THE HIGH COURT
			JUDICIAL REVIEW
			2000 No. 327 JR
BETWEEN
MARK MC DONNELL
			APPLICANT
AND 
DISTRICT JUDGE UINSIN MAC GRUAIRC, THE OFFICE OF THE REVENUE COMMISSIONERS (CUSTOMS NATIONAL DRUGS TEAM) AND 
THE DIRECTOR OF PUBLIC PROSECUTIONS 
			RESPONDENTS

JUDGMENT of Mr. Justice Kearns delivered the 20th day of June, 2001.
On the 20th of October, 1998 the Applicant was in Cork Airport about to board a flight for Amsterdam in Holland.  He was there approached by Patrick O’Sullivan, an Officer of the Customs National Drugs Team, attached to the Office of the Revenue Commissioners.  He searched the Applicant’s luggage and found £69,000 in cash in plastic wrappers which he seized under Section 38 of the Criminal Justice Act 1994.  
Section 38 of the Criminal Justice Act, 1994 provides:-
(1)	“ A member of the Garda Siochana or an Officer of Customs and Excise may seize and, in accordance with this Section, detain any cash which is being imported into or exported from the State if its amount is not less than the prescribed sum and he has reasonable grounds for suspecting that it directly or indirectly represents any persons proceeds of, or is intended by any person for use in, drug trafficking.
(2)	Cash seized by virtue of this Section shall not be detained for more than 48 hours unless its detention beyond 48 hours is authorised by an Order made by a Judge of the District Court and no such Order shall be made unless the Judge is satisfied - 
(a)	That there are reasonable grounds for the suspicion mentioned in subsection (1) of this Section, and 
(b)	That detention of the cash beyond 48 hours is justified while its origin or derivation is further investigated or consideration is given to the institution (whether in the State or elsewhere) of criminal proceedings against any person for an offence with which the cash is connected.
(3)	Any 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.”
	
	Section 39 of the Criminal Justice Act, 1994 provides for a separate procedure whereby a Judge of the Circuit Court may order the forfeiture of any cash which has been seized under Section 38 of the Act if satisfied that the cash represents any persons proceeds of, or is intended by any person for use in, drug trafficking.
	On the 21st of October, 1998 Mr. O’Sullivan applied to the District Court in Cork City for an Order that the sum be detained for three months while the provenance of the monies was further investigated.  
	Subsequent applications were made for further three month periodic detentions on the 12th of January, 1999, the 8th of April, 1999, the 1st of July, 1999, the 28th of September, 1999, the 22nd of December, 1999 and the 22nd of March, 2000.
	During this period, the Applicant sought to assemble documentation and statements to support a case that he had the cash, not for drugs, but to buy cars in Holland for reimport and sale in England.  Various statements were furnished on his behalf to Mr. O’ Sullivan through a firm of English Solicitors in June 1999.  Thereafter an interview process followed in September 1999.  In 2000 it appears that a file was sent to the DPP with a view to recommending that application be made to the Circuit Court pursuant to Section 39 of the Criminal Justice Act, 1994 for forfeiture of the said sum of money.  A Notice of Motion dated 12th June, 2000 with a number of supporting Affidavits seeking such an order was issued returnable for a sitting of the Cork Circuit Court on the 20th of June, 2000.
	This step appears to have prompted the current judicial review proceedings wherein by Order dated 3rd July, 2000 the Applicant was given leave to bring judicial review by way of Certiorari in respect of the various orders of the District Court.  Part of the relief granted by the High Court on that occasion was an Order prohibiting the Respondents from taking any further steps in the proceedings the subject matter of the application, which has in effect put the Circuit Court application on hold pending the determination of these proceedings.
	As previously mentioned, the Applicant had a firm of Solicitors in England acting for him until January 2000.  No point was ever taken by them as to the adequacy or mode of notification of intended applications to the District Court.  On the 13th of March, 2000, the Applicant’s present Solicitors were advised by Mr. O’Sullivan by letter that he would be applying on the 22nd of March, 2000 for a further period of detention of the seized cash.
	Mr. O’Sullivan wrote in the following terms to the Applicant’s Solicitor, Mr. Frank Buttimer:-
“I wish to advise you that I will be making application to the District Court District Number 19 at the Courthouse, Anglesea Street, Cork on Wednesday the 22nd March, 2000 under the provisions of S.I. No. 41 of 1998 for an Order authorising the further detention of cash which was seized at Cork Airport on the 20th October, 1998.
I will advise you later of the time of the hearing.
Yours sincerely
Patrick O’Sullivan”
	
	Mr. Buttimer attended the hearing on the 22nd March, 2000 and raised the two points to which Mr. O’Carroll for the Applicant has confined the present judicial review proceedings.  Firstly, it was contended on behalf of the Applicant that it was incumbent upon the second named Respondent under and by virtue of Statutory Instrument 41/1998 to give seven days notice of the application in the particular prescribed form under S.I. 41, being form 38.6 schedule B, as required by Rule 6 (2) thereof.  It was further submitted that service on the Applicant was deficient in that he had not been served directly in the manner suggested by the statutory instrument at Rule 6 (2).
	In March 2000, as on previous occasions, Mr. O’Sullivan had effected service by means of a letter notifying the Applicant’s Solicitor of the application.  The letter did not set out any grounds upon which he proposed basing his application, nor was it in the form provided for in form 38.6 schedule B.
	At the conclusion of the hearing before him, the District Judge made rulings, firstly, deeming service on the Applicant via his Solicitor good and effective service and, secondly, declaring that although the form of notice was not in the specific format provided by the statutory instrument, that it too was good and effective.  He then directed that the said sum of cash be detained for a further three month period pursuant to Section 38 of the Criminal Justice Act, 1994.  He made no express order in respect of the validity of previous applications by the second named Respondent, although by obvious implication he was holding that they should be viewed in precisely the same manner.
	The Applicant contends that the District Judge exceeded his powers in so holding.  Further, it is submitted, the form of notification which the Applicant did in fact receive did not set out the grounds why the continued detention of cash was required at a time when he was, he contends, entitled to precise details and particulars of the case against him.
	Affidavits of Edward Hanlon, State Solicitor for Cork and Mr. Patrick O’Sullivan were filed in reply.  
	Mr. O’Sullivan deposed that on each occasion he gave evidence and satisfied the District Judge that he had the requisite statutory grounds to make the Orders sought.  
	At the hearing before the District Judge, Mr. Hanlon had also referred the Judge to the District Court Rules, 1997, and in particular Order 10 thereof, including Rule 12 which provides:-
“Service of a document shall be deemed good service if the Judge is satisfied that a Solicitor acting on behalf of the person to be served has accepted service thereof.  Such service may be effected by delivering to the Solicitor or by leaving at his or her office for, or by sending by post in an envelope to, such Solicitor, a copy of the document.”

	He also referred to O.12 Rule (25) which permits a Judge to deal with any non-compliance with any Rules “in such manner or upon such terms as the Judge thinks fit.”
	He also opened S.I. 41 of 1998 to the Court, which at O.38 R.1 (2) provides that no objection as to the form of a document shall be allowed unless the party affected thereby is misled or prejudiced.
	The District Judge accepted these submissions and deemed the service actually effected on the Applicant’s Solicitors to be good service on the Applicant.  Indeed, there has been no suggestion in the instant proceedings that the Applicant was not served, either with the requisite notice (although he now disputes its form) or that he was not served with the orders made at regular three month intervals.  Indeed the Applicant was actively involved in a process of information supply and interview with Mr. O’Sullivan throughout most of this period.  It cannot seriously be argued, in my view, that whatever form of service was adopted, that he suffered any kind of prejudice or disadvantage in the events which transpired, and indeed was represented in Court through his Solicitor on the 22nd of March, 2000.  It is well established that any supposed defects in service of proceedings are cured in such circumstances.  Any possibility of late notification, which was not in any event alleged, could have been cured by a request for an adjournment.
	The second point relates to the form and content of the notice given, which is perhaps the real point in this case.  
	Order 38 of the District Court Rules, 1997 as amended by S.I. 41 of 1998 provides at Rule 6:-
(1)	“An application to the Court under the provisions of subsection (3) of Section 38 of the Act for an Order authorising the further detention of cash seized shall be made by notice in the form 38.6, schedule B
(2)	Notice of the application shall be served on any person to be affected by the Order at least seven days before the date of hearing.  A copy of the Notice of Application together with the statutory declaration as to service thereof shall be lodged with the Clerk at least 48 hours before the date of hearing.”

I have appended the form 38.6 Schedule B to this Judgment. It is in effect a formal document indicating that an application will be made to the District Court on a specified date and time for an Order authorising the further detention of the cash seized on the grounds that the Applicant has reasonable grounds for suspecting that it was intended for use in drug trafficking and that further detention of the cash is justified while its origin or derivation is further investigated.
Mr. O’Carroll on behalf of the Applicant submits that it is implicit in the mandatory notice provisions that the person affected by the detention be notified of the precise grounds and purpose of the application, at the termination of each subsequent three month period and that the form of letter adopted by Mr. O’Sullivan clearly fell short of what was envisaged under the Rule.
Mr. O’Carroll relied on the dicta of O’Higgins C J, in DPP -v- Kemmy (1980) IR p. 60 as follows:-
“Where a statute provides for a particular form of proof or evidence in compliance with certain statutory provisions, in my view it is essential that the precise statutory provisions be complied with.  The Courts cannot accept something other than that which is laid down by the statute or overlook the absence of what the statute requires.  To do so would be to trespass into the legislative field.  This applies to all statutory requirements; but it applies with greater general understanding to penal statutes which create particular offences and then provide a particular method of proof.”

In reply, Mr. Phelan on behalf of the Respondent contends that all orders made by the District Judge were spent and superseded by the Order of the 22nd March, 2000.  He further submitted that while Mr. O’Sullivan believed that notice of the application was just that (i.e. notification), and not the notice as provided in form 38.6 schedule B, it was nonetheless the position that scrupulous efforts were made to ensure notice was given and there could be no doubt but that the Applicant had sufficient actual notice of the substance of the application.  He submits that the failure to serve a form as contained at 38.6 could not conceivably have made a difference to the Applicant’s state of knowledge or prejudiced him in anyway.  It is a purely technical objection.  The Judge was entitled to deem service good under O.10 R.12 and disallow the objection as to form under O.38 R.1 (2).
It seems to me that Mr. Phelan’s submissions are correct.  The letter dated 13th March, 2000 cannot be seen in isolation.  It is part of an ongoing process of correspondence advising the Applicant of imminent applications to Court.  A review of that correspondence makes it abundantly clear that these applications were made in the context of an inquiry into the possibility that the cash seized was intended for drug trafficking.  Indeed, the various orders from time to time made and furnished to the Applicant specifically so state.
Furthermore, it is quite clear that the actual form itself does not envisage a lengthy recital of particulars or reasons, but rather is confined to a statement that the Applicant has reasonable grounds for suspecting that cash is intended for use in drug trafficking and that further detention of the cash is justified while its origin or derivation is further investigated.  It is not a pleading document, nor one which contemplates the giving of detailed particulars.  Indeed, such an approach could well defeat the whole purpose of the investigation.  I also accept that all previous orders were spent and superceded by the Order of 22nd March, 2000.
It seems to me the Applicant had full knowledge of the nature of the investigation in progress and the sort of specificity demanded would only be appropriate if the enquiry took some completely different and new direction where principles of natural justice and fair procedure would require disclosure of such considerations to the Applicant.  Nor do I see this particular procedure as one which creates a particular offence in such a way as to strictly attract the application of the principles referred to by O’Higgins J, in DPP -v- Kemmy.  No offence is created by the section under review.  No omission or defect goes to any probative element in the case or to any link in any chain of causation or events.
I would further hold against the Applicant on the grounds of delay.  I am left with a very clear impression that this application was only rolled out following the commencement of proceedings in the Circuit Court to bring about forfeiture under Section 39 of the 1994 Act.  The grounds argued were present from the very inception of the procedures brought under Section 38.  I would therefore also hold against the Applicant on this additional ground.

                                        ___  
Signed: Nicholas J. Kearns