Clancy v Ireland

• Jurisdiction: Ireland
• Judgment Date: 04 May 1988
• Date: 04 May 1988
• Docket Number: [1985 No. 2912P]
• Court: High Court

High Court

[1985 No. 2912P]

Clancy v. Ireland

Alan Clancy and David McCartney

Plaintiffs

and

Ireland and the Attorney General

Defendants

Cases mentioned in this report:—

Maher v. Attorney General [1973] I.R. 140; (1973) 108 I.L.T.R. 41.

Cahill v. Sutton [1980] I.R. 269.

Buckley and Others (Sinn Féin) v. Attorney General [1950] I.R. 67.

In re Haughey [1971] I.R. 217.

Calero-Toledo v. Pearson Yacht Leasing Co. (1974) 416 U.S. 663.

North American Storage Co. v. Chicago (1908) 211 U.S. 306.

Coffin Bros. & Co. v. Bennett (1928) 277 U.S. 29.

Ewing v. Mytinger & Casselberry, Inc. (1950) 339 U.S. 594.

Phillips v. Commission (1931) 283 U.S. 589.

United States v. Pfitsch (1921) 256 U.S. 547.

Fuentes v. Shevin (1972) 407 U.S. 67.

Blake v. The Attorney General [1982] I.R. 117; [1981] I.L.R.M. 34.

Dreher v. The Irish Land Commission [1984] I.L.R.M. 94.

Electricity Supply Board v. Gormley [1985] I.R. 129; [1985] I.L.R.M. 494.

O'Callaghan v. Commissioners of Public Works [1985] I.L.R.M. 364.

The State (Lynch) v. Cooney [1982] I.R. 337; [1982] I.L.R.M. 190; [1983] I.L.R.M. 89.

Constitution - Property rights - Unlawful organisation - Suppression order - Forfeiture of organisation's property - Minister empowered to freeze monies in bank without notice to account-holder - Procedures - Fair hearing - Owner establishing monies not property of unlawful organisation entitled to repayment and compensation - Whether forfeiture and money freezing procedure unjust attack on property rights - Interest of the common good - Offences Against the State Act, 1939 (No. 13), ss. 19 and 22 - Offences against the State (Amendment) Act, 1985 (No. 3) - Constitution of Ireland, 1937 Articles 40, s. 3 and 43.

Plenary Summons.

The facts are set out in the headnote and judgment of Barrington J., post. By their statement of claim delivered the 30th July, 1985, the plaintiffs stated that the first plaintiff was a citizen of Ireland and that the second plaintiff had an address at 230 East 51st St., New York, N.Y. 10022, U.S.A., and that both were the joint beneficial owners of the monies held upon the joint account at the Bank of Ireland, Navan, County Meath. They stated that the said monies were never the property of or held for the benefit of an unlawful organisation or for the use or purposes thereof, that they were intended for lawful commercial enterprise within the State including the proposed establishment by the plaintiffs of a bacon factory for bacon production for export to the United States of America. They stated further that the monies were the proceeds of the plaintiffs' business activities over a prolonged period of time and that the plaintiffs would be compelled to reveal confidential matters in relation to legitimate and private business dealings in order fully to account for the said monies. The matter was heard on the 10th and 11th March, 1987.

Sections 18, 19 and 22 of the Offences Against the State Act, 1939 (No. 13) provide as follows:—

"18. - In order to regulate and control in the public interest the exercise of the constitutional right of citizens to form associations, it is hereby declared that any organisation which -

• (a) engages in, promotes, encourages, or advocates the commission of treason or any activity of a treasonable nature, or

• (b) advocates, encourages, or attempts the procuring by force, violence, or other unconstitutional means of an alteration of the Constitution, or

• (c) raises or maintains or attempts to raise or maintain a military or armed force in contravention of the Constitution or without constitutional authority, or

• (d) engages in, promotes, encourages, or advocates the commission of any criminal offence or the obstruction of or interference with the administration of justice or the enforcement of the law, or

• (e) engages in, promotes, encourages, or advocates the attainment of any particular object, lawful or unlawful, by violent, criminal, or other unlawful means, or

• (f) promotes, encourages, or advocates the non-payment of moneys payable to the Central Fund or any other public fund or the non-payment of local taxation,

shall be an unlawful organisation within the meaning and for the purposes of this Act, and this Act shall apply and have effect in relation to such organisation accordingly.

19. - (1) If and whenever the Government are of opinion that any particular organisation is an unlawful organisation, it shall be lawful for the Government by order (in this Act referred to as a suppression order) to declare that such organisation is an unlawful organisation and ought, in the public interest, to be suppressed.

• (2) The Government may by order, whenever they so think proper, amend or revoke a suppression order.

• (3) Every suppression order shall be published in the Iris Oifigiúil as soon as conveniently may be after the making thereof.

• (4) A suppression order shall be conclusive evidence for all purposes other than an application for a declaration of legality that the organisation to which it relates is an unlawful organisation within the meaning of this Act.

• 22. - Immediately upon the making of a suppression order, the following provisions shall have effect in respect of the organisation to which such order relates, that is to say:—

  • (a) all the property (whether real, chattel real, or personal and whether in possession or in action) of such organisation shall become and be forfeited to and vested in the Minister for Justice;

  • (b) the said Minister shall take possession of all lands and premises which become forfeited to him under this section and the said Minister may cause all such things to be done by members of the Gárda Síochána as appear to him to be necessary or expedient for the purpose of such taking possession;

  • (c) subject to the subsequent provisions of this section, it shall be lawful for the said Minister to sell or let, on such terms as he shall, with the sanction of the Minister for Finance, think proper, any lands or premises which become forfeited to him under this section or to use any such lands or premises for such government purposes as he shall, with the sanction aforesaid, think proper;

  • (d) the Minister for Justice shall take possession of, recover, and get in all personal property which becomes forfeited to him under this section and may take such legal proceedings and other steps as shall appear to him to be necessary or expedient for that purpose;

  • (e) subject to the subsequent provisions of this section, it shall be lawful for the said Minister to sell or otherwise realise, in such manner and upon such terms as he shall, with the sanction of the Minister for Finance, think proper, all personal property which becomes forfeited to him under this section;

  • (f) the Minister for Justice shall pay into or dispose of for the benefit of the Exchequer, in accordance with the directions of the Minister for Finance, all money which becomes forfeited to him under this section and the net proceeds of every sale, letting, realisation, or other disposal of any other property which becomes so forfeited;

  • (g) no property which becomes forfeited to the Minister for Justice under this section shall be sold, let, realised, or otherwise disposed of by him until the happening of whichever of the following events is applicable, that is to say:—

    • (i) if no application is made under this Act for a declaration of legality in respect of the said organisation within the time limited by this Act for the making of such...