Court of Appeal: Men who had €8k seized before flight to Ibiza lose appeal to have cash returned

About this case:

• Citation:
  [2019] IECA 113
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice George Birmingham

The men, who were also found in possession of cocaine valued at over €4,000, argued that they were entitled to have the cash returned as the District Court judge presiding over the application to extend the detention order had erred on a point of law by adjourning the case to hear evidence from the men.

Dismissing the appeal, Mr Justice George Birmingham agreed with the High Court that the low threshold for detention was met in any event and that it was not an appropriate case for judicial review.

Background

On 8 August 2015, Adam Howe and Laurence Keane were about to board a Ryanair flight from Dublin to Ibiza when they were approached by Customs and Excise officials. Mr Howe had €3,900 in cash on his person and Mr Keane had €4,250 on his person. When their checked baggage was examined, it was discovered that there was cocaine valued at €2,100 concealed in Mr Howe’s baggage, and cocaine valued at €2,100 concealed in Mr Keane’s baggage.

Mr Howe and Mr Keane did not provide any explanation for the cash, but Mr Howe stated that he had received the money from his mother and would be spending it during his three days in Ibiza. The cash was seized and detained by Customs Officers. Later that same day, one of the Customs Officers swore an information before a judge of the District Court seeking a detention order pursuant to s.38 of the Criminal Justice Act 1994, as amended by s. 20 of the Proceeds of Crime (Amendment) Act 2005, on the basis that there were reasonable grounds for suspecting that Mr Howe and Mr Keane were exporting or intending to export cash of unknown origin and that the cash, directly or indirectly, represented the proceeds of crime.

The judge made an order authorising the detention of the monies for three months, and the investigating officer wrote to Mr Howe and Mr Keane seeking a detailed explanation of the source and the intended use of the cash, along with any available documentary proof in relation to whatever claim was being made. There was no reply to his letters.

Smurfing

In October 2015, the investigating officer wrote again, putting the applicants on notice that he intended to seek a further detention order at a hearing on 6 November 2015. At the hearing, Mr Howe and Mr Keane were represented by counsel who opposed the application on the basis that the sum seized from each individual was below the statutory threshold, and thus, that the suspicion was inadequate.

The investigating officer outlined the basis of his suspicions and his belief that a process known as “smurfing” was involved whereby money from the same source is broken down into smaller amounts in order to avoid detection.

In the District Court, Judge Halpin authorised the further detention of the monies for another three months.

Despite further letters thereafter from the investigating officer regarding the source and intended use of the cash, there was no reply.

In the District Court on 5 February 2016, the investigating officer sought an order authorising the further detention of the cash. Counsel for Mr Howe and Mr Keane argued again that the amount seized from each of his clients was below the statutory threshold, and said certain proofs had not been made out by the state. The judge said that he wanted to hear from Mr Howe and Mr Keane, who were not in attendance on this date, so he put the matter for the next available date which was 23 March. Mr Justice Birmingham said that what occurred at this hearing was central to the application for judicial review, and a transcript of the proceedings was made available to the Court.

Application for judicial review

The application for judicial review contended that:

• The sum seized from each individual was below the prescribed statutory minimum in order for the provisions of s. 38 of the Criminal Justice Act 1994, as amended by s. 20 of the Proceeds of Crime (Amendment) Act 2005 to apply;
• The hearing in the District Court on 5 February 2016 was not conducted in accordance with fair procedures, or the procedures mandated by s. 38 and that the judge erred in law and acted unreasonably by reversing the burden of proof and stating that he was adjourning the matter so that the applicants could attend and give evidence of the origin of the money.
• In adjourning the case, the Court did not make an order pursuant to s. 38, therefore the previous order had lapsed, there was no order in place permitting the continued retention of the funds pursuant to the Criminal Justice Act 1984, and the funds should be returned.

In the High Court in January 2017, Mr Justice Michael White refused relief by way of judicial review, wherein Mr Howe and Mr Keane sought the return of the money seized on 8 August 2015. Mr Justice White said that there were ample grounds from Officer Roche’s sworn evidence to pass the threshold for reasonable grounds or suspicion that the monies, directly or indirectly, represented the proceeds of crime. He said the suggestion that the District Court was rubberstamping earlier orders was incorrect, citing the ample evidence given by Officer Roche.

Mr Justice White said that he felt that the District Court judge had misunderstood the burden of proof and the onus on the Customs & Excise authorities to justify continuing detention. The District Court judge was in error as the Act does not mandate an explanation from a person from whom monies have been seized, nor require that a person from whom cash is seized give sworn evidence.

Finally, Mr Justice White pointed out that the decision to grant an order of certiorari was discretionary. He said the order of the District Court judge did not prejudice Mr Howe and Mr Keane in the final determination of the forfeiture application in that it related to a temporary detention order pending investigation. He said that the order was not bad on its face, nor made in excess of jurisdiction, and that there was sufficient evidence for the court to make the order.

Court of Appeal

Giving the judgment of the Court, Mr Justice Birmingham said that it was open to interpretation that the District Court judge was in error in relation to the onus of proof. He said that the error was not of any great significance, and that it did not provide the basis for judicial review.

It was true that the District Court judge had incorrectly envisaged that Mr Howe and Mr Keane would have to give evidence, but that given the low threshold for continued detention of the cash seized, it was “not easy to see how resistance could be successful, absent something being put forward by way of explanation from those found in possession of cash and cocaine”.

Dismissing the appeal, Mr Justice Birmingham said that this was not an appropriate case for certiorari – and that the merits of the dispute should be addressed in the context of forfeiture proceedings in the Circuit Court.

• by Seosamh Gráinséir for Irish Legal News