Unlawful Ex Parte Access to In-Camera Family Law Files Vitiates CAB Proceeds of Crime Interim Orders

I. Introduction

This decision arises from proceeds of crime proceedings brought by the Criminal Assets Bureau (“CAB”) against “X” under the Proceeds of Crime Acts, 1996–2016 (“POC Acts”). CAB obtained an ex parte interim restraint order under section 2 of the POC Acts over a Dublin residential property (the “Property”) and certain luxury items (the “Designer Goods”), alleging they were beneficially owned by X and constituted proceeds of crime.

A unique procedural problem emerged: CAB had obtained and relied upon extracts from in camera divorce proceedings (the “Family Law Proceedings”) between “Y” and “Z” (the registered legal owners of the Property) via an ex parte order of the Circuit Court dated 2 May 2024. Y (and by email, Z) objected to any use of the family law materials. The High Court therefore convened an expedited in camera hearing (under section 8(3) of the POC Acts) to determine whether CAB could rely on the family law extracts and what consequences flowed from the manner in which those materials had been obtained.

The core issues were:

• whether the Circuit Court order granting CAB access to in camera divorce papers was lawful;
• whether the High Court could (or should) authorise CAB’s reliance on the materials (including via section 40 of the Civil Liability and Courts Act 2004); and
• whether reliance on unlawfully obtained in camera materials undermined the validity of the section 2 interim order granted ex parte against X.

II. Summary of the Judgment

The High Court held that:

• the Circuit Court order of 2 May 2024—purporting to be made under section 41 of the Data Protection Act 2018—was not lawfully made and had to be set aside;
• the High Court refused CAB’s application to refer to the Family Law Proceedings materials in the existing CAB proceedings;
• because the section 2 application and order had been granted in part on the basis of those unlawfully obtained materials, the High Court discharged the section 2 order and related orders (including liberty to issue and serve the section 3 motion);
• these orders were without prejudice to CAB seeking access to family law materials “properly pursuant to section 40” and without prejudice to any fresh POC Act application based on lawful material;
• Y’s counterclaim for damages was refused due to absence of evidence.

III. Analysis

A. The new principle (and why it matters)

The judgment establishes a clear procedural and evidential consequence in the POC Acts context: where CAB obtains in camera family law materials through an unlawful ex parte route, and those materials inform the “belief” evidence and the court’s reasoning on an ex parte section 2 application, the proper remedy may be to set aside the family law access order and discharge the section 2 restraint, rather than merely excluding the impugned material going forward.

The decision also signals a strict approach to attempts to “work around” the statutory in camera regime by invoking unrelated statutory provisions (here, the Data Protection Act 2018) and underscores heightened vigilance where a statutory body with “draconian powers” seeks to extend its reach beyond express legislative authorisation.

B. Precedents cited

1) SM v SL [2022] IEHC 449

The High Court relied heavily on SM v SL [2022] IEHC 449 (Butler J.) for the structure and purpose of section 40 of the Civil Liability and Courts Act 2004, and for the constitutional and policy underpinnings of the in camera rule. Two passages were especially influential:

Butler J. emphasised that in camera protection in family law is a general statutory safeguard tied to family privacy and dignity and “is not a protection which the courts… can readily choose to grant or withhold in individual cases.”

Quinn J. used SM in two ways:

• Normative weight: reinforcing that family-law confidentiality is not a mere procedural preference but a statutory and constitutional protection.
• Statutory architecture: supporting the view that section 40 creates distinct “pathways” for use/disclosure of in camera material, and that judicial supervision is particularly appropriate when disclosure is to a non-court entity.

2) AX v BX [2023] IECA 109

AX v BX [2023] IECA 109 (Collins J.) was central to clarifying section 40’s mechanics, especially the “self-executing” nature of section 40(6) and (7) (and, post-2023, the confirmatory effect of section 40(7A)). Quinn J. relied on AX to reject the notion that section 40(6) or (7) could be the mechanism for CAB to obtain a court-directed release to X; rather, CAB was necessarily attempting to invoke section 40(8).

The judgment adopts the AX distinction:

• Section 40(6)–(7): permissive, generally “self-executing” routes for production/giving of documents or evidence to certain bodies when they are performing statutory functions (without court leave).
• Section 40(8): a discretionary court power, bounded by its text (court hearing the relevant in camera proceedings; own motion or party application; “required” to protect legitimate interests of a party/affected person).

3) CAB v Murphy [2018] 3 IR 640

CAB v Murphy [2018] 3 IR 640 (O’Malley J.) was invoked to frame the consequences of unlawfully obtained material in civil proceedings and to locate the issue in the broader constitutional values underpinning exclusionary principles (integrity of justice, deterrence of unlawful state conduct, vindication of rights).

Although Quinn J. described the problem as not “strictly” a classic exclusionary-rule question, Murphy supplied the analytical bridge: where unlawfulness contaminates the foundational steps by which proceedings are commenced (here, the section 2 order), the court may adopt structural remedies—such as discharging orders—rather than merely ruling on admissibility at trial.

4) Dellway v NAMA [2011] 4 IR 1

Dellway v NAMA [2011] 4 IR 1 was cited for fair procedures: where a decision is capable of materially affecting a person’s rights or interests, they are generally entitled to be heard. Quinn J. used this logic to doubt that section 40(8) could plausibly contemplate ex parte disclosure orders affecting the privacy rights of family-law litigants.

5) Murphy v GM [2001] 4 IR 113

Murphy v GM [2001] 4 IR 113 was invoked by Y to emphasise the principle that statutory bodies must act within their powers and that courts should restrain or correct overreach. While not determinative, it supported the judgment’s scepticism toward implying additional investigative powers to CAB that intrude upon protected family-law confidentiality.

6) CAB v Routeback Media [2025] IESC 34

The Supreme Court’s characterisation (via Murray J.) of CAB’s powers as “draconian” in CAB v Routeback Media [2025] IESC 34 reinforced the High Court’s approach: because CAB is a creature of statute with significant coercive tools, any attempted extension into sensitive domains (like in camera family law files) must be clearly authorised by legislation, not improvised by ex parte applications grounded on inapposite statutory provisions.

7) Other authorities referenced

• DPP v JC [2017] 1 IR 417 and The People (Attorney General) v. O'Brien[1965] I.R. 142: background to exclusionary principles; used via CAB v Murphy.
• Lynch v. Attorney General[2003] 3 I.R. 416: referenced in CAB v Murphy regarding nullifying proceedings for serious rights breaches.
• F McK v. FC [2001] 4 IR 521: cited (via Routeback) on the legislative justification for robust CAB powers—yet implying boundaries as well as breadth.
• W. v W. Unreported, High Court, 10 April 1978 and L.M. v M. [1994] 2 Fam. L.J. 60 (Supreme Court): referenced in SM on how in camera norms have been applied even when family-related disputes arise in other procedural guises.

C. Legal reasoning

1) The Circuit Court order: section 41 Data Protection Act 2018 could not do the work

The Circuit Court order purported to be made “pursuant to Section 41 of the Data Protection Act 2018” and permitted CAB to copy the divorce file (excluding any Affidavit of Welfare). CAB candidly conceded in submissions that section 41 does not provide a sound legal basis to override the statutory in camera rule in divorce proceedings. Quinn J. agreed, holding that section 41 is not a jurisdiction-conferring mechanism for lifting in camera protections.

The court went further: it rejected the suggestion that the Circuit Court could rely on inherent jurisdiction to override an explicit statutory rule requiring family law proceedings to be “heard otherwise than in public” (by operation of section 38(5) of the Family Law (Divorce) Act 1996 applying section 34 of the Judicial Separation and Family Law Reform Act 1989). As a court of limited and local jurisdiction, the Circuit Court could not claim an inherent power to disapply express statutory confidentiality.

2) Why ex parte mattered (and why “no urgency” was fatal)

Even apart from jurisdictional defects, Quinn J. regarded the ex parte nature of CAB’s family-law file application as a serious procedural wrong. The affidavit did not justify proceeding without notice; there was no urgency; the “tipping off” rationale did not fit the facts because Y, Z, and X were already aware of a CAB investigation; and there was no plausible risk of interference with court files.

The ex parte step was not treated as a mere technicality. It was the mechanism by which private, statutorily protected family-law material left the protected sphere without the litigants’ knowledge or opportunity to object—precisely the kind of rights-impacting decision that ordinarily triggers fair procedures concerns.

3) Section 40 of the 2004 Act: the High Court refused to retrofit legality

CAB attempted to salvage the situation by relying on section 40 of the Civil Liability and Courts Act 2004—especially section 40(8)—and by suggesting the High Court could exercise jurisdiction to permit use/disclosure of the family-law materials.

Quinn J. rejected this route in substance and in principle:

• Text and forum: section 40(8) speaks of “a court hearing proceedings under a relevant enactment” ordering disclosure. On the facts, that “court” was the Circuit Family Court that heard the divorce.
• Procedural fairness: section 40(8) disclosure would foreseeably affect parties’ rights, making an ex parte approach difficult to reconcile with fair procedures principles (reinforced by Dellway v NAMA [2011] 4 IR 1).
• “Legitimate interests” requirement: CAB struggled to show how disclosure of divorce materials was “required” to protect the legitimate interests of a party or person affected by the family law proceedings (as opposed to CAB’s interest in prosecuting POC Act litigation).
• Inherent jurisdiction caution: the court was unwilling to assume an inherent or parallel power allowing the High Court to do what section 40(8) appears to assign to the court seized of the in camera proceedings—particularly where the Oireachtas has legislated in detail on how confidentiality can be relaxed.
• Statutory-body applications (express doubt): Quinn J. expressed additional doubts (obiter but pointed) that section 40(8) permits a statutory body like CAB to bring speculative applications for access to in camera materials, noting that the subsection contemplates disclosure on the court’s own motion or on application by a party, and that the statutory design appears to avoid speculation by those not familiar with file contents.

4) Remedy: discharge of the section 2 order as the proportionate structural response

Having found the family-law access order unlawful and having refused to authorise CAB’s reliance on the materials, the key remedial question was what to do about the existing POC Acts section 2 order, granted ex parte and supported by “belief” evidence that explicitly relied on how the Property was treated in the Family Law Proceedings.

Quinn J. opted to discharge the section 2 order. The reasoning was practical and principled:

• Foundational reliance: the impugned materials formed part of the court’s reasons and part of the “belief” foundation for the interim restraint.
• Integrity of process: allowing the proceedings to continue while quarantining the material risked prolonged satellite litigation and would inadequately address the taint at the commencement stage.
• Alignment with Murphy principles: consistent with CAB v Murphy [2018] 3 IR 640, where unconstitutional/illegal state action can justify robust remedies to protect the integrity of justice and deter unlawful conduct.

Importantly, the discharge was framed without prejudice: CAB could continue investigating and could bring a fresh application grounded on lawfully obtained material; and the possibility of obtaining family-law information “properly pursuant to section 40” was preserved.

D. Impact

1) For CAB investigations and POC Acts practice

• No “data protection shortcut” to in camera files: the judgment closes off reliance on section 41 of the Data Protection Act 2018 as a mechanism to access in camera family law files.
• Ex parte applications scrutinised: where the subject matter is statutorily protected privacy (family law), the court signals that unsupported ex parte applications are particularly vulnerable.
• Proceedings-at-birth vulnerability: if unlawfully obtained in camera material is used to ground “belief” evidence and influence a section 2 order, the entire interim order may be discharged—even if other evidence might have existed.

2) For family law confidentiality

• Reaffirmation of the in camera rule’s strength: the decision treats the rule as a statutory/constitutional protection not lightly displaced.
• Section 40(8) not easily expandable: the judgment’s doubts about non-party statutory bodies invoking section 40(8) (and about ex parte usage) will likely shape future applications seeking family-law material for collateral litigation.

3) For courts and litigants

• Remedial clarity: the judgment provides a concrete remedial template: set aside unlawful access orders and unwind downstream ex parte orders that depended on the unlawfully obtained material.
• Process discipline: it encourages applicants to identify the correct statutory basis, bring appropriate parties on notice, and avoid speculative fishing expeditions into in camera files.

IV. Complex concepts simplified

1) “In camera” rule

“In camera” means the hearing is not in public. In Irish family law (including divorce), this is mandated by statute to protect privacy, dignity, and family life. It is not merely a discretionary confidentiality order; it is a default legal requirement.

2) “Ex parte” application

An ex parte application is made without notifying the other side. It may be permitted where urgency or risk of defeat of justice justifies it. Here, the court found no adequate reason for excluding Y and Z from an application that affected their statutory privacy rights.

3) POC Acts section 2 vs section 3

• Section 2: an interim restraint order (typically obtained ex parte) preventing disposal/dealing with property suspected to be proceeds of crime.
• Section 3: the on-notice phase where longer-term orders may be sought and contested.

4) “Belief evidence”

POC Act applications often rely on a senior Garda affidavit stating a belief that property is the proceeds of crime, with grounds. If key grounds are derived from unlawfully obtained material, the reliability and legality of the section 2 order’s foundation is undermined.

5) Section 40 of the Civil Liability and Courts Act 2004 (the “two pathways” idea)

Section 40 contains mechanisms that qualify the in camera rule in limited circumstances. Sections 40(6)–(7) permit production/giving of documents/evidence to certain statutory bodies when performing statutory functions, and (post-2023) section 40(7A) confirms no court leave is required for that. Section 40(8) separately gives the court hearing the in camera proceedings a discretion to order disclosure to third parties where required to protect legitimate interests.

6) Exclusionary principles in civil proceedings

Irish law recognises that unlawfully obtained evidence may have consequences beyond criminal trials. In CAB litigation, courts may adopt remedies (including dismissal/discharge in appropriate cases) to protect the integrity of justice, deter unlawful state conduct, and vindicate rights, as articulated in CAB v Murphy [2018] 3 IR 640.

V. Conclusion

Criminal Assets Bureau v X and Y and Z (Approved) [2026] IEHC 34 is a significant procedural decision at the intersection of proceeds-of-crime enforcement and family-law confidentiality. The High Court held that an ex parte Circuit Court order—purportedly grounded in section 41 of the Data Protection Act 2018—could not lawfully override the statutory in camera rule in divorce proceedings, and it set that order aside. The court refused to retrospectively legitimise CAB’s use of the materials via section 40 of the Civil Liability and Courts Act 2004 or inherent jurisdiction, and it discharged the downstream POC Acts section 2 interim restraint order that had been granted in part on the basis of the unlawfully obtained family-law information.

The key takeaway is clear: where CAB (or any statutory body) seeks access to in camera family-law materials, legality, notice, and the statutory architecture of section 40 are not optional—failures may undo not only the disclosure step but also any ex parte orders built upon it.