Gilligan v Special Criminal Court
| Jurisdiction | Ireland |
| Judge | Denham J. |
| Judgment Date | 21 December 2005 |
| Neutral Citation | [2005] IESC 86 |
| Court | Supreme Court |
| Docket Number | [S.C. Nos. 390 and 492 of |
| Date | 21 December 2005 |
and
[2005] IESC 86
Murray CJ
Denham J.
Geoghegan J.
Fennelly J.
Macken J.
THE SUPREME COURT
COURTS
Jurisdiction
Special Criminal Court - Confiscation order - Trial of offence- Whether jurisdiction vested in Special Criminal Court to hear and determine confiscation order - Whether procedure leading to confiscation order ancillary to jurisdiction of Special Criminal Court - Whether ancillary to trial of offences - McElhinney v Special Criminal Court [1990] 1 IR405 considered - Offences against the State Act 1939 (No 13), s 43 - Prosecution of Offenders Act 1974 (No 22), s 1 - Criminal Justice Act 1994 (No 33), s 4 - Defendants' appeal dismissed (390 & 492/2002 - SC 21/12/2005) [2005] IESC 86
Gilligan v Special Criminal Court - [2006] 2 IR 406
Facts: The Attorney General and the DPP appealed against the determination of the High Court that the power to make a confiscation order following a conviction was not sufficiently ancillary to the trial of offences to come within the jurisdiction of the Special Criminal Court pursuant to Article 38.3 of the Constitution and that the powers contained in s. 4 of the Criminal Justice Act 1994, as amended, were not conferred on the Special Criminal Court.
Held by the Supreme Court (Murray CJ, Denham, Geoghegan, Fennelly and Macken JJ) in dismissing the appeal that the Special Criminal Court did not have jurisdiction to make orders pursuant to s. 4 of the Criminal Justice Act 1994. Given the nature of the Court, a court of trial, matters other than a trial could not be inferred into its jurisdiction.
Reporter: R.W.
MISUSE OF DRUGS ACT 1984
CRIMINAL JUSTICE ACT 1994 S4(4)
CONSTITUTION ART 38.3.1
CONSTITUTION ART 38.5
CONSTITUTION ART 38.6
CONSTITUTION ART 34
CONSTITUTION ART 35
CONSTITUTION ART 38.3.2
OFFENCES AGAINST THE STATE ACT 1939 S35
KAVANAGH v IRELAND & SPECIAL CRIMINAL COURT & ORS 1996 1 IR 321 1996 1 ILRM 133
OFFENCES AGAINST THE STATE ACT 1939 S43
MCELHINNEY v SPECIAL CRIMINAL COURT & DPP 1990 1 IR 405 1989 ILRM 411
Judgment delivered the 21st day of December, 2005by Denham J.
1. Two issues were raised on this appeal: (a) the jurisdiction of the Special Criminal Court to make an order under s. 4 of the Criminal Justice Act, 1994, as amended, and, (b) the constitutionality of the confiscation provisions of the Criminal Justice Act, 1994, s.4.
2. John Gilligan, the plaintiff/respondent, hereafter referred to as the plaintiff, was convicted by the Special Criminal Court of drug trafficking offences under the Misuse of Drugs Act, 1977 to 1984, and, on the 15th March, 2001, he was sentenced to 28 years in prison, later reduced on appeal by the Court of Criminal Appeal to 20 years imprisonment.
3. An application was brought before the Special Criminal Court under s. 4 of the Criminal Justice Act, 1994, as amended by s. 25 of the Criminal Justice Act, 1999, to determine whether the plaintiff had benefited from drug trafficking. On the 22nd March, 2002, O'Donovan J. delivered the judgment of the court. In the view of the Special Criminal Court such a determination involved five matters, namely (i) the cost to the plaintiff of purchasing drugs; (ii) the amount of drugs involved in the plaintiff's drug trafficking activities; (iii) the expenses incurred by the plaintiff with regard to the shipment, sale and distribution of such drugs; (iv) the consideration received by the plaintiff when disposing of those drugs; (v) the net profit, if any, accruing to the plaintiff as a result of his drug trafficking activities. The Special Criminal Court stated that in arriving at its conclusions it had regard to and had taken into account the findings of the court when convicting and sentencing the plaintiff in respect of the drug offences.
The Special Criminal Court stated that it was satisfied that during the material period the plaintiff was responsible for the importation into the State of a net amount of cannabis resin totalling 17,530 kilos which cost him £21,036,000 to purchase. The Special Criminal Court was also satisfied that the plaintiff disposed of those 17,530 kilos of cannabis resin for a price of £2,000 per kilo; in other words for a sum of £35,060,000. The Special Criminal Court made allowances for £100,000 which the court held the plaintiff paid to John Dunne to import the cannabis resin into the State and expenses. It was the view of the Special Criminal Court that the plaintiff had benefited from his drug trafficking activities to the extent of £13,924,000 or €17,679,833. The Special Criminal Court made a confiscation order against the plaintiff invoking the provisions of s.4(4) of the Criminal Justice Act, 1994, as amended, requiring the plaintiff to pay a sum of €17,679,833 within a period of 12 months.
4. The plaintiff brought proceedings in the High Court, seeking, inter alia, a declaration that the Special Criminal Court has no jurisdiction to make a determination pursuant to s.4 of the Criminal Justice Act, 1994, as amended by s. 25 of the Criminal Justice Act, 1999, and he sought also a declaration that a number of the provisions of the Criminal Justice Act, 1994, as amended, are unconstitutional.
5. In accordance with the jurisprudence of this Court I shall consider first the non-constitutional issue, it being well settled that the Court should reach constitutional issues last.
2 6.1 The Attorney General and the Director of Public Prosecutions have brought this appeal raising the issue of the jurisdiction of the Special Criminal Court to make an order pursuant to s.4 of the Criminal Justice Act, 1994, as amended.
3 6.2 The Special Criminal Court is a special court for the trial of offences established under Article 38 of the Constitution of Ireland. Article 38.3.1° provides:
"Special Courts may be established by law for the trial of offences in cases where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order."
The outstanding feature of the Special Criminal Court is that there is no right to trial by jury in such a court. The constitutional right to trial by jury is specifically excluded: Article 38.5. The nature of the Court is also made apparent in Article 38.6 which provides expressly that the provisions of Articles 34 and 35 of the Constitution shall not apply to a Special Criminal Court. Thus it is a unique and special court envisaged under the Constitution. The constitution, powers, jurisdiction and procedure of such special courts shall be prescribed by law: Article 38.3.2°.
Legislative provision has been made for the Special Criminal Court. The Offences Against the State Act, 1939, is an Act, as stated in its long title, to make provision in relation to actions and conduct calculated to undermine public order and the authority of the State, and to establish Special Criminal Courts in accordance with Article 38 of the Constitution and to provide for the constitution, powers, jurisdiction and procedure of such courts. Section 35 gives power to the Government to establish such courts. It provides that if the Government is satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order and that it is therefore necessary that this part of the Act shall come into force, the Government may make and publish a proclamation declaring that the Government is satisfied as aforesaid and ordering that this part of the Act shall come into force.
The Special Criminal Court may hear trials in non-subversive crime. As Keane J. stated in Kavanagh v. Government of Ireland [1996] 1 I.R. 321, at p. 364:
"... there is nothing to prevent the Government from bringing Part V into force where it is satisfied, for the reasons mentioned in the subsection, that the Director of Public Prosecutions should have power to require the trial before a special criminal court rather than by a jury of persons engaged in non-subversive crime, e.g. where there appeared to be a significant risk that those...
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