The Court of Appeal dismissed Adam Howe and Laurence Keane’s appeal against the refusal of judicial review over the continued detention of cash seized at Dublin Airport. It held that the temporary detention order they challenged had expired and that the dispute’s merits should be addressed in any forfeiture proceedings in the Circuit Court.
The cash was seized on 8 August 2015, when the men were preparing to fly from Dublin to Ibiza. Howe had €3,900 and Keane €4,250. Customs officers also found cocaine in each man’s checked baggage. The cash was detained under section 38 of the Criminal Justice Act 1994, on the basis of reasonable grounds to suspect it represented proceeds of crime.
At a District Court hearing on 5 February 2016, the applicants’ counsel argued that each sum was below the statutory threshold and that combining them was improper. The investigating officer said he suspected “smurfing”: splitting cash into smaller amounts to avoid detection. The District Court judge asked why the applicants had not answered requests for information about the cash and said they should attend court to address its origins. The judge adjourned the matter for a full hearing and ordered the cash retained in the meantime.
The High Court refused judicial review. It considered the District Court judge had misunderstood the burden of proof by expecting the applicants to give evidence, but found that error did not justify quashing a temporary detention order. The order had since expired and been replaced by later orders.
The Court of Appeal said the District Court transcript was open to the interpretation that the judge had erred about the burden of proof. It considered the error of limited significance because the hearing concerned continued detention for a limited period, not forfeiture. The court also noted that the applicants’ counsel had agreed to an order covering the intervening period while the case was listed for a fuller hearing.
The appeal court declined to decide whether the two sums could be aggregated. It said that question depended on the facts and was likely to arise in a Circuit Court forfeiture application. It also said information about the cocaine found in both men’s luggage should have been brought to the judge who considered leave for judicial review, as it could bear on whether the men were connected for the aggregation issue.
The court dismissed the appeal. It made no final determination on forfeiture or on whether the sums could be combined.