Reilly v Director of Public Prosecutions
 IESC 59
THE SUPREME COURT
[Record No. 441/2008]
Crime & sentencing – Practice – Forfeiture of assets – Applications made under s 39 Criminal Justice Act 1994
This appeal concerns the interpretation of the provisions of s. 38 and s. 39 of the Criminal Justice Act 1994 as amended by the Proceeds of Crime (Amendment) Act 2005 and what is meant by the use of the words ‘application made’ in s. 39(1) of the Criminal Justice Act 1994 as amended (hereinafter referred to as ‘the 1994 Act’).
The background to this matter is set out in full in the judgment of Clark J. () delivered on the 31st July, 2008. Nevertheless it would be useful to set out that background here for the purpose of explaining the nature of the application that was made to the High Court. The applicant's car was stopped by Customs & Excise officers as it was about to enter a car ferry travelling to France on the 19th July, 2005 at Rosslare Port. The car was searched and the sum of £69,880.00 Sterling was found concealed in multiple packages under the back seat of the car. This money was seized pursuant to s. 38(1) of the 1994 Act (as amended) on suspicion that the money was the proceeds of criminal activity.
On the 21st July, 2005, an application was made to Judge O Buachalla at Rathdrum District Court in the County of Wicklow for the detention of the said monies seized pursuant to s. 38(2) of the 1994 Act pending inquiries as to the source of the cash. An order was made in the District Court pursuant to s. 38(2) of the 1994 Act whereby the said monies were detained for a period as prescribed under the statute of no longer than three months.
Thereafter, applications were made by the State authorities for the detention of the money at regular three month intervals the last such period of detention expiring on the 18th July, 2007.
At no stage did the applicant/appellant (hereinafter referred to as the Appellant) seek the return of the money seized as could have been done by him under the provisions of s. 38(5) of the 1994 Act on the basis that there were no longer any grounds for the continued detention of the money.
On the 17th July, 2007, the Director of Public Prosecutions issued a notice of motion pursuant to s. 39 of the 1994 Act seeking the forfeiture of £69,888.00 Sterling seized from the Appellant on the 19th July, 2005. The motion was in compliance with Order 69 of the Circuit Court Rules as provided for in the Circuit Court Rules (No. 2) (Section 39 Criminal Justice Act, 1994), 2004 ( S.I. No 448 of 2004) which set out the procedures to be followed when seeking an order from the Circuit Court directing that any sum seized be forfeit to the Exchequer. The motion was returnable to 2nd October, 2007. It is accepted by the Appellant that the notice of motion was issued and served within the two year period specified in s. 38(3)(b) of the 1994 Act which sets out the total period of detention during which the money may be retained. Once an application is made for an order under s. 39(1) of the 1994 Act it is provided in s. 38(3A) that the cash shall, notwithstanding subs. (3), continue to be so detained until the application is finally determined.
On the 2nd October, 2007 the Appellant sought an adjournment of the matter but that was refused. He further served a notice of intention to cross-examine on the affidavits filed. However, due to volume of work in the Court that day, the case was not reached and had to be adjourned.
On the 5th November, 2007 the Appellant obtained leave from the High Court to apply for judicial review in the following terms (as set out at para. 1 of the judgment of Clark J.):
‘(1) An injunction prohibiting the first named respondent from making any application in purported reliance on s. 39 of the Criminal Justice Act, 1994 as amended by s. 20 of the Proceeds of Crime Act, 2005, now pending before Circuit Court Judge of the South Eastern Circuit.
(2) An order returning a sum of €100,604.66 seized by the second respondent.
(3) An order of certiorari quashing the order made by the third respondent on the 21st July, 2005, on grounds that it failed to show jurisdiction on its face.’
When the matter came before the High Court, the third ground was abandoned at the hearing on the 21st April, 2008.
The essence of the Appellant's case before the High Court was that in considering the interpretation of the 1994 Act and in particular s. 39(1) that for an application to be made, it was necessary for the DPP or his representative to stand up in court and make the request for the money to be forfeited. It was contended that anything less did not amount to an application. On that basis it was argued that no application had been made to the Circuit Court within the two year time period limited by the legislation and in those circumstances the monies were unlawfully held and must be returned to the Appellant. The learned High Court judge in a written judgment refused the Appellant's application for judicial review. The Appellant has now appealed that decision on the basis that the learned trial judge was wrong in concluding that the first named respondent had made an application for a forfeiture order within the two year period prescribed by the legislation.
At this point, it would be useful to set out the provisions of the 1994 Act and the Rules of the Circuit Court which have a bearing on this appeal.
‘(1) A member of the Garda Síochána or an officer of customs and excise may search a person if the member or officer has reasonable grounds for suspecting that –
(a) the person is importing or exporting, or intends or is about to import or export, an amount of cash which is not less than the prescribed sum, and
(b) the cash directly or indirectly represents the proceeds of crime or is intended by any person for use in connection with any criminal conduct.
(1A) A member of the Garda Síochána or an officer of the Revenue Commissioners may seize and in accordance with this section detain any cash (including cash found during a search under subsection (1)) if –
(a) its amount is not less than the prescribed sum, and
(b) he or she has reasonable grounds for suspecting that it directly or indirectly represents the proceeds of crime or is intended by any person for use in any criminal conduct.
(2) Cash seized by virtue of this section shall not be detained for more than forty-eight hours unless its detention beyond forty-eight hours is authorised by an order made by a judge of the District Court and no such order shall be made unless the judge is satisfied –
(a) that there are reasonable grounds for the suspicion mentioned in subsection (1) of this section, and
(b) that detention of the cash beyond forty-eight hours is justified while it origin or derivation is further investigated or consideration is given to the institution (whether in the State or elsewhere) of criminal proceedings against any person for an offence with which the cash is connected.
(3) Any order under subsection (2) of this section shall authorise the continued detention of the cash to which it relates for such period, not exceeding three months beginning with the date of the order, as may be specified in the order, and a judge of the District Court, if satisfied as to the matters mentioned in that subsection, may thereafter from time to time by order authorise the further detention of the cash but so that –
(a) no period of detention specified in such an order, shall exceed three months beginning with the date of the...
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