Gilligan v Special Criminal Court and Others

JurisdictionIreland
JudgeKeane C.J.
Judgment Date07 December 2001
Neutral Citation2001 WJSC-SC 2764
CourtSupreme Court
Docket Number[S.C. No. 290 of 2001]
Date07 December 2001

2001 WJSC-SC 2764

THE SUPREME COURT

Keane C.J.

Geoghegan J.

Fennelly J.

312/2001
GILLIGAN v. SPECIAL CRIMINAL COURT & ORS
GILLIGAN
-V-
SPECIAL CRIMINAL COURT & ORS.

Synopsis:

COURTS

Jurisdiction

Whether High Court had jurisdiction to interfere with proceedings before Special Criminal Court - Role of Special Criminal Court - Drugs offences -Right to trial by jury - Fair procedures -- Criminal Justice Act, 1994 section 4 - Criminal Justice Act, 1999 section 25 (312/2001 - Supreme Court - 7/12/01)

Gilligan v Special Criminal Court - [2001] 4 IR 655

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. In the High Court Mr. Justice Lavan dismissed the application for an interlocutory injunction being satisfied that the balance of convenience did not favour the granting of the injunction sought. It was argued that if such an inquiry was a criminal proceeding the plaintiff would be deprived of his constitutional rights to a trial by jury, to the benefit of the presumption of innocence and his right to have the matter decided in accordance with the normal onus of proof. Alternatively if the proceedings were civil in nature then the Special Criminal Court could have no jurisdiction as it was a court established under special legislation dealing exclusively with criminal offences.

Held by the Supreme Court (Keane CJ delivering judgment; Geoghegan J and Fennelly J agreeing) in dismissing the appeal. Clearly the plaintiff had raised arguable grounds and raised important issues which would have to be determined by the High Court in due course. The terms of the Act expressly imposed on the Special Criminal Court an obligation in a case of this nature, to make a determination as to whether the person has benefited from drug trafficking unless other elements were present which might provide then with a discretion not to have an inquiry. Accordingly, there would be obvious difficulties in the way of a court restraining a court from proceeding with an inquiry where there appeared to be a statutory duty on them to proceed with the inquiry. The real issue was whether the High Court could intervene in the proceedings. If the inquiry was deferred until such time as the proceedings in the High Court and on appeal the Supreme Court were disposed of then a lengthy interval of time would have elapsed between the conviction of the person concerned and the holding of the inquiry. That was clearly not what was contemplated by the legislation. There were serious grounds for questioning whether the High Court had any such jurisdiction to intervene to prevent the Special Criminal Court from proceeding with a statutorily mandated inquiry on the ground that the legislation which required the inquiry to take place was unconstitutional. While orders might result forfeiting assets of the plaintiff there was no reason to suppose that a court which found that the legislation was indeed unconstitutional could not afford the plaintiff such redress as he was entitled to for any damage or loss of any sort he had suffered as a result of the violation of his constitutional rights. The judgment of the High Court judge was correct and the appeal would be dismissed.

1

7th day of December, 2001 by Keane C.J.

Keane C.J.
2

The plaintiff was indicted before the Special Criminal Court on the 4th December on a number of offences and the trial concluded on the 15th March this year, when the plaintiff was convicted of offences under the Misuse of Drugs Acts and was sentenced to 28 years imprisonment in respect of the supply charges and 12 years in respect of the importation offences, the terms to run concurrently and it is right to say that he has lodged an appeal against both the conviction and sentence. That appeal is pending.

3

When the sentencing was concluded, the court indicated that it intended to commence an inquiry pursuant to Section 4 of the Criminal Justice Act 1994as amended by Section 25 of the Criminal Justice Act 1999as to whether he had benefited from drug trafficking within the meaning of that phrase in the 1994 Act as amended.

4

At this stage it is convenient to refer to the provisions of Section 4 as amended by Section 25 of the 1999 Act. It provides that where a person has been sentenced or otherwise dealt with by a court in respect of one or more drug trafficking offences of which he has been convicted on indictment the court shall, subject to subsections 2 and 3, determine whether the person has benefited from drug trafficking and it goes on to provide that the court may decide...

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    • 21 January 2005
    ... ... [C.C.A. No. 25/2002] THE COURT OF CRIMINAL APPEAL CRIMINAL LAW: ... the applicant was convicted by the Special Criminal Court of conspiracy to cause the Omagh bombing ... R v GALBRAITH 1981 1 WLR 1039 DPP v GILLIGAN UNREP SPECIAL CRIMINAL COURT 5.3.2001 CRIMINAL ... injuries of varying degrees of severity to over 300 others. In addition extensive damage was done to property in the ... ...
1 books & journal articles
  • The Relevane of Constitutional Rights to the Granting of an Interlocutory Injunction
    • Ireland
    • Hibernian Law Journal No. 12-2013, January 2013
    • 1 January 2013
    ...supra note 40 52 Controller of Patents, Designs and Trademarks v Ireland [2001] 4 IR 229, p.237 53 In Gilligan v Special Criminal Court [2001] 4 IR 655 the plaintiff sought an interlocutory injunction restraining the Special Criminal Court from proceeding with what he deemed an unconstituti......

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