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1. The evidence of the Plaintiff was, however, challenged by the second Respondent who is the first Respondent’s father. He swore an Affidavit and gave oral evidence and was cross-examined before me. He said that he saved large amounts of cash from time to time and accumulated them unbeknownst to anybody, not even his wife, and amassed considerable amounts of cash which he hid over the years and used this to pay a £23,000.00 deposit on Seanacloc and used his savings from time to time since Seanacloc was

2. Objection is taken to having to furnish constitutional arguments where all non-constitutional legal points have not been finally determined. This relates, specifically, to the question whether it is possible - the second Defendant submits it is not - to make an order without entailing serious risk of injustice. Section 3(1) provides where relevant that “.... the Court shall not make the order if it is satisfied that there would be a serious risk of injustice.”

3. Counsel for the second Defendant submits that it would not be possible to make an order without such a risk given that the Allied Irish Bank has a mortgage on the property and has not been a party to these proceedings, secondly, that the spouse and children of the first Defendant are in occupation of the property and these would be affected by an order and they have not been a party or represented, thirdly the spouse of the second Respondent has a legal interest as joint owner with her husband of the property and she would be affected and has not been represented and, finally, the children or successors in title of these parties or some of them would also be affected by such an order and they have not been represented.

4. It is submitted that I should now determine whether it is possible or not possible to make an order which would not involve a serious risk of injustice and if I came to the conclusion that no such order could be made then that is an end of the matter and I should not embark on constitutional arguments.

5. This submission is bound up with a second submission to the effect that in determining whether or not to make an order the Court may not take into account the possibility that it might attach such provisions, conditions or restrictions as it considers necessary or expedient as authorised to do under Section 3(2). Counsel submits that a Court should first consider whether an order can be made at all and only after it has decided that such an order can be made may it then proceed to consider what provisions, conditions or restrictions should apply.

6. I do not agree with this submission.

7. The order which the Court is authorised to make under Section 3(1) is an order which may contain provisions, conditions and restrictions and it would be entirely artificial and incorrect in my opinion if the possibility of such qualifications were not open for consideration by the Court when it is exercising its jurisdiction under Section 3(1).

8. Furthermore, I believe that it is artificial to require the Court to in effect make up a detailed order with conditions, provisions and restrictions attaching without having first heard constitutional submissions because consideration of these latter may well influence the make up of the specifics of an order by the Court. The Court certainly should not try constitutional points which may be moot, but this does not mean that the Court in exercising its jurisdiction under Section 3 of the Act of 1996 must make up, as it were, a draft final order complete with provisions, conditions and restrictions prior to considering the constitutional arguments which the Respondents wish to advance.

9. Nor do I see anything wrong in principle with arrangements being made prior to the finalisation of any order to hear representations by interested third parties such as the Allied Irish Bank in the present case.

10. A further preliminary point is taken to the effect that the proceedings are fundamentally flawed because the Act requires that notice be given to all “Respondents” as defined in Section 1 thereof and it is submitted this has not been complied with.

11. Section 1 defines “the Respondent ” as follows:-

12. It is submitted that the children of each of the Respondents come within the class of “ Respondent” as so defined. They have not been served and accordingly it is submitted that the application is fatally flawed and should fail. This submission is based on the provisions of Section 3(6) of the Act of 1996 which where relevant provides as follows:-

13. The application in the present case is against the first Respondent and the second Respondent, not anyone else. Counsel for the Applicant submits that the definition of “ the Respondent ” means only persons against whom specifically an order is sought or has been made. That, it is submitted, is the meaning of the words in brackets at the end of the definition namely “(being an order that is in force and is in respect of that person).” It is further submitted that the context of an application under Section 3 requires only that notice be served on the named parties, since to require an Applicant to search out possible successors in title is clearly not the intention of the section, nor is it a requirement of justice at this stage of the proceedings.

14. In my opinion the correct reading of the definition of “the Respondent ” as it applies in the case where an application for an order has been made is the person against whom such an order is sought in such an application. Once an order has come into force and continues in force then the definition captures a further class of person namely successors of a person bound by the order and who are, of course, not necessarily named parties to the proceedings. It follows from this that the Applicant was under no obligation to give notice of the application to the categories of person suggested by Counsel for the Respondents.

15. Counsel submits that the burden of proof on the Applicant is lighter than cast upon the Respondent and that this amounts to an unconstitutional failure to guarantee the Respondents a fair hearing.

16. Specifically Section 3(1) provides that:-

17. It is submitted that the onus cast upon a Respondent to show “to the satisfaction of the Court” that the property is not the proceeds of crime is a higher onus than that cast upon the Applicant who is merely required to make it appear to the Court that the property is the proceeds of crime.

18. The Act, it is submitted, has not cast an equal burden on the parties and has thereby denied the Respondents constitutionally guaranteed fair procedures.

19. Section 8(2) of the Act provides:-

20. In my opinion this subsection governs any question which might arise in relation to the standard of proof cast upon the parties in this case. The phrases “it appears to the Court”, and “to the satisfaction of the Court” are used frequently in statutes. In my opinion, specifically having regard to the provisions of Section 8(2) of the Act of 1996, there is no difference and certainly no appreciable difference between the standard of proof required of an Applicant under Section 3(1) and that required of a Respondent under the same subsection. It may be that the difference of phraseology reflects the source of information available to an Applicant as distinct from that available to a Respondent: I do not think it is necessary for me to speculate as to why one phrase is used rather than another having regard to the explicit provisions of Section 8(2). In my view the civil standard of proof being proof on the balance of probabilities applies to both parties. Accordingly, I cannot agree with Counsel’s submission that there is any lack of equality in this regard as between an Applicant and a Respondent under Section 3.

21. It is further submitted that the rights of successors in title or other parties with a beneficial interest in affected property have not been sufficiently protected by the Act of 1996.

22. In this context specific reference is made to Section 4(2). Section 4 deals with a disposal order which can be made no sooner than 7 years after the making of an interlocutory order. Subsection (2) uses the same language namely that the order is to be made by the Court “unless it is shown to its satisfaction...” that that particular property is not the proceeds of crime. Reliance is further placed on subsection (6) which provides that the Court shall give an opportunity to be heard in the context of a Section 4 disposal order to any person claiming ownership of any of the property concerned. It is submitted that this limits the right to be heard to those claiming ownership which leaves unprotected the rights of those who may not be able to claim ownership but would claim an interest such as potential successors.

23. In my view subsection (6) places a mandatory requirement upon the Court to give hearing to anyone claiming ownership in the relevant property. This does not, however, exhaust the scope of the Court’s jurisdiction. Under subsection (3) the Applicant is required to give notice not only to the Respondent but also “to such other (if any) persons as the Court may direct” of an application under Section 4. In my opinion a statute which confers jurisdiction upon the Court to require the giving of notice to virtually anybody in these circumstances cannot be said to have failed to vindicate the property rights of potential successors in title in a way that is repugnant to the constitutional guarantees of fair procedures or in relation to property rights themselves.

24. As a result of this finding it is not necessary for me to consider on its own terms a further submission to the effect that the definition of “ dealing” in Section 1(1) of the Act of 1996 has the effect that if an order is made in this case prohibiting the Respondents from dealing with Seanacloc that this would automatically preclude the payment of rent by the first Respondent to the second Respondent and of mortgage repayments by the second Respondent to the Allied Irish Bank. This arises because in my opinion it would be open to the Court to attach any appropriate provisions, conditions or restrictions on such an order in the event that injustice would arise if such payments were not continued.

25. I am satisfied, accordingly, that the impugned provisions of the Act of 1996 are constitutionally sound and that in principle the Applicant is entitled to the orders sought. However, prior to finalising the matter I think the Allied Irish Bank should be put on notice of the Courts’ findings and intention to make orders and if it requests it should be afforded an opportunity of being heard in this matter.

26. Accordingly I consider that the statutory provisions relied upon by the Applicants are valid and, subject to making arrangements for the consideration of any submissions by the Allied Irish Bank, propose to make the orders sought.