The Director of Public Prosecutions v Baxter (Approved)

Factual and Procedural Background

This opinion concerns an application pursuant to section 39 of the Criminal Justice Act 1994 (as amended) regarding the forfeiture of cash seized by customs officers from the Appellant at Dublin Airport. The cash, totaling €79,950 in €50 notes, was found in the Appellant's carry-on bag while he was about to board a flight to Barcelona.

The Director of Public Prosecutions (Applicant/Respondent) contends that the cash directly or indirectly represented proceeds of crime or was intended for use in criminal conduct and was lawfully seized under statutory powers. The Appellant disputes the legality of the customs officers’ conduct leading to the discovery of the cash and challenges the sufficiency of proof that the cash represented proceeds of crime or was intended for criminal use. The matter comes before the High Court on appeal from an order of the Circuit Court following a forfeiture application made by the Director of Public Prosecutions.

Legal Issues Presented

1. Whether the seizure and detention of the cash by customs officers under section 38(1A) of the Criminal Justice Act 1994 (as amended) was lawful.
2. Whether the cash seized directly or indirectly represented proceeds of crime or was intended for use in criminal conduct.
3. Whether any alleged illegality or breach of constitutional rights in the conduct of customs officers justifies refusal of the forfeiture order.
4. The applicability and scope of powers conferred on customs officers under section 31 of the Customs Act 2015 in stopping, questioning, and searching persons and baggage.

Arguments of the Parties

Appellant's Arguments

• The decision to engage with and question the Appellant was unlawful.
• The officers lacked legal authority to request and search the Appellant's carry-on bag.
• The subsequent seizure of cash was illegal and breached the Appellant’s constitutional rights.
• The Director of Public Prosecutions failed to prove that the cash represented proceeds of crime or was intended for criminal use.

Applicant/Respondent's Arguments

• The Appellant voluntarily answered questions and consented to the search of his carry-on bag.
• No breach of legal rights arises where the affected person consents to the search and questioning.
• Customs officers have statutory powers under section 31 of the Customs Act 2015 to stop, question, and examine baggage, subject to certain conditions.
• The cash was properly seized under section 38(1A) of the Criminal Justice Act 1994, as amended by the Proceeds of Crime (Amendment) Act 2005.
• The cash directly or indirectly represented proceeds of crime or was intended for use in criminal conduct, proven on the balance of probabilities.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by outlining the statutory framework governing customs officers’ powers to stop, question, and search travellers and their baggage, particularly under sections 31 and 38(1A) of the Customs Act 2015 and the Criminal Justice Act 1994 respectively. It noted that customs officers have broad powers to prevent exportation of prohibited goods and cash suspected to be proceeds of crime, with certain qualifications for intra-EU travel.

The court found that the customs officer’s initial engagement with the Appellant was lawful, supported by routine profiling and reasonable grounds to suspect the carriage of goods subject to export prohibition. The Appellant voluntarily answered questions and consented to the search of his carry-on bag, which led to the discovery of the cash.

Even if consent or reasonable grounds were lacking, the court held that any such deficiency would not justify refusal of forfeiture, relying on established jurisprudence that illegally obtained property, especially when connected to crime, may still be subject to forfeiture without undermining the administration of justice.

The court rejected the Appellant’s explanations for the source and purpose of the cash as unbelievable, noting inconsistencies and failure to produce supporting evidence. It also considered relevant the Appellant’s prior seizure of a large sum of cash abroad in suspicious circumstances, reinforcing the inference that the Appellant was acting as a courier for criminal proceeds.

Accordingly, the court concluded that the cash was properly seized and represented proceeds of crime or was intended for criminal use, meeting the balance of probabilities standard required for forfeiture.

Holding and Implications

The appeal is dismissed and the forfeiture order affirmed.

The court upheld the forfeiture of the cash seized from the Appellant, now represented by a deposit balance in a bank account, allowing the funds to be paid into or disposed of for the benefit of the Exchequer pursuant to ministerial directions. No broader precedent was established beyond the direct effect on the parties. The decision confirms the lawful exercise of customs powers under the relevant statutes and affirms that alleged procedural irregularities or consent issues do not automatically preclude forfeiture where the property is connected to criminal conduct.