Neutral Citation no.  [1999] 1917

Ref:    

COGE2772

 

 

 

Judgment: approved by the Court for handing down

Delivered:

26/03/99

(subject to editorial corrections)

 

 

 

            IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

 

                            QUEEN'S BENCH DIVISION (CROWN SIDE)

 

                                                                  --------

 

IN THE MATTER OF AN APPLICATION BY JOSEPHINE DEVINE FOR

                                                    JUDICIAL REVIEW

 

                                                                  --------

 

 

COGHLIN J       

            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

            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 or 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, furnish 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 make a code of practice in connection with the exercise by financial investigators of the powers conferred by the Schedule". 

 

            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 26 day of June 1998.

            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 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. 

            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.

            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 November 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.

            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 £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 £750 fine a term of one month imprisonment suspended for 12 months.

            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. 

            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

            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

            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.

            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 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. 

            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 or 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.

            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 course 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.

            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.

            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. 

            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,

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 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

            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 Article 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 a Schedule which, inter alia, provided 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". 

            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, adapting the applicant's argument somewhat, 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 authorisation of an investigator and 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

            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 justification 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 noted earlier, 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 investigator's true identity was being withheld.

            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 proper 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".

            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".

            The circumstances in which the investigator was permitted to use a pseudonym have been set out in the affidavits of Ms 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 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 for their own personal safety should their true identities 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 Ms 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 that he was satisfied 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. 

            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.

            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, did anything other than reach the entirely right conclusion".

 

            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".

            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

            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.  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.

            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".

            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. 

            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)

 

                                                                  --------

 

IN THE MATTER OF AN APPLICATION BY JOSEPHINE DEVINE FOR

                                                    JUDICIAL REVIEW

 

                                                                  --------

 

                                                           JUDGMENT

 

 

                                                                    OF

 

 

                                                           COGHLIN J

 

                                                                  --------