The Supreme Court has ruled that a court considering a Criminal Assets Bureau forfeiture application must address whether property was seized through a breach of constitutional rights before granting an order over it. The Court allowed an appeal by Michael Murphy Junior and Michael Murphy Senior and remitted the case to the High Court for rehearing under the principles it set out.
The appeal concerned £6,625 sterling and €9,000 seized by gardaí during a search on 28 May 2009 of a house in County Cork. The search warrant had been issued under section 29 of the Offences Against the State Act 1939. The Supreme Court had later held that section unconstitutional in *Damache v Director of Public Prosecutions*. The trial judge treated the house as the dwelling of Murphy Junior and his girlfriend, Amy Forrest, who was a notice party in the proceedings.
The Bureau obtained an interim order in 2010 and then sought an order under section 3 of the Proceeds of Crime Act 1996. The High Court found the cash represented proceeds of crime and made an order, reducing the total by an amount it found had a legitimate source. The Court of Appeal dismissed the Murphys’ appeal, reasoning that the cash was the subject of the proceedings rather than evidence being tendered at trial, so the exclusionary rule did not apply.
The Supreme Court rejected that as a complete answer. Justice O’Malley said the question was whether the State could obtain an order intended to deprive the Murphys of cash seized under an invalid warrant. The constitutional principles behind the exclusionary rule—including the integrity of the administration of justice and the need for State agents to comply with the law—can apply beyond criminal trials and in proceedings under the Act.
The Court said a judge should refuse the Bureau’s order if the evidence establishes that the asset was seized through a deliberate and conscious breach of constitutional rights. A reckless or grossly negligent breach should create a discretion, with a presumption in favour of refusing the order. Where the challenge concerns the asset itself, it must be expressly raised during the hearing and supported by affidavit evidence. The Bureau then bears the burden of showing, on the balance of probabilities, either that the seizure was not unconstitutional or that an order should nonetheless be made.
A respondent generally may rely only on a breach of their own rights, subject to an exception for an egregious breach of another person’s rights that warrants dismissing the proceedings. The Court did not decide whether the Murphy cash should ultimately be forfeited. It ordered a rehearing under the judgment’s approach.