Gilligan -v- C.A.B., [2001] IESC 82 (2001)

Docket Number:275 & 276/97
Party Name:Gilligan, C.A.B.
Judge:Keane C.J.
 
FREE EXCERPT

Keane C.J.

Denham J.

Murphy J.

Murray J.

Geoghegan J. 287,298/99 & 166/00

BETWEEN:

Michael F. Murphy

Plaintiff/Respondent

and

G. M., P. B., P. C. Ltd.

G. H.

Defendants/Respondents

BETWEEN: 275 & 276/97

John Gilligan

Plaintiff/Appellant

and

Criminal Assets Bureau, Barry Galvin,

Revenue Commissioner, Frank Lannigan,

The Garda Commissioner, Ireland and the Attorney General

Defendants/Respondents

JUDGMENT delivered the 18th day of October, 2001 by Keane C.J.

In these cases the defendants/respondents and the plaintiff/appellant respectively have sought declarations that some or all of the provisions of the Proceeds of Crime Act, 1996 (hereafter the "1996 Act") are invalid having regard to the provisions of the Constitution. In the first case, the defendants/respondents have also challenged the validity of certain orders made by the High Court in purported exercise of certain powers conferred by the 1996 Act on the court. The first part of this judgment is concerned with the non-constitutional issue raised in the first case. The second part is the judgment of the court on the constitutional issue raised in both cases.

The non-constitutional issue The plaintiff in the first proceedings is a Detective Chief Superintendent in An Garda Síochána. He has instituted the proceedings as a member of the gardaí within the meaning of the 1996 Act and in them he seeks:

(1) An order pursuant to s. 2 and thereafter pursuant to s. 3 of the 1996 Act prohibiting the defendants and each of them and such other person as the court might order from disposing or otherwise dealing with the property described in the schedule to the plenary summons, i.e. the sum of £300,000 standing to the credit of the second named defendant (hereafter "PB") and/or P. C. Ltd. in the client account of the fourth named defendant (hereafter "the solicitor").

(2) An order pursuant to s. 7 of the 1996 Act appointing a receiver to take possession of the property or such portion of the property as the court might order.

(3) An order pursuant to s. 9 of the 1996 Act requiring the first defendant and PB to swear and deliver affidavits specifying all the property of which they are in possession or control and the income and sources of income of each of the defendants during the past ten years.

In an affidavit, sworn on the 28th July 1997, Det. Sgt. William P. O'Brien, a bureau officer of the Criminal Assets Bureau appointed under s. 8(1) of the Criminal Assets Bureau Act 1996, said that the first named defendant (hereafter "GM") had been involved in facilitating armed robberies and hijackings since 1975. He said that he was a known "facilitator" providing guns and transport (sometimes stolen) for such criminal activity and was particularly well known as a receiver of large quantities of stolen property.

Mr. O'Brien said that GM had one criminal conviction, involving stolen property, having been convicted on 15th January 1988 by the Dublin Circuit Court for receiving stolen goods valued £107,000 approximately, in respect of which conviction he received a sentence of five years imprisonment.

Mr. O'Brien said that, in common with a number of other prominent criminals who had been active in armed robberies, GM became involved in the importation of controlled drugs, mainly cannabis and ecstasy, on his release from prison and, in association with known large scale drug dealers, organised the transport by other persons of drugs so as to ensure that, if the shipments were intercepted by gardaí or customs, he would not be liable to criminal convictions.

Mr. O'Brien said that he believed GM was the person behind, or at least partly involved in, the financing of a shipment of 50 kilos of cannabis resin which was seized by gardaí at the M50 motorway, Dublin, while in the possession of one John Doran. He said that the latter had been a close associate of GM since 1975 at least and had been sentenced to 12 years imprisonment in November 1994 in respect of this offence.

Mr. O'Brien said that GM was named in a trial in England in early 1997 by one Michael Boyle, who has been tried for attempted murder, as the person who had hired him (Boyle) to murder his intended victim. Mr. O'Brien said that GM's wife and one or more of his children reside at a stated address in Palmerston, Dublin, but that GM himself had left Ireland and was staying at a stated address in the Netherlands. The apartment in question was owned by one Johannes Anthonius Bolung who had been charged in The Netherlands with a violation of the Opium Act, handling and receiving stolen goods, and five cases of theft, assault and battery and fraud.

Mr. O'Brien said that PB had been a close associate of GM for some time. He had stood trial in April 1995 in England with one Edward Phelan: both were convicted on 12 counts of theft and forgery and sentenced to three years imprisonment. PB absconded during the final week of his trial and was convicted in his absence. Mr. O'Brien said that he had been informed by the London Metropolitan Police that extradition proceedings in respect of PB had failed in September 1996 but were likely to be recommenced. As part of the sentence, PB was prohibited from being a director of a company for a period of five years, but he (Mr. O'Brien) had been informed by PB and the solicitor that it was intended to appeal the conviction.

Mr. O'Brien said that the statements made by him in the affidavit as to the activities of GM were based on garda information in his possession, the source and precise contents of which he did not wish to reveal for operational reasons.

Mr. O'Brien said that an extensive investigation had been carried out by bureau officers of the Criminal Assets Bureau. During their investigations, the solicitors' offices were searched pursuant to a search warrant issued under s. 14 of the Criminal Assets Bureau Act, 1996. Mr. O'Brien said that in the course of that search a file was seized which was suspected to contain evidence of the whereabouts of the proceeds of the criminal activities of GM. On examination, the file was found to contain instructions in July 1996 from GM and one David Doran to the effect that funds would be deposited in the client account of the solicitor to be at the disposal of PB in connection with a property deal in the United Kingdom to the value of one million pounds. He said that the file also indicated that the third named defendant (hereafter "the company") was controlled by GM and PB.

Mr. O'Brien said that on the 23rd July 1997 he called to the offices of the solicitor, who informed him that he was holding approximately £300,000 in his client account for PB. He said that the sum of £300,000 was shortly to be paid out in pursuance of an agreement dated 30th May 1997 in a transaction involving the purchase of United States railroad bonds.

Mr. O'Brien said that he subsequently telephoned the solicitor and advised him that he (Mr. O'Brien) suspected that the £300,000 was the proceeds of crime and was being "laundered" using his client account. He requested him not to deal in any way with the funds. The solicitor denied knowing any person by the name of GM or that he was a client of the office. Mr. O'Brien said that he urged him to check his client ledgers and any other client files he might have had. Mr. O'Brien said that the solicitor in the course of the conversation told him that he was under pressure from his client and asked him (Mr. O'Brien) to fax a message to him advising that money laundering was suspected. However, before he had time to send him a fax, he received two faxes from the solicitor advising that

(a) he was obliged to follow his client's instructions until ordered otherwise, and

(b) seeking copies of the files seized and complaining about references to a criminal conviction in England of PB.

He subsequently sent a fax to the solicitor requesting him not to remove any monies referable to PB, GM or any associate companies.

Mr. O'Brien said that he believed that GM and his associates were extremely violent criminals and were likely to attempt to use violence or threats of violence to force the solicitor to make the monies available.

The plaintiff applied to the High Court (Smyth J.) on the 28th July 1997 ex-parte for liberty to issue and serve a concurrent plenary summons against GM, for an order pursuant to s. 2 of the 1996 Act restraining the defendants or any of them or any person having notice of the making of the order from disposing or otherwise dealing with the sum of £300,000 and appointing Barry Galvin, solicitor, of the Criminal Assets Bureau as the receiver of that sum. Those orders were granted by Smyth J. and the plaintiff thereupon brought a notice of motion seeking similar restraining orders against each of the defendants, an order pursuant to s. 7 of the 1996 Act appointing a receiver to take possession of the sum of £300,000 and an order requiring GM, PB and the company to swear and deliver an affidavit specifying all property etc. of which they were in possession or control.

In a preliminary report exhibited with an affidavit filed by him on the making of that application, Mr. Galvin said that, immediately following the making of the ex-parte order by Smyth J., he travelled to the offices of the solicitor in Dun Laoghaire where he met the solicitor. The solicitor told him that he had paid some of the £300,000 into his client account in the Ulster Bank, Dun Laoghaire and that the balance had been lodged by him into a solicitor's reserve account in a branch of the National Westminster Bank in London. Having telephoned the bank in London, he told Mr. Galvin that the amount to credit in that account was £181,356.20 sterling and that the balance standing to credit in the Dun Laoghaire bank was £118,643.80. At

Mr. Galvin's request, the solicitor signed an authority directing the London bank to give to Det. Gda. Cliona Richardson a bank draft in the amount of £181,365.20 sterling payable to Mr. Galvin. He also...

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