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1. I agree with the judgment of Fennelly J. as to the issues raised in this case. I would like to add a note of concern as to the form of the case stated.

2. This matter came before the Supreme Court by way of case stated. A Circuit Court judge may state a case for the Supreme Court pursuant to s. 16 of the Courts of Justice Act, 1947,

3. The case stated is quoted in full by Fennelly J. in his judgment. It is most unusual to append to a case stated the transcript of the evidence as was done in this case. The transcript, covering several days of court proceedings, runs to a total of 299 pages.

4. Decisions relating to the form of cases stated to the High Court are helpful in considering the form of case stated to the Supreme Court. In Emerson v. Hearty and Morgan [1946] N.I. 35 Murphy L.J. described the required form at pp. 36-7 of the report:

5. This decision was applied by Blayney J. in Mitchelstown Co-Operative Society v. Commissioner for Valuation [1989] I.R. 210 and in Department of the Environment v. Fair Employment Agency [1989] N.I. 149.

6. I am satisfied that these are correct principles to be applied to the stating of cases under s. 16 of the Courts of Justice Act, 1947. They describe the correct form for a case stated. I adopt and apply them subject to the observation that in a case stated from the Circuit Court an application in writing for the case stated may not arise. However, in all the circumstances,

7. I am satisfied that it would not be appropriate to return this matter to the learned Circuit Court judge for re-statement.

8. 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.

9. 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").

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

11. 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.

12. 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:

13. 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”):

14. 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).

15. 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.

16. 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.

17. 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.

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

19. Criminal Assets Bureau

20. An Garda Siochana

21. Harcourt Square

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

23. 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.

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

25. 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.

26. 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.

27. 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.

28. 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.

29. 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.

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

31. 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 function 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.

32. 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.

33. 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).

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

35. 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.

36. 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.

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