IEDC 12 · District Court

THE DISTRICT COURT DUBLIN METROPOLITAN DISTRICT

In the Matter of the Police Property Act 1897, the Criminal Justice Act 1951 and an Application for the Delivery of Property in the Possession of An Garda Síochána RYAN MANSFIELD CLAIMANT

- AND - SUPERINTENDENT PETER DUFF RESPONDENT Judgment delivered by Judge Brian O’Shea at Dublin District Court on the 16th day of April 2018

1. The property in issue is a Volkswagen Polo car currently worth between €12,000 and €14,000. The claimant seeks delivery of that property to him on the basis that he is the owner thereof within the meaning of the Police Property Act 1897.

2. On 24 October 2017 garda Coyne, for the respondent, had occasion to look into the car and saw what he suspected to be cannabis inside it. He informed the claimant that he wished to search the car pursuant to the provisions of the Misuse of Drugs Acts. The claimant, however, locked the car and declined to permit the search. Consequently, garda Coyne arranged for the car to be towed to Tallaght garda station to conduct the search. The claimant’s mother ultimately gave the keys of the car to the garda. As the evidence is silent in relation to her reason for so doing, the court will presume that it was to ensure that no damage was caused while opening it as opposed to consenting to the search. The claimant seeks delivery of the car to him on the basis that he is the owner.

It is agreed that there is no competing claim of ownership.

3. The law in relation to applications of this nature is very straightforward. Subsection 1(1)

of the 1897 Act provides: “Where any property has come into the possession of the police in connexion with any criminal charge … a court of summary jurisdiction may, on application, either by an officer of the police or by a claimant of the property, make an order for the delivery of the property to the person appearing to the … court to be the owner thereof, or, if the owner cannot be ascertained, make such order with respect to the property as to the … court may seem meet.” Section 25 of the Criminal Justice Act 1951 provides that such order may be made in the absence of any related charges.

4. Cherry LCJ said in The King (Patrick Curtis) v The Justices of County Louth [1916] KB 616 at 619 regarding the applicability of section 1 of the 1897 Act: “The section is very general in its terms, and is merely intended to relieve the police, while leaving unsettled any question as to true ownership … it applies whenever the property is in the possession of the police for the purpose of criminal prosecutions, no matter from whom or in what way it comes into their hands.”

5. At pages 9 and 10 of his judgment in Donoghue v O’Donoghue and Others [2018] IECA

26 Ryan P adopted that which Widgery CJ opined in Lyons & Co Ltd v Metropolitan Police Commissioner [1975] 1 QB 321, namely that “owner” in the context of the 1897 Act should be given its ordinary meaning as “a person who is entitled to the goods in question, a person whose goods they are, not simply the person who happens to have them in his hands at any given moment.” Ryan P went on to opine, at page 10 of the judgment, that proof of ownership, as opposed to possession, on the balance of probabilities is what section 1 of the 1897 Act requires.

6. Garda Coyne gave testimony and set out many inconsistencies between documents relating to the importation, sale, registration and licensing of the car. The exposed inconsistencies also conflicted with statements made to him by various persons, including the claimant. The claimant had presented Garda Coyne with a statement in relation to the property. It had been prepared with the benefit of legal advice. It contained neither a caution nor a statutory declaration. Garda Coyne testified that the statements were not just inconsistent with the other documents but also with each other to some extent. By agreement, all of the documents (except the statements) were handed in to court. As the authors of some of the statements were not witnesses the court permitted their use solely for the purpose of testing the credibility of witnesses, as opposed to being evidence of the veracity of their content.

7. During his testimony garda Coyne stated, for the very first time, that the property in issue is also being retained for the purpose of a money laundering investigation, which he testified is ongoing. He was, perhaps understandingly, unwilling to elaborate on the content of that investigation. He testified that to do so would likely compromise it. He was very confident that it would be complete within six months.

8. The claimant gave testimony that was unimpressive in terms of detail and contained some inconsistencies when compared with the documentary evidence submitted to court.

His mother also gave evidence that was notable for its lack of clarity. It is not necessary to go into any detail in terms of their testimony for reasons that will become apparent later in this judgment.

9. It is properly agreed by all parties that the longer the car is retained the greater the depreciation in its value.

10. The court has had the opportunity to assess all of the evidence and the manner in which the witnesses gave their testimony. Notwithstanding that garda Coyne exposed inconsistencies in the statements, the documentary evidence, and the testimony, I am satisfied on the balance of probabilities that the claimant owns the car; not just that he was in possession of it at the material time but rather that he owns it. There are undoubtedly some anomalies but they can be explained by way of reasons that are as consistent with innocence as with perceived guilt.

11. That finding however is not the end of the matter. The only reason that the court might have fallen in to error in this determination is if the car was in fact purchased from illgotten gains. The only evidence in relation to that is suspicion on the part of garda Coyne. In the opinion of the court that suspicion is not unreasonable in light of the testimony regarding the relatively large expenses associated with the purchase of the car, the significant sum of VRT that was paid, and the particularly high insurance costs. The vagueness of the testimony of the claimant and his mother did very little to elucidate matters in this regard.

12. In the opinion of this court it is not unreasonable for garda Coyne to be permitted to conclude his current money laundering investigation, that is to say as opposed to his previous drugs investigation. The court further opines that the property in issue in this application is central to that investigation.

13. This court has had the opportunity not just to assess what has been said by the witnesses but also how they have delivered their testimony. Arising from that assessment, on the one hand garda Coyne has set out an apparently valid basis for an apparently legitimate investigation, even if it was not always within his contemplation and not mentioned until he came before the court. On the other hand, the court is concerned that garda Coyne’s proposal to retain the car for six more months may in part be motivated by an endeavour to ultimately outwit the claimant owing to the manner in which the claimant declined to engage with him from the outset. It is a reasonable inference that the continued retention of the car must be causing torment and frustration to the claimant as it loses value on a daily basis.

14. It deciding the appropriate course, the court must bear in mind that garda Coyne has already had the car in his possession for six months. He is unwilling to set out any of the details of his apparent investigation. On the basis of the evidence before the court there is currently little more than suspicions on his part. The court has already determined as a matter of fact and law that the claimant owns the car. The car continues to depreciate in value. If the owner of the property is to be deprived of his car for much longer then the respondent is going to have to focus on the money laundering investigation and bring it to a conclusion.

15. Accordingly, the court will adjourn the application to the 26th day of June 2018, and will then determine the matter as follows:

a) If the investigation is complete on or before the adjourned date and no prosecution is directed then the car must immediately be delivered to the claimant, and the application will be struck out on the adjourned date. “Delivered” is used in the context of the subsection rather than imposing an onus on the respondent to physically deliver the car.

b) If the investigation is complete and directions have been received to charge any person arising out of the importation, registration, licensing or sale of the car, and the retention of the car is reasonably considered necessary for the purpose of such prosecution, then the application will be refused.

c) If the investigation is incomplete or is complete but directions are not available then the respondent will be required to set out in detail why that is so, and the court will require to be persuaded to a very high degree why the car should not be returned to the claimant. The mode of presenting such evidence, if it arises, will be determined on the adjourned date.