Gilligan v Murphy and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Feeney
• Judgment Date: 20 December 2011
• Neutral Citation: [2011] IEHC 465
• Docket Number: [No. 2628P/2005]
• Court: High Court
• Date: 20 December 2011

[2011] IEHC 465

THE HIGH COURT

[No. 2628P/2005]

[No. 1118P/2006]

Gilligan v Murphy & Ors

BETWEEN

GERALDINE GILLIGAN

PLAINTIFF

AND

MICHAEL F. MURPHY, FELIX J. McKENNA, THE ATTORNEY GENERAL AND IRELAND

DEFENDANTS

AND

THE HUMAN RIGHTS COMMISSION

NOTICE PARTY

AND

JOHN GILLIGAN

AND

IRELAND, THE ATTORNEY GENERAL AND THE CRIMINAL ASSETS BUREAU

MURPHY v M (G) 2001 4 IR 113

MURPHY v GILLIGAN 2009 2 IR 271

REFUGEE ACT 1996 S3

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5

REFUGEE ACT 1996 S3(3)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 7.1

O'LAIGHLEIS , IN RE 1960 IR 93

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2(2)

DUBLIN CITY COUNCIL v FENNELL 2005 1 IR 604

WILSON v SECRETARY OF STATE FOR TRADE & INDUSTRY 2003 UKHL 40 2004 1 AC 816

HUMAN RIGHTS ACT 1998 S22(4)(UK)

DEREK BYRNE & ORS v TAOISEACH UNREP LAFFOY 9.9.2010 2010/6/1298 2010 IEHC 353

COMMISSION OF INVESTIGATION ACT 2004 S11

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

WELCH v UK 1995 20 EHRR 247

JAMIL v FRANCE 1994 21 EHRR 65

TOGHER v REVENUE & CUSTOMS PROSECUTIONS OFFICE 2008 QB 476

R (DIRECTOR OF ASSETS RECOVERY AGENCY) v ASHTON 2006 EWHC 1064 (ADMIN) 2006 AER (D)

R (DIRECTOR OF ASSETS RECOVERY AGENCY) v HE & CHEN 2004 EWHC 3021 (ADMIN)

PROCEEDS OF CRIME ACT 2002 PART 5 (UK)

ARURI v ITALY APP NO 52024/99 5.7.2001

SCOTTISH MINISTERS v MCGUFFE 2006 SLT 1166

WALSH v UK 2006 ECHR 43384/05 21.11.2005

PROCEEDS OF CRIME ACT 2002 S24(1)(UK)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(2)

ENGEL v NETHERLANDS 1976 1 EHRR 706

WALSH v DIRECTOR OF ASSETS RECOVERY AGENCY 2005 NICA 6 UNREP NICA 26.1.2005

MCINTOSH v LORD ADVOCATE 2001 3 WLR 107

REFUGEE ACT 1996 S3(1)

PHILIPS v UK UNREP ECHR 30.11.2000 APP NO 64509/01

GRAYSON & BARNAHAM v UK UNREP ECHR 23.9.2008 APP NO 19955/05

STATUTE LAW

Validity

Declaration of incompatibility - State's obligations under Convention - Breach of Convention - Jurisdiction - Retrospective effect - Property rights - Claim already determined - Whether plaintiffs could rely on Act of 2003 in respect of events prior to its enactment - Whether Act had retrospective effect - Whether court could make s 5 declaration in respect of s 3 of Act of 1996 - Whether breach of Convention - Whether Act unclear and confusing - Whether fair balance between legitimate aim of Act and rights under Constitution and Convention - Dublin City Council v Fennell [2005] IESC 33, [2005] 1 IR 604 followed; Murphy v GM [2001] 4 IR 113; Murphy v Gilligan [2008] IESC 70, [2009] 2 IR 271; Wilson v First County Trust Ltd (No 2) [2003] UKHL 40, [2004] 1 AC 816; Byrne v An Taoiseach [2010] IEHC 353, [2011] 1 IR 190; McKerr v United Kingdom (2001) 34 EHRR 553; Lelimo v Minister for Justice [2004] IEHC 165, [2004] 2 IR 178; Welch v United Kingdom (1995) 20 EHRR 247; Jamil v France (1996) 21 EHRR 65; Togher v Revenue [2008] QB 476; R(Director of the Assets Recovery Agency) v Ashton [2006] EWHC 1064 (Admin), (Unrep, QBD, 31/3/2006); R(Director of Assets Recovery Agency) v He and Chen [2004] EWHC 3021 (Admin), (Unrep, QBD, 7/12/2004); Aruri v Italy (Application No 52024/99); Scottish Ministers v McGuffie [2006] SLT 401; Walsh v United Kingdom [2006] ECHR 43383/05; Engel v The Netherlands [1976] 1 EHRR 706; Walsh v Director of Assets Recovery Agency [2005] NICA 6, (Unrep, NICA, 26/1/2005); McIntosh v Lord Advocate [2001] 3 WLR 107; Phillips v United Kingdom (Application No 41087/98) and Grayson & Barnahm v United Kingdom (Application Nos 19955/05 and 15085/06) considered - Proceeds of Crime Act 1996 (No 30), s 3(3) - European Convention on Human Rights Act 2003 (No 20), ss 1, 2 and 5 - European Convention on Human Rights, arts 6, 7 and 8 - Claims dismissed (2005/2628P - Feeney J - 20/12/2011) [2011] IEHC 465

Gilligan v Murphy

Mr. Justice Feeney

1 2 1.1 The above two actions are part of a sequence of cases between Geraldine Gilligan and John Gilligan and various defendants arising out of proceedings brought against them and their children by the Criminal Assets Bureau pursuant to the Proceeds of Crime Act of 1996 (the Act of 1996). John Gilligan brought proceedings against the Criminal Assets Bureau and others seeking declarations that some or all of the provisions of the Act of 1996 were invalid having regard to the provisions of the Constitution. Those proceedings were heard jointly with other proceedings and were the subject of an appeal to the Supreme Court which delivered its judgment on the 18^th October, 2001 within both sets of proceedings. The judgment of the Supreme Court is reported as Murphy v. G.M. [2001] 4 I.R. 113. The Supreme Court held that the appellants in the Supreme Court including John Gilligan had failed to discharge the onus on them of establishing that the sections referred to in the Act of 1996 were invalid having regard to the provisions of the Constitution on any of the grounds relied upon by the other appellants.

2 1.2 The litigation between the Criminal Assets Bureau and John Gilligan, Geraldine Gilligan and others was the subject of a number of appeals to the Supreme Court. That Court gave judgment on the 19^th December, 2008 in proceedings entitled Murphy v. Gilligan reported at [2009] 2 I.R. 271. The judgment of the Supreme Court dealt with a number of appeals and motions brought before that Court by John Gilligan, Geraldine Gilligan, Darren Gilligan and Tracey Gilligan. The Supreme Court adopted the title and record number of a case involving an appeal by Geraldine Gilligan as the title of the judgment. In the course of the judgment of Geoghegan J., in the Supreme Court, he identified other appeals and motions which were dealt with by the judgment and a list of the formal titles of those proceedings was attached in a schedule to the unreported judgment. All of the matters before the Supreme Court concerned proceedings involving the Criminal Assets Bureau and related to the Act of 1996.

3 1.3 In proceedings brought by John Gilligan bearing record No. 2006/No. 1118P, he sought declarations that all or parts of s. 3 of the Act of 1996 were repugnant to the Constitution. There was also a claim that that Act was incompatible with the European Convention on Human Rights within the meaning of s. 5 of the European Convention on Human Rights Act 2003 (hereafter the Act of 2003). Section 5 of the Act provides for a declaration of incompatibility. The defence which was delivered to the claim made by John Gilligan included a plea of estoppel and abuse of process in that the issue of constitutionality had been determined by the Supreme Court in the proceedings reported at [2001] 4 I.R. 133 in the case entitled Murphy v. G.M. It was claimed that within that judgment the Supreme Court had upheld the constitutionality of the Act of 1996 and that therefore John Gilligan was estopped from pursuing any claim in relation to unconstitutionality and that pursuing such claim was an abuse of process. Within these proceedings John Gilligan applied for legal aid in the High Court. That application was refused. The refusal was in part based upon the fact that the constitutional issues which John Gilligan sought to raise had already been determined by the Supreme Court. John Gilligan appealed the order by the High Court refusing him legal aid and that appeal was determined by the Supreme Court on 7^th April, 2010. In the course of the judgment of the Supreme Court, Fennelly J., after having observed that the ad hoc legal aid scheme (CAB) dated November 1999 did not apply to a claim such as the claim sought to be pursued by John Gilligan within proceedings Record No. 2006/1118P, also stated:

"If it were open to the court to make a recommendation, the court would make a recommendation that Mr. Gilligan be granted legal aid under thead hoc scheme insofar as, but only insofar as, the Convention claim is concerned."

4 2 1.4 When John Gilligan's proceedings were re-listed before the High Court, following the order of the Supreme Court on the 7^th April, 2010 St, the judgment of the Court was opened to the High Court. The proceedings brought by John Gilligan were considered in the light of the fact that Geraldine Gilligan had brought similar proceedings. Those proceedings were identical in some respects with John Gilligan's proceedings and were proceedings bearing Record No, 2005/No. 2628P. Neither of those proceedings were covered by the provisions of the ad hoc legal aid scheme (CAB) but at that time both John Gilligan and Geraldine Gilligan had other proceedings under s. 3(3) of the Act of 1996 listed before the High Court. In those proceedings both John Gilligan and Geraldine Gilligan sought relief pursuant to s. 3(3) of the Act of 1996 and sought orders to discharge or vary the s. 3 order. To facilitate a full and complete hearing of all issues relied upon by John Gilligan and Geraldine Gilligan, it was agreed between all the parties that the admission under the ad hoc legal aid scheme granted to both John Gilligan and Geraldine Gilligan in respect of their s. 3(3) applications would extend to and include an additional fee for the purposes of arguing all or any matters that John Gilligan or Geraldine Gilligan sought to ventilate in respect of "the Convention claim" that they had made in these proceedings. At the conclusion of the s. 3(3) hearing, dates were assigned for argument of the claims which John Gilligan and Geraldine Gilligan raised in relation to the Act of 2003 including the claims that they made pursuant to s. 5 for declarations that all or some of the sections of the Act of 1996 were incompatible with the State's obligation under the European Convention on Human Rights.

5 2 1.5 Geraldine Gilligan...