2001] IESC 49

THE SUPREME COURT

200/00

Denham J.

Murray J.

Hardiman J.

Geoghegan J.

Fennelly J.

BETWEEN

SIMON McGINLEY

APPELLANT

AND

THE DECIDING OFFICER CRIMINAL ASSETS BUREAU

RESPONDENT

JUDGMENT of the Court delivered on the 30th day of May, 2001 by FENNELLY J.

1. This is a case stated by His Honour Judge Carroll Moran, Judge of the Circuit Court, pursuant to section 16 of the Courts of Justice

Act 1947. He asks essentially whether he has jurisdiction to entertain an appeal by the Appellant against a finding by the Respondent

withdrawing from him benefits under the Social Welfare Acts which he had been receiving.

2. The core of the argument before this Court was whether the decision the subject-mater of that appeal (“the decision”) was one

made under the Social Welfare Acts or should rather be considered as having been made under the Criminal Assets Bureau Act of 1996

(“the act of 1996").

THE CASE STATED

3. The issues in the case will be better understood if I quote in full the terms of the Case Stated. It is as follows:

"This is an appeal from a decision of a Deciding Officer who is an officer of the Minister for Social, Community and Family

Affairs and a Bureau Officer of the Criminal Assets Bureau, who has been appointed a Deciding Officer under s.246 of the

Social Welfare (Consolidation) Act 1993. In accordance with the provisions of s.249(a) of the said Act of 1993, the

Deciding Officer revised a previous decision in the appellant's case. The Deciding Officer determined that the appellant

was not entitled to disability allowance in respect of the period from the 2nd October 1996 on the grounds that he, the

appellant, had failed to establish that his means did not exceed the maximum rate of disability allowance payable in his

case.

Further, the said Deciding Officer determined that the said benefit paid to the appellant is liable to repayment to the

Minister for Social, Community and Family Affairs in accordance with s.278 of the said Act of 1993.

The said decision of the Deciding Officer was made in the name of the Criminal Assets Bureau ("the Bureau").

Evidence was given on behalf of the respondent by

1. Detective Garda Fennessy

2. Detective Sergeant Naughton, and

3. Officer Number 10 of the Bureau.

No evidence was called on behalf of the appellant.

A note was taken of the proceedings and I refer to the transcript for the full content of the evidence.

From the evidence I found that there is not doubt that the appellant's means, at the material times, exceeded the

maximum rate of disability allowance which was paid to him, and accordingly, on the facts, it appeared that his appeal

should be dismissed and the said decision of the Deciding Officer should be affirmed.

However, an issue was raised on the appellant's behalf as to whether or not the Bureau was acting intra vires in the

investigation and determination of the issues herein.

The functions of the Bureau are set out in ss. 5 and 6 of the Criminal Assets Bureau Act 1996, which principal functions

are divided into four areas. It was agreed by both parties that only one of these four areas would apply to the present

case, namely, that set out in paragraph 9c) of s.5(1), which enacts that such function is the taking of all necessary

actions.

'under the Social Welfare Acts for the investigation and determination, as appropriate, of any claim for or in respect of

benefit (within the meaning of section 204 of the Social Welfare (Consolidation) Act 1993) by any person engaged in

criminal activity.'

However, the respondent stated that it was not proceeding under section 5(1)(c) and was not alleging that the appellant

had been engaged in criminal activity. Instead the respondent was relying on s.8(8) of the same Act, which reads:

'A member of the Garda Siochana, an officer of the Revenue Commissioners or an officer of the Minister for Social Welfare,

who is a bureau officer, notwithstanding his or her appointment as such, shall continue to be vested with and may

exercise or perform the powers or duties of a member of the Garda Siochana, an officer of the Revenue Commissioners or

an officer of the Minister for Social Welfare, as the case may be, for purposes other than the purposes of this Act, as well

as for the purposes of this Act".

It was submitted on behalf of the respondent that this s.8(8) was sufficient to confer competence on the Bureau. I did

not accept this submission. This subsection merely provides that the powers and duties of a bureau officer are not to

restrict or diminish the powers or duties which he would have had in his original capacity, (as a Garda, Revenue or Social

Welfare officer, as the case may be). This being so, it cannot be interpreted as to extend the frontiers of the functions or

competence of the Bureau as enacted in s.5 or s.6 of the same Act.

Although, in my view, it was most likely that at some point the appellant had committed a criminal offence in receiving the

disability allowance in the material time, the respondent chose not to rely on s.5(1)(c) of the said Act of 1996 and

expressly stated that the respondent was not alleging that the appellant had been engaged in criminal activity.

It was submitted on behalf of the appellant that s.5(1)(c) can only apply

1. in the investigation of a person convicted of a criminal offence, or,

2. if the first submission is unsuccessful, in the investigation of a person who is actually engaged in criminal activity; in

other words, it cannot apply to the investigation of a person who is merely suspected of engaging in criminal activity.

As for the first of the appellant's submission, it is my view that any reasonable interpretation of the words "engaged in

criminal activity" envisages investigating persons who have not been convicted. First, the word convicted in not used.

Further, the whole thrust of the said Act of 1996 is to enable the Bureau to investigate persons who have not been

subject to a criminal conviction, and, that, therefore, this submission should fail.

As for the second appellant's submission, I believe that a contrast may be made between the words in paragraphs (b) and

(c) of s.5(1). In paragraph (b) the Bureau may take action to ensure that the proceeds of criminal activity or of

suspected criminal activity are subjected to tax. The word suspected is absent in paragraph (c), meaning that it is not

intended that an investigation under this paragraph is to apply to persons merely suspected of being engaged in criminal

activity. Accordingly, this is a valid submission.

In the light of the foregoing, I held that

1. the respondent cannot rely on s.8(8) of the said Act of 1996 to give the Bureau competence to move in the present

proceedings,

2. s.5(1)(c), if the respondent were to rely on it, would render the Bureau's actions in the proceedings intra vires, as, on

the facts of the case, it was most likely that the appellant had been engaged in criminal activity pertinent to the

particular investigation.

3. while 2.(5)(1)(c) cannot apply to persons suspected of being engaged in criminal activity, in my view the same is moot

as there was evidence that the appellant most likely had been engaged in such activity.

At the conclusion of the evidence and submission, Counsel on behalf of the appellant applied for a case stated, to which I

acceded.

Accordingly, pursuant to section 16 of the Courts of Justice Act 1947, I refer the questions of law set out hereunder for

the determination of the Supreme Court, namely:-

1. Does section 8(8) of the said Act of 1996 render intra vires the acts of the Bureau in these proceedings in a situation

where the respondent is not relying on any part of section 5 of the same Act?

2. Does section 8(8) of the said Act of 1996 render intra vires the actions of the officers of the Minister for Social,

Community and Family Affairs who are also Bureau officer of the of the Bureau in these proceedings in a situation where

the respondent is not relying on any part of section 5 of the same Act?

3. Does section 5(1)(c) of the said Act of 1996 apply to the investigation of a person suspected of criminal activity,

pertinent to the investigation or otherwise?

4. Does section 5(1)(c) of the said Act of 1996 apply to the investigation of a person engaged in criminal activity

pertinent to the investigation, although not convicted of a criminal offence in relation to the same?

5. If the answer to "4" is "yes",

a. must the Bureau establish in evidence that the person under the investigation is, or, has been, engaged in

criminal activity, and

b. if so, is the degree of proof on the balance of probabilities?

6. Am I entitled in circumstances in which the respondent expressly stated that it was not alleging that the appellant was

engaged in criminal activity to make a finding that he was most likely so engaged?

7. Were the actions of the Bureau officers in the present proceedings intra vires?"

4. A number of documents are attached to the case stated including the transcript both of evidence and argument in the Circuit

Court. In the ordinary way, the Circuit Court should make any findings of fact which are necessary to enable this Court to provide

answers to the questions posed. This Court cannot express any view on the facts. Insofar as the Case Stated leaves open some of

the issues of fact or mixed issues of fact and law, I will refer to the material furnished with the Case Stated. However, the findings of

fact remain within the exclusive province of the Circuit Court. I agree with the judgment of Denham J. on the form of the Case

Stated.

THE LAW

5. The special feature of the Bureau is that its officers are for the most part in practice respectively members of the Garda Siochana,

or officers of the Revenue Commissioners or of the Department of Social, Community and Family Affairs, (then the Department of

Social Welfare). This is effected by section 8(1) of the act of 1996. Among the other provisions of that act which were debated at

the hearing were:

Section 8(3):

"A bureau officer, when exercising or performing any powers or duties for the purposes of this Act, shall be under the

direction and control of the Chief Bureau Officer."

Section 8(5):

"A bureau officer may exercise or perform his or her powers or duties on foot of any information received by him or her

from another bureau officer or on foot of any action taken by that other bureau officer in the exercise or performance of

that other bureau officer's powers or duties for the purposes of this Act, and any information, documents or other

material obtained by bureau officers under this subsection shall be admitted in evidence in any subsequent proceedings."

Section 8(7):

Any information or material obtained by a bureau officer for the purposes of this Act may only be disclosed by the bureau

officer to -

(a) another bureau officer or a member of the staff of the bureau,

(b) any member of the Garda Siochana for the purposes of Garda functions,

(c) any officer of the Revenue Commissioners for the purposes of the Revenue Acts or any provisions of any other

enactment, whether passed before or after the passing of this Act, which relates to revenue,

(d) any officer of the Minister for Social Welfare for the purposes of the Social Welfare Act, or

(e) with the consent of the Chief Bureau Officer, any other officer of another Minister of the Government or of a

local authority (within the meaning of the Local Government Act, 1941) for the purposes of that other officer

exercising or performing his or her powers or duties,

and information, documents or other material obtained by a bureau officer or any other person under the provisions

of this subsection shall be admitted in evidence in any subsequent proceedings."

Section 10(4):

"Where a bureau officer -

(a) who is an officer of the Revenue Commissioners exercises or performs any of his or her powers or duties under the

Revenue Acts or any provision of any other enactment, whether passed before or after the passing of this Act, which

relates to revenue, in writing, or

(b) who is an officer of the Minister for Social Welfare exercises or performs any of his or her powers or duties under the

Social Welfare Acts in writing.

such exercise or performance of his or her powers or duties shall be done in the name of the Bureau and not in the name

of the individual bureau officer involved, notwithstanding any provisions to the contrary in any of those enactments."

6. In addition to the relevant provisions of the act of 1996, it is necessary to note section 34 of the Social Welfare Act 1997, which

inserted a new section 253A in the Social Welfare (Consolidation) Act, 1993 (“the Consolidation Act”):

"253A. (1) Whenever a person has appealed a decision of a deciding officer then, where the Chief Appeals Officer certifies

that the ordinary appeals procedures set out in this Chapter are inadequate to secure the effective processing of such

appeal, the Chief Appeals Officer shall cause a direction to be issued to the person who has submitted the appeal

directing him or her to submit the appeal to the Circuit Court and the Circuit Court, may on hearing the appeal as it thinks

proper, affirm the decision or substitute the decision of the deciding officer in accordance with this Act and upon the

same evidence as would otherwise be available to the Appeals Officer.

(2) The appellant shall give notice of the appeal as submitted to the Circuit Court to the deciding officer.

(3) No appeal shall lie from a decision of the Circuit Court on an appeal under this section.

7. The appeal, which would, in the ordinary way, have been heard by an Appeals Officer under the Consolidation Act, was brought to

the Circuit Court. The Chief Appeals Officer, at the request of the Bureau, made a certificate to that effect.

THE ISSUE

8. Insofar as he was called upon to decide an issue purely within the framework of the Social Welfare Acts, it is clear that the learned

Circuit Court Judge had no difficulty reaching a conclusion. He had no doubt that the Appellant had such means as would disentitle

him to receive the disability allowance in question; consequently, he was disposed to dismiss the appeal of the Appellant and affirm

the decision of the Social Welfare Deciding Officer which had been appealed.

9. The learned Circuit Court Judge has posed the questions in the Case Stated because of doubts raised as to his jurisdiction. The

decision under appeal was, he notes, “made in the name of the Criminal Assets Bureau.” He describes the issue raised as being “

whether or not the Bureau was acting intra vires in the investigation and determination of the issues herein.” He goes on to point out,

in particular, that the Respondent did not - apparently for the purpose of the proceedings before him – rely on section 5(1)(c) of the

act of 1996 “and was not alleging that the Appellant was engaged in criminal activity.” Instead, he stated, the respondent contended

that section 8(8) of the act of 1996 “was sufficient to confer competence on the Bureau.” While he rejected the latter submission, he

decided to state the case for the decision of this Court.

10. It is clear from the references in the Case Stated, which I have cited, that the learned Circuit Court Judge considered that the

proceedings before him were founded on the exercise of the powers of the Criminal Assets Bureau (“the Bureau”), in short that the

Bureau was the respondent in the appeal. This may be a finding of fact or a conclusion of law or a mixture of the two. This lack of

clarity was principally the consequence of the ambiguous position adopted by the Bureau. Although the Bureau did not, in the Circuit

Court, rely on the terms of the act of 1996 which enable it to act in pursuit of criminal activity (section 5), it equally appears not to

have claimed that the decision was one made simply under the Social Welfare Acts. Instead, the Bureau chose to rely on section

8(8).

SUBMISSIONS ON THE APPEAL

11. The Appellant says that he did not know prior to the concession made in the Circuit Court, that the Respondent would not be

relying on the alleged criminal activity of the Appellant. A very brief account of the facts in this respect is appropriate. These appear

from the Case Stated and the documents appended to it.

12. A member of the Garda Siochana, also an officer of the Bureau, swore an information in application for a Search Warrant pursuant

to section 14 of the act of 1996 of Ballyfree Halting Site, Ballyfree, County Sligo, based on wide-ranging allegations of criminal activity

including burglary, larceny, Social Welfare and VAT fraud and money-laundering. Although the name Simon McGinley appears on this

document, it appears that the Appellant is not the same person. Nothing turns on this. The Appellant resides at the same place. The

warrant was granted and executed and yielded information which was used in dealing with the investigation of the Appellant’s right to

social welfare benefit and, ultimately, to the decision to withdraw it.

13. The Appellant was interviewed by a Social Welfare Inspector, whose anonymity has been preserved as “Bureau Officer (10)” and a

Detective Garda. Both were at all material times Bureau officers. The information given in that interview formed a significant part the

basis on which the decision was made.

14. The decision is dated 28/6/99. It is headed: Criminal Assets Bureau. The address, given under the heading is:

Criminal Assets Bureau

An Garda Siochana

Harcourt Square

Dublin 2

15. Nonetheless the body of the decision contains no reference to the Bureau. It reads:

"As a Deciding Officer appointed under Section 246 of the Social Welfare (Consolidation) Act 1993, I hereby decide, in the

case of Simon McGinley, Revenue and Social Insurance number 5646819E, of Bay 1, Ballyfree Halting Site, Sligo, as

follows:

in accordance with the provisions of Section 249(a) of the Social Welfare (Consolidation) Act 1993, I hereby revise the

previous decision in this case and determine that he is not entitled to payment of Disability Allowance in respect of the

period from 2/10/1996 on the grounds that he has failed to establish that his means do not exceed the maximum rate of

Disability Allowance payable in his case.

The benefit affected by this decision is liable to repayment to the Minister for Social, Community and Family Affairs in

accordance with Section 278 of the Social Welfare (Consolidation) Act 1993."

16. The decision is signed: “Criminal Assets Bureau” both in typescript and in manuscript. The name of the Deciding Officer does not

appear. The Appellant submits that section10(4) should be read as if the words, “acting as such” or their equivalent appeared after “a

bureau officer” in the introductory part of this section. Otherwise, an absolutely routine decision of a social welfare deciding officer in

a case with no conceivable criminal connotations (and any analogous decision of a tax inspector) would be issued in the name of the

Bureau.

17. The Appellant’s Notice of Appeal names the Respondent as:

"THE DECIDING OFFICER CRIMINAL ASSETS BUREAU

An Garda Siochana, Harcourt Square, Dublin 2."

18. Based essentially on this set of facts the Appellant submits that the entire process leading up to the revision of the decision of

the earlier deciding officer and resulting in the refusal of disability benefit to the Appellant formed part of an unbroken chain. All

relevant steps were taken on behalf of the Bureau, including the decision. The Bureau could not have competence unless it was

acting under section 5 of the act of 1996, the relevant provision being section 5(1)(c). Once the Bureau conceded that it was not

claiming to act under that provision, it had no competence. The decision was made without jurisdiction and the learned Circuit Court

Judge had no jurisdiction to entertain the appeal.

19. The case for the Respondent is that the decision was made by a duly appointed officer of the Department of Social Welfare, who

happened also to be a Bureau officer. Because of section 10(4) of the act of 1996, the decision, being in writing, had to be made in

the name of the Bureau. It was a decision which derived its validity from the Social Welfare Acts. This was not affected by the

circumstance that the investigation of the Appellant and others was initiated by the Bureau under the act of 1996, any of the other

events referred to above or the signature of the decision in the name of the Bureau.

20. Although there was some discussion about the power of the Bureau or its officers to transmit information to officers of the

Department of Social Welfare, by virtue of section 8(7) or otherwise, it is not appropriate to express any view on this aspect of the

case in the absence of any question about it in the Case Stated.

CONCLUSION

21. It is sufficient, in this case, to answer those questions posed in the Case Stated which relate to the jurisdiction of the Circuit

Court and in the light of the facts as they appear. The only real question is whether the learned Circuit Court Judge had jurisdiction to

entertain the appeal against the decision. That argument, in turn, as it was presented to this Court depends on the contention that

the decision was made without jurisdiction, because of the concession made on behalf of the Respondent that section 5 of the act of

1996 was not being relied upon.

22. It is, without doubt, a potentially serious matter that a decision may appear to have been made in the name of the Bureau. The

implications for an innocent individual, be he a social welfare beneficiary or taxpayer, are potentially very serious not to say alarming.

A routine notice relating to tax, social welfare or garda regulation of traffic might issue in the name of the Bureau, solely due to the

status of the relevant officer. The Court was not informed whether, in practice, the Department of Social Welfare or the Revenue

Commissioners apply a literal meaning. It may be necessary in an appropriate case to consider whether a literal meaning of section

10(4) is called for.

23. The Appellant faces, however, the dilemma that he wishes to say that the decision against which he has appealed is itself a

nullity.

24. I am satisfied that, in the present case, the learned Circuit Court Judge had jurisdiction to entertain and decide the appeal. It is

apparent that he decided to hear the appeal de novo, i.e., to hear all the evidence as if he were the original deciding officer. This

placed an effective burden of proof on the Respondent. Only the Respondent chose to call evidence. It is evident from the terms of

the case stated that the weight of the evidence is sufficient – at least at this stage – to satisfy the learned Circuit Court Judge that

he should affirm the decision. However, any infirmity flowing from the fact of the decision being expressed to have been made in the

name of the Bureau is removed once the Circuit Court enters on a new hearing. The unction of the learned Circuit Court Judge is to

make a decision pursuant to section 253A of the Consolidation Act as introduced by the act of 1997. He is not acting as an officer of

the Bureau. His decision will not be made on behalf of the Bureau.

25. In essence, the argument for lack of jurisdiction concerns the jurisdiction of the deciding officer to make the decision. Any

challenge to that decision on that basis would have needed to have been pursued by way of judicial review, a course which was not

taken. The Appellant explains that his counsel was taken by surprise when it was disclose that the Respondent was not relying on

section 5 of the act of 1996. However, this fact would certainly have been accepted as a good explanation for any delay in

challenging that decision by way of judicial review for lack of jurisdiction on that ground. In any event, an argument founded on the

unattractive choice which confronted the Appellant at the Circuit Court hearing could not lead to the attribution to the Circuit Court

of a jurisdiction in judicial review which it does not have.

26. Finally, it does not appear to me that it is possible to presume lack of jurisdiction of the deciding officer when making his decision

from the concession made by counsel for the Respondent at the hearing of the appeal that he would not place reliance on section 5.

The possibility cannot be excluded that the case would be made that the latter section was considered relevant at the stage when

the decision was made. I am not saying that it was or even that such an argument would succeed. The matter has simply not been

explored. If it had to be explored, it might be relevant to consider the position of the particular social welfare beneficiary in the light

of the execution of a search warrant, his knowledge of its implications and of the material it produced. The mere fact that the

Appellant was taken surprised by the failure of the Respondent to rely on the allegation of criminal activity may be taken to suggest

that such reliance could have been founded at an earlier stage. It would certainly be necessary, if the validity of the earlier

proceedings had to be investigated, to consider the arguments of the Respondent that all relevant steps were taken by the officers in

question under the Social Welfare Acts and, in particular, the interpretation of section 10(4).

27. In the event, I do not find it necessary to embark on consideration of those important questions.

28. Finally, I do not think section 8(8) of the act of 1996 has any bearing at all on the jurisdiction of the Circuit Court. That provision

simply preserves the normal functions of the categories of officers named in it “for purposes other than the purposes of this Act [the

act of 1996]” as it clearly says. It cannot confer jurisdiction where none existed.

29. It is, in the circumstances, sufficient to answer the first two questions in the Case Stated. In the light of the way in which the

case was presented on behalf of the Bureau in the Circuit Court the remaining questions do not arise.

30. I propose the following answer to the first two questions:

Section 8(8) is not relevant to the jurisdiction of the Circuit Court. That court had jurisdiction by virtue of section 253A of

the Social Welfare (Consolidation) Act, 1993, as inserted by section 34 of the Social Welfare (Amendment) Act, 1997.