Judge criticises DPP for ‘extraordinary’ challenge to court ruling

Director of Public Prosecutions is appealing a High Court order against seizure of funds

The Four Courts. A judge has criticised DPP Claire Loftus for her unwillingness to respect a High Court ruling in a legal row over a State bid to seize €210,000 from card payments processor, Pacnet

The Four Courts. A judge has criticised DPP Claire Loftus for her unwillingness to respect a High Court ruling in a legal row over a State bid to seize €210,000 from card payments processor, Pacnet

 

A judge has criticised Director of Public Prosecutions (DPP) Claire Loftus for her unwillingness to respect a High Court ruling in a legal row over a State bid to seize €210,000 from card payments processor, Pacnet.

Mr Justice Garrett Simons has ruled that the DPP cannot challenge a High Court order dismissing proceedings brought by her office that would have forced Irish-Canadian company Pacnet to forfeit €210,000 to the State.

Justice Simons labelled the proceedings “entirely unnecessary”, saying the case only arose “as a consequence of the unwillingness of the Director of Public Prosecutions to respect the finality of a High Court judgment”.

His judgment describes the DPP’s stance as so extraordinary that he adjourned the proceedings overnight to allow the director’s counsel to confirm his instructions.

The case involved €210,000 destined for Pacnet client, Anonan International, which customs seized at Shannon Airport in 2010 pending paperwork confirming the money’s source.

However, the DPP asked the Circuit Court to order that Pacnet Holdings forfeit the €210,000 in 2013, naming a director, Gerard Humphreys and in-house counsel, Paul Davis, in the proceedings.

Claire Loftus, the Director of Public Prosecutions, photographed in 2013
Claire Loftus, the Director of Public Prosecutions, photographed in 2013

Irish law allows the Circuit Court to order the forfeiture of cash seized by the State that is believed to be the proceeds of crime, but the DPP must apply to do this within two years of the money first being taken.

The three challenged the application saying that the DPP had not given Mr Davis proper notice of the proceedings within two years of the cash being seized.

They went to the High Court, which found in their favour and issued an order in January 2015 allowing the appeal and directing the DPP to pay the costs of both that hearing and the original Circuit Court proceedings.

“The effect of the High Court order was to dismiss the forfeiture application in its entirety. There can be no doubt about this,” Mr Justice Simons states.

Nevertheless, the DPP attempted to raise the issue again before the Court of Appeal but Pacnet challenged the move in the High Court.

The director argued that as only three of the four parties involved had challenged the original forfeiture proceedings, they could still be taken against the fourth, Anonan International, which was a notice party to the case, but not directly involved. The DPP maintained that it had not been necessary to notify Mr Davis.

The director also argued that as the notice of the original forfeiture proceedings came before the Circuit Court after the High Court hearing, the case was still pending, and therefore could be appealed. However, Mr Justice Simons’s judgment notes that this was a mistake.

The judge says that in fact Mr Davis was central to the original application and states that it was irrelevant whether or not the Circuit Court case involved Anonan.

Pacnet handled credit and debit card payments for more than 700 organisations, including the New York Times, Catholic Archdiocese of Durban and American Airlines.

In 2016, the US treasury wrongfully sanctioned Pacnet for handling cash from mail fraud. The company was not involved in this activity and the federal authorities lifted the sanctions although its move cost much of the group’s business. The DPP did not comment yesterday.

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