Gilligan v Special Criminal Court

JurisdictionIreland
JudgeMR. JUSTICE LAVIN
Judgment Date27 November 2001
Neutral Citation[2001] IEHC 219
CourtHigh Court
Docket Number312/01
Date27 November 2001

[2001] IEHC 219

THE HIGH COURT

312/01
GILLIGAN v. SPECIAL CRIMINAL COURT
DUBLIN
JOHN GILLIGAN
Plaintiff
THE SPECIAL CRIMINAL COURT
Respondent

Citations:

MISUSE OF DRUGS ACT 1977 S21

MISUSE OF DRUGS ACT 1977 S15

CRIMINAL JUSTICE ACT 1999

PESCA VALENTIA V MIN FOR FISHERIES 1985 IR 193

LLEWELLYN, STATE V DONNACHADA 1973 IR 151

CRIMINAL JUSTICE ACT 1990 S4

CRIMINAL JUSTICE ACT 1994 S26

HEANEY & MCGUINNESS V IRELAND & AG 1996 1 IR 580

OFFENCES AGAINST THE STATE ACT 1939 S52

Synopsis:

COURTS

Jurisdiction

Whether High Court had jurisdiction to interfere with proceedings before Special Criminal Court - Role of Special Criminal Court -Injunction - Balance of convenience - Constitutional law - Drugs offences - Right to trial by jury - Fair procedures -- Criminal Justice Act, 1994 section 4 - Criminal Justice Act, 1999 section 25 - Misuse of Drugs Act, 1977 (2001/312 - Lavan J - 27/11/01)

Gilligan v Special Criminal Court

Facts: The plaintiff was convicted of offences under the Misuse of Drugs Acts and was sentenced to 28 years imprisonment. An appeal had been lodged against both the conviction and sentence. When sentencing had concluded the Special Criminal Court indicated that it intended to commence an inquiry pursuant to section 4 of the Criminal Justice Act 1994 as to whether the plaintiff had benefited from drug trafficking within the meaning of the 1994 Act as amended. The relevant provision provided that where a person had been convicted of a drug trafficking offence the court could determine whether the person had benefited from drug trafficking or the court might decide not to make a determination where it was satisfied of certain matters. The plaintiff applied to the High Court for an interlocutory injunction restraining the Director of Public Prosecutions from continuing with the proceedings pending a determination of the constitutionality of the Act. The injunction was being sought against the Director of Public Prosecutions as the plaintiff contended that he was the statutory officer whose presence and assistance would be necessary in order to enable the court to make the determination.

Held by Mr. Justice Lavan in declining to seek the relief sought. There was strong authority for the granting of interlocutory relief in such a case. There was a fair question to be tried on behalf of the plaintiff. The plaintiff was being tried by a court of competent jurisdiction and there was a presumption of constitutionality in respect of the relevant legislative provisions. The Special Criminal Court was under a statutory obligation to engage in the intended inquiry. On the balance of convenience the court would not interfere with the proposed inquiry.

1

MR. JUSTICE LAVINGIVEN ON TUESDAY, 27TH NOVEMBER 2001

2

I hereby certify the following to be a true and accurate transcript of my shorthand notes of the evidence in the above-named action.

THE HEARING RESUMED AS FOLLOWS ON TUESDAY, 27TH NOVEMBER
JUDGMENT WAS DELIVERED AS FOLLOWS

Mr. JUSTICE LAVAN:

The Plaintiff in this case appeared and was indicted

3

before the Special Criminal Court in December of 2000 in respect of a 12 count indictment. An acquittal was rendered in respect of count 1. Guilty verdicts were rendered in respect of counts 2 to 12. These included six counts of importation of a controlled substance, namely cannabis resin, and five counts of possession for the purpose of sale or supply, being offences contrary respectively to Section 21 and 15 of the Misuse of Drugs Act 1977(As amended).

4

Sentences of 12 years were imposed in respect of the importation charges, sentences of 28 years were imposed in respect of the Section 15 offences, the sentences to run concurrently. In respect of the framing of the indictment, counts were laid at six-monthly intervals referable to a single date within each six-month period and verdicts were rendered in accordance with that.

5

Under the legislation invoked by the Plaintiff in these plenary proceedings under the Criminal Justice Act 1999it is now mandatory on a Court vested with jurisdiction to commence an inquiry where a person has been convicted of certain offences of which importation and sale or supply will undoubtedly qualify to ascertain whether that person has benefited from drug trafficking. Such an inquiry is at present pending before the Special Criminal Court.

6

A date for the trial of this aspect of the case had been fixed for 11th February 2002. That date now has been brought back until 10th December 2001 where this issue is backing up a case and it is the view of counsel Mr. Michael O'Higgins for the Plaintiff that this will be dealt with on 10th December.

7

The Plaintiff herein was on 4th December 2000 indicted before the Special Criminal Court. He was, on or about 15th March 2001, tried and convicted and sentenced in respect of charges under and by virtue of Section 15 and 21 of the Misuse of Drugs Act 1977(As amended).

8

Pursuant to the provisions of the relevant legislation the Special Criminal Court in this case is obligated, as I have indicated, to consider matters consequential upon those convictions.

9

The Plaintiff here herein, the person convicted asaforesaid, seeks in these plenary proceedings by Plenary Summons dated 9th July 2001 and Notice of Motion before this Court currently dated 26th September 2001 an interlocutory injunction as against the Director of Public Prosecutions, the second named Defendant herein, on the grounds that he wishes to challenge the various statutory provisions as fully set out in his Plenary Summons and Statement of Claim.

10

I am satisfied that the Plaintiff purports to raise substantial questions of law in respect of the various sections he wishes to impugn. It seems to me that the issues for determination by this Court today arise as follows:

11

Where at the close of the trial and before the Special Criminal Court embarks on its consequential inquiry, in the absence of authority on that issue whether the High Court ought to consider such an application. Secondly, if it may so consider such an application may it grant such application at this stage whether in the circumstances of this case it ought to do so? I approach a consideration of these matters on foot of the decision of the Supreme Court in the Pesca Valencia v The Minister for Fisheries case at 1985 IR at page 193.

12

I note at page 201 Finlay CJ issued the following opinion on law, being the unanimous opinion of five judges of the Supreme Court, he was referring to the Llewellyn decision:

"I do not, therefore, interpret this decision of this Court as in any way laying down a principle that the Court should not interfere by way of interlocutory injunction pending the determination of a claim with regard to the constitutional validity of the statute if the consequence of that injunction is to postpone or suspend the bringing to trial of a criminal charge."

13

It is, as has been so frequently stated, the duty of the courts to protect persons against the invasion of their constitutional rights or against unconstitutional actions. It would seem wholly inconsistent with that duty if the Court were to be without power in an appropriate case to restrain by injunction an action against a person which found its authority in a statutory provision which might eventually be held to be invalid having regard to the Constitution.

14

In particular, it seems to me that this power must exist in an appropriate case where the form of action is under a penal section and involves conviction of and the imposition of a penalty for the commission of a criminal offence."

15

It seems to me that that is strong authority for the granting of such interlocatory relief in a case such as this as this particular case involves a form of action under various penal sections and the moving for consequential Orders involving the imposition of penalties for the commission of different criminal offences.

16

I therefore hold that this Court may in an appropriate case grant such injunctive relief. In determining the question whether on the facts of this particular case the Court ought to grant the relief as sought it turns, it seems to me, on the foregoing authority. That is that it is the obligation of this Court to determine on the balance of probabilities the issue as between the parties.

17

Let me make it perfectly clear that I am satisfied that there is a fair question to be tried on behalf of the Plaintiff herein. I consider the following matters relevant to my decision: The Plaintiff is being tried by a Court of competent jurisdiction; there is a presumption of constitutionality in respect of the impugned legislative provisions; thePlaintiff has issued his proceedings during the course of his trial which commenced on 4th December 2000.

18

The Special Criminal Court is constituted of a number of different judges from the District Court, the Circuit Court and the High Court. If the Special Criminal Court is at this stage in its deliberations precluded from concluding its deliberations for whatever reason the trial may in fact be nullified in the event.

19

One estimate of the delay consequent upon this Court granting this form of relief is that a period of delay of not less than 18 months is envisaged. And indeed this timescale may well be...

To continue reading

Request your trial
1 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT