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AM v The Minister for Enterprise, Trade & Employment & ors (Approved)
Factual and Procedural Background
The Applicants are the two persons identified in the originating proceedings (the "Applicants"). The First to Fourth Named Respondents include the national police and associated State entities and the Fifth Named Respondent is the Director of Public Prosecutions. In 2021 the police commenced a transnational investigation ("Operation Wattle") into an alleged organised criminal group. On 11 August 2021 a District Court issued a search warrant for the home of the Second Named Applicant. On 12 August 2021 police seized €16,000 in cash from the premises pursuant to s.7 of the Criminal Justice Act 2006 and retained it as evidence while investigating alleged offences.
The Applicants brought District Court proceedings under the Police (Property) Act 1897 seeking return of the cash; those proceedings were listed and adjourned repeatedly while the investigation continued. On 2 April 2024 the DPP directed that there would be no prosecution of the Second Named Applicant. On 14–15 April 2024 the police seized the cash from their offices pursuant to s.38 of the Criminal Justice Act 1994 and obtained District Court orders under s.38(2) authorising detention; subsequent s.38 orders were granted and, in March 2025, the DPP issued a motion under s.39 for forfeiture which remains extant and is adjourned pending this judicial review. The Applicants obtained High Court leave to apply for judicial review and challenge the lawfulness of the initial s.7 seizure, the later s.38 detention, and the compatibility of s.7(1) (and the processes applied) with constitutional and ECHR rights.
Legal Issues Presented
- Whether the initial seizure and retention of the cash on 12 August 2021 under s.7 of the Criminal Justice Act 2006 was lawful and compatible with constitutional and ECHR protections.
- Whether the subsequent seizure from police custody on 14 April 2024 and detention under s.38 of the Criminal Justice Act 1994 was lawful and whether the prior s.7 process contaminated or rendered the s.38 seizure unlawful.
- Whether alternative remedies (including the Police (Property) Act proceedings and the remedy under s.38(5) of the 1994 Act) were adequate and required exhaustion so as to preclude relief in judicial review.
- Whether s.7(1) of the 2006 Act is constitutionally or conventionally incompatible (including alleged breaches of Articles 40.3, 43 of the Constitution and Articles 6, 8, 13 and Protocol 1 of the ECHR) and, if so, whether relief should follow.
Arguments of the Parties
Applicants' Arguments
- The Applicants enjoyed the presumption of innocence and the cash was not evidence of an offence; when the DPP directed no prosecution on 2 April 2024 the cash should have been returned.
- The initial seizure under s.7 (12 August 2021) lacked appropriate safeguards and judicial oversight; that defect "contaminated" the later s.38 seizure and detention, so the total effective period of deprivation was approximately 4 years 8 months.
- S.38 of the 1994 Act (which addresses cash and contains periodic judicial oversight) is the lex specialis and should have been applied from the outset; s.7(1) of the 2006 Act is inadequate for cash and incompatible with constitutional and ECHR rights.
- The Police (Property) Act remedy was ineffectual and s.38(5) was not an adequate alternative where the Applicants were challenging the lawfulness of the earlier process.
Respondents' Arguments (First to Fourth and Fifth Named Respondents)
- Preliminary objections: the Police (Property) Act proceeding was rendered moot by the later s.38 process and the Applicants failed to exhaust adequate alternative remedies.
- The s.7 seizure and retention were lawful in the investigative context; cash falls within "thing" in s.7 and the subsequent use of s.38 was permissible.
- S.38 procedures (including the two-year detention regime and the available forfeiture process) were properly invoked and the forfeiture application was brought within statutory time limits; no breach of temporal limits in s.38(3)(b) was shown.
- Statutory provisions are to be read with the presumption of constitutionality; the Applicants had not displaced that presumption and s.7 meets the Heaney proportionality test.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Vehicle Tech Ltd. v AIB [2010] IEHC 525; [2012] 2 I.R. 131 | That a claimant need not conclusively establish that funds are not proceeds of crime to obtain procedural safeguards. | Cited by the Applicants; Court noted the point but did not find it dispositive of the challenge to s.7 in this case. |
| Howe v Revenue Commissioners [2017] IEHC 153 | Addressed interaction of detention orders and challengeability once s.38 order is spent. | Referenced in discussion of alternative remedies and mootness; used to illustrate the consequences of the s.38 process. |
| Kane v Revenue Commissioners [2020] IEHC 275 | Discussed that once s.38 order is spent it may not be challengeable; described the role of Circuit Court forfeiture proceedings and options for applicants. | Applied as precedent on alternative remedies; Court treated it as authority that a s.38 process can preclude certain judicial review remedies but considered other factors in this case. |
| The Director of Public Prosecutions v England [2011] IESC 16 | Dicta that jurisdiction to seek forfeiture under s.39 depends on a valid s.38 detention. | Quoted in relation to the dependence of forfeiture jurisdiction upon valid s.38 detention; considered in assessing mootness and validity issues. |
| Byrne v Grey [1988] IR 31; Berkeley v Edwards [1988] I.R. 217; Simple Imports v Revenue Commissioners [2000] 2 IR 243 | Authorities on interaction of parallel processes and the risk of undermining related proceedings by judicial review. | Mentioned in the context of authorities identified in Kane; used to support the proposition that interfering with s.39 process may be inappropriate. |
| DPP v McDermott [2022] IECA 334 | Permitted initial seizure under s.7 and later seizure/detention under s.38; held lawful to rely on s.38 after initial retention under s.7. | Regarded by the Court as binding and an insuperable obstacle to the Applicants' arguments that sequential use of s.7 and s.38 was unlawful. |
| Kelly v Dunne and The Commissioner of An Garda Síochána (unreported, High Court, 4 March 2011) | Held lawful for s.38 to apply to cash already seized under other provisions (s.9 of 1976 Act analogous to s.7 of 2006 Act). | Referred to as supporting authority for the proposition that later s.38 seizure of cash in garda custody is lawful. |
| Chief Constable of Merseyside Police v Hickman & Ors [2006] EWHC 451 | English authority holding police may rely on different statutory powers sequentially to deal with cash already seized. | Adopted in reasoning cited in Kelly and McDermott to support sequential statutory reliance; court referenced it in identical context. |
| DPP v Crawford [2024] IESC 44 | Principles of statutory interpretation: plain language, context, purpose and broader framework. | Applied as a reminder of interpretive approach; supported reading "thing" in s.7 to include cash. |
| Heather Hill v An Bord Pleanála [2022] IESC 43; [2024] 2 I.R. 222 | Statutory interpretation should be based on textual meaning; courts must not impose subjective views of legislative intent. | Relied on to support textual reading of "thing" in s.7 to include cash. |
| Sweeney v Ireland [2019] IESC 39 | Authority on presumption of constitutionality and related interpretive rules. | Referred to in discussion of presumption of constitutionality and onus on Applicants to displace it. |
| Jordan v Minister for Children and Youth Affairs [2015] 4 I.R. 232 | Referenced for interpretive and constitutional construction principles. | Used to support the rule that where possible courts adopt constitutional constructions. |
| McDonald v Bord na gCon (No.2) [1965] I.R. 217; East Donegal Cooperative v Attorney General [1970] 1 I.R. 317 | Foundational authorities on presumption of constitutionality and the double construction rule. | Cited to confirm onus and interpretive duties in constitutional challenge to s.7. |
| The People (DPP) v Quirke [2023] IESC 5 | Statements on limits of statutory reinterpretation and on the role of courts in construing legislation vis-à-vis constitutional text. | Quoted for proposition that courts must avoid forcing impossible constructions and to support analysis of judicial warranting of search powers. |
| Poptoshev v The DPP & Ors [2025] IESC 47 | Referenced in relation to judicial oversight of search warrants. | Cited to support point that the District Court's issuance of the search warrant constituted judicial scrutiny of the initial entry and seizure. |
| Damache v Ireland [2012] IESC 11; [2012] 2 I.R. 266 | Authority on requirements for issuance of search warrants and judicial oversight. | Applied to note the District Court's role in authorising the initial search warrant in August 2021. |
| Reilly v DPP & Ors [2016] IESC 59 | Considered timing of service and when s.39 forfeiture applications fall within the two-year limit. | Used to support the conclusion that the forfeiture application in this case was issued and served within statutory time limits. |
| DPP v Baxter [2021] IEHC 256 | Example of s.38(1A) seizure and judicial affirmation of lawful seizure where proceeds of crime suspicion established. | Referred to as a comparable case confirming lawful use of s.38 powers. |
| Criminal Assets Bureau v Murphy [2018] IESC 12; [2018] 3 I.R. 640 | Principles on civil confiscation and the consequences of unlawful State action on seized property. | Referred to in respect of limits to automatic return of assets and interaction with forfeiture/confiscation regimes. |
| The People (DPP) v JC [2015] IESC 31; [2017] 1 I.R. 417 | Rule concerning challenge to civil confiscation procedures. | Noted in discussion of when orders dismissing State applications do or do not require return of property. |
| MD v Ireland [2012] IESC 10; [2012] 1 I.R. 697 | Limits of direct effect of Convention rights domestically and constraints on pleading Convention breaches as stand-alone claims. | Relied on to explain the ECHR Act 2003's indirect, sub-constitutional effect and pleading constraints. |
| Costello v Government of Ireland [2022] IESC 44 | Observation that ECtHR decisions do not have automatic binding domestic legal status under the 2003 Act. | Referenced in discussion of the interpretive and remedial framework under the ECHR Act 2003. |
| Cusack v London Borough of Harrow [2013] UKSC 40 | Permissibility of choosing one statutory power over another when both can achieve an objective. | Adopted by analogy to support that authorities may choose between s.7 and s.38 powers without it being abusive per se. |
| Westminster Bank Ltd v Minister of Housing and Local Government [1971] AC 508 | Authority endorsing choice between alternative statutory powers even where one involves compensation. | Quoted via Cusack to support that use of a specific statutory power does not imply abuse where an alternative exists. |
| Murphy v Attorney General [1982] I.R. 241 | Described the effect of a declaration of unconstitutionality (erga omnes prospective effect). | Referenced in procedural discussion distinguishing constitutional declarations from s.5 ECHR declarations. |
Court's Reasoning and Analysis
Judge Bradley reviewed the chronology and statutory architecture. The court accepted the factual chronology: initial judicially-authorised search warrant (11 August 2021); seizure under s.7 of the 2006 Act on 12 August 2021; investigative steps; DPP's direction of no prosecution on 2 April 2024; seizure from police custody under s.38 of the 1994 Act on 14 April 2024 and a s.38(2) order on 15 April 2024; subsequent s.38 orders and an extant s.39 forfeiture motion issued by the DPP and adjourned pending this judicial review.
The court held that (a) s.7(1) of the 2006 Act permits seizure and retention of "things" where an officer has reasonable grounds to believe the item is evidence of an arrestable offence and that "thing" in s.7 includes cash; (b) the District Court issued the search warrant, providing initial judicial oversight to entry and seizure; (c) the later reliance upon s.38 of the 1994 Act to seize/detain cash held in garda custody is permissible and not vitiated by the prior lawful s.7 retention — the Court of Appeal authority in DPP v McDermott was binding and dispositive on that point; (d) the procedural regime in s.38 (including the two-year detention limit and s.38(5) remedy, and the s.39 forfeiture process) operates as the appropriate route for contesting detention of cash alleged to be proceeds of crime and the forfeiture motion in this case was issued and served within statutory time limits; (e) the Applicants had not invoked s.38(5) and thus did not exhaust the alternative statutory remedy; and (f) the presumption of constitutionality applied and s.7(1) met the constitutional proportionality test (Heaney test) and was not incompatible with the cited constitutional provisions or with the ECHR rights as incorporated indirectly by the ECHR Act 2003.
The court rejected the contention that the total period from the initial s.7 seizure in August 2021 through the s.38 process produced an unlawful aggregate deprivation exceeding statutory limits: the two-year period for s.38 ran from the s.38 seizure (14 April 2024) and relevant procedural steps (including the s.39 filing and service) occurred within the statutory period. The court concluded that the respondents lawfully employed the different statutory powers in sequence and that the Applicants were not entitled to the declaratory and other reliefs sought.
Holding and Implications
APPLICATION FOR JUDICIAL REVIEW REFUSED
Holding: The High Court refused the Applicants the reliefs sought. The court concluded that the initial s.7 seizure and retention, and the subsequent s.38 seizure and detention, were lawful; the Applicants' constitutional and ECHR-based incompatibility challenges to s.7(1) were dismissed; and the Applicants had available statutory remedies which they did not pursue.
Implications: The direct effect is that the judicial review claim is dismissed, the s.39 forfeiture proceedings remain extant and may be pursued in the Circuit Court, and the court ordered an amendment to the title of the proceedings and listed a mention to deal with costs and ancillary matters. The judgment applies and follows existing authorities (notably DPP v McDermott) and does not purport to create new precedent independent of the cited case law.
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