The Court of Appeal has dismissed a Criminal Assets Bureau (CAB) appeal against an order granting two respondents legal aid to defend CAB proceedings over four properties. The aid is limited to one solicitor and one junior counsel representing both respondents. The appeal court did not decide whether the properties were proceeds of crime; that dispute remains for the substantive proceedings.
CAB had obtained an ex parte order in July 2019 restraining dealings with Properties 2, 3 and 4. The respondents live with their children in Property 4; Properties 2 and 3 are tenanted. Property 1, bought in 2001, is not itself part of the application. CAB alleges that criminal proceeds funded Property 1 and that value from its sale, refinancing and subsequent transactions funded Properties 2, 3 and 4. It also alleges that a mortgage for Property 1 was obtained through misrepresentations. These are allegations, not findings in the appeal.
The respondents disputed CAB’s account and said the first respondent had employment income and savings, while the second respondent had income from businesses. The first respondent said their current resources were insufficient to pay for legal representation. CAB challenged that evidence, citing bank lodgements it said were unexplained, travel, vehicles and inconsistencies in the respondents’ accounts. CAB’s forensic accountant alleged a roughly €3 million shortfall between verifiable income and the couple’s alleged spending and purchases over almost two decades.
The High Court admitted both respondents to the scheme on 2 June 2020 and joined the second respondent to the proceedings. It found their means insufficient and considered the case sufficiently complex to meet the scheme’s exceptional-circumstances and interests-of-justice requirements. CAB argued on appeal that the respondents had not adequately explained their finances or shown why legal aid was essential.
The Court of Appeal held that the means assessment concerned the respondents’ financial position and capacity to generate funds at the time of the High Court hearing. Whether their assets had been acquired legitimately was a matter for the substantive trial, not a question the legal-aid application required the judge to decide. The court said the evidence supported the finding that the respondents could not fund private representation, taking account of ongoing mortgage liabilities. It also held that the transactions, financial records, employment and business histories, and disputed funding of the properties cumulatively established exceptional circumstances making legal aid essential in the interests of justice.
The appeal was dismissed on all grounds. The court gave a provisional view that the respondents should receive their appeal costs, subject to written submissions within specified 14-day periods if either side wished to contest that view. The court did not make a final determination of costs in the judgment.