Murphy v GM

 
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Supreme Court

[S.C. Nos. 275 and 276 of 1997 and S.C. Nos. 287 and 298 of 1999 and 166 of 2000]
Murphy v. G.M.
Michael Murphy
Plaintiff
and
G.M., P.B., P.C. Ltd., G.H.
Defendants
John Gilligan
Plaintiff
and
Criminal Assets Bureau, Barry Galvin, Revenue Commissioners, Frank Lannigan, The Garda Commissioner, Ireland and the Attorney General
Defendants

Cases mentioned in this report:-

Attorney General v. CaseyIR [1930] I.R. 163.

Attorney General v. Southern Industrial Trust Ltd.DLTR (1957) 94 I.L.T.R. 161.

Austin v. United StatesUNK (1993) 509 U.S. 602.

Bagge v. WhiteheadELR [1892] 2 Q.B. 355.

Calero-Toledo v. Pearson Yacht Leasing Co.UNK (1974) 416 U.S. 663.

Caudron v. Air ZaireIRDLRM [1985] I.R. 716; [1986] I.L.R.M. 10.

Clancy v. IrelandIR [1988] I.R. 326.

Cox v. IrelandIR [1992] 2 I.R. 503.

Department of Revenue of Mont. v. Kurth RanchUNK (1994) 511 U.S. 767.

East Donegal Co-Operative Livestock Mart Ltd. v. Attorney GeneralIRDLTR [1970] I.R. 317; (1970) 104 I.L.T.R. 81.

Frailey v. CharltonELR [1920] 1 K.B. 147.

Gilligan v. Criminal Assets BureauIR [1998] 3 I.R. 185.

Hamilton v. HamiltonIRDLRM [1982] I.R. 466; [1982] I.L.R.M. 290.

In re HaugheyIR [1971] I.R. 217.

King v. The Attorney GeneralIR [1981] I.R. 233.

Lee v. Dangar Grant & Co.ELR [1892] 2 Q.B. 337.

In re Maudslay, Sons & FieldELR [1900] 1 Ch. 602.

McDonald v. Bord na gCon (No 2)IRDLTR [1965] I.R. 217; (1965) 100 I.L.T.R. 89.

McIntosh v. Lord AdvocateWLRUNK [2001] 3 W.L.R. 107; [2001] 2 All E.R. 638.

McLoughlin v. TuiteIR [1989] I.R. 82.

Melling v. Ó Mathghamhna ó mathghamhnaIRDLTR [1962] I.R. 1; (1961) 97 I.L.T.R. 60.

Nestor v. MurphyIR [1979] I.R. 326.

O'Croinin v. BrennanIR [1939] I.R. 274.

O'Keeffe v. FerrisIRIRDLRMDLRM [1993] 3 I.R. 165 (H.C.); [1997] 3 I.R. 463; [1994] 1 I.L.R.M. 426 (H.C.); [1997] 2 I.L.R.M. 161 (S.C.).

In re Ó Laighléis ó laighléisIRDLTR [1960] I.R. 93; (1957) 95 I.L.T.R. 92.

The Palmyra (1827) 12 Wheat. 1.

Peisch v. WareUNK 4 Cranch 374.

Phillips v. United Kingdom (Application No. 41087/98, Unreported, European Court of Human Rights, 30th November, 2000).

Proprietary Articles Trade Association v. Attorney General for CanadaELR [1931] A.C. 310.

Republic of India v. India Steamship Co. (No 2)ELRWLRUNKUNK [1998] A.C. 878; [1997] 3 W.L.R. 818; [1997] 4 All E.R. 380; [1998] 1 Lloyd's Rep. 1.

The Sunday Times v. United Kingdom (No. 2)HRC (1992) 14 E.H.R.R. 229.

The State (Gettins) v. Judge FawsittIR [1945] I.R. 183.

The State (O'Rourke) v. KellyIR [1983] I.R. 58.

United States v. BajakajianUNK (1998) 524 U.S. 321.

United States v. HalperUNK (1989) 490 U.S. 435.

United States v. UrseryUNK (1996) 518 U.S. 267.

Various Items v. United StatesUNK (1931) 282 U.S. 577.

Constitution - Statute - Validity - Act creating forfeiture proceedings where property judged to be proceeds of crime - Interim order freezing person's assets - Presumption of constitutionality - Indicia of criminal proceedings - Privilege against self-incrimination - Whether interim order in force at time of appointment of receiver - Whether Act applied to property outside State - Whether Act applied to proceeds of crimes committed before it came into force - Whether proceedings civil or criminal in nature - Whether Act unjust attack on constitutional property rights - Whether Act imposing penal sanctions - Whether delay between making of interim order and hearing of interlocutory action oppressive - Whether Act unwarranted interference with exercise of judicial function - Whether Act declared acts to be infringements of law which were not so at date of commission - Whether Act contrary to generally recognised principles of international law - Proceeds of Crime Act, 1996 (No. 30) - Constitution of Ireland, 1937, Articles 15.5, 29, 40 and 43.

Cur. adv. vult.

Keane C.J

18th October, 2001

In these cases the defendants and the plaintiffs respectively have sought declarations that some or all of the provisions of the Proceeds of Crime Act, 1996, (hereafter the "Act of 1996") are invalid having regard to the provisions of the Constitution. In the first case, the defendants have also challenged the validity of certain orders made by the High Court in purported exercise of certain powers conferred by the Act of 1996, on the court. The first part of this judgment is concerned with the non-constitutional issue raised in the first case. The second part is the judgment of the court on the constitutional issue raised in both cases.

The non-constitutional issue

The plaintiff in the first proceedings is a Detective Chief Superintendent in An Garda Síochána. He has instituted the proceedings as a member of the gardaí within the meaning of the Act of 1996 and in them he seeks:

  1. (1) an order pursuant to s. 2 and thereafter pursuant to s. 3 of the Act of 1996, prohibiting the defendants and each of them and such other person as the court might order from disposing or otherwise dealing with the property described in the schedule to the plenary summons, i.e. the sum of £300,000 standing to the credit of the second defendant and/or the third defendant in the client account of the fourth defendant;

  2. (2) an order pursuant to s. 7 of the Act of 1996, appointing a receiver to take possession of the property or such portion of the property as the court might order;

  3. (3) an order pursuant to s. 9 of the Act of 1996, requiring the first defendant and the second defendant to swear and deliver affidavits specifying all the property of which they are in possession or control and the income and sources of income of each of the defendants during the past ten years.

In an affidavit, sworn on the 28th July, 1997, Det. Sgt. William P. O'Brien, a bureau officer of the Criminal Assets Bureau appointed under s. 8(1) of the Criminal Assets Bureau Act, 1996, said that the first defendant had been involved in facilitating armed robberies and hijackings since 1975. He said that he was a known "facilitator" providing guns and transport (sometimes stolen) for such criminal activity and was particularly well known as a receiver of large quantities of stolen property.

Mr. O'Brien said that the first defendant had one criminal conviction, involving stolen property, having been convicted on the 15th January, 1988, by the Dublin Circuit Court for receiving stolen goods valued £107,000 approximately and in respect of which conviction he received a sentence of five years imprisonment.

Mr. O'Brien said that, in common with a number of other prominent criminals who had been active in armed robberies, the first defendant became involved in the importation of controlled drugs, mainly cannabis and ecstasy, on his release from prison and, in association with known large scale drug dealers, organised the transport by other persons of drugs so as to ensure that, if the shipments were intercepted by gardaí or customs, he would not be liable to criminal convictions.

Mr. O'Brien said that he believed the first defendant was the person behind, or at least partly involved in, the financing of a shipment of 50 kilos of cannabis resin which was seized by gardaí at the M50 motorway, Dublin, while in the possession of one John Doran. He said that the latter had been a close associate of the first defendant since 1975 at least and had been sentenced to twelve years imprisonment in November, 1994, in respect of this offence.

Mr. O'Brien said that the first defendant was named in a trial in England in early 1997 by one Michael Boyle, who has been tried for attempted murder, as the person who had hired him (Boyle) to murder his intended victim. Mr. O'Brien said that the first defendant's wife and one or more of his children reside at a stated address in Palmerston, Dublin, but that the first defendant himself had left Ireland and was staying at a stated address in the Netherlands. The apartment in question was owned by one Johannes Anthonius Bolung who had been charged in the Netherlands with a violation of the Opium Act, handling and receiving stolen goods, and five cases of theft, assault and battery and fraud.

Mr. O'Brien said that the second defendant had been a close associate of the first defendant for some time. He had stood trial in April, 1995, in England with one Edward Phelan: both were convicted on twelve counts of theft and forgery and sentenced to three years imprisonment. The second defendant absconded during the final week of his trial and was convicted in his absence. Mr. O'Brien said that he had been informed by the London Metropolitan Police that extradition proceedings in respect of the second defendant had failed in September, 1996, but were likely to be recommenced. As part of the sentence, the second defendant was prohibited from being a director of a company for a period of five years, but he (Mr. O'Brien) had been informed by the second defendant and his solicitor that it was intended to appeal the conviction.

Mr. O'Brien said that the statements made by him in the affidavit as to the activities of the first defendant were based on garda information in his possession, the source and precise contents of which he did not wish to reveal for operational reasons.

Mr. O'Brien said that an extensive investigation had been carried out by bureau officers of...

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