Sequential Seizure of Cash: s.7 Criminal Justice Act 2006 and Later s.38 Criminal Justice Act 1994 Are Cumulative Powers (Not a Single Time-Accruing Detention)

1) Introduction

This High Court judicial review ([2026] IEHC 372, Bradley J) arose from a transnational investigation (“Operation Wattle”) into alleged organised immigration-smuggling and related offences. During a District Court warrant search of the second applicant’s home in August 2021, Gardaí seized €16,000 cash and retained it under s.7 Criminal Justice Act 2006 as suspected evidence of an arrestable offence.

While the investigation continued, the applicants pursued return of the cash in the District Court under the Police (Property) Act 1897 (as incorporated by s.7). That application was repeatedly adjourned on the basis that the cash was evidence in an ongoing investigation. In April 2024 the Director of Public Prosecutions directed no prosecution. Days later, Gardaí re-seized the cash—then held at GNIB offices—under s.38(1A) Criminal Justice Act 1994 on suspicion it represented proceeds of crime / was intended for use in criminal conduct, obtained District Court detention orders, and the DPP initiated (and adjourned pending this JR) a s.39 forfeiture application in the Circuit Court.

The applicants’ core complaint was that the State had effectively retained their cash for about 4 years and 8 months without sufficient judicial safeguards, arguing (i) “cash” was not a “thing” under s.7, (ii) s.38 should have been used from the outset as lex specialis, and (iii) s.7 was unconstitutional and/or incompatible with the ECHR Act 2003 framework.

Key parties (role-based)

  • Applicants: two private individuals whose cash was seized.
  • Respondents: An Garda Síochána entities, the State, and the Attorney General; the DPP joined.

Central issues

  1. Does s.7 Criminal Justice Act 2006 permit seizure/retention of cash as a “thing”?
  2. Is it lawful to seize cash under s.7 (evidence) and later seize the same cash under s.38 (proceeds of crime)?
  3. Do the earlier s.7 retention period and later s.38 detention period aggregate so as to defeat the s.38 two-year cap?
  4. Is s.7 unconstitutional (property/fair procedures/judicial power) or incompatible with ECHR rights?

2) Summary of the Judgment

The High Court refused all substantive reliefs. Bradley J held that:

  • Cash is a “thing” within s.7(1) of the 2006 Act and may be seized/retained as evidence where statutory conditions are met.
  • It is lawful to seize and retain cash under s.7 during an investigation and later seize/detain it under s.38 (the applicants’ lex specialis argument failed).
  • The two-year limit in s.38 runs from the s.38 seizure date; the prior time the cash spent in Garda custody under s.7 does not count toward the s.38 maximum detention period.
  • s.7(1) is not unconstitutional and does not warrant a declaration of incompatibility under s.5 ECHR Act 2003.

Although preliminary objections (mootness/alternative remedies) were raised, the judge elected to address the merits. The Court also agreed to amend the title to remove an individual Garda member incorrectly named as a respondent.

3) Analysis

A) Precedents Cited and Their Role

DPP v McDermott [2022] IECA 334 (“McDermott”) — the decisive authority

McDermott was treated as binding and “an insuperable obstacle” to the applicants’ core thesis. There, cash seized during a search and retained as potential evidence under s.7 was later seized under s.38. McCarthy J held (on “first principles”) there is no bar to invoking a later statutory power over lawfully-held property; the operative “seizure” for s.38 purposes is the later s.38 seizure, which grounds the s.38/s.39 procedures.

Bradley J applied this directly: the earlier evidential seizure does not “sanitize” the cash against later proceeds-of-crime seizure, nor does it collapse the statutory schemes into one continuous detention clock.

Kelly v Dunne and The Commissioner of An Garda Síochána (unreported, High Court, 4th March 2011) (“Kelly”) and Chief Constable of Merseyside Police v Hickman & Ors [2006] EWHC 451

These cases underpin the same concept: property already lawfully in police custody can be subsequently seized again under a different statutory power where the later statutory preconditions arise. Bradley J relied on McDermott’s account of them to reinforce the permissibility of sequential seizure regimes.

Howe v Revenue Commissioners [2017] IEHC 153 (“Howe”) and Kane v Revenue Commissioners [2020] IEHC 275 (“Kane”)

These were invoked mainly on procedural/alternative remedy points and the practical consequences of challenging “spent” s.38 orders. The judgment notes that Kane emphasised: (i) an extant s.39 process is a reason to refuse relief that would undermine it; and (ii) s.38(5) offers a route to seek release of detained cash. However, Bradley J did not decide the case on those preliminary grounds, choosing instead to determine the substantive legality.

The judgment nonetheless reflects Kane’s broader theme: judicial review should not be used to destabilise active statutory forfeiture litigation in which merits can be contested.

The Director of Public Prosecutions v England [2011] IESC 16

Cited (via Kane) for the jurisdictional link between s.38 and s.39: forfeiture jurisdiction depends on a forfeiture application being made during the currency of a valid s.38 detention. Bradley J did not need to apply it to strike down the s.38 process, but accepted the doctrinal point.

Reilly v DPP & Ors [2016] IESC 59 (“Reilly”)

Applied to the timing of a “made” s.39 application and service on the affected person, and to the significance of not using s.38(5). Bradley J used Reilly to reject the applicants’ argument that time limits were breached: the s.39 motion was issued and served within the statutory period, and the adjournment did not take the case outside time.

DPP v Crawford [2024] IESC 44 and Heather Hill v An Bord Pleanála [2022] IESC 43; [2024] 2 I.R. 222

These authorities were used to frame the Court’s interpretative methodology: start with plain language, then context and purpose; courts should not substitute subjective conceptions of intent for statutory text. This supported the conclusion that “thing” in s.7 naturally includes cash.

Vehicle Tech Ltd. v AIB [2010] IEHC 525; [2012] 2 I.R. 131 (“Vehicle Tech Ltd”)

The applicants relied on Vehicle Tech Ltd to argue that procedural safeguards are required even absent proof that property is criminal proceeds. Bradley J distinguished it: Vehicle Tech Ltd involved an indefinite freezing mechanism with no safeguards, whereas s.7 provides limiting conditions (reasonable belief; reasonable retention period; linkage to proceedings; incorporation of the 1897 Act). Accordingly, Vehicle Tech Ltd did not displace the presumption of constitutionality of s.7.

Heaney v Ireland [1996] 1 I.R. 580; [1997] 1 ILRM 117 (“Heaney”)

The Court applied Heaney’s proportionality test and held s.7 is proportionate: it pursues a pressing objective (criminal investigation), is rationally connected, minimally impairing, and balanced in effects.

Damache v Ireland [2012] IESC 11; [2012] 2 I.R. 266, The People (DPP) v Quirke [2023] IESC 5, and Poptoshev v The DPP & Ors [2025] IESC 47

These supported the proposition that search warrants entail judicial scrutiny; in this case, the initial entry/search was under District Court warrant, reinforcing procedural legitimacy around the investigative context for the s.7 seizure.

MD v Ireland [2012] IESC 10; [2012] 1 I.R. 697 (“MD”) and Costello v Government of Ireland [2022] IESC 44

Cited in the Court’s discussion of the ECHR Act 2003’s domestic status: the Convention is not directly effective; Irish courts grant declarations of incompatibility under s.5 rather than striking down legislation, and ECtHR judgments are not domestically “binding” in the same manner as constitutional norms.

Criminal Assets Bureau v Murphy [2018] IESC 12; [2018] 3 I.R. 640 (“Murphy”) and The People (DPP) v JC [2015] IESC 31; [2017] 1 I.R. 417 (“JC”)

The Court referenced these (and DPP v Baxter [2021] IEHC 256) to underscore that illegality in an initial taking does not necessarily entail return of property where other legal regimes (including proceeds-of-crime measures) may apply; and that there is no right to possess certain categories of property (e.g. contraband/proceeds). While not determinative, these cases supported the Court’s broader refusal to treat the initial evidential seizure as “contaminating” later proceeds-of-crime action.

Cusack v London Borough of Harrow [2013] UKSC 40 and Westminster Bank Ltd v Minister of Housing and Local Government [1971] AC 508 (“Westminster Bank”)

Used by analogy to rebut “choose the compensatory/safeguarded route” arguments: where legislation provides overlapping powers, an authority is generally entitled to rely on the power whose conditions are met, absent abuse. Bradley J used this to reinforce that the existence of s.38 safeguards did not negate lawful reliance on s.7 where its own criteria were satisfied.

B) Legal Reasoning

1. Two statutory regimes with different functions

The Court treated s.7 (2006 Act) and s.38 (1994 Act) as distinct regimes:

  • s.7: evidential seizure/retention of “any thing” where there are reasonable grounds to believe it is evidence of, or relates to, an arrestable offence; retention for a reasonable period, or until the conclusion of proceedings if commenced; thereafter the 1897 Act applies.
  • s.38: seizure/detention of cash (typically in import/export contexts) on reasonable suspicion it is proceeds of crime / intended for criminal conduct; District Court oversight by rolling orders; overall detention generally capped at two years (subject to s.38(3A) once s.39 is engaged).

Overlap in subject-matter (money and crime) did not collapse the schemes into a single “joined-up” super-regime, and did not transform s.38 into an exclusive lex specialis.

2. “Thing” in s.7 includes cash

Applying orthodox statutory interpretation (DPP v Crawford; Heather Hill), the Court held the repeated references to “thing” in s.7 naturally include the seized cash. The applicants’ attempt to carve cash out of s.7 was inconsistent with the text and with McDermott.

3. Sequential seizure is lawful; no “contamination” doctrine

The applicants argued that any unlawfulness or inadequacy in the initial s.7 seizure/retention “contaminated” the later s.38 seizure. The Court rejected this approach, adopting McDermott’s first-principles reasoning: there is no general statutory or constitutional rule preventing a later seizure under a different statute of property already lawfully held by Gardaí.

4. The s.38 two-year period runs from the s.38 seizure

The judge rejected the idea that time in State custody under s.7 should be added to time under s.38 to create a composite “4 years and 8 months” detention. On the statutory scheme, the s.38 clock begins when cash is seized under s.38 (here, 14 April 2024), with subsequent District Court orders and then the s.39 application made within time (consistent with Reilly).

5. Constitutional analysis: presumption of constitutionality; proportionality

The applicants sought declarations that s.7 lacked safeguards and impermissibly allocated judicial functions to non-judicial actors, infringing Articles 40.3, 43 and 37. The Court applied the presumption of constitutionality and the double construction rule (with references to McDonald v Bord na gCon (No.2) [1965] I.R. 217 and East Donegal Cooperative v Attorney General [1970] 1 I.R. 317, among others), and held the applicants did not displace that presumption.

Crucially, the Court saw s.7 as materially different from the indefinite bank-freezing mechanism struck down in Vehicle Tech Ltd. Here, the seizure was:

  • triggered by a search warrant issued by the District Court (judicially-supervised entry),
  • limited by reasonable belief requirements,
  • bounded by a reasonableness retention limit and/or the life of proceedings, and
  • supplemented by the ability to seek return under the 1897 Act.

Under Heaney, these features rendered the interference with property rights proportionate to legitimate investigative aims.

6. ECHR Act 2003 analysis: no incompatibility

The Court rejected the applicants’ request for a s.5 declaration of incompatibility (Articles 6, 8, 13 and A1P1). The reasoning tracked the constitutional outcome and was reinforced by the Irish model of indirect ECHR incorporation (not direct effect), as explained in MD, and contrasted with the UK Human Rights Act 1998.

C) Impact

1. Consolidation of a practical “two-track” approach to cash

This decision, applying DPP v McDermott [2022] IECA 334, confirms that Gardaí may: (i) seize and retain cash as evidence under s.7 during an investigation, and later (ii) re-seize it under s.38 where suspicion crystallises that it is proceeds of crime / intended for criminal conduct.

2. No aggregation of time across regimes

The judgment is likely to be cited for the proposition that the s.38 two-year maximum detention is not defeated by pointing to earlier periods of lawful custody under evidential seizure powers. That provides operational certainty in complex investigations where evidential status may later evolve into proceeds-of-crime suspicion.

3. Constitutional/ECHR challenges to s.7 face a high threshold

By distinguishing Vehicle Tech Ltd and emphasising statutory constraints (reasonable belief; reasonable period; 1897 Act route; warrant-based entry), the decision signals a strong judicial reluctance to characterise s.7 as an “open-ended” detention power akin to indefinite freezing.

4. Procedural strategy: use of s.38(5) and engagement with s.39

While not decisive, the judgment highlights that affected persons have procedural routes within the statutory scheme itself: s.38(5) (District Court release) and contesting s.39 forfeiture in the Circuit Court, with appeal rights under s.40.

4) Complex Concepts Simplified

“Seizure” vs “retention” vs “detention”
  • Seizure: the act of taking possession of property under a statutory power.
  • Retention (s.7): keeping the seized “thing” for evidential use for a reasonable period / until proceedings end.
  • Detention (s.38): a distinct statutory regime for holding cash suspected to be proceeds of crime, with District Court oversight and time limits.
Lex specialis
The idea that a more specific law displaces a more general one. The Court rejected the claim that s.38 (cash/proceeds) must always be used instead of s.7 (evidence/any thing), where s.7’s conditions are met.
Presumption of constitutionality & double construction rule
Courts presume statutes are constitutional and, where two interpretations are genuinely open, prefer the one consistent with the Constitution. The Court held the applicants failed to show s.7 was constitutionally defective.
Declaration of incompatibility (ECHR Act 2003, s.5)
A finding that a statute is incompatible with the State’s ECHR obligations; unlike unconstitutionality, it does not invalidate the statute. The Court refused such relief here.
In rem forfeiture (s.39)
Proceedings directed at the property (cash) rather than a criminal charge against a person. The cash can be forfeited on statutory criteria even if no prosecution is taken.

5) Conclusion

[2026] IEHC 372 affirms that cash can be seized as a “thing” under s.7 Criminal Justice Act 2006, and later seized under s.38 Criminal Justice Act 1994 without any requirement that the State choose s.38 from the outset. The Court rejected an aggregation approach that would treat time in custody under s.7 as counting toward the s.38 detention cap, and it upheld s.7 against constitutional and ECHR-based challenges, distinguishing the indefinite-freezing defect identified in Vehicle Tech Ltd. v AIB [2010] IEHC 525; [2012] 2 I.R. 131.

The practical significance lies in the judgment’s endorsement of sequential statutory tools in complex investigations: evidential seizure may lawfully transition into proceeds-of-crime detention and forfeiture procedures as investigative hypotheses develop.