High Court dismisses judicial review on time limits for cash forfeiture application under 1994 Act.

APPROVED

REDACTED

AN ARD-CHÚIRT

THE HIGH COURT

[2026] IEHC 372

Record No. 2023/1281JR

BETWEEN/

VJOLLCA HUBA AND PJETER HUBA

APPLICANTS

-AND-

THE COMMISSIONER OF AN GARDA SÍOCHÁNA,

THE GARDA NATIONAL IMMIGRATION BUREAU,

IRELAND AND THE ATTORNEY GENERAL

FIRST TO FOURTH NAMED RESPONDENTS

-AND-

THE DIRECTOR OF PUBLIC PROSECUTIONS

(JOINED BY ORDER OF THE COURT)

FIFTH NAMED RESPONDENT

JUDGMENT of Mr Justice Conleth Bradley delivered on the 11th day of June 2026

INTRODUCTION

Background

1. In 2021, An Garda Síochána commenced the Irish part of an extensive transnational investigation known as ‘Operation Wattle’ into an Albanian Organised Criminal Group suspected of alleged smuggling of illegal immigrants into the UK via Ireland.

2. This inquiry involved teams attached to the Garda National Immigration Bureau (“the GNIB”) who were investigating whether this international organised crime group allegedly trafficked illegal immigrants, primarily Albanian nationals, into Ireland and on to the UK, as well as alleged money laundering offences and the procurement and provision of false travel documentation.

3. In his Affidavit sworn on 27th November 2024, Detective Garda (“D/G”) Lorcan Tighe of the GNIB stated that on foot of information received, gardaí had identified the second named Applicant as an alleged person of interest who was potentially connected to this organised crime group and began to investigate whether he had allegedly potentially committed any criminal offences.

4. As part of Operation Wattle and in order to further this investigation, on 11th August 2021, Detective Sergeant (“D/S”) Anthony Collins obtained a search warrant in relation to the home of the second named Applicant at [XXXX XXXXXXXX X XXX XX X X X X XXXX] (“the premises”) which was issued by the District Court pursuant to s. 10 of the Criminal Justice (Miscellaneous Provisions) Act 1997 (“the 1997 Act”).

5. Arising from the subsequent search of the premises on 12th August 2021, on foot of this warrant, then D/G Joseph Gavin, who now holds the rank of Sergeant, seized and retained, pursuant to s. 7 of the Criminal Justice Act 2006 (“the 2006 Act”), a sum of €16,000 in cash (“the cash”) which he found in a bag in a bedroom wardrobe of the premises.

6. In exercising his powers to seize and retain the cash, D/G Gavin, pursuant to s. 7 of the 2006 Act, has averred that he had reasonable grounds for believing that the cash was evidence of, or relating to, the commission of an arrestable offence. In his Affidavit sworn on 25th November 2024, Sergeant Gavin stated as follows: “4. On 12th August 2021, I was part of a garda team that conducted a search of XXXXXXXXXXXXXXX XXXXXX XXXX, the home of the second applicant, under warrant. During the search, I seized a sum of €16,000 in cash. This quantity of cash–which consisted of 320 €50 notes – was located in a bag contained in a wardrobe in a bedroom of the house.

5. I confirm that I lawfully seized and retained the cash for use as evidence using my powers under s. 7 of the Criminal Justice Act 2006, on the basis that there were reasonable grounds for believing that it was evidence of or relating to, the commission of an arrestable offence.

6. I cautioned the second applicant and asked him to account for the sum of cash. The second applicant stated that it belonged to the first applicant and that it was not his. After caution, the first applicant informed gardaí that the total amount of the cash was €10,000. When gardaí counted the cash before the first applicant and showed her that it amounted to €16,000, she stated that €10,000 belonged to her and €6,000 belonged to the second applicant.”

7. Thereafter, the gardaí continued to carry out an extensive, complex and prolonged investigation as to whether the second named Applicant had allegedly committed offences relating to trafficking in illegal immigrants, money laundering, forgery, and assisting an unlawful organisation. This investigation included inter alia the examination of mobile phones, financial investigations, conducting enquiries with statutory entities (such as the Department of Social Protection), and the compilation of relevant information in relation to other alleged suspects. The investigation included an extensive financial investigation in respect of both Applicants and sought inter alia to determine whether the seized cash emanated from legitimate sources of income or instead constituted the alleged proceeds of crime.

8. In his Affidavit sworn on 27th November 2024, D/G Lorcan Tighe stated that after these investigative steps had been completed, the second named Applicant met by appointment with D/G Mark Henebry at Kevin Street Garda Station on 3rd March 2023 and the second named Applicant was arrested on suspicion of the commission of an offence contrary to s. 72 of the 2006 Act. The second named Applicant was detained at Kevin Street Garda Station pursuant to s. 50 of the Criminal Justice Act 2007 between 12.32pm and 9.51pm that day and during this time, he was interviewed twice in relation to the alleged suspected offences which were under investigation by the gardaí.

9. D/G Tighe states that after the interviews had taken place, he compiled a file for the fifth-named Respondent (“the DPP”) in respect of the investigation.

10. In or around February 2024, the gardaí submitted a file to the DPP.

11. The cash was retained pursuant to s. 7 of the 2006 Act for use as evidence in connection with any criminal proceedings which might arise from the investigation and it was stored in the offices of the GNIB at 13/14 Burgh Quay, Dublin 2.

12. During the course of the investigation, the Applicants had brought proceedings on 22nd September 2022 in the District Court under the Police (Property) Act 1897 (“the 1897 Act”) which is incorporated into s. 7(1) of the 2006 Act, seeking the return to them of the cash.

13. This Police (Property) Act application came before the District Court on a number of dates between 20th October 2022 and 23rd July 2024. The gardaí successfully applied to adjourn the application on a number of occasions on the basis that it was appropriate to retain the cash as evidence during the ongoing investigation. The District Court on each occasion agreed that it was appropriate for the gardaí to retain the cash because it was evidence in an ongoing investigation and rejected the Applicants’ arguments to the contrary. (The Applicants state that on one of these dates the proceedings were in fact adjourned at their own request).

14. On 2nd April 2024, the DPP directed that there would be no prosecution of the second named Applicant.

15. The DPP did not direct that the cash be seized or that ‘s. 38 proceedings’ be brought. Rather, when the DPP directed that there was to be no criminal prosecution, the gardaí were reminded that there was a power under s. 38 of the Criminal Justice Act 1994 (“the 1994 Act”) that was available to them, if circumstances warranted its application.

Sections 38 and 39 of the 1994 Act

16. Section 38 of the 1994 Act dealing with “seizure and detention” was amended by s. 20 of the Proceeds of Crime (Amendment) Act 2005.

17. The relevant provisions of s. 38 in this judicial review application are as follows: s. 38(1) of the 1994 Act provides that “[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 [€1,000], 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”; s. 38(1A) of the 1994 Act provides that “[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”; s. 38(3) of the 1994 Act provides that “[a]ny 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 order; and (b) the total period of detention shall not exceed two years from the date of the order under subsection (2) of this section”; s. 38(3A) of the 1994 Act provides that “[w]here an application is made under section 39(1) for an order for the forfeiture of cash detained under this section, the cash shall, notwithstanding subsection (3), continue to be so detained until the application is finally determined.”

18. Section 39 of the 1994 Act dealing with the forfeiture of seized cash was amended by s. 21 of the Proceeds of Crime (Amendment) Act 2005 as follows: “Section 39(1) of the Act 1994 is hereby amended by the substitution of “the proceeds of crime or is intended by any person for use in connection with any criminal conduct” for “any person’s proceeds of, or is intended by any person for use in, drug trafficking””.

19. On 14thApril 2024, D/G Tighe seized the cash from the offices of the GNIB, pursuant to s. 38(1A) of the 1994 Act.

20. On 15th April 2024, D/G Tighe made an application by information on oath and in writing to the District Court pursuant to s. 38 of the 1994 Act for the continued detention of the cash. On foot of this application, again made on the basis of a sworn information, the District Court judge granted an order pursuant to s. 38 of the 1994 Act, authorising the detention of the cash for a period of three months until 14th July 2024.

21. A number of subsequent authorisations for the continued detention of the cash were granted pursuant to s. 38 of the 1994 Act by the District Court until the application was made by the DPP to the Circuit Court for forfeiture of the cash pursuant to s. 39 of the 1994 Act.

22. The forfeiture application which was made pursuant to s. 39 of the 1994 Act to the Circuit Court remains extant and has been adjourned pro tem pending the outcome of this application for judicial review.

23. A preliminary objection raised by the first to fourth named Respondents seeks to argue that the forfeiture application, which remains extant (but stands adjourned) before the Circuit Court, represents an adequate or effective alternative remedy and that no relief should be granted in this judicial review application which would interfere with that process.

Proceedings

24. The Affidavit of Adriana Berisha sworn on 7th November 2023 confirmed that she had translated into English the text of the Affidavits of each of the Applicants which had been sworn in the Albanian language on 7th November 2023 and the translated unsworn copies were exhibited. Together with exhibits and a Statement of Grounds, these documents were filed on 8th November 2023.

25. On 4th December 2023, the High Court (Hyland J.) granted the Applicants leave to apply for judicial review.

26. By order of the High Court (Hyland J.) dated 9th July 2024, the Applicants were given leave to apply for various declaratory reliefs in an amended Statement of Grounds, and it was ordered that the DPP be added as a respondent to the proceedings.

27. The amendment arose after the first s. 38 order was made on 15th April 2024 and on the basis that the Police (Property) Act application part of the case was no longer relevant because events had overtaken by the issuing of this s. 38 order.

28. An amended Statement of Grounds was filed on behalf of the Applicants on 15th July 2024.

29. It is common case, however, that the Applicants were not granted leave to apply for judicial review for an order of mandamus compelling the return of the Applicants’ property which had been seized from their home on 12th August 2021 and the order of the High Court in that regard has not been appealed.

30. An Affidavit of verification was sworn on 9th July 2024, by Ms. Tracey Brady Solicitor of McGuigan Solicitors for the Applicants.

31. The DPP, the fifth-named Respondent, filed a Statement of Opposition in the High Court Central Office on 3rd December 2024, which was verified in the Affidavit of D/G Tighe on 2nd December 2024.

32. A Statement of Opposition was filed in the Central Office of the High Court on 3rd December 2024 on behalf of the first to fourth named Respondents and this was verified by the Affidavits of D/G Tighe sworn on 27th November 2024 and Sergeant Joseph Gavin sworn on 25th November 2024.

33. The Affidavit of Adriana Berisha sworn on 4th February 2025 confirmed that she had translated into English the text of the supplemental Affidavit of the second named Applicant (Pjeter Huba) which had been sworn in the Albanian language on 4th February 2025 and the translated unsworn copy of this Affidavit was exhibited.

34. By Affidavit sworn on 1st April 2025, D/G Tighe responded to the supplemental Affidavit of Pjeter Huba which had been sworn on 4th February 2025.

35. A third supplemental Affidavit of D/G Tighe sworn on 12th November 2025 exhibited his sworn information dated 15th April 2024 which grounded the application made pursuant to s. 38(2) of the 1994 Act seeking an order from the District Court authorising the detention of the cash for a period not exceeding 3 months to 14th July 2024 and this order was granted by the District Court.

SUMMARY OF THE APPLICANTS’ CASE

36. In summary, on behalf of the Applicants, it is emphasised that they at all times enjoyed, and continue to enjoy, the presumption of innocence and that the cash which was seized was not evidence of the commission of an offence. It is submitted when the DPP directed that there was no prosecution on 2nd April 2024, the cash should have been returned to the Applicants at that point. However, rather than that happening, the cash was seized approximately 12 days later on 14th April 2024 under a different and separate statutory process and as part of that process an application was made, and so ordered, for its continued detention on the following day, 15th April 2024.

37. Whether or not the cash is the proceeds of crime is not an issue for determination in this application for judicial review.

38. The Applicants contend that an allegation that the funds may amount to the proceeds of crime does not negate the procedural rights which, it is submitted, arise.

39. It is accepted on behalf of the Applicants that, subject to the issue of costs being determined, the Police (Property) Act application became moot on 14th April 2024 when D/G Tighe seized the cash pursuant to s. 38 of the 1994 Act and made an application to the District Court the following day, on 15th April 2024, for the continued detention of the cash. It was contended on behalf of the Applicants that there was in fact no substantive determination of the Police (Property) Act application by the District Court and that it was simply adjourned on a continuous basis for over two years.

40. The Applicants argue that by the time the cash was seized from the GNIB on 14th April 2024, it had already been in Garda custody from 12th August 2021, which was approximately 2 years and 8 months; it is contended for that period of 2 years and 8 months there was no effective safeguards in place and no judicial oversight and that the Police (Property) Act application was an ineffectual remedy.

41. Referring to the decision of the High Court (Laffoy J.) in Vehicle Tech Ltd. v AIB [2010] IEHC 525; [2012] 2 I.R. 131 (“Vehicle Tech Ltd”) which concerned the freezing of bank accounts reputedly connected to the alleged proceeds of crime, it was submitted that the Applicant in that case did not have to establish conclusively that they were not the proceeds of crime before being entitled to the application of procedural safeguards.

42. The Applicants accept that their opportunity to progress the Police (Property) Act application arose during the approximate 12-day window between 2nd April 2024 and 14th April 2024.

43. Whilst it was accepted on behalf of the Applicants that there is a certain safeguard in s.

38 of the 1994 Act in that the funds may be seized for the period of two years from the initial date of seizure, it was submitted that this cannot be looked at artificially and that in this case, the totality of the period under the various statutory applications has to be considered. This period, it is submitted, was in around 4 years and 8 months.

44. On behalf of the Applicants, it was submitted that there was no basis to initially seize and detain the cash on 12th August 2021 pursuant to s. 7 of the 2006 Act and that this ‘contaminated’ the subsequent seizure from the GNIB pursuant to s. 38 of the 1994 Act on 14th April 2024, especially where the Applicants enjoy the presumption of innocence and where it had been decided by the DPP that the second named Applicant was not to be charged and that the Respondents no longer had the power to hold the cash as evidence of any alleged crime.

PRELIMINARY OBJECTIONS RAISED BY THE FIRST TO

FOURTH NAMED RESPONDENTS

45. The first to fourth named Respondents raise a number of preliminary objections, including mootness and the failure of the Applicants to exhaust alternative remedies.

46. Thus, insofar as s. 7 of the 2006 Act is concerned, it is pointed out that matters have moved on and it is submitted that the cash is no longer being detained under the 2006 Act. It was subsequently seized under s. 38 of the 1994 Act and was detained under that provision prior to the institution of the forfeiture application pursuant to s. 39 of the 1994 Act (which stands adjourned).

47. In response, the Applicants submit that their challenge to the initial seizure on 12th August 2021, which was made pursuant to s. 7 of the 2006 Act, is not moot and that the amendment of their Statement of Grounds arose after 15th April 2024 when the possession of the cash had ‘changed hands’. It is submitted that the judicial review proceedings had been extant and that the question of alternative remedies addressed a different issue later.

48. Separately, as just mentioned, it is accepted by the Applicants that save for the question of costs, the Police (Property) Act application was rendered moot when the cash was seized pursuant to s. 38 of the 1994 Act on 14th April 2024 and the application was made for its detention the following day, on 15th April 2024.

Section 38(5) of the 1994 Act as an alternative remedy

49. Section 38(5) of the 1994 Act provides that “[a]t any time while cash is detained by virtue of the foregoing provisions of this section a judge of the District Court may direct its release if satisfied– (a) on an application made by the person from whom it was seized or a person by or on whose behalf it was being imported or exported, that there are no, or are no longer, any such grounds for its detention as are mentioned in subsection (2) of this section, or (b) on an application made by any other person, that detention of the cash is not for that or any other reason justified.”

50. On behalf of the Applicants, it was submitted that s. 38(5) of the 1994 Act is not an adequate alternative remedy in circumstances where the first or initial part of the Applicants’ judicial review challenge is to the seizure under s. 7 of the 2006 Act and where it is submitted that the alleged unlawfulness of that process contaminated the subsequent s. 38 seizure; it is rhetorically asked as to why they would seek to invoke a process which they are challenging as being unlawful.

51. It is further submitted that because the cash was not seized from the Applicants for the purpose of s. 38(5)(a), the applicable provision is s. 38(5)(b) of the 1994 Act and it is submitted that this addresses the substantive issue of justification and that the District Court cannot act as the arbiter of the lawfulness of the process carried out under s. 7 of the 2006 Act and has no jurisdiction to do so and would, therefore, not constitute an effective remedy.

52. In relation to the Applicants’ claims about the lawfulness of the order under s. 38 of the 1994 Act, the decisions in Howe v Revenue Commissioners [2017] IEHC 153 (“Howe”)

and in Kane v Revenue Commissioners [2020] IEHC 275 (“Kane”) suggest that once the s. 38 order is spent, it may no longer be challenged.

53. The sequences of events in Howe and Kane are similar to those which occurred in the Applicants’ case. For example, in Kane there was likewise an extant forfeiture application pending which the High Court (Murphy J.) described, at para. 98 of her judgment, that in “those proceedings the judge must be satisfied, on the balance of probabilities, that the seized cash represents the proceeds of crime or were intended for use in connection with criminal conduct. Whilst there is no obligation upon the Applicant to engage with that process, he is entitled, should he so desire, to put forward such evidence as he desires to seek to rebut the DPP’s contentions”.

54. Murphy J. stated at para. 100 of her judgment that “[e]ven if there was an identifiable breach that might otherwise warrant certiorari, (and there is none), the fact that the Circuit Court is seized of the proceedings constitutes a further reason why the relief sought here should be refused. It would undermine the section 39 proceedings, and the forthcoming trial of the issue. This can be seen in the decisions in Byrne v Grey [1988] IR 31; Berkeley v Edwards [1988] I.R. 217; and Simple Imports v Revenue Commissioners [2000] 2 IR 243” and she then addressed the question of an alternative remedy at para. 101 of her judgment as follows: “[a]t all material times it has been open to the Applicant to apply to the District Court for the return of the seized cash pursuant to section 38(5) if he believed there was no basis for holding the cash. He didn’t seek to invoke that possibility. Even if he was correct in any of his contentions made herein, which is denied, he singularly failed to explore a more suitable alternative remedy and could be refused relief on that basis.”

55. In Kane, Murphy J. did not have to rule on the question of mootness and in her

conclusion at para. 116 of the judgment, she added that “for completeness, the court observes that had it been persuaded that the section 38 application was in fact, invalid, then it would have rejected the submission that the application was moot on the grounds that the section 38 order was spent. As per the dicta of Hardiman J. in The Director of Public Prosecutions v England [2011] IESC 16: “It is plain from the statutory provisions cited above that the jurisdiction created by s.39 to order forfeiture of cash seized under s.38 requires that an application for such forfeiture be “made while the cash is detained under that Section” (i.e. s.38) The Court agrees with the assessment of Hardiman J. that jurisdiction to order forfeiture is dependent on an application for forfeiture being made during the currency of a valid section 38 detention. In the event of an invalid section 38 detention there would be no jurisdiction to seek forfeiture.”

56. In response to the preliminary objections raised by the first to fourth named Respondents, the Applicants argue that this judicial review challenge was initially brought in the context of the application made pursuant to s. 7 of the 2006 Act before the proceedings were amended after the initial application pursuant to s. 38 of the 1994 Act had been made on 14th and 15th April 2024.

57. Notwithstanding that the application for seizure of the cash pursuant to s. 38 and the forfeiture proceedings under s. 39 of the 1994 Act are in rem (rather than in personam), the Applicants submit that either way they were entitled to fair procedures and the relevant period in that regard is the entire period of 4 years and 8 months.

58. The Applicants seek to contrast what they accept is some judicial oversight in the process prescribed by s. 38 of the 1994 Act compared to what is submitted is the lack of judicial supervision in s. 7 of the 2006 Act and that therefore s. 38 of the 1994 Act should have been treated as the lex specialis where, for example, the issue of the detention of the seized cash is repeatedly and periodically brought back to the court for further assessment and where applicants can put forward arguments seeking to retrieve their property within a total period of 2 years. It is submitted that this can be contrasted with the absence of such procedures under s. 7 of the 2006 Act.

Lex specialis: s. 38 of the 1994 Act

59. Accordingly, on behalf of the Applicants, it is submitted that the lex specialis in s. 38 of the 1994 Act should have been invoked at the outset because it expressly deals with “cash” which they argue is different to “thing” as referred to in s. 7 of the 2006 Act.

60. It is further argued that the lex specialis in s. 38 of the 1994 Act also had the attendant procedural safeguards, which included applications to court on notice every three months compared to the situation under s. 7 of the 2006 Act where cash was being relied upon as “evidence” without the procedural safeguards. The Applicants sought to emphasise the attendant procedural and substantive “safeguards” where a person’s cash was seized pursuant to s. 38 of the 1994 Act and generally in the context of the alleged “proceeds of crime” legislation which, they submit, are not present in s. 7 of the 2006 Act.

61. It was submitted on behalf of the Applicants that for the 2 years and 8 months after the ‘s. 7 seizure’ and before the ‘s. 38 seizure’, there were inadequate statutory provisions to allow the Applicants interrogate the seizure and the safeguards which are, for example, present under s. 38 of the 1994 Act. Again, it is submitted that when the

decision was taken not to prosecute on 2nd April 2024, the Applicants were entitled to have their cash returned at that point.

62. The Applicants contend that if the Respondents were of the view that the cash was the alleged proceeds of crime, s. 38 of the 1994 Act should have been invoked (with its attendant safeguards) in or around August 2021 rather than s. 7 of the 2006 Act. It is stated that this was not the position during the 12 days between 2nd April 2024 and 14th April 2024 and only became the position on 14th April 2024.

63. It is argued that the seizure of the cash should not be viewed from the perspective, or through the prism, of what has occurred from 14th April 2024 when the proceeds of crime allegation first occurred, but rather it should be viewed from the date of the initial seizure on 12th August 2021. As just mentioned, it is contended that between 2nd April 2024 and 14th April 2024 there was no such allegation. This is the context in which it is contended that s. 7 of the 2006 Act lacks the safeguards afforded by s. 38 of the 1994 Act.

64. On behalf of the Applicants, it is submitted that for the duration of the investigation, they could not effectively seek to retrieve the seized cash. It is argued that the Police (Property) Act application process was inappropriate and ineffectual and that the process under s. 7 of the 2006 Act allows effectively for open-ended detention of property without a temporal limitation and without independent oversight at the start of, or during, the process. The Applicants assert that they only obtained reasons because they instructed a solicitor and that they (the Applicants) had to take the initiative.

65. Insofar as the Respondents submit that the application of ss. 38 and 39 of the 1994 Act is in rem and that there are no property rights in the proceeds of crime, the Applicant contends that this argument is entirely premature and that as of 14th April 2024, it remains an “allegation” that the cash is the proceeds of crime. It was also submitted that in reply to the Applicants’ solicitor’s correspondence, D/S Collins stated in or around August-September 2021 that notwithstanding that the cash had been seized as evidence, it would not be returned until it was established whether or not it was the proceeds of crime. It was submitted that it had not yet been determined that the cash was the proceeds of crime and therefore it was argued that the cash was prima facie in the ownership of the Applicants.

DISCUSSION AND DECISION

66. The Applicants contend that whereas a 2 year limitation period post seizure of their cash may afford suitable safeguards and provides a reasonable and sufficient time to allow An Garda Síochána properly investigate matters, in contrast, in their case, the total period of seizure and detention was approximately 4 years and 8 months. They say that this protracted period without suitable safeguards is unlawful and was exemplified by the response of D/S Collins to the Applicants’ solicitor in or around August- September 2021 that the cash would not be returned until it was established whether or not it was the proceeds of crime.

67. Therefore, the Applicants contend that whilst the seizure under the s. 38 process commenced the two year period, it is argued that the invocation of the previous s. 7 process on 12th August 2021 had no safeguards, which in effect meant that there was an additional two years and eight months to be added to the two year period which commenced on 14th April 2024. It is submitted that this is contrary to what the Oireachtas had intended where a person’s cash was seized by the authorities.

68. The Applicants seek, therefore, to contextualise their legal challenge against the entire process and time period which commenced from 12th August 2021.

69. They contend that they have been denied procedural safeguards throughout this investigation, especially since the initial seizure of the cash on 12th August 2021 pursuant to s. 7 of the 2006 Act.

70. It is submitted that when their cash was seized under s. 7 of the 2006 Act, they were entitled to intrinsic procedural safeguards rather than the onus being put on them of having to be pro-active and being required to invoke the 1897 Act. They argue that s. 7 of the 2006 Act operated on an assumption that cash could be detained throughout the currency of an investigation, almost ad infinitum, without oversight.

71. In contrast, the first to fourth named Respondents argue that the Applicants failed to exhaust an adequate alternative remedy and suggest that they could have pursued arguments about the seizure made under s. 7 of the 2006 Act to the District Court on one of the many dates that the Police Property Act application was listed.

72. In the Applicants’ amended Statement of Grounds, in relation to s. 7 of the 2006 Act, grounds were raised at (e)1 to 10 and declarations were sought as follows: at (d)4 – “A Declaration that for the purposes of s.7(1) of the 2006 Act, the word “thing” does not cover cash property”; at (d)5 – “A Declaration that s.7(1) of the 2006 Act is incompatible with Articles 40.3 and/or 43 of the Constitution in circumstances where it does not contain any safeguards for a person whose cash property is seized and permits the exercise of judicial functions by persons other than the judiciary”; and, at d(6) – “A declaration in accordance with s.5 of the European Convention on Human Rights Act 2003 that s.7(1) of the 2006 Act is incompatible with Articles 6, 8 and 13 of the ECHR and Article 1 of the Protocol.”

73. Notwithstanding the preliminary objections raised by the first to fourth named Respondents around the concept of an ‘adequate alternative remedy’ and ‘mootness’, I consider, having regard to the chronology and sequence of facts in this case and the amendment of the Statement of Grounds, it is appropriate that the substantive arguments upon which the Applicants were granted leave to apply for judicial review in the context of s. 7 of the 2006 Act and s. 38 of the 1994 Act be addressed. I do not propose, therefore, to determine this application on the basis of the preliminary objections raised save that I will accede to the application to amend the title of the proceedings in the manner addressed in the concluding paragraphs of this judgment.

74. I do not consider, for the following reasons set out in this judgment, however, that the Applicants’ substantive contentions are correct or that s. 7 of the 2006 Act and its incorporation of the process under the Police (Property) Act 1897 and the subsequent seizure and detention of the cash, after its initial seizure and retention, was unlawful or breached rights claimed by the Applicants under the Constitution or the ECHR Act 2003 or provided an ineffectual remedy for the Applicants (noting that it appears to be common case that the Police (Property) Act application was rendered moot, save as to costs, on 14th April 2024). For the following reasons, therefore, I do not consider that the Applicants are entitled to the reliefs claimed by way of this application for judicial review.

An ongoing investigation: Operation Wattle

75. It was accepted on behalf of the Applicants that the underlying gravamen of these proceedings related to an ongoing investigation (Operation Wattle) where the Applicants have enjoyed, and continue to enjoy, the presumption of innocence.

76. The challenge of the Applicants relates to the manner of the exercise of that process of investigation.

77. That investigation involves teams attached to the GNIB investigating an international organised crime group allegedly involved in trafficking illegal immigrants, primarily Albanian nationals, into Ireland and then on to the UK, in addition to alleged money laundering offences and the alleged procurement and provision of false travel documentation.

The initial seizure: 12th August 2021

78. As part of Operation Wattle, on 11th August 2021, on the application of D/S Collins, the District Court issued a search warrant pursuant to s. 10 of the 1997 Act in relation to the home of the second named Applicant.

79. The power to seize and retain evidence is set out in s. 7 of the 2006 Act.

80. Section 7(1) of the 2006 Act provides that where a member of the Garda Síochána who is in (a) a public place, or (b) any other place under a power of entry authorised by law or to which or in which he or she was expressly or impliedly invited or permitted to be, finds or comes into possession of any thing, and he or she has reasonable grounds for believing that it is evidence of, or relating to, the commission of an arrestable offence, he or she may seize and retain the thing for use as evidence in any criminal proceedings for such period from the date of seizure as is reasonable or, if proceedings are commenced in which the thing so seized is required for use in evidence, until the

conclusion of the proceedings, and thereafter the 1897 Act shall apply to the thing so seized in the same manner as that Act applies to property which has come into the possession of the Garda Síochána in the circumstances mentioned in that Act.

81. Section 7(2) of the 2006 Act provides that if it is represented or appears to a member of the Garda Síochána proposing to seize or retain a document under this section that the document was, or may have been, made for the purpose of obtaining, giving or communicating legal advice from or by a barrister or solicitor, the member shall not seize or retain the document unless he or she suspects with reasonable cause that the document was not made, or is not intended, solely for any of the purposes aforesaid.

82. Section 7(3) of the 2006 Act provides that the power under s. 7 to seize and retain evidence is without prejudice to any other power conferred by statute or otherwise exercisable by a member of the Garda Síochána to seize and retain evidence of, or relating to, the commission or attempted commission of an offence.

The ongoing investigation

83. The ongoing investigation which provides the background and context to this application for judicial review raised complex matters and was protracted. It involved inter alia an examination of mobile phones, financial investigations, conducting enquires with statutory departments such as the Department of Social Protection and compiling relevant information obtained in relation to other suspected persons. The investigation was therefore detailed, lengthy and complex.

84. In enacting inter alia the Criminal Justice Act 1994 and the 2006 Act, the Oireachtas has enacted a suite of legislative measures in ease of society’s right and entitlement to have such matters investigated and which provide for the evolving and organic nature of a garda investigation which has to be reasonable in terms of the period of inquiry, and where an investigation is active, the legislative provisions recognise the involved nature of the inquiries carried out by the gardaí, as was the case in this instance.

85. For example, the cash was initially seized and retained pursuant to s. 7 of the 2006 Act, in circumstances where a member of the gardaí had “reasonable grounds for believing that it [was] evidence of, or relating to, the commission of an arrestable offence” and it was seized and retained “for use as evidence in any criminal proceedings for such period from the date of seizure as [was] reasonable” (“or, if proceedings commenced in which the thing so seized is required for use in evidence, until the conclusion of the proceedings”).

86. As part of the legislative safeguards, s. 7 of the 2006 Act provides that “if proceedings are commenced in which the thing so seized is required for use in evidence, until the

conclusion of the proceedings, and thereafter the Police (Property) Act 1897 shall apply to the thing so seized in the same manner as that Act applies to property which has come into the possession of the Garda Síochána in the circumstances mentioned in that Act.”

87. During the carrying out of this investigation, on 22nd September 2022, the Applicants invoked s. 7 of the 2006 Act and brought proceedings in the District Court pursuant to the 1897 Act seeking the return of the cash.

88. The application came before the District Court on a number of dates between 20th October 2022 and 23rd July 2024. The evidence is that generally on each occasion (save for one occasion) the District Court heard arguments as to whether the matter should be adjourned on the basis that it was appropriate for the gardaí to retain the cash as evidence during the ongoing investigation. The court largely acceded to the adjournment applications on that basis and on one occasion the Police (Property) Act application was adjourned at the Applicants’ request. Following various correspondence between the Applicants’ solicitors and the Respondents, the dates of the adjournments in the District Court were as follows: a. On 16th March 2023, the Applicants’ solicitors were informed that all applications in the District Court list in which their application appeared had been adjourned to 26th April 2023.

b. On 25th April 2023, the Applicants’ solicitors were informed by the Courts Service that all matters in the same District Court list were being adjourned and on 23rd May, they were informed that their Police (Property) Act application would be before the District Court on 18th July 2023. c. On 18th July 2023, the Applicants’ application was before the District Court, and the Respondents sought an adjournment. The District Court adjourned the application to 31st October 2023. d. On 21st September 2023, D/G Tighe on behalf of the Respondents emailed the Applicants’ solicitors indicating an intention to mention the Applicants’ application to the District Court on 28th September 2023 with a view to adjourning it to a date in early November. The Applicants’ solicitor wrote back on 26th September stating that they would not consent to this adjournment. e. On 1st October 2023, D/G Tighe informed the Applicants’ solicitor by email that he was granted the adjournment and that the application had been adjourned to 11th January 2024. f. On 11th January 2024, the Applicants’ application was before the District Court. The Respondents applied for an adjournment on the basis that D/G Tighe was unable to attend. The District Court acceded to the application and adjourned the matter to 29th February 2024, peremptory against the Respondents. g. On 29th February 2024, the application was before the District Court. D/G Tighe sought an adjournment on the basis that the investigation in respect of the second Applicant was ongoing. The District Court acceded to the application and adjourned the matter to 17th April 2024. h. On 17th April 2024, the application as before the District Court, D/G Tighe applied for the proceedings to be struck out and counsel for the Applicants sought an adjournment to allow for certain queries to be made. The application was adjourned to 16th July 2024.

89. On 2nd April 2024, the DPP directed that there would be no prosecution of the second named Applicant.

Police (Property) Act application rendered moot on 14th April 2024 save for costs

90. It is accepted on behalf of the Applicants that, subject to the issue of costs being determined, the Police (Property) Act application became moot on 14th April 2024 when D/G Tighe seized the cash pursuant to s. 38 of the 1994 Act and made an application to the District Court on the following day, 15th April 2024, for the continued detention of the cash.

91. While it was accepted on behalf of the Applicants that the Police (Property) Act application was rendered moot in that context, this acceptance was conditional on their arguments that it could not both be ‘determined’ and ‘rendered moot’ at the same time, and that it had to be included in the computation of the requisite period involved in the entire process, i.e., this was stated to be a period of over 4 years rather than 2 years.

92. It was contended on behalf of the Applicants, for example, that there was in fact no substantive determination of the Police (Property) Act application by the District Court and that it was simply adjourned on a continuous basis for over two years. It was argued that this was an important factor in the reckoning of the overall period of approximately

4 years and 8 months. It was accepted on behalf of the Applicants that their opportunity to progress the Police (Property) Act application arose in the 12-day window between 2nd April 2024 and 14th April 2024 but it is stated that the Applicants had not been sufficiently notified and informed at that time in order to avail of that opportunity.

93. The Applicants contend that by the time the cash was seized from the GNIB on 14th April 2024, it had already been in Garda custody from 12th August 2021, which was approximately 2 years and 8 months. It was contended during that period of 2 years and

8 months there was no safeguard in place and no judicial oversight and that the Police (Property) Act application was an ineffectual remedy.

94. While it was acknowledged that the legislative prescription in s. 38 of the 1994 Act which provided that the funds may be seized for 2 years from the initial date, offered to some extent a procedural safeguard, it was contended that this did not reflect the totality of the period from the initial seizure on 12th August 2021 which, as stated, was a period of approximately 4 years and 8 months rather than 2 years.

95. The Applicants state that in reply to their solicitor’s correspondence, D/S Collins stated in or around August-September of 2021 that notwithstanding the cash had been seized as evidence, it would not be returned until it was established that it was not the proceeds of crime. They say, however, that no application was made (or action taken) at that time in the context of a garda inquiry about the cash being allegedly the proceeds of crime.

96. In addition to the Applicants’ acceptance of mootness save as to costs in relation to the application under the 1897 Act (in the context set out above), I do not consider that there is any basis on the grounds relied upon by the Applicants for challenging the application of s. 7 of the 2006 Act in this case.

97. It was submitted, for example, on behalf of the Applicants, that ‘cash’ was different to ‘a thing’ and they referred to the lex specialis of s. 38 of the1994 Act which only applied to ‘cash’ and which had the attendant procedural safeguards, including the requirement that applications be made to court every three months on notice to the Applicants, compared to the situation under s. 7 of the 2006 Act where cash was being relied upon as ‘evidence’ without, it is contended, the necessary procedural safeguards which are applicable in other circumstances.

98. Section 38 of the 1994 Act deals with seizure and detention and was amended by s. 20 of the Proceeds of Crime (Amendment) Act 2005.

99. To recap, and as set out earlier in this judgment, s. 38(1) of the 1994 Act provides that “[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 [€1,000], 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”; s. 38(1A) of the 1994 Act provides that “[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”; s. 38(3) of the 1994 Act provides that “[a]ny 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 order; and (b) the total period of detention shall not exceed two years from the date of the order under subsection (2) of this section”; s. 38(3A) of the 1994 Act provides that “[w]here an application is made under section 39(1) for an order for the forfeiture of cash detained under this section, the cash shall, notwithstanding subsection (3), continue to be so detained until the application is finally determined.”

100. Section 7 of the 2006 Act and s. 38 of the 1994 Act are two separate pieces of legislation; s. 7 inter alia provides for the power to seize and retain any thing, which, in my view, includes cash, where a garda or customs officer has reasonable grounds for believing that it is evidence of, or relating to, the commission of an arrestable offence, he or she may seize and retain the thing for use as evidence in any criminal proceedings for such period from the date of seizure as is reasonable or, if proceedings are commenced in which the thing so seized is required for use in evidence, until the conclusion of the proceedings; and s. 38 provides the power to seize and detain cash where a member of the gardai has reasonable grounds for suspecting the intention to, or actual, importing and exporting of cash which is not less than the prescribed sum and, the cash directly or indirectly represents the proceeds of crime or is intended by any person for use in connection with any criminal conduct.

101. Whilst the objectives and aims of the 1994 Act and 2006 Act overlap, one provision deals with evidence and the other deals inter alia with the proceeds of crime.

102. The Applicants seek to argue that they were “entitled to some joined-up thinking” from the outset together with “protections” and “safeguards” which were effective in the circumstances where they contend that their cash was seized, retained and then detained unlawfully for a period of time which was in excess of 4 years.

103. I consider, however, that each of the ‘seizure’, ‘retention’ (s. 7) and ‘detention’ (s. 38) provisions in the 2006 Act and the 1994 Act were employed correctly and lawfully by the respondents in the circumstances which existed on 12th August 2021 and then on 14th and 15th April 2024 and in the period which followed.

104. In relation to the Applicants’ arguments that s. 38 of the 1994 Act constitutes a lex specialis and that the gardaí must use this legal power which, it is contended, is most specifically tailored to their situation, the decision of the Court of Appeal (Birmingham P., McCarthy J. and Kennedy J.) in DPP v McDermott [2022] IECA 334 (“McDermott”) is authority for the proposition that it is permissible to seize cash under s. 7 of the 2006 Act during a criminal investigation and then later to seize the cash under s. 38 of the 1994 Act.

105. In addition to the binding nature of this decision of the Court of Appeal in McDermott, Mr. Power SC, for the Applicants, fairly recognised that it was an authority against the proposition which he was contending for and, therefore, sought to distinguish this

decision.

106. In my view, the decision of the Court of Appeal in McDermott presents an insuperable obstacle to the arguments which are made on behalf of the Applicants in this judicial review challenge in relation to the procedures which were carried out pursuant to s. 7 of the 2006 Act and s. 38 of the 1994 Act.

107. Further, I do not consider that the arguments made on behalf of the Applicants which seek to distinguish the case before me from the decision in McDermott have that effect or consequence.

108. The property in question in McDermott (and in one of the decisions referred to, Kelly v Dunne and The Commissioner of An Garda Síochána (unreported, High Court, 4th March 2011) (“Kelly”)) was also ‘cash’ and the decision proceeds on the basis that the cash was within the definition in s. 7 of the 2006 Act as “the thing so seized”.

109. Further, as set out below, in McDermott, McCarthy J. held that as the latter seizure was the seizure within the meaning of the 1994 Act, s. 7 of the 2006 Act was not relevant and it merely provided that the Police (Property) Act 1897 applied in the same manner as it applied to property which had come into the possession of the Garda Síochána in the circumstances mentioned in the 1897 Act, i.e., it addressed issues of ownership or the disposition of property which may have been disputed.

110. The fact that items of property, including money and cash, which might well be the proceeds of crime, could be dealt with under the 1897 Act was held to be neither here nor there when the 1994 Act was being considered.

111. Likewise, when that logic is applied in the instant case, the fact that 2 years and 8 months had passed prior to 14th April 2024 is not relevant to the seizure of the cash carried out on 14th April 2024 in this case.

112. In DPP v Crawford [2024] IESC 44, the Supreme Court reaffirmed that statutory interpretation must consider the plain language of the provision, its context within the Act, its purpose, and the broader legal framework.

113. The ordinary meaning of the words is the first port of call and then other interpretative tools such as context and purpose remain relevant.

114. In Heather Hill v An Bord Pleanála [2022] IESC 43; [2024] 2 I.R. 222, Murray J. stated that statutory interpretation must be based on the text of the legislation as the primary and most reliable indication of legislative intent and courts must apply established objective legal principles, and not their own subjective views of what the legislature “intended”.

115. In this case the word “thing” is referenced four times in s. 7(1) of the 2006 Act which also applies the 1897 Act to “the thing so seized” which, in my view, clearly includes the “cash” which was seized and detained.

116. The decision of the Court of Appeal in McDermott arose in the context of a case stated from the Circuit Court (His Honour Judge Martin Nolan).

117. In the Court of Appeal, McCarthy J. held that cash which was initially seized and retained pursuant to s. 7 of the 2006 Act was then amenable to being seized and detained pursuant to s. 38 of the 1994 Act.

118. In McDermott, on foot of a search warrant, cash had been seized in the course of a search pursuant to s. 7 of the 2006 Act and placed by a sergeant in a safe kept by a superintendent at Pearse Street Garda Station during which time investigations were being conducted.

119. In his judgment, at para. 6, McCarthy J. noted that “[t]he cash had been retained as potential real evidence in any prosecution, as the Gardaí were obliged to do”.

120. Later during the course of the investigations, a sergeant seized or caused to be seized the cash then kept in the superintendent’s safe at Pearse Street Garda Station pursuant to the provisions of s. 38 of the 1994 Act.

121. At paras 6 and 7 of the judgment of the Court of Appeal, McCarthy J. observed as follows: “6. … The cash had been retained as potential real evidence in any prosecution, as the Gardaí were obliged to do. Section 38 of the 1994 Act as amended by section 20 of the Proceeds of Crime (Amendment) Act 2005, insofar as it is material, is as follows: - “(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) (the latter is not relevant here) if– (a) its amount is not less than the prescribed sum [the sum here is not less than such 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.

7. It is not contended that the officer in question did not have reasonable grounds for suspecting that the sum in question represented the proceeds of crime. When seizure occurs the sum in question may not be detained for more than 48 hours except by order of the District Court. Such an order, or subsequent orders, permitting continued retention of the funds were made here. The sum was ultimately lodged to a bank account, where it remains. A motion was issued in the Circuit Court seeking an order pursuant to section 39 of the 1994 Act to forfeit the cash in question. That section is not relevant in the present context”.

122. In McDermott, McCarthy J., at paras 14 to 16 and then at paras 17 to 20, dealt with the similar arguments which have been raised in this application for judicial review, as follows.

123. First, at para. 14, he framed the question which was being asked on the specific facts of that case as follows: “Did the seizure within the meaning of section 38 occur when Sergeant McEnerney caused the money to be taken from the Superintendent’s safe at Pearse Street on 14th July 2016 or was it the seizure which occurred in the course of, or in the immediate aftermath of, the search? The latter is the respondent’s contention. The money was retained, obviously, as something of evidential value in the event that a prosecution was initiated. [Counsel] says that when the decision was made not to prosecute, the money ought to have been returned to his client because it could not then be seized under the 1994 Act. No one questions the fact that the Gardaí had a duty to return the money to the respondent after a decision was made not to prosecute him subject to any other power which might have permitted them to seize or retain it. Sergeant McEnerney acted under the power conferred by section 38 of the 1994 Act”.

124. McCarthy J. observed that a similar issue had also been addressed by the High Court (O’Keeffe J.) in Kelly where the cash in that case had been seized pursuant to s. 9 of the Criminal Law Act 1976 (“the 1976 Act”) which was similar in terms to s. 7 of the 2006 Act.

125. In Kelly, the DPP had decided not to prosecute and a seizure pursuant to s. 38 of the 1994 Act occurred when the cash was in garda custody.

126. Similar to the arguments made in the case before me, it had been submitted in Kelly that there was no power pursuant to s. 38 of the 1994 Act enabling a member of An Garda Síochána to seize cash in the possession of another member originally taken earlier under different legislative provisions. O’Keeffe J. held, however, that it was lawful for a member of the Gardaí, acting pursuant to the 1994 Act, to seize cash held by another member seized originally under s. 9 of the 1976 Act and he applied the reasoning of the High Court of England and Wales in Chief Constable of Merseyside Police v Hickman & Ors [2006] EWHC 451 where consequent upon s. 294 of the Proceeds of Crime Act 2002 (which had similarities to s. 38 of the 1994 Act) it was held that cash already seized could be subsequently seized again and the police were not restricted to the user of one statutory provision to the exclusion of any other.

127. At paras 17 to 20, McCarthy J. sets out the reasoning of the Court of Appeal in McDermott as follows: “17. To my mind the matter is entirely straightforward and should be decided on first principles; there is no reason in principle why, if property is in the hands of An Garda Síochána having been lawfully seized, say, in the course of a search (as here) some other statutory power cannot be relied upon thereafter by a member to seize the item. There is no restriction of such a kind in any statute.

18. The seizure in the Garda Station (and the fact that it was in a Garda Station and kept in safekeeping in a safe) does not affect the position one way or another. The relevant or operative seizure was that effected on the 14th of July 2014 within the meaning of the Act, thus grounding the procedures thereunder. There is no basis for saying that, in effect, if in the course of a search the Gardaí seize items in contemplation of potential proceedings and having evidential value an item is, so to speak, sanitized and rendered immune thereafter from the provisions of the 1994 Act.

19. That conclusion means that the Dublin Circuit Court and the District Court before it was engaged in the matter has or had jurisdiction.

20. In the event that the seizure of the 14th of July is the seizure within the meaning of the 1994 Act, section 7 is not relevant. In any event section 7 merely provides that the 1897 Act “applies in the same manner as that Act applies to property which has come into the possession of the Garda Síochána in the circumstances mentioned in that Act” [my emphasis]. It merely deals with any adjudication on ownership or disposition of property which may be in dispute

– that is what the 1897 Act is for and no more. If there was no such provision the 1897 Act could not be invoked for the purpose of deciding on ownership or disposition of property seized under the 2006 Act in the event of a dispute. The fact that items of property (including money) which might well be the proceeds of crime can be dealt with under the 1897 Act is neither here nor there when one is addressing the 1994 Act.”

128. In the case before me, the forfeiture application pursuant to s. 39 of the 1994 Act remains extant before the Dublin Circuit Court and is subject to the determination of this application for judicial review. As in McDermott, it is open to the Applicants in this case to make whatever arguments they choose to make in the context of those forfeiture proceedings before the Circuit Court.

129. In all such applications there is a right of appeal to the High Court against any forfeiture order that is made pursuant to s. 40 of the 1994 Act.

130. A similar approach to that carried out by McCarthy J. in McDermott but in the context of the choice for a local authority as between two statutory procedures in a planning enforcement case arose in Cusack v London Borough of Harrow [2013] UKSC 40.

131. Mr. Cusack, a solicitor, was using a property (originally built as a residential dwelling) as a solicitor’s office on a main road in Harrow England and the garden at the front of the property had been turned into a forecourt for use as a car park for members of staff and clients.

132. The council qua highway authority notified Mr. Cusack that the movement of vehicles across the footpath was a danger to pedestrians and other motorists and that it intended to erect barriers in front of his property and several neighboring properties to prevent cars driving over the footpath.

133. Section 80 of the Highways Act 1980 (“the 1980 Act”) in England allowed a highway authority, in certain circumstances, to erect and maintain fences or posts for the purpose of preventing access to a public highway without paying compensation whereas s. 66(2) of the 1980 Act provided that a highway authority could erect and maintain walls, rails, and fences for the purpose of safeguarding persons using the highway and would require compensation to be paid to the affected person.

134. While the decision of the UK Supreme Court involved a discussion of the Human Rights Act 1998 and the provisions of the ECHR, for the purposes of the arguments in this application, the decision of Lord Carnwath noted that the 1980 Act was a consolidating statute and was the result of a complex history extending over more than 130 years and containing a variety of overlapping and sometimes inconsistent powers.

135. He held, (allowing the council’s appeal and overturning the decision of the Court of Appeal which had held that s. 80 of the 1980 Act was not applicable because the council had power to erect the barriers under s. 66(2) of the 1980 Act which included compensation), that the power conferred by s. 66(2) of the 1980 Act must be used for a specific purpose (safeguarding persons using the highway) but, unlike s. 80 of the 1980 Act, it was not confined to preventing access to a highway.

136. At para. 27 of his judgment, referring to the decision of Lord Reid in Westminster Bank Ltd v Minister of Housing and Local Government [1971] AC 508 at p. 530 (“Westminster Bank”), Lord Carnwath held that the council was entitled to rely on the clear wording of s.80 in order to erect barriers in front of Mr Cusack’s property and it did not matter that it could use s. 66(2) of the 1980 Act to achieve the same objective: “(27) … the council is entitled to rely on the clear words of s.80 for the power they seek. There is no express or implied restriction on its use. On the basis of the pre-1998 Act authorities, the fact that section 66(2) may confer an alternative power to achieve the same object, which is subject to compensation, is beside the point. That is clear in particular from the Westminster Bank case (see above). There also the legislation provided two different ways of achieving the council’s objective, one under the planning Acts and the other under the Highways Act, only the latter involving compensation. The authority was entitled to rely on the former.

(28) Lord Reid (giving the majority speech) said: “Here the authority did not act in excess of power in deciding to proceed by way of refusal of planning permission rather than by way of prescribing an improvement line. Did it then act in abuse of power? I do not think so.

Parliament has chosen to set up two different ways of preventing

development which would interfere with schemes for street widening. It must have been aware that one involved paying compensation but the other did not. Nevertheless it expressed no preference, and imposed no limit on the use of either. No doubt there might be special circumstances which make it unreasonable or an abuse of power to use one of these methods but here there were none.” ([1971] AC 508, 530)

The passage (in the final sentence) also provides an answer to Mr Green’s concern that the power might be abused in particular cases, for example, to override specific prohibitions in section 66. Judicial review is not excluded in such circumstances”.

Constitutional grounds & The ECHR Act 2003

137. The Applicants argue, in the alternative, that if the retention of seized cash was lawful in accordance with s. 7(1) of the 2006 Act, then that section is incompatible with their rights as protected by the Constitution (Articles 40.3, 43 and 37) and/or the European Convention on Human Rights Act 2003 (“the ECHR Act 2003”) and that the defects in the initial seizure and retention have not been cured by the granting of an order permitting the continued detention of their cash under s. 38(2) of the 1994 Act.

138. Section 7 of the 2006 Act (as is s. 38 of the 1994 Act) is subject to the presumption of constitutionality and the double-construction rule and the onus is on the Applicants to displace same.

139. Accordingly, it is presumed that all legislation passed since 1937 is in conformity with the Constitution and that where two possible constructions are open in interpreting legislation, it is the court’s duty to adopt the interpretation which is consistent with the Constitution where this is available: Sweeney v Ireland [2019] IESC 39 per Charleton J. at para. 72; Jordan v Minister for Children and Youth Affairs [2015] 4 I.R. 232 per O’Donnell J. (as he then was) at para. 199; see generally, McDonald v Bord na gCon (No.2) [1965] I.R. 217 at p. 239 (per Walsh J.) and East Donegal Cooperative v Attorney General [1970] 1 I.R. 317.

140. In The People (DPP) v Quirke [2023] IESC 5, Charleton J. observed at para. 37 of the judgment of the Supreme Court that “[d]istortion cannot enter into the construction of the primary function under Article 15.2 of the Constitution for the Oireachtas to be the sole and exclusive lawmaking body for the State. It would be contrary to principle, further, to change such plain words into something which they are not. That is outside the scope of the double construction rule. Where two interpretations of a statute are possible, one of which is in conformity with the Constitution and the other of which is not, the courts must opt for the constitutional interpretation: McDonald v Bord na gCon (No.2) [1965] I.R. 217 at 239. An impossible interpretation is not to be forced onto the wording of a statute, however, in order to keep its effect within constitutional boundaries: Colgan v Independent Radio and Television Commission [1998] IEHC 117, [2000] 2 I.R. 490.”

141. The Applicant’s reliance on the decision of the High Court in Vehicle Tech Ltd does not, in my view, displace the presumption of constitutionality.

142. In that case, the High Court (Laffoy J.) held that s. 31(8) of the of the Criminal Justice Act 1994 as substituted by s. 21 of the Criminal Justice (Theft and Fraud) Act 2001 (“the 1994 Act (as substituted)”), was invalid having regard to the provisions of the Constitution because it infringed the plaintiff’s right to fair procedures under Article 40.3 and their property rights under Article 40.3 and Article 43 of the Constitution.

143. The outcome of An Garda Síochána conveying information to a financial institution in accordance with s. 31(8) of the 1994 Act (as substituted) in relation to a particular account was that the account would be frozen indefinitely until the Bank was told otherwise by the gardaí. Unlike the position with s. 7 of the 2006 Act, s. 31(8) of the 1994 Act (as substituted) had no safeguards or limitations in place. The freezing order could last indefinitely, without the owner having any opportunity to challenge that order whereas s.

7 of the 2006 Act does not represent the same type of interference and, rather, provides for temporal limitations on seizure and retention in circumstances where a member of the gardaí has “reasonable grounds for believing that it is evidence of, or relating to, the commission of an arrestable offence” and it was seized and retained “for use as evidence in any criminal proceedings for such period from the date of seizure as [was] reasonable … or, if proceedings commenced in which the thing so seized is required for use in evidence, until the conclusion of the proceedings.”

144. Further, in terms of constitutional challenges, the test for the abridgment of a constitutional right is that stated in Heaney v Ireland [1996] 1 I.R. 580; [1997] 1 ILRM

117 (“Heaney”) by the High Court (Costello J., as he then was).

145. In my view, s. 7 of the 2006 Act meets the Heaney test in that its objective is of sufficient importance to warrant overriding the claimed constitutional rights of the Applicants and it relates to concerns pressing and substantial in a free and democratic society, in this case, the seizure and retention of cash during the carrying out of an investigation by An Garda Síochána. Section 7 of the 2006 Act meets the proportionality threshold and is (a) rationally connected to the objective and is not arbitrary, unfair or based on irrational considerations; (b) impairs the claimed rights of the Applicants as little as possible, and

(c) is such that its effects on their claimed rights are proportional to the objectives sought to be achieved. The provisions of s. 7 of the 2006 Act insofar as they interfere with the Applicants’ claimed constitutional rights to property in the cash which was seized do so in a proportionate manner which is consistent with, and justified in the common good, which encompasses measures to seize and retain evidence and facilitate the proper investigation of suspected or alleged criminal activity. Additionally, s. 7 of the 2006 Act has a number of limitations. It can only be exercised by a garda. The garda must be either present in a public place, or some other place under a power of entry authorised by law or by permission.

146. In the Applicant’s case, the gardaí were present in the premises under a search warrant which was issued by the District Court. There was, therefore, judicial scrutiny and supervision of the power of entry and reference to the fact that items (‘things’) may be seized on the premises subject to compliance and satisfaction with the provisions of s. 7 of the 2006 Act. The power is limited to the seizure of specific things unlike the circumstances which arose in Vehicle Tech Ltd. The seizure is only permitted if, prior to seizure of the garda has formed a reasonable suspicion that the ‘thing’ constitutes evidence of or relating to the commission of an arrestable offence. The property seized can only be retained for a period that is reasonable, or if proceedings are commenced, for so long as it is required for use in evidence until the conclusion of the proceedings. Section

7 of the 2006 Act incorporates the Police (Property) Act 1897 where the District Court is empowered ‘thereafter’ to return the item if that outcome is warranted.

147. In this case, on foot of the search warrant issued on 11th August 2021, on the following day – 12th August 2021 – D/G Gavin seized and retained, pursuant to s. 7 of the 2006 Act, the sum of €16,000 in cash which he found in the premises. In exercising his powers to seize and retain the cash, D/G Gavin, pursuant to s. 7 of the 2006 Act, stated that he had reasonable grounds for believing that the cash was evidence of, or relating to, the commission of an arrestable offence.

148. Further, the process which resulted in the initial seizure of the cash was carried out under judicial supervision when the District Court had issued a search warrant on 11th August 2021. The initial seizure of the cash was based on reasonable grounds for believing that the cash was evidence of, or relating to, the commission of an arrestable offence on foot of this search warrant which was mediated judicially and issued by the District Court and which determined that such a search was necessary in the circumstances: see generally the discussion in The People (DPP) v Quirke [2023] IESC 5; [2024] 2 I.R. 1 by the Supreme Court (in the judgment of Charleton J.) in Poptoshev v The DPP & Ors [2025] IESC 47.

149. It is observed that at no stage did the Applicants seek to challenge the underlying search warrant which issued on 11th August 2021. Before a search warrant can be issued, the District Court judge was required to determine that the suspicions were sufficient to require the particular search and that the power was being used for the mandated purpose, and that the circumstances were such as to justify that judicial mandate: Damache v Ireland [2012] IESC 11; [2012] 2 I.R. 266; The People (DPP) v Quirke, as referred to by Charleton J. in Poptoshev v The DPP & Ors [2025] IESC 47 at para. 76.

150. In this judgment, I have rejected the Applicants’ arguments that s. 7(1) of the 2006 Act does not contain safeguards for a person whose cash property is seized or that permits the exercise of judicial functions by persons other than the judiciary and that it is incompatible with Articles 40.3.2⁰, Article 43 and Article 37 of the Constitution.

151. The legislative provisions in s. 7 of the 2006 Act (and s. 38 of the 1994 Act), in my view, are proportionate and provide a lawful basis for the seizure and retention (and the subsequent seizure and detention pursuant to s. 38 of the 1994 Act) of the cash during the carrying out of an investigation.

152. On the same basis, I reject the Applicants’ argument that when viewed through the prism of seeking a declaration in accordance with s. 5 of the ECHR Act 2003, s.7(1) of the 2006 Act is incompatible with Articles 6, 8 and 13 of the ECHR and Article 1 of the 1st Protocol.

153. It can be observed that a number of similar rights contained in the ECHR are also found, albeit framed in different language, in the fundamental rights provisions of the Constitution. In this judgment, I have held against the Applicants in their challenges to the decisions made by the Respondents pursuant to the provisions of the 2006 Act and the 1994 Act in connection with the initial seizure and retention and subsequent seizure and detention of the cash. Whether viewed through the prism of the administrative law grounds, constitutional grounds or the ECHR Act 2003, in my view, there is no basis for granting the reliefs which the Applicants seek in this application for judicial review.

154. Further and having regard to the dualist nature of Article 29.6 of the Constitution, the obligation to abide by the ECHR originally existed as a matter of international law. Then, by the enactment of the ECHR Act 2003 effect was given to the ECHR in Irish law at a sub-constitutional, indirect manner by creating an obligation (s. 3 of the ECHR Act 2003) on State bodies (but not the Oireachtas or the courts (s. 1 of the ECHR Act 2003)) to perform their functions in a manner compatible with the State’s obligations under the ECHR provisions. Courts, however, are also obliged to abide by the interpretative obligation contained in s. 2(1) of the ECHR Act 2003 which provides that “[i]n interpreting and applying any statutory provision or rule of law, a court shall, in so far as possible, subject to the rules of law relating to interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provisions.”

155. It can be generally observed that, as a matter of international law, in terms of the obligations of a contracting party (or State), Article 46(1) of the ECHR provides that judgments of the ECtHR are expressly binding on the States and parties to which they are addressed. Further, within the Council of Europe, it is the Committee of Ministers which has responsibility for supervising the enforcement of judgments (Article 46(2) of the ECHR). In the last 20 years or so, however, the Strasbourg Court has adopted the practice of giving indications of the individual or general measures which are required to be adopted pursuant to Article 46 of the ECHR in order to address the particular Convention violation which has occurred in any particular case (see observations of Marko Bošnjak in a speech entitled “Binding Force: Institutional Dialogue Between The ECHR and The Committee of Ministers under Article 46 of The European Convention on Human Rights” in a seminar entitled “An overview of the use of Article 46 of the Convention in the caselaw of the European Court: indicating specific individual or general measures to be taken by the respondent States”, Strasbourg, 23rd March 2023).

156. As outlined, given the constitutional constraints and the manner in which the ECHR has been given effect to at a sub-constitutional indirect manner in Ireland through the prism of the ECHR Act 2003, each of the Convention provisions are not directly effective in Irish domestic law. For example, in MD v Ireland [2012] IESC 10; [2012] 1 I.R. 697 (“MD”), Denham C.J., at para. 59 of her judgment, stated as follows: “In reality the Convention claim has been presented as subsidiary to the constitutional claim. The claim, as pleaded, is simply that s. 3 is “in breach of” the Convention. That formulation is not acceptable. It treats the Convention as if it had direct effect and presumes that the Court has the power to grant a declaration that a section is in breach of the Convention. It is clear from the judgments of this Court in McD v L [2010] 2 I.R. 199 that the European Convention on Human Rights Act 2003 did not give direct effect in Irish law to the European Convention on Human Rights. As Murray C.J. stated at page 248, “The Convention does not of itself provide a remedy at national level for victims whose rights have been breached by reference to the provisions of the Convention.”

157. The consequences of the ECHR being given indirect effect and at a sub-constitutional in Irish domestic law were recognised in the judgment of Denham C.J. in MD in terms of its pleading in litigation and assessment by the courts.

158. Further, and while not a matter for determination in this application for judicial review, variations of the phrase “in a manner compatible with the State’s obligations under the Convention provisions” are employed, for example, in the interpretive provisions in s. 2 of the ECHR Act 2003, the obligations on certain organisations in s. 3 of the ECHR Act 2003 and what is referred to as “a declaration of incompatibility” in s. 5 of the ECHR Act 2003, i.e., “a declaration that a statutory provision or rule of law is incompatible with the State’s obligations under the Convention provisions”. A future case, where the issue arises, might consider this terminology further from the perspective of the terms used in international law in contrast to national law.

159. Section 1(1) of the ECHR 2003 Act defines “Convention provisions” as meaning: “… subject to any derogation which the State may make pursuant to Article 15 of the Convention, Articles 2 to 14 of the Convention and the following protocols thereto as construed in accordance with Articles 16 to 18 of the Convention:

(a) the Protocol to the Convention done at Paris on the 20th day of March, 1952;

(b) Protocol No. 4 to the Convention securing certain rights and freedoms other than those already included in the Convention and in the First Protocol thereto done at Strasbourg on the 16th day of September, 1963;

(c) Protocol No. 6 to the Convention concerning the abolition of the death penalty done at Strasbourg on the 28th day of April, 1983;

(d) Protocol No. 7 to the Convention done at Strasbourg on the 22nd day of November, 1984;

(e) Protocol No. 13 to the Convention, concerning the abolition of the death penalty in all circumstances done at Vilnius on the 3rd day of May 2002, (the texts of which protocols, in the English language, are, for convenience of reference, set out in Schedules 2, 3, 4, 5 and 6 (inserted by section 55 of the Irish Human Rights and Equality Commission Act 2014) respectively, to this Act)”.

160. In the interpretation of Convention provisions (as defined above), s. 4 of the ECHR Act 2003 refers to “judicial notice shall be taken of the Convention provisions and of (a) any declaration, decision, advisory opinion or judgment of the European Court of Human Rights established under the Convention on any question in respect of which that Court has jurisdiction, (b) any decision or opinion of the European Commission of Human Rights so established on any question in respect of which it had jurisdiction, (c) any

decision of the Committee of Ministers established under the Statute of the Council of Europe on any question in respect of which it has jurisdiction, and a court shall, when interpreting and applying the Convention provisions, take due account of the principles laid down by those declarations, decisions, advisory opinions, opinions and judgments.” (Underlining added in this judgment).

161. In Costello v Government of Ireland [2022] IESC 44, Hogan J., at para. 182 inter alia observed that “[t]he 2003 Act does not state… that such decisions of the [ECtHR] have binding legal status in our domestic law”.

162. A different terminology is employed in the UK Human Rights Act 1998, as amended (“the 1998 Act”).

163. Section 3 of the 1998 Act deals with the interpretation of legislation and provides at s. 3(1) that “[s]o far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights” and a declaration of incompatibility is referred inter alia in s.4(2) as “[i]f the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.”

164. The phrase “the Convention rights” in the 1998 Act is defined in s. 1(1) as meaning:

“(1) the rights and fundamental freedoms set out in—(a)Articles 2 to 12 and 14 of the Convention,(b)Articles 1 to 3 of the First Protocol, and (c) Article 1 of the Thirteenth Protocol, as read with Articles 16 to 18 of the Convention. (2)Those Articles are to have effect for the purposes of this Act subject to any designated derogation or reservation (as to which see sections 14 and 15). (3)The Articles are set out in Schedule 1. (4)The Secretary of State may by order make such amendments to this Act as he considers appropriate to reflect the effect, in relation to the United Kingdom, of a protocol. (5)In subsection (4) “protocol” means a protocol to the Convention— (a)which the United Kingdom has ratified; or (b)which the United Kingdom has signed with a view to ratification. (6)No amendment may be made by an order under subsection (4) so as to come into force before the protocol concerned is in force in relation to the United Kingdom.”

165. Generally, the Supreme Court has emphasised that as a matter of substance the seeking of a declaration of unconstitutionality is not the same as the seeking of a remedy under s.

5 of the ECHR Act 2003 as the former, if granted by a court, has immediate erga omnes prospective effect, described by Henchy J. as the equivalent of a “judicial death certificate” in Murphy v Attorney General [1982] I.R. 241 at p. 340, whereas s. 5(2) of the ECHR Act 2003 inter alia provides that the granting of a declaration of incompatibility shall not affect the validity, continuing operation or enforcement of the statutory provision or rule of law in respect of which it is made.

166. The Supreme Court has, therefore, stated that as a matter of procedure or priority, the first port of call should always be the constitutional challenge: see Corcoran & Anor v The Garda Commissioner & Anor [2023] IESC 15, Gorry v Minister for Justice [2020] IESC 55, Clare County Council v McDonagh [2022] IESC 1; [2022] 2 I.R.122, Middlekamp v Minister for Justice [2023] IESC 3; [2023] 1 ILRM 277, Odum v Minister for Justice [2023] IESC 26.

167. I have, therefore, addressed the constitutional arguments in the first instance and for the same reasons as set out therein, I am also of the view that the Applicants’ challenge to the decisions made pursuant to the 2006 Act and the 1994 Act and to the provisions of s.

7 of the 2006 Act and s. 38 of the 1994 under the provisions of the ECHR Act 2003 must also be refused.

168. In so doing, I also note the following extrajudicial observations of Hogan J.: “regardless of the philosophical and textual analysis of these words the courts were themselves essentially asking questions bearing on the internal consistency and proportionality of the impugned legislative measures. Was there a rational reason for the legislation? Did it impair the substance of property rights? Was there fair burden sharing between different categories of persons? Regardless of the precise wording the results would generally be seen the same, even if, for example, the courts had used the wording of Article 1 of the 1st Protocol ECHR as opposed to that found in Article 40.3.2⁰ and Article 43” (“Four Score and Seven Years of the Constitution – Is a New Birth of Freedom Required?” delivered by Mr. Justice Gerard Hogan at the Attorney General’s Conference on 11th October 2024: see https://www.supremecourt.ie/docs/default-source/defaultdocument-library/supreme-court/speeches/hogan-j_attorney-general's-conference.pdf).

169. Separately, and by way of general observation, in terms of claimed rights in property in the context of an appeal in forfeiture proceedings, in DPP v Baxter [2021] IEHC 256, a customs and excise officer employed by the Revenue Commissioners had seized and detained, pursuant to s. 38(1A) of the 1994 Act, cash in the amount of €79,950 which was in €50 notes and found in the carry-on bag of the appellant who was about to board a flight to Barcelona at Dublin Airport.

170. The High Court (Owens J.) in rejecting the appellant’s appeal, held that the DPP had proved that the cash seized by the customs officer from the appellant at Dublin Airport directly or indirectly represented the proceeds of crime or was intended at the time of seizure for use in connection with criminal conduct. Owens J. further held that the cash was lawfully seized following an examination of the carry-on bag of the appellant which was conducted with his consent. In describing the amendments to the 1994 Act effected by the Proceeds of Crime (Amendment) Act 2005, Owens J. observed that the change to s. 38 of the 1994 Act, at para. 37 as including “[o]ne effect of these changes was that powers of search and seizure of members of the Garda Síochána and officers of customs and excise of any person’s cash proceeds of drug trafficking or cash for use in that activity and the provisions for detention and forfeiture of cash so taken were extended to cash which directly or indirectly represents proceeds of crime.”

171. Owens J., at para. 41, stated that even if he were to conclude that there was no consent by the appellant to the search of his bag or that there was insufficient evidence that the customs and excise officer was possessed of information which gave her reasonable grounds to suspect that he may have been engaged in the carriage of goods which were the subject of a prohibition on exportation, this was not a case where he would intervene to direct that the money representing the cash be returned.

172. At para. 42, Owens J. referred to the decision of the Supreme Court (O’Malley J.) in Criminal Assets Bureau v Murphy [2018] IESC 12; [2018] 3 I.R. 640 (“Murphy”) and stated that it did not follow that property which had been taken as a result of some unlawful act by a State agency, will always be returned to the holder or would not be amenable to some further process such as a forfeiture or an order under s. 3 of the Proceeds of Crime Act 1996.

173. In Murphy, the Supreme Court inter alia had held that the rule in The People (DPP) v JC [2015] IESC 31; [2017] 1 I.R. 417 (“JC”) could be modified and applied in order to challenge a civil confiscation or seizure of assets under the Proceeds of Crime Act 1996, as amended.

174. At para. 141 of her judgment, O’Malley J. added that “[i]t may be necessary to point out that the result of an order dismissing [CAB]’s application would not in all cases be the return of the asset to the respondent from whom it had been taken, any more than contraband such as firearms, drugs or manifestly stolen property is returned to an acquitted person after trial. There is, as has been stated several times, no constitutional or legal right to possession of such items.”

Forfeiture application

175. In addition, there is, in my view, no basis to the argument made by the Applicants that the period of 2 years provided for in s. 38(3)(b) of the 1994 Act has been exceeded.

176. In this regard, on 14th April 2024 the cash was seized by D/G Tighe pursuant to s. 38(1A) of the 1994 Act and made subject to a s. 38(2) order on 15th April 2024 and since then a series of further orders made pursuant to s. 38(2) have issued, the last permitting detention until 6th April 2025. A copy of the unredacted sworn information from D/G Tighe dated 15th April 2024 is exhibited in the third supplemental Affidavit from D/G Tighe sworn on 12th November 2025. The starting date for the two year period was, therefore, 14th April 2024.

177. D/G Tighe confirmed in his Affidavit sworn on 1st April 2025 that no application had been made by, or on behalf of, the Applicants in relation to the seized cash pursuant to s. 38(5) of the 1994 Act.

178. The observation of Ms. Justice Dunne in the Supreme Court and the High Court (Clark J.) in Reilly v DPP & Ors [2016] IESC 59 (“Reilly”) that no application was made by Mr. Reilly for the return of the money as is provided for under s. 38(5) of the 1994 Act in that case, has, therefore, similar application to this case, as confirmed by D/G Tighe.

179. In terms of the extant forfeiture application, in the supplemental Affidavit of D/G Tighe sworn on 1st April 2025, the deponent confirms that a motion pursuant to s. 39 of the 1994 Act issued on 14th March 2025 on the application of the DPP and was returnable to the Circuit Court on 18th March 2025. The motion was served on the Applicants on 15th April 2025. On 18th March 2025, the Applicants applied for the matter to be adjourned, the Dublin Circuit Criminal Court adjourned the motion for mention only, initially to 8th April 2025 and the matter stands adjourned to await the outcome of this judicial review application. Contrary to the submissions made by the Applicants, this was all done within the statutory time period.

180. In Reilly, Dunne J., for example, stated that she was “satisfied that on the facts of this case an application was made pursuant to s. 39(1) of the 1994 Act once the originating notice of motion was issued and served within the two year time limit. Section 39(1) permits a judge of the Circuit Court to order the forfeiture of cash detained under s. 38 of the 1994 Act, “on an application made while the cash is detained..” S.39(2) provides that “any application shall be made... by the Director of Public Prosecutions”. An application for the forfeiture of money seized from an individual pursuant to the 1994 Act could hardly be made in the absence of notice being given to the individual concerned. Order 69 of the Rules of the Circuit Court expressly provides that “The application shall be made on notice to any person from whom the cash was seized...” That being so, it seems clear to me that the critical factor in calculating the time period is when notice is served on the person concerned. In this case, that occurred before the two year time period had expired”.

181. Here, the application had a return date of 18th March 2025 to the Dublin Circuit Court and it currently stands adjourned pending the determination of this judicial review application.

CONCLUSION AND PROPOSED ORDER

182. Accordingly, for the reasons set out in this judgment, I shall refuse the Applicants the reliefs sought by way of judicial review and I propose to make an order in those terms.

183. I shall also accede to the first to fourth named Respondents’ application to amend the title of these proceedings and shall delete the reference to D/S Anthony Collins who was initially described as the first-named Respondent.

184. I shall put the matter in for mention on Thursday 18th June 2026 at 10.30am to deal with the question of costs and any ancillary or consequential matters which arise.

CONLETH BRADLEY

11th June 2026