Gilligan v Criminal Assets Bureau

JurisdictionIreland
JudgeMcGuinness J.
Judgment Date01 January 1998
Neutral Citation[1997] IEHC 106
Docket Number[1997 No. 1667P]
CourtHigh Court
Date01 January 1998

[1997] IEHC 106

THE HIGH COURT

No. 1667P/1997
GILLIGAN v. CRIMINAL ASSETS BUREAU & GALVIN
IN THE MATTER OF THE CONSTITUTION AND
IN THE MATTER OF THE PROCEEDS OF CRIME ACT, 1996

BETWEEN

JOHN GILLIGAN
PLAINTIFF

AND

THE CRIMINAL ASSETS BUREAU, BARRY GALVIN, THE REVENUE COMMISSIONERS, REVENUE SHERIFF FRANK LANNIGAN, THE GARDA COMMISSIONER, IRELAND AND THE ATTORNEY GENERAL
DEFENDANTS

Citations:

PROCEEDS OF CRIME ACT 1996 S2

PROCEEDS OF CRIME ACT 1996 S3

PROCEEDS OF CRIME ACT 1996 S4

PROCEEDS OF CRIME ACT 1996 S6

PROCEEDS OF CRIME ACT 1996 S7

CAHILL V SUTTON 1980 IR 269

PROCEEDS OF CRIME ACT 1996 S1

PROCEEDS OF CRIME ACT 1996 S4(8)

PROCEEDS OF CRIME ACT 1996 S4(5)

PROCEEDS OF CRIME ACT 1996 S4(7)

PROCEEDS OF CRIME ACT 1996 S6(1)

PROCEEDS OF CRIME ACT 1996 S7(2)

PROCEEDS OF CRIME ACT 1996 S8

PROCEEDS OF CRIME ACT 1996 S8(1)

PROCEEDS OF CRIME ACT 1996 S8(2)

PROCEEDS OF CRIME ACT 1996 S10

PROCEEDS OF CRIME ACT 1996 S11

PROCEEDS OF CRIME ACT 1996 S12

PROCEEDS OF CRIME ACT 1996 S13

PROCEEDS OF CRIME ACT 1996 S14

PROCEEDS OF CRIME ACT 1996 S15

PROCEEDS OF CRIME ACT 1996 S16

CONSTITUTION ART 40.3

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS FIRST PROTOCOL ART 1

CONSTITUTION ART 15.5

MCGEE V AG 1974 IR 284

HEALY, STATE V DONOGHUE 1976 IR 325

CONSTITUTION ART 38.1

CONSTITUTION ART 34

MELLING V O MATHGHAMHNA 1962 IR 1

HARDY V IRELAND 1994 2 IR 550

O'LEARY V AG 1993 1 IR 102

CONSTITUTION ART 40

HEANEY V IRELAND 1996 1 IR 580

DPP V QUILLIGAN (NO 3) 1993 2 IR 305

PROCEEDS OF CRIME ACT 1996 S9

SAUNDERS V UNITED KINGDOM

CONSTITUTION ART 40.3.3

CONSTITUTION ART 43

BUCKLEY & ORS V AG & ORS 1950 IR 67

COX V IRELAND 1992 2 IR 503

OFFENCES AGAINST THE STATE ACT 1939 S34

MCCAULEY V MIN FOR POSTS & TELEGRAPHS 1966 IR 345

TREATY OF ROME 1957

MAASTRICHT TREATY

EEC DIR 91/30

O LAIGHLEIS, IN RE 1960 IR 93

NORRIS V AG 1984 IR 36

CRIMINAL ASSETS BUREAU ACT 1996

M V D UNREP MORIARTY 10.12.96

ADOPTION (NO 2) BILL 1987, IN RE 1989 IR 656

AG V SOUTHERN INDUSTRIAL TRUST LTD & SIMONS 1960 ILTR 161

GOODMAN V HAMILTON (NO 1) 1992 2 IR 542

CLANCY V IRELAND 1988 IR 326

OFFENCES AGAINST THE STATE (AMDT) ACT 1985

O'LEARY V IRELAND 1995 1 IR 254

CONSTITUTION ART 40.3.2

HEANEY V IRELAND 1994 3 IR 593

PROCEEDS OF CRIME ACT 1996 S16

EEC DIR 91/308

O'B V S 1984 IR 316

CROKE V SMITH UNREP SUPREME 31.7.96

MENTAL TREATMENT ACT 1945 S172

CUSTOMS CONSOLIDATION ACT 1876 S186

CONSTITUTION ART 38.5

CONSTITUTION ART 38.2

O'KEEFFE V FERRIS 1997 3 IR 463 1997 2 ILRM 161

COMPANIES ACT 1963 S297

COMPANIES ACT 1963 S297(1)

AG V SOUTHERN INDUSTRIAL TRUST LTD & SIMONS 1960 94 ILTR 161

CUSTOMS (TEMPORARY PROVISIONS) ACT 1945 S5

OFFENCES AGAINST THE STATE ACT 1939 S18

EXPLOSIVE SUBSTANCES ACT 1883 S4(1)

OFFENCE AGAINST THE STATE ACT 1939 S24

FAMILY LAW (DIVORCE) ACT 1996 S37

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S29

FAMILY LAW (DIVORCE) ACT 1996 S37(4)

O, IN RE 1991 2 QB 520

ISTEL LTD V TULLY 1993 AC 45

THOMAS, IN RE 1992 4 AER 814

OFFENCES AGAINST THE STATE ACT 1939 S52

OFFENCES AGAINST THE STATE ACT 1939 PART IV

CONSTITUTION ART 40.6.1.1

CRIMINAL JUSTICE (LEGAL AID) ACT 1962

CIVIL LEGAL AID ACT 1995

PROCEEDS OF CRIME ACT 1996 S6(1)(a)

KELLY & HOGAN IRISH CONSTITUTION 3ED 1076

RYAN V AG 1965 IR 294

O'MAHONY CRIMINAL CHAOS - SEVEN CRISES IN IRISH CRIMINAL JUSTICE 204–205

Synopsis:

Constitutional

Constitutionality of legislation; Proceeds of Crime Act, 1996; powers of Criminal Assets Bureau to freeze/dispose of assets; proportionality; whether forfeiture proceedings civil or criminal in nature; indicia of criminal offence; appropriate burden and standard of proof; whether unjust attack on property rights; whether failure to protect right to a fair trial and presumption of innocence; whether failure to protect right to silence Held: Constitutional invalidity not established; courts would be particularly vigilant in respect of disclosure of information and admissability of hearsay evidence High Court; McGuinness J.26/07/1997 - [1998] 3 IR 185

Gilligan v. Criminal Assets Bureau

1

JUDGMENT of McGuinness J. delivered the 26th day of June, 1997

2

In this case the Plaintiff claims a declaration that the Proceeds of Crime Act, 1996 and in particular Section 2, 3, 4, 6 and 7 thereof, are unconstitutional. He also, in his plenary summons, claims damages including but not limited to Constitutional Damages.

BACKGROUND
3

On 21st November, 1997 in proceedings entitled "The High Court 1996 No. 10143P Between Michael F. Murphy, Plaintiff and John Gilligan, Geraldine Gilligan, Tracy Gilligan and Darren Gilligan, Defendants", an Order was made by the High Court pursuant to Section 2 of The Proceeds of Crime Act, 1996 preventing John Gilligan from disposing or otherwise dealing with the property specified therein. Those proceedings were grounded on an Affidavit sworn by Michael F. Murphy, a Chief Superintendent of An Garda Siochana. Chief Superintendent Murphy deposed to his belief that the property forming the subject matter of the application was directly or indirectly the proceeds of crime. He averred that this belief was supported by a long history of involvement in crime by the Plaintiff and the accumulation by him of very substantial assets in a short period of time without his enjoying any apparent lawful of source of income. He also averred to the belief by the Gardai that the Plaintiff had a significant involvement in the importation of narcotics. The Plaintiff did not swear an affidavit in those proceedings.

4

On 5th and 19th December, 1996, orders were made pursuant to Section 3 of the Proceeds of Crime Act, 1996 preventing the Plaintiff from disposing or otherwise dealing with this property. A further motion by Chief Superintendent Michael F. Murphy was due to be heard seeking the appointment of a Receiver under Section 7 of the Proceeds of Crime Act, 1996 on February 13th 1997. On the same day (13th February, 1997) the Plaintiff issued his Plenary Summons challenging the constitutionality of the Proceeds of Crime Act, 1996.

5

In his Statement of Claim in the proceedings now before the Court the Plaintiff states that he is a businessman and professional gambler and goes into very considerable detail in regard to the properties which were affected by the Orders made by this Court in the original proceedings pursuant to the Proceeds of Crime Act, 1996. He states that it had been his intention, pursuant to a Separation Agreement made between himself and his wife, Geraldine, to convey much of this property into the sole name of his wife Geraldine but that this intention had not in fact been carried out. The said Separation Agreement was neither produced nor exhibited in the present proceedings. The Plaintiff states that he is part owner of many of the affected properties. He states that he acquired the majority of the properties held both by himself and his wife through payments by way of a loan of approximately £4 million made to his wife and himself jointly by a Mr. Joseph Saouma. He also expended monies from his gambling "float" on the acquisition of the properties. No explanation is given as to the identity of Mr Saouma or as to the reasons for the £4 million loan. However, the present proceedings are not a trial of the facts relating to the Plaintiff's financial background. I can only assume that these matters in regard to the Plaintiff's properties as set out in his Statement of Claim serve to establish the locus standi of the Plaintiff to maintain a claim against the constitutionality of the 1996 Act.

6

It is abundantly clear that the Plaintiff has this locus standi under the criteria set out in Cahill -v- Sutton [1980] IR 241. This is accepted by the Defendants and by this Court.

THE STATUTE
7

I will refer later in this Judgment to specific sections of the Proceeds of Crime Act, 1996 (the 1996 Act) which are impugned by the Plaintiff. At this point, however, it will be of assistance to outline the structure or scheme of the Act.

8

Section 1 of the Act defines "Proceeds of Crime" as:-

"Any property obtained or received at any time (whether before or after the passing of this Act) by or as a result of or in connection with the commission of an offence"

9

"Member" is defined as a member of the Garda Siochana not below the rank of Chief Superintendent. "Authorised officer" means an officer of the Revenue Commissioners authorised in writing by the Revenue Commissioners to perform the functions conferred by this Act on authorised officers.

10

Under Section 2 an application may be made to the Court on an ex-parte basis by a member or an authorised officer and if it is "shown to the satisfaction of the Court" that a person is in possession or control of property and that that property

"constitutes directly or indirectly proceeds of crime or was acquired in whole or in part with or in connection with property that, directly or indirectly, constitutes proceeds of crime",

11

the Court is empowered to make an Interim Order prohibiting any person named as a Respondent from disposing of or otherwise dealing with the whole or, if appropriate, a specified part of the property or diminishing its value during a period of twenty-one days from the date of the making of the Order. The total value of the property to which such an Interim Order applies must be not less than £10,000. The Court may vary or discharge this Interim Order at any time while it is in force where an application is made by the Respondent or any other person claiming ownership of the property if it is shown that inter alia the property is not the proceeds of crime as defined in the Act.

12

Under Section 3 of the Act the Court is empowered to grant an Interlocutory Order prohibiting the Respondent or any other person from disposing of or otherwise dealing with the property unless it is shown to the satisfaction of the Court on evidence tendered by the...

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