Gilligan v Special Criminal Court, DPP, Ireland and Attorney General

JurisdictionIreland
JudgeMr. Justice McCracken
Judgment Date08 November 2002
Neutral Citation2002 WJSC-HC 2825
CourtHigh Court
Date08 November 2002

2002 WJSC-HC 2825

THE HIGH COURT

2001 No 11212P
GILLIGAN v. SPECIAL CRIMINAL COURT & ORS

BETWEEN

JOHN GILLIGAN
PLAINTIFF

AND

THE SPECIAL CRIMINAL COURT, THE DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND AND THE ATTORNEY GENERAL
DEFENDANTS

Citations:

MISUSE OF DRUGS ACT 1977

MISUSE OF DRUGS ACT 1984

CRIMINAL JUSTICE ACT 1994 S4

CRIMINAL JUSTICE ACT 1999 S25

CRIMINAL JUSTICE ACT 1994 S4(4)

CRIMINAL JUSTICE ACT 1994 S4(1)

CRIMINAL JUSTICE ACT 1994 S4(6)

CRIMINAL JUSTICE ACT 1994 S5

CRIMINAL JUSTICE ACT 1994 S5(4)

CRIMINAL JUSTICE ACT 1994 S6

CRIMINAL JUSTICE ACT 1994 S10(3)

CRIMINAL JUSTICE ACT 1994 S10(4)

CRIMINAL JUSTICE ACT 1994 S19(2)

CRIMINAL JUSTICE ACT 1994 S19(3)

CRIMINAL JUSTICE ACT 1994 S19(4)

CRIMINAL JUSTICE ACT 1994 S20

CRIMINAL JUSTICE ACT 1994 S21

CRIMINAL JUSTICE ACT 1994 S63

CRIMINAL JUSTICE ACT 1994 S64

CONSTITUTION ART 38.1

CONSTITUTION ART 38.5

HEALY, STATE V DONOGHUE 1976 IR 325

LYNHAM V BUTLER (NO 2) 1933 IR 74

MELLING V O MATHGHAMHNA 1962 IR 1

AG V SOUTHERN INDUSTRIAL TRUST 1994 ILTR 16

MCLOUGHLIN V TUITE 1989 IR 83

O'KEEFFE V FERRIS 1997 3 IR 463

COMPANIES ACT 1963 S297

CONSTITUTION ART 38

PROCEEDS OF CRIME ACT 1996

MURPHY V GM PB PC LTD UNREP O'HIGGINS 4.6.1999 1999/19/5948

GILLIGAN V CRIMINAL ASSETS BUREAU (CAB) & ORS 2001 4 IR 113

MACINTOSH V LORD ADVOCATE 2001 2 AER 638

PHILLIPS V UK ECHR 5.7.2001 NO. 41807/98

CRIMINAL JUSTICE ACT 1994 S6(2)

CRIMINAL JUSTICE ACT 1994 S19

SOCIAL WELFARE (CONSOLIDATION) ACT 1993

INTERNATIONAL V HAMILTON (NO 1) 1992 2 IR 542

OFFENCES AGAINST THE STATE ACT 1939 S29

PROSECUTION OF OFFENDERS ACT 1974 S1

CONSTITUTION ART 38.3

OFFENCES AGAINST THE STATE ACT 1939 PART V

OFFENCES AGAINST THE STATE ACT 1939 S43

MCELHINNEY V THE SPECIAL CRIMINAL COURT 1990 1 IR 405

CRIMINAL JUSTICE ACT 1994 S3(16)(F)

CRIMINAL JUSTICE ACT 1994 S7

CRIMINAL JUSTICE ACT 1994 S8

Synopsis:

CRIMINAL LAW

Proceeds of crime

Drug trafficking - Confiscation of proceeds of drug trafficking - Determination of whether person benefited from drug trafficking made on balance of probabilities - Whether inquiry into, and determination of, whether plaintiff benefited from drug trafficking constituted criminal procedure - Whether confiscation order made in due course of law - Criminal Justice Act, 1994 section 4 - Bunreacht na hÈireann, 1937 articles 38.1 & 38.5 (2001/11212P - McCracken J - 8/11/2002)

Gilligan v Special Criminal Court

the Special Criminal Court, having convicted and sentenced the plaintiff for drug offences, entered into an inquiry pursuant to section 4 of the Criminal Justice Act, 1994, to determine whether the plaintiff had benefited from drug trafficking and made a consequent confiscation order relating to certain of the plaintiffs assets under that section. The plaintiff challenged the constitutionality of a number of provisions of the Act of 1994 and the jurisdiction of the Special Criminal Court to make a determination under section 4.

Held by McCracken J in granting a declaration that the Special Criminal Court had no jurisdiction to make a determination under section 4 of the Act of 1994, that the provisions of the Act of 1994 relating to confiscation were not ancillary to the jurisdiction of the Special Criminal Court, not being powers relating to the trial of offences, which is the only purpose for which the Special Criminal Court may exist under the constitution. In relation to the challenge into the constitutionality of the provisions of the Act of 1994, that section 4 of the Act of 1994 does not purport to create a criminal charge nor does it provide for the trial of any person on a criminal charge and cannot therefore be held to offend against Article 38 of the Constitution.

1

Mr. Justice McCracken delivered the 8th day of November, 2002.

INTRODUCTION
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On 15 th March 2001 the plaintiff was convicted in the Special Criminal Court of the importation and possession of cannabis resin on six separate occasions contrary to the Misuse of Drugs Acts 1977to 1984. He was sentenced to 28 years imprisonment in respect of each of the possession and supply charges and 12 years in respect of each of the importation charges, such sentences to run concurrently. After he was sentenced, the Special Criminal Court entered into an inquiry pursuant to Section 4 of the Criminal Justice Act 1994as amended by Section 25 of the Criminal Justice Act 1999to determine whether the plaintiff had benefited from drug trafficking. Pursuant to that inquiry, the Special Criminal Court (hereinafter called "the Court") determined that he had so benefited, and on 22 nd March 2002 made a confiscation order against the plaintiff pursuant to Section 4 (4) of the Criminal Justice Act 1994requiring the plaintiff to pay a sum of €17,679,833 within 12 months from the date of such order. The plaintiff is challenging the said order, not by way of appeal although an appeal is open to him under the 1994 Act, but rather by way of challenging the constitutionality of a number of provisions of the 1994 Act and also or in the alternative challenging the jurisdiction of the Court to make a determination under Section 4.

The Criminal Justice Act 1994 as amended
3

The provisions of the Act which the plaintiff is seeking to have declared unconstitutional are as follows:-

"4 (1) 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."

4

4 (4) If the court determines that the person in question has benefited from drug trafficking, the court shall determine in accordance with Section 6 of this Act the amount to be recovered in his case by virtue of this section and shall make a confiscation order under this section requiring the person concerned to pay that amount

5

4 (6) The standard of proof required to determine any question arising under this Act as to:-

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(a) whether a person has benefited from drug trafficking, or

7

(b) the amount to be recovered in his case by virtue of this section, shall be that applicable in civil proceedings."

8

Section 5 of the Act sets out how the relative court is to assess the proceeds of drug trafficking, and in particular refers to assumptions which the court shall make in arriving at the assessment. The plaintiff challenges the constitutionality of the section setting out the assumptions which read as follows:-

"(5) (4) the assumptions referred to in subsection (2) of this section are;-"

(a) that any property appearing to the court:-

(i) to have been held by the defendant at any time since his conviction, or

(ii) to have been transferred to him at any time since the beginning of the period of six years ending when the proceedings were instituted against him, was received by him, at the earliest time at which he appears to the court to have held it, as a payment or reward in connection with drug trafficking carried on by him

9

(b) that any expenditure of his since the beginning of that period was met out of payments received by him in connection with drug trafficking carried on by him, and

10

(c) that, for the purpose of valuing any property received or assumed to have been received by him at any time as such a reward, he received the property free of any other interests in it."

11

The plaintiff also challenges the provisions of Section 6 which reads as follows:-

12

2 "(6) (1) Subject to subsection (2) of this section, where a confiscation order has been made under Section 4 of this Act, the amount to be recovered under the order shall be equal to the amount assessed by the court to be the value of the defendant's proceeds of drug trafficking.

13

(2) If the court is satisfied that the amount that might be realised at the time the confiscation order is made is less than the amount the court assesses to be the value of his proceeds of drug trafficking, the amount to be recovered in the defendant's case under the confiscation order shall be the amount appearing to the court to be the amount that might be so realised."

14

Section 10 makes provision for certain statements to be tendered to the court, and the plaintiff challenges the provisions of the section which require him to reply to such statements. The sections are as follows:-

"(10) (3) Where:-"

(a) a statement is tendered under subsection ( 1) or (2) of this section, and

(b) the court is satisfied that a copy of that statement has been served on the defendant,

15

the court may require the defendant to indicate to what extent he accepts each allegation in the statement, and so far as he does not accept any such allegation, to indicate any matters he proposes to rely on to refute such allegation.

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(4) If the defendant fails in any respect to comply with a requirement under subsection (3) of this section, he may be treated for the purposes of this section as accepting every allegation in the statement, apart from:-

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(a) any allegation in respect of which he has complied with the requirement, and

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(b) (in the case of a conviction for a drug trafficking offence or offences) any allegation that he has benefited from drug trafficking or that any payment or other reward was received by him in connection with drug trafficking carried on by him or another, or

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(c) (in the case of a conviction for an offence or offences other than a drug trafficking offence) any allegation that he has benefited from an offence or that any property was obtained by him as a result of or in connection with the commission of an offence."

20

The plaintiff is also challenging certain of the enforcement provisions in the 1994 Act which are as follows:-

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2 "19 (2) Subject to subsection (3) of this...

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