1. No.
10143P Between Michael F. Murphy, Plaintiff and John Gilligan, Geraldine
Gilligan, Tracy Gilligan and Darren Gilligan, Defendants", an Order was made by
the High Court pursuant to Section 2 of the Proceeds of Crime Act, 1996
preventing John Gilligan from disposing or otherwise dealing with the property
specified therein. Those proceedings were grounded on an Affidavit sworn by
Michael f. Murphy, a Chief Superintendent of An Garda Siochana. Chief
Superintendent Murphy deposed to his belief that the property forming the
subject matter of the application was directly or indirectly the proceeds of
crime. He averred that this belief was supported by a long history of
involvement in crime by the Plaintiff and the accumulation by him of very
substantial assets in a short period of time without his enjoying any apparent
lawful of source of income. He also averred to the belief by the Gardaí
that the Plaintiff had a significant involvement in the importation of
narcotics. The Plaintiff did not swear an affidavit in those proceedings.
2. On
5th and 19th December, 1996, orders were made pursuant to Section 3 of the
Proceeds of Crime Act, 1996 preventing the Plaintiff from disposing or
otherwise dealing with this property. A further motion by Chief Superintendent
Michael F. Murphy was due to be heard seeking the appointment of a Receiver
under Section 7 of the Proceeds of Crime Act, 1996 on February 13th 1997. On
the same day (13th February, 1997) the Plaintiff issued his Plenary Summons
challenging the constitutionality of the proceeds of crime Act, 1996.
3. In
his Statement of Claim in the proceedings now before the Court the Plaintiff
states that he is a businessman and professional gambler and goes into very
considerable detail in regard to the properties which were affected by the
Orders made by this Court in the original proceedings pursuant to the proceeds
of Crime Act, 1996. He states that it had been his intention, pursuant to a
Separation Agreement made between himself and his wife, Geraldine, to convey
much of this property into the sole name of his wife Geraldine but that this
intention had not in fact been carried out. The said Separation Agreement was
neither produced nor exhibited in the present proceedings. The Plaintiff
states that he is part owner of many of the affected properties. He states
that he acquired the majority of the properties held both by himself and his
wife through payments by way of a loan of approximately £4 million made to
his wife and himself jointly by a Mr. Joseph Saouma. He also expended monies
from his gambling "float" on the acquisition of the properties. No explanation
is given as to the identity of Mr Saouma or as to the reasons for the £4
million loan. However, the present proceedings are not a trial of the facts
relating to the Plaintiff's financial background. I can only assume that these
matters in regard to the Plaintiff's properties as set out in his statement of
claim serve to establish the locus standi of the Plaintiff to maintain a claim
against the constitutionality of the 1996 Act.
4. It
is abundantly clear that the Plaintiff has this locus standi under the criteria
set out in
Cahill
-v- Sutton
[1980] IR 241. This is accepted by the Defendants and by this Court.
5. I
will refer later in this Judgment to specific sections of the Proceeds of Crime
Act, 1996 (the 1996 Act) which are impugned by the Plaintiff. At this point,
however, it will be of assistance to outline the structure or scheme of the
Act.
6. Under
sub-section (8) the Court is not to make a Disposal Order if it is satisfied
"that there would be a serious risk of injustice". Sub-section (4) provides:
9. The
remainder of this Section deals with conditions and restrictions which may
apply to such an Order and with notice in regard to an application for an Order
under sub-section (1).
12. These
Sections are not specifically challenged by the Plaintiff and are not of
immediate relevance to the instant proceedings.
13. The
Plaintiff's challenge to the Proceeds of Crime Act, 1996 as a whole is set out
in the form of Particulars in his statement of claim. In summary, the
Plaintiff claims that the Act fails to protect the right to a fair trial and
the right to fair procedures by assuming without charge, indictment, trial or
conviction the existence of a criminal offence and by requiring the Plaintiff
to prove on affidavit that, in essence, he is not and was not a criminal and
that his assets are not the proceeds of crime. By forcing the Plaintiff to
account for his assets the Plaintiff claims that the Act fails to protect his
privilege against self incrimination and his right to silence; he also claims
that by assuming, without due process of law, that he is guilty of a criminal
offence the Act fails to uphold the presumption of innocence. It is claimed
that Section 6(1) of the Act, by giving the Court discretion as to whether to
allow funds to be released to the Plaintiff for legal expenses, is in breach of
Article 40.3 of the Constitution, and that the Act fails to protect the
property rights of the Plaintiff from unjust attack - in particular by the
appointment of a Receiver and the possible disposal of his assets. The
Plaintiff also claims that the Act casts upon him the burden of proving that he
is not a criminal, thus reversing the normal burden of proof, and that the Act
is generally in breach of natural justice, constitutional justice, and what is
described as "constitutionalised natural justice". The Act fails to protect
the Plaintiff's rights under European Community Law, Article 6 of the European
Convention on Human Rights and Article 1 of the first protocol of the European
Convention on Human Rights.
15. Mr.
Langwallner, applied to amend the Statement of Claim so as to add, in summary,
a claim that the Act is designed to have retrospective effect, defining as it
does in Section 1 the "proceeds of crime" as inter alia including "any property
obtained or received at any time (whether before or after the passing of this
Act)", and that thus the Act is in breach of Article 15.5 and other Articles of
the Constitution.
16. Counsel
for the Defendants, Mr. Clarke and Mr. O'Donnell, did not oppose the proposed
amendment, although it would be incorrect to say that they consented to it. I
decided to permit the amendment so as to enable the Plaintiff to bring forward
as comprehensive a claim as he desired. In allowing this amendment I also bore
in mind that since the initiation of his proceedings the Plaintiff has in fact
been remanded in custody in Her Majesty's Prison, Belmarsh in England and is
therefore under a disadvantage in giving exact and up-to-date instructions to
his Solicitor and Counsel.
17. It
should perhaps be noted at this point that the final paragraph of the amendment
of the Statement of Claim states as follows:-
18. Counsel
for the Plaintiff provided the Court with detailed and comprehensive written
submissions, as indeed did both Counsel for the Defendants. Both sides also
provided the Court with very helpful books of authorities.
20. Mr.
Langwallner firstly challenged the constitutionality of the 1996 Act as a whole
and then dealt with particular aspects of it.
21. In
the general part of his argument Mr. Langwallner submitted that the Act:-
22. The
Act, he said, was Kafkaesque in that on the word of a Chief Superintendent or a
Revenue Official an individual can have his assets frozen, put into
receivership and disposed of on the basis of assumed criminality, without
charge, indictment, trial or conviction. He emphasised, in regard to this
general aspect as well as to other particular aspects of the Act, that the Act
is in essence a criminal or quasi-criminal statute and demanded what he
described as Strict Scrutiny from a constitutional point of view. The Act, he
said, enabled the Garda Siochana to short circuit and circumvent ordinary
criminal procedures and to abandon normal methods of criminal investigation.
As far as the Plaintiff himself was concerned there was no current charge
against him in this jurisdiction. Crimes were unspecified and, if any, must
have occurred in the past.
23. Counsel's
attack on the Act as whole ranged widely, referring to works of literature such
kafka's "The Trial" and Arthur Miller's "the Crucible" and to historical
episodes such as The Salem Witch Trials and the McCarthy era in the United
States. As far as this aspect of this argument was concerned I would to some
degree accept the criticism made by
24. Mr.
Clarke, Counsel for the first, second, third, fourth and fifth named
Defendants, that the argument was political or polemical rather than strictly
legal in content. However, in fairness to Counsel for the Plaintiff, it must
be accepted that the protection of the rights of citizens, as established under
the Constitution, is an extremely important element of the function of the
courts.
25. Counsel
for the Plaintiff, in dealing with the claim that the Act was contrary to
natural or constitutional justice, referred to the judgment of the learned
Walsh J.
McGee
-v- Attorney General
[1974] IR 284 at page 310 where the learned Judge stated:-
26. He
also relies on a passage in the judgment of the learned Gannon J. in
The
State (Healy) -v- Donoghue
[1976] IR 325 at page 335:-
27. The
Act, Mr. Langwallner submits, vitiates not only the express constitutional
rights of the Plaintiff but also his rights anterior to the Constitution and
deriving from the natural law.
28. The
more particular parts of Mr. Langwallner's submissions on the Act may
conveniently be divided into sections. Firstly, he submits that Sections 2
and 3 of the Act are in breach of Article 38.1 of the Constitution in that they
require the Plaintiff to establish that the property which has been frozen
under those sections was not the proceeds of crime. This fails to protect the
presumption of innocence and shifts the burden of proof in what is, in reality,
a criminal or quasi-criminal matter onto the Plaintiff. He submits that there
is a want of fair procedures - such as would apply through charge, trial and
conviction of the Plaintiff - in the scheme set out in Sections 2 and 3 and
that the sections are in breach of Articles 40.3 and Article 34 of the
Constitution in requiring that the Plaintiff establish "that he is not a
criminal". He submits that proceedings under the Act are in essence criminal
rather than civil, and refers to the indicia of criminal proceedings as set
out in
Melling
-v- O'Mathghamhna
[1962] IR 1. In particular he refers to the judgment of the learned Kingsmill
Moore J. in that case at page 34 of the report where the learned judge stated:-
29. In
regard to the presumption of innocence Counsel for the Plaintiff submits that
there is a specific recognition of this right in the cases of
Hardy
-v- Ireland
[1994] 2 IR 550 and
O'Leary
-v- Attorney General
[1993] 1 IR 102.
30. ´Mr.
Langwallner went on to argue that the right to silence, or the privilege
against self-incrimination, had been recognised as a constitutional right
either under Article 38.1 or under Article 40 in both
Heaney
-v- Ireland
[1996] 1 IR 580 and
D.P.P.
-v- Quilligan
[No. 3] [1993] 2 IR 305. The effect of the Act as a whole was to force the
Plaintiff to account for his assets. In particular under Section 9 the Court
may direct the Plaintiff to file an affidavit specifying both the property of
which he is in possession or control and his income and the sources of his
income during a period of up to ten years. If he failed or refused to file
such an affidavit he could be found to be in contempt of Court, with all the
penalties attaching thereto. All his property might be put into receivership
and ultimately sold. There was also an obvious danger that information
revealed pursuant to Section 9 or pursuant to other sections of the Act would
later be used by the State to mount a prosecution against the Plaintiff or to
charge him with other offences. In this context Mr. Langwallner referred to
the judgment of the learned Walsh J. in the European case of
Saunders
-v- United Kingdom
(43/1994/490/572) in the European Court of Human Rights. In his judgment the
learned Walsh J. stated as follows:-
31. Counsel
for the Plaintiff went on to submit that the entire scheme of the 1996 Act
constituted an unjust attack on the Plaintiff's property in breach of Article
40.3.3 and Article 43 of the Constitution. He argued that there were no
exigencies of the common good or principles of social justice that would
justify the freezing of the Plaintiff's assets, the placing of them in
receivership and their subsequent disposal. The Act was "over broad in
accomplishing State objectives". In this connection he referred to
Buckley
and Others (Sinn Féin) -v- Attorney General and Others
(the "Sinn Féin Funds" case), stressing that in that case the right to
private property even of an organisation deemed to be subversive was upheld.
He also referred to
Cox
-v- Ireland
[1992] 2 IR 503 where Section 34 of the Offences Against the State Act 1939 was
deemed to be unconstitutional largely on account of its impermissibly wide and
overbroad ambit. In the case of the 1996 Act, Mr. Langwallner argued that
concepts of social justice or the common good did not warrant the expropriation
of private property on the basis that it is tainted by criminality without the
related proof of a criminal offence or at least a charge.
32. Counsel
for the Plaintiff went on to submit that by its definition of "Proceeds of
Crime" in Section 1 the Act imposes forms of sanction and punishment which
operate retrospectively contrary to Article 15.5 of the Constitution. Property
received or obtained prior to the passing of the Act would not, he said, have
been subject to the powers granted to the State under the Act and would not
have been liable to be frozen, put into receivership or disposed of at the time
and it was unconstitutional to provide that they should be so affected after
the passing of the 1996 Act,.
33. Counsel
for the Plaintiff submitted that the 1996 Act was considerably more draconian
than legislation affecting the proceeds of crime in either Britain or the
United States and that in those countries in order for forfeiture to take place
there must have been a criminal conviction or at the very least a criminal
charge against the person whose property was subject to forfeiture.
34. Mr.
Langwallner went on to give a comprehensive survey of European Community Law
under both the Treaty of Rome and the Maastricht Treaty. He submitted that the
right to a fair hearing was a fundamental principle and right of Community Law
and applied to any legislation purporting to implement a directive of the
European Community and in this context he submitted that the 1996 Act was an
implementation of directive 91/30 [1991] OS L 166/77 [The Money Laundering
Directive]. He submitted that as the Proceeds of Crime Act, 1996 vitiated
fairness of procedure there was a discretion in this Court to refer the matter
to the European Court unless it could be decided on other grounds not involving
a point of Community Law. He submitted that this Court ought to use such
discretion to refer this matter to the European Court. It was not entirely
clear to me what particular aspect of the 1996 Act should be referred to or how
such a reference should be framed. In any case I considered that the primary
task of this Court was to consider the provisions of the Act in the light of
Bunreacht na hEireann.
35. Finally
Mr. Langwallner referred generally to Article 6 of the European Convention on
Human Rights which states, inter alia, at sub-paragraph (1):-
38. It
is clearly established by authority binding on this Court that the European
Convention on Human Rights does not form part of domestic law of the State.
In Re O'Laighleis
[1960] IR 93 the Supreme Court stated:-
39. This
determination has been applied consistently, notably in the decision of the
Supreme Court in the case of
Norris
-v- Attorney General
[1984] IR 36. It is clearly not open to this Court to approach the European
Convention on Human Rights in the manner suggested by Mr. Langwallner. While
there can be no question but that this Court is entitled to have regard to
decisions of the Court of Human Rights in construing provisions of the
Constitution there can be no question of any decision of the European Court of
Human Rights furnishing in and of itself a basis for declaring legislation
unconstitutional. I am bound by the repeated decisions of the Supreme Court
that the European Convention on Human Rights is not a part of the domestic law
of this jurisdiction. Nor do I propose to make any reference in regard to the
provisions of the proceeds of Crime Act, 1996 to the European Court of Justice
pursuant to Article 177 of the Treaty of Rome, as I consider that the matter
may be decided on grounds not involving a point of Community Law.
40. Before
making his legal submissions to the Court Counsel for the first, second, third,
fourth and fifth named Defendants, Mr. Clarke, called evidence with a view to
establishing the factual background against which the Oireachtas had enacted
the proceeds of Crime Act, 1996 and to showing the practical application of the
Act.
41. Superintendent
Felix McKenna is acting Chief Bureau Officer of the Criminal Assets Bureau. He
had previously been attached to the serious crime squad and was subsequently a
Detective Inspector in Blackrock, Co. Dublin. He gave evidence of having
detailed knowledge of criminals and their activities through investigations and
through Garda intelligence. He described the nature and activities of the
Criminal Assets Bureau as set up in October 1996 pursuant to the Criminal
Assets Bureau Act, 1996. He said that the objectives of the Bureau were the
identification of assets which derive or were suspected to derive from criminal
activities and the taking of appropriate action under the law to deny or
deprive those persons of benefiting from such assets. He said that he had been
involved in processing a significant number of applications to this Court in
relation to assets which were the proceeds of crime. He outlined some of these
cases. He described the effects which the activities of the criminal assets
bureau, under the Proceeds of Crime Act, were having on the operations of major
criminals. He said that they had begun to dispose of properties and
investments and to move large sums of cash overseas. This had forced them to
reinvolve themselves in actual crime (thus making them more vulnerable) rather
than paying lesser criminals to work for them.
42. During
the 1980's and 1990's, he said, major criminals were able to distance
themselves from being directly involved in actual crime. They organised crimes
which were committed by others and of which they reaped the proceeds. The
lesser agents could be caught and convicted; the chief criminals were not, as
they were not directly involved . The activities of the Criminal Assets
Bureau, under the proceeds of crime Act, meant that major criminals were no
longer free to benefit from the fruit of their ill gotten gains without
interference. As far as the drugs business was concerned, the major criminals
needed large amounts of cash to purchase drugs in England or Holland and very
large profits were made by selling them in Ireland. They used these profits to
diversify into legitimate businesses such as buying apartment blocks and
licensed premises. The activities of these criminals had been curtailed on
account of the work of Criminal Assets Bureau. Where they tried to move large
sums of cash abroad they were at risk of apprehension. Ordinary criminal
investigations were also continuing side by side with the work of the bureau.
43. Under
cross-examination the Superintendent accepted that the activities of the
Criminal Assets Bureau were unlike normal police work where investigations
started from the actual commission of a crime and a person was charged with
that crime only if sufficient evidence was assembled against him. The main
function of the Bureau was the identification of assets derived from criminal
activities and in the course of that activity they decided, on the basis of
past convictions, police intelligence, and other available information that a
person was a criminal and they moved to seize his assets.
44. Mr.
Langwallner questioned Superintendent McKenna about the powers and practices of
police forces in other jurisdictions. The Superintendent had experience of
inter action with other police forces through, for example, Interpol, but had
no detailed legal knowledge of their powers. He was aware that the English
police did not have the full extent of the powers available under the Proceeds
of Crime Act, 1996 and said that English officers had come over here and
examined processes in this jurisdiction with a view to making a submission to
the Home Secretary. He knew that in Holland a Bureau similar to the Criminal
Assets Bureau existed but that they had to have a conviction of some
description before they could pursue the assets.
45. The
Superintendent agreed that in England and in Holland the sums of money involved
as proceeds of crime would be very much larger than in this jurisdiction. He
felt that there were about twenty persons whom he would describe as major
criminals operating in this jurisdiction. There would be a lengthy
investigative process before any action was taken under Section 2 of the 1996
Act. They would be influenced by the fact that a person had previous
convictions. While as yet no one had been arrested, interviewed or charged in
connection with the powers of the Criminal Assets Bureau he could envisage that
happening in the future. However, some of the persons in respect of whom the
Criminal Assets Bureau had made applications to the Court had been arrested and
charged through the ordinary processes of investigation carried out by the
Gardaí Siochana.
46. Evidence
was also given by Deputy Commissioner Noel Conroy of An Garda Siochana. The
Deputy Commissioner in his present post has special responsibility for
operational functions. He stated that he had been a member of the Gardai
Siochana for over thirty three years, twenty five of which had been spent in
the area of crime investigation. He had been Detective Superintendent in
charge of the Serious Crime Squad in Harcourt Square and from February 1992 to
July 1994 he had been Detective Chief Superintendent with responsibility for
security and intelligence.
47. Deputy
Commissioner Conroy outlined a number of general statistics in regard to crime
between the years 1987 and 1995. In outline he stated that all indictable
crime recorded had increased by 20% from 1987 to 1995 and during that period
the Garda detection rate had risen from 32.5% to 38.8% in 1995. However, while
the value of property stolen had increased by 64.4% from 1987 to 1995 the
percentage rate of stolen property recovered had decreased from 9.4% to 7.6%.
Serious crime which he described as robberies and aggravated burglaries,
including those where firearms were involved, had increased by almost 50% from
1987 to 1995 but the detection rate for this type of crime had decreased from
25.9% to 22% over the same period.
48. As
in the case of the previous witness, Deputy Commissioner Conroy spoke of a
significant change in the structure of serious organised crime. During the
1980's there had been a rather high level of serious armed robbery and the
Gardai had been reasonably successful in dealing with those who were actually
committing those crimes. Quite a number of those particular criminals served
prison sentences. However the Gardai were not so successful in recovering the
proceeds of the armed robberies and when the persons who had been convicted of
the crimes were released from prison they "diversified" and eventually moved
into the area of supplying drugs. Over time they completely removed themselves
from the actual movement of drugs in that they had what he described as "a
number of runners on the ground, trusted people that would courier the drugs,
not alone through Ireland but through mainland Europe ". The principals in
this trade were able to pay cash to various international traffickers in drugs
and then make very large profits on re-selling the drugs in Ireland. This had
an extremely detrimental effect on Irish society particularly in the City of
Dublin. Both the principals and the leading couriers became extremely wealthy
and were able in a sense to command respect within the criminal community.
Both their power and their wealth ensured that people that acted as runners or
suppliers of drugs would not in any way inform on them or assist the Gardai in
any investigation. If the lesser couriers or suppliers were arrested, charged
and convicted they were readily replaced and no evidence could be assembled in
regard to the principals.
49. Deputy
Commissioner Conroy described this situation as affecting society in two ways.
First of all it was an example and an inducement to other would-be criminals to
embark on a life of crime - as leading to wealth and power - and secondly it
caused frustration and disillusionment among other citizens together with a
tendency for the criminal justice system as a whole to fall into disrepute. He
felt that that made ordinary people less likely to co-operate with the Gardai
either by coming forward as witnesses or by generally partaking through the
giving of information.
50. The
Deputy Commissioner stressed that the work of the Criminal Assets Bureau was in
parallel with the normal investigating procedures of the Gardai and that the
need to obtain evidence to support prosecutions in order to obtain convictions
for criminal activity must remain the first priority of the Gardai. However
the need to deprive criminals of the proceeds of crime was also vitally
important.
51. The
witness went on to describe some of the work of the National Drugs Unit of the
Garda Siochana which was established in 1995. He gave a list of major drug
seizures made by the Gardai during 1995.
52. With
regard to the criminal assets bureau which began its work in or about July 1996
the Deputy Commissioner felt that it had been most successful in the short time
in which it had been in operation. He agreed with the previous witness that it
had given rise to major criminal figures leaving the jurisdiction, trying to
remove assets from the jurisdiction and trying to dispose of properties that
they acquired from their criminal activities. Already the provisional crime
figures for 1996 and early 1997 showed a certain decrease and, while the change
was not enormous, it was a healthy picture. He also agreed with the previous
witness that the effect of the work of the Criminal Assets Bureau, pursuant to
the proceeds of Crime Act, 1996 was to drive the major criminals back "on to
the shop floor" of crime - in other works to commit crimes themselves and,
therefore, to lay themselves open to arrest, charge and conviction.
53. Under
cross-examination, the Deputy Commissioner dealt with the processing of
information and intelligence as between the Garda Siochana generally and the
Criminal Assets Bureau. He said that in the course of normal Garda
investigation of crime and intelligence gathering the Gardai would be in
possession of a lot of information regarding the wealth which major criminals
would have acquired from their criminal activities. He saw it as a role for
the Garda Siochana that intelligence would be made available to the Criminal
Assets Bureau in an effort to recover what had been achieved from criminal
activity by those involved in crime. He said that the information and
intelligence which they had was presented to the Court under the Proceeds of
Crime Act either on affidavit or on oral evidence and it was stated that it was
believed that these assets were the proceeds of criminal activity. However he
stressed that the Gardai and the members of the Bureau were not the deciding
factor; that was the function of the Court. Once the Bureau had acquired
information the Chief Bureau Officer would consult the legal adviser to the
Bureau and the Chief Bureau Officer was the person who made the decision as to
whether to go to Court.
54. When
questioned by Mr. Langwallner, the Deputy Commissioner accepted that it was an
entirely different process from the ordinary procedure that would take place in
regard to the arrest and charge of a person who was being charged with
receiving stolen goods. He accepted that in the case of a conviction for
receiving stolen goods, the Court would normally make a forfeiture Order in
respect of goods that had been recovered.
55. When
questioned again about the flow of information as between the Gardai Siochana
and the Criminal Assets Bureau the Deputy Commissioner said that in the vast
majority of cases information was given by the Gardai Siochana to the Criminal
Assets Bureau but that it might happen that the Criminal Assets Bureau would
give information to the Gardai.
56. The
witness spoke of the difficulties inherent in mounting an investigation
followed by charge and conviction of the principal criminals to whom he had
been referring. He denied that he was looking for extra powers to prosecute
but said that he felt that the work of the Criminal Assets Bureau and the
operation of the 1996 Act "levelled the playing field a little bit" as between
the major serious criminals and society as a whole.
57. Mr.
Langwallner went on to cross-examiner the Deputy Commissioner about his contact
with other police forces and the powers that were available to them. He agreed
that he had contact with other forces in particular in North America,
throughout Europe and in Britain and that he understood in general terms that
these forces did not have the powers that were made available in the 1996 Act.
He accepted that in most of these jurisdictions there would be a necessity for
either a conviction or a criminal charge before assets could be forfeited. He
said that the consensus of most law enforcement agencies around the world was
that the dismantling of many leaders' networks and the distribution of money
from crime was the most effective way of tackling organised crime. Mr.
Langwallner put to him that that was "a policeman's consensus". The Deputy
Commissioner said that he had no doubt that in the not too distant future other
jurisdictions would be going down the road that the Irish legislature had gone
in this field.
58. When
Mr. Langwallner asked the witness why the Gardai did not simply prosecute the
major criminals about whom he was speaking the Deputy Commissioner answered
that the Gardai would always endeavour to obtain evidence to support a criminal
prosecution. That had been their first priority in relation to anybody that
was involved in criminal activity and would remain so. However it was hard to
get people to co-operate with an investigation and particularly in the case of
the criminals whom he had described as principals. He had already outlined
that these people would not be found with their hands "right in the middle of
the crime". They had totally distanced themselves from the actual commission
of crime or the general movement of the stolen cash or whatever goods might
have been obtained. He felt that the overall process in dealing with criminals
was both the process to investigate crime and to recover the proceeds of crime
from individuals that have profited from it.
59. While
the first five Defendants were represented by Mr. Clarke S.C. and the sixth and
seventh Defendants (Ireland and The Attorney General) were separately
represented by Mr. O'Donnell S.C., what was basically a joint defence was put
forward by both Counsel. I consider that it may be dealt with in general as
one defence against the Plaintiff's challenge to the constitutionality of the
1996 Act.
60. As
may be appreciated from the evidence led by Mr. Clarke the general approach of
the Defendants to the Act is that it represents a proportionate reaction to an
extremely serious situation which at present obtains in the area of crime
generally and particularly in the area of drug related crime in this country.
The Defendants submit that there is both a theoretical and a practical
justification for the enactment of this legislation. As regards the
theoretical justification they submit that there is normally no
constitutionally protected property interest in assets which have been secured
directly or indirectly as a consequence of a violation of the criminal laws of
the State. Therefore the State is entitled to institute a procedure for
forfeiture of assets which come within this definition. The State is also
entitled to establish a procedure for the ascertainment of whether property
comes within the definition as stated but that procedure itself must correspond
with the requirements of constitutional fairness.
61. As
regards the practical justification they refer both to the evidence of
Superintendent McKenna and Deputy Commissioner Conroy and to the judgment of
62. Moriarty
J. in the case of
M.
-v- D.
(unreported) 10th December, 1996, to which judgment I will refer in more detail
later.
63. The
Defendants go on to address a number of the specific matters raised by the
Plaintiff in his challenge to the Act. The Defendants accept that the
essential thrust of the Plaintiff's claim is a contention that proceedings
under the 1996 Act in particular pursuant to Sections 2, 3 and 4 are
essentially criminal in nature, but do not have the indicia of a trial in due
course of law which is contemplated by Article 38 of the Constitution; that if
the proceedings are civil that they impremissibly involve a determination of
criminality; and finally that whether criminal or civil in nature , the
proceedings impermissibly place an onus of disproof of criminality on a
Respondent and/or infringe the privilege against self-incrimination. The
Defendants submitted that forfeiture proceedings are in fact civil and not
criminal in nature; that there is no constitutional bar on the determination in
civil or other proceedings of matters which may constitute elements of criminal
offences; and that there is no constitutional objection to proceedings
permitting forfeiture unless lawful ownership is established by the party
claiming such. The Defendants also drew attention to the fact that the 1996
Act conferred a number of discretions on the Court and that judicial
determinations were interposed at a number of stages in the procedure set out
in the Act. They submitted that it must be assumed that these discretionary
and determinative powers will be exercised constitutionally and referred in
this context to the judgment of the Supreme Court in the Adoption (No.2) Bill
1987 [1989] IR 656 at page 661 where it is stated:
64. In
their more detailed submissions, both written and oral, Counsel for the
Defendants dealt firstly with the question as to whether proceedings under the
1996 Act were civil or criminal in nature. They referred to the cases of
Attorney
General -v- Southern Industrial Trust Limited and Simons
(1960) ILTR 161 and to
Goodman
-v- Hamilton
(1) [1992] 2 IR 542. In the latter case the Applicant sought to prohibit a
Tribunal of Enquiry from embarking upon a consideration of allegations of
criminal activity by the Applicant. The contention that for the Tribunal to
embark upon such an enquiry would be unconstitutional was rejected by both the
High Court and the Supreme Court. Counsel for the Defendants drew attention to
the dictum of Costello J. (as he then was) at page 560 of his judgment in the
High Court as follows:-
65. The
Defendants also
referred
to
Clancy
-v- Ireland
[1988]
IR
326 where this Court considered the constitutional validity of Sections of the
Offences against the State (Amendment) Act, 1985 which empowered the Minister
for Justice to certify that monies were the property of an unlawful
organisation, and that those monies stood forfeited to invested in the
Minister. In that case Barrington J. held that the 1985 Act in no way
transgressed the provisions of the Constitution.
66. On
the question of the presumption of innocence and/or the reversal of the burden
of proof Counsel for the Defendants pointed out that before any Order could be
made pursuant to Section 2 or Section 3 of the 1996 Act it was necessary for
the State to establish to the satisfaction of the Court on the balance of
probabilities that the Respondent was in possession of or control of assets
which comprised directly or indirectly the proceeds of crime. That initial
evidential burden had to be discharged by the State before any obligation was
imposed upon a Respondent to furnish any evidence to the Court. The Defendants
submitted that the procedures did not have the elements or indicia of criminal
proceedings as set out in the case law and that therefore Article 38 of the
Constitution did not apply to such proceedings. Counsel submitted that the
statute did not make any assumption that the Plaintiff was guilty of a criminal
offence but merely permitted the adducing of evidence indicating that the
property involved was the proceeds of crime which did not necessarily imply
that the person in possession of the property committed the crime. However,
even if the proceedings were criminal in character the Defendants submitted
that in the case of
Hardy
-v- Ireland
[1994] 2 IR 550 and
O'Leary
-v- Ireland
[1995] 1 IR 254 it was clearly established by the Supreme Court that even in
criminal cases there was nothing in the Constitution to prohibit absolutely the
shifting of an onus or to suggest that the shifting of such an onus would
inevitably offend the requirements of due process.
67. In
regard to the right to fair procedures under Articles 34 and 40.3.2 of the
Constitution the Defendants suggest that the focus of the Plaintiff's claim was
based upon the fact that he was required by statute to disprove the allegation
made against him and argue that there was nothing inherently unfair or
unconstitutional about a procedure requiring a party to legal proceedings to
counter evidence adduced or made against him, nor was there any principle that
rendered it unfair for a person to have to prove that property was lawfully and
rightfully his. There was nothing to prevent the Plaintiff from making
representations to rebut the case made by the Criminal Assets Bureau nor was
there any inhibition on the type of evidence he could adduce. He had a right
to cross-examine and to have a full hearing before the Court. He also had the
residual entitlement pursuant to Section 3 and 4 of the Act that the Court
would not make Orders of the nature in question if to do so gave rise to a
serious risk of injustice. The Defendants compared the procedure provided for
by the 1996 Act with the normal power of the Courts to grant interim and
Interlocutory Injunctions and in particular to grant interim Freezing Orders on
an ex-parte basis which were followed by interlocutory hearings on Affidavit
and finally adjudications in respect of legal rights and liabilities.
68. In
regard to the privilege against self-incrimination or right to silence Counsel
for the Defendants referred in particular to the case of
Heaney
-v- Ireland
(High Court) [1994] 3 IR 593 and (Supreme Court) [1996] 1 IR 580. They
submitted that the Respondent in a case under the Proceeds of Crime Act, 1996
was not compelled to adduce evidence under threat of punishment. He could give
evidence freely and seek to realise his assets, or he could decline to say
anything that might incriminate him, or he could give evidence omitting any
particular that might incriminate him. In Heaney's case the Supreme Court held
that the right to silence was a corollary to the freedom of expression that
was conferred by Article 40 of the Constitution. As a consequence, the right
to remain silent could be qualified just as the right to freedom of expression
could be qualified. The State was entitled to encroach on the citizen's right
to remain silent in pursuit of its entitlement to maintain public peace and
order although in this pursuit the constitutional rights of a citizen must be
affected as little as possible.
69. With
regard to the Plaintiff's challenge to Section 6 of the 1996 Act in so far as
it deals with the release of monies to provide for legal representation, the
Defendants submitted that this discretion must be operated constitutionally by
the Court.
70. With
regard to the Plaintiff's claim that the 1996 Act infringed the Plaintiff's
constitutional right to property the Defendants reiterated that insofar as the
Plaintiff was in possession of or in control of assets which directly or
indirectly constituted the proceeds of crime he had no property rights in those
assets either under the Constitution or under any other law. They argued that
the 1996 Act had been enacted to support a compelling public interest and was
reasonably required by the common good. Any damage to the Plaintiff's property
rights insofar as they existed could be compensated for by the provision
allowing for the payment of damages under Section 16 of the Act.
71. The
Plaintiff had also claimed that his good name was being unjustly attacked in
the proceedings under the 1996 Act. The Defendants submitted that through the
ability to hold proceedings
in camera
at each stage of the interim interlocutory procedure, the Act protected the
publication of the name of the Respondent and that in fact the Applicant's good
name had not been subjected to any unjust attack.
72. With
regard to the Plaintiff's submissions in regard to the law of the European
Community the Defendants submitted that the recitals of Directive
91/308/ECOJL166/77 (
"the
money laundering directive"
)
made it clear that the institutions of the European Community shared a deep
rooted concern as to the importance of restricting the right of persons to the
proceeds of crime. The Directive also made it clear that its provisions were
without prejudice to the right of Member States to adopt more stringent
measures as required by the exigencies of particular circumstances in their own
societies. The Plaintiff had also submitted that there had been a breach of
the Directive and of European Community Law generally as a consequence of the
failure to afford to the Plaintiff a fair hearing. The Defendants submitted
that for reasons which they had already set out the Plaintiff was afforded a
fair hearing under the Act.
73. With
regard to the submission that the provisions of the 1996 Act violated the terms
of the European Convention on Human Rights, Counsel submitted that the
Convention did not form part of the Law of the State and was not justiciable
before this Court. I have already dealt with this point above. The Defendants
submitted that there could be no question of any decision of the European Court
of Human Rights furnishing in and of itself a basis for declaring legislation
unconstitutional. While it was clear that this Court was entitled to have
regard to the decisions of the Court of Human Rights in construing provisions
of the Constitution, just as this Court might have regard to decisions of other
Constitutional Courts, the decision of the Supreme Court in
O'B.
v. S
.
[1984] I.R. 316 made it clear that the Courts are obliged to apply the
provisions of domestic legislation in preference to decisions of the European
Court of Human Rights. I accept the correctness of this contention.
74. The
general approach of this Court and of the Supreme Court in considering the
constitutionality of a law passed by the Oireachtas has been referred to in
many previous cases, including the Adoption (No. 2) Bill, 1987. Reference case
already referred to.
75. The
position was recently effectively summarised by the Chief Justice in the
judgment of the Supreme Court delivered on 31st July, 1996 in the case of
Croke
v. Smith, O'Connor and Others
(unreported). In this case the Court was dealing with the constitutionality of
Section 172 of the Mental Treatment Act, 1945. While this case was not opened
to me by Counsel for either side, I consider that it would be appropriate to
refer to it as an authoritative and binding statement of the approach which
this Court should take.
76. At
page 8 of his judgment, the learned Chief Justice set out the position under
the heading
"presumption
of constitutionality"
as follows:
77. Within
this framework I propose firstly to consider the various particular challenges
made the Plaintiff to the 1996 Act and subsequently to consider the general
question as to the proportionality of the legislation to the situation which
gave rise to its enactment. In this general consideration there arises the
point, quite correctly made in a number of ways by Counsel for the Plaintiff,
that the statutes and the cases relied upon by the Defendants were enacted and
decided in the context of a subversive threat by illegal armed political groups
to the State itself. Many of the cases deal, in fact, with the Offences
against the State Act, 1939 and its various amendments. This Court must, as
matter of proportionality, consider whether the situation as regards major
crime in this country described in the evidence of the two Garda witnesses and
referred to in the various submissions, in fact justifies the enactment of
measures which are, if not draconian, at least out of the ordinary run of civil
legislation.
78. The
first matter which falls to be considered is the Plaintiff's assertion that
proceedings brought pursuant to The Proceeds of Crime Act, 1996, while taking
the outward form of a civil action, in reality amount to a trial of a criminal
offence without the due procedures for such a trial. He submitted that under
the Act it was necessary for any Respondent to
"prove that he was not a criminal"
.
If the proceedings are in reality criminal, the Plaintiff then claims that in
a number of ways they offend against the provisions of Article 38 of the
Constitution.
80. Over
the years it has been held that the phrase
"in
due course of law"
is analogous to what is described as
"due
process"
in the constitutional law of the United States of America.
81. The
leading case in regard to the indicia of a criminal offence and criminal
procedures is
Melling
v. O'Mathghamhna and The Attorney General
[1962] I.R. 1. In that case it was held that smuggling offences under the
provisions of Section 186 of the Customs Consolidation Act, 1876 were criminal
offences. The facts of the case are too well known to require recital. The
Plaintiff claimed that the District Court had no jurisdiction to try the
charges because
82. It
was held in the High Court that the charges were not criminal charges but the
Plaintiff succeeded on appeal to the Supreme Court in regard to this aspect of
his claim. In holding that the charges were in fact criminal charges the
Supreme Court set out certain indicia which demonstrated that fact. Kingsmill
Moore J. in his comprehensive survey of the authorities starts from the
definition of a crime, stating at page 24 to 25 of the report
83. However,
all three Judges in the Supreme Court also refer to even more practical indicia
of criminality. Lavery J. at page 9 of the Report states:
86. Counsel
for the Plaintiff in the instant case on a number of occasions used the term
"Kafka-esque" to describe proceedings under the 1996 Act and made it clear that
he was referring to its use by O'Dalaigh J. in this judgment
.
Proceedings under the 1996 Act are not, however, entirely comparable to those
under the Customs Consolidation Act, 1876 which were dealt with in Melling's
case. It is quite clear from the evidence of both the Garda witnesses that
they perceive the procedures under the 1996 Act as being a method of attacking
a certain form of criminality. By divesting major criminals of their
ill-gotten gains, they hope to reduce their power and influence and to render
them more vulnerable to arrest, trial and conviction. The means used in the
procedures under the 1996 Act do not, however, have "
all
the features of a criminal prosecution"
.
The action is strictly speaking in action
'in
rem'
rather
than
'in
personam'
;
this was stressed by Mr. Clarke in his argument. More importantly, there is no
question of the arrest of a Respondent or his remand in custody or on bail and
there is no specific penalty of fine or imprisonment. It is true that money or
property may be removed from the possession or control of a Respondent, but if
this money or property can be shown to the satisfaction of the Court to be the
proceeds of crime, its removal could well be viewed in the light of reparation
rather than punishment or penalty. Nor is there any question of imprisonment
of a Respondent, whereas in Melling's case the penalty was a fine of three
times the value of the contraband goods with imprisonment as an alternative
sanction. There are therefore very considerable differences between Melling's
case and the present case, both as regards process and as regards the end result.
87. The
indicia of criminal proceedings were again considered by the Supreme Court in
Goodman
v. Hamilton
(No. 1) [1992] 2 I.R. 542. In that case the Applicant argued, inter alia, that
the tribunal appointed by the Oireachtas of which the Respondent was the sole
member could not validly inquire into allegations of criminal conduct because
to do so would infringe the principal of the separation of powers, infringe the
constitutional guarantee of fair procedures and fail to vindicate the
Applicant's good name. The Applicant submitted that insofar as the resolution
of the Oireachtas directed the tribunal to inquire into allegations of criminal
conduct that it was in breach of Article 38 of the Constitution because it was
providing for the trial of persons on criminal charges otherwise than in due
course of law and without a jury. Both the High Court and the Supreme Court
held against the Applicant. In his judgment at page 588 of the Report Finlay
C.J. under the heading
"alleged
breaches of Article 38"
stated as follows:-
88. The
question as to whether a statutory procedure was civil or criminal in nature
was again considered in
O'Keeffe
v. Ferris
(Supreme Court unreported 19th February, 1997). This action was for a
declaration that Section 297 of the Companies Act, 1963 was unconstitutional or
alternatively that the manner in which the liquidator of the relevant company
sought to invoke Section 297 (1) against the Plaintiff was invalid as it
amounted to a trial of a criminal offence without due procedures for such a
trial. The judgment of the Supreme Court was delivered by O'Flaherty J. At
page 7 of his judgment he stated
89. At
page 10 of the judgment under the heading "Decision" the learned O'Flaherty J.
goes on to say
90. In
the context of the argument made on behalf of the Plaintiff that proceedings
under the 1996 Act are essentially criminal rather than civil in nature, stress
was also laid on the fact that under Section 7 of the Act where an Interim
Order or an Interlocutory Order is in force, the Court may at any time appoint
a receiver
91. Also
under Section 4 of the Act the Court, where an Interlocutory Order has been in
force for not less than seven years in relation to specified property, may make
a Disposal Order directing that the whole or, if appropriate, a specified part
of the property be transferred to the Minister for Finance or to such other
person as the Court may determine.
92. The
Plaintiff claims that such forfeiture proceedings are criminal in nature and
therefore the Plaintiff should benefit from the protection provided by Article
38.1 of the Constitution.
93. The
Defendants argue that forfeiture proceedings are civil and not criminal in
nature. In making this submission they rely on the decision in
Attorney
General v. Southern Industrial Trust Limited and Simons
(1960) 94 I.L.T.R. 161. In that case the High Court and Supreme Court
considered the constitutional challenge to the validity of the provisions of
Section 5 of the Customs (Temporary Provisions) Act, 1945. That Act permitted
the forfeiture of goods shown to have been exported in contravention of
provisions of the customs code. The forfeiture procedure operated in the
following way. The Attorney General, (upon a challenge to the right to forfeit
being made) was compelled to bring to the High Court any information averring
that the goods were seized on suspicion of being exported in contravention of
such enactments. Upon the Attorney General so averring, it was presumed until
the contrary was proved that the goods at the date of seizure had been exported
in contravention of those provisions. Clearly, this entailed the Respondent in
establishing that no criminal offence had been committed. In those proceedings
the Southern Industrial Trust Company had sold a motor vehicle to the second
named Defendant Simons by way of hire purchase. The vehicle was subsequently
forfeited and the Company brought proceedings challenging the constitutional
validity of these provisions. The challenge arose from the proceedings to
forfeit the motor vehicle in question. The High Court and the Supreme Court
rejected the claim that the proceedings were criminal rather than civil in
form. Davitt P. stated (at page 167 of the Report)
94. This
determination was upheld by the Supreme Court. The case not only establishes
that the nature of the proceedings was such that they were civil, but also that
this was irrespective of the fact, firstly that the proceedings involved the
Court in determining whether a criminal offence was committed and secondly that
the onus of disproving that fact was placed upon the person claiming ownership.
95. The
Defendants also referred to the judgment in the High Court of Barrington J. in
the case of
Clancy v. Ireland
[1988] I.R. 326. In that case this Court considered the validity, having
regard to the provisions of the Constitution, of sections of the Offences
Against The State (Amendment) Act, 1985. That Act empowered the Minister for
Justice to certify that monies were the property of an unlawful organisation
and that those monies stood forfeited to and vested in the Minister. Provision
was made for a person claiming to be the owner of monies so paid into the High
Court, prior to forfeiture, to apply to that Court for an Order directing that
the monies be paid to him. If satisfied that the person was the owner of the
monies in question, the Court could make an Order returning the money to him.
Monies which the Plaintiff in those proceedings claimed belonged to him were
frozen pursuant to 1985 Act. He brought proceedings claiming that the Act was
unconstitutional and in particular that it unlawfully interfered with his
property rights. His claim was rejected by Barrington J. who held that the
limitation upon the Plaintiff's rights was
"a permissible delimitation of property rights in the interests of the common
good"
(page 336 of the judgment). Barrington J. expressed some concern about the
workings of the 1985 Act. At page 331 of his judgment he said:
97. The
provisions of the 1985 Act are in some ways considerably more severe than those
contained in the 1996 Act. However, this must be seen against the legislative
background of The Offences Against The State Act, 1939 and its amendments -
legislation which was enacted specifically to combat any organisation which
under Section 18 of the 1939 Act
98. In
his reply, Counsel for the Plaintiff submits that in taking the example of the
Southern Industrial Trust case, the Defendants
"seductively
seek to negate the necessity for a reasoned, principled and qualitative balance".
He submits that it is
99. He
argues that there is a massive qualitative difference in terms of the
operations of the two provisions. He also submits in regard to
Clancy
v. Ireland
that
"this is a brief and ill-considered judgment which is not in any way directly
applicable to the draconian provisions of The Proceeds of Crime Act, 1996"
.
He highlights, correctly, as I have said above that the Clancy case must be
considered in the context of public order and emergency powers legislation and
that this is important in any balancing exercise.
100. With
all due respect to the arguments put forward by Counsel for the Plaintiff, it
is clear that the judgment of the Supreme Court in the Southern Industrial
Trust case is binding on this Court, and that it undoubtedly establishes that
legislation providing for forfeiture is not necessarily criminal in nature. I
accept, as I have already stated, that there must be a balancing exercise as to
the proportionality of the legislative response to the factual situation.
Again, it appears to me that this was precisely the exercise that was
undertaken by the learned Barrington J. in Clancy's case and I have no
difficulty in regarding this judgment as persuasive authority.
101. From
consideration of the authorities to which I have been referred, it seems to me
that I must accept that firstly, forfeiture proceedings are civil and not
criminal in nature; and secondly, that there is no constitutional bar on the
determination in civil or other proceedings of matters which may constitute
elements of criminal offences. It also appears that the procedures set out
under The Proceeds of Crime Act, 1996 are not criminal in nature, bearing in
mind the indicia set out in Melling's case. The standard of proof in
procedures under the 1996 Act may permissibly, therefore, be the balance of
probabilities. Accordingly in this context the protections afforded by Article
38.1 of the Constitution are not applicable.
102. The
next issue raised by the Plaintiff in his challenge to the 1996 Act is the
question of the reversal of the onus of proof. The Plaintiff complains that by
requiring the Plaintiff to establish that the property frozen pursuant to
Sections 2 and 3 was not the proceeds of crime, there has been a breach of
Article 38.1 of the Constitution in that the burden of proof has been shifted
to him. He submits that the Act requires him to prove that
"he
is not a criminal"
and that this requirement is also in breach of Article 40.3 of the
Constitution. Article 40.3 insofar as it is relevant provides as follows
103. When
considering the question of burden of proof under the 1996 Act. It must be
remembered that under Section 2 of the Act it is necessary before any Order can
be made pursuant to either Section 2 or Section 3 for the State to establish to
the satisfaction of the Court on the balance of probabilities that the
Respondent is in possession or control of assets which comprise directly or
indirectly the proceeds of crime. It is only when that initial evidential
burden has been discharged by the State that any obligation is imposed upon a
person to furnish any evidence to the Court.
104. Secondly,
a Respondent is free to challenge or discredit any evidence adduced by the
State pursuant to the provisions of the Act. This can be achieved in a number
of ways. A Respondent is free to cross-examine the deponent of any Affidavit
used to ground an application and thereby undermine the proofs adduced by the
State. Alternatively, a Respondent may introduce independent
"real"
or
Third Party evidence which would indicate that the facts set out in the State's
case are wrong. Alternatively a Respondent is free to adduce evidence in the
form of oral or Affidavit evidence of his or her own indicating that the
evidence relied upon by the State is incorrect or unreliable.
105. These
elements of the Act were recognised by the learned Moriarty J. in his decision
in the case of
M.
v. D.
(unreported) 10th December, 1996 in which he specifically considered the
procedures operated under the Proceeds of Crime Act, 1996. At page 2 of his
judgment he stated
106. I
have already considered and rejected the Plaintiff's argument that proceedings
under the 1996 Act are criminal rather than civil in nature. Once it is
accepted that proceedings are in fact civil there is no constitutional
infirmity in a procedure whereby the onus is placed on a person seeking
property to negative the inference from evidence adduced that a criminal
offence has been committed. This is clearly expressed in both the Southern
Industrial Trust case and Clancy's case referred to above. Even in criminal
cases the State in certain circumstances is entitled to require a Defendant to
rebut an inference of criminal conduct. In the case of
Hardy
v. Ireland
[1994] 2 I.R. 550 the Supreme Court considered a challenge to the
constitutionality of Section 4 (1) of the Explosive Substances Act, 1883. This
section stipulates that if a person knowingly has in his possession an
explosive substance under such circumstances as to give rise to a reasonable
suspicion that he does not have it in his possession for a lawful object, he
shall be guilty of a felony unless he can show that he in fact had the
substance in his possession for a lawful object. The Applicant contended that
the imposition of an obligation on the Accused to show that he had the
substance in his possession for a lawful object was inconsistent with the
presumption of innocence provided for in the Constitution. The Supreme Court
rejected that challenge.
107. At
page 564 of the Report the learned Hederman J. in analysing the section of the
Explosive Substances Act, 1883 stated
109. A
similar question arose in the case of
O'Leary
v. Ireland
[1995] l I.R. 254. There the question before the Supreme Court was whether the
provisions of Section 24 of The Offences Against the State Act, 1939 were
invalid having regard to the provisions of Article 38.1 of the Constitution.
Section 24 provides that on the trial of a person charged with the offence of
being a member of an unlawful organisation, if it is proved to the satisfaction
of the Court that an incriminating document relating to the organisation was
found on such person or in his possession, that shall, without more, be
evidence until the contrary is proved that the person was a member of the
organisation alleged at the time. Again it was claimed that the imposition of
an obligation on a Defendant in a criminal trial to adduce evidence of the
nature in issue in this section was a violation of the presumption of
innocence.
110. Again
the Supreme Court rejected this challenge. At page 265 of the Report the
learned O'Flaherty J. stated
111. In
the High Court in the same case the learned Costello J. (as he then was) as
reported in [1993]1IR 102 at 110 stated:-
112. The
decisions in Hardy's case and O'Leary's case were, of course, given in the
context of what was clearly a criminal trial. In civil proceedings the
creation of presumptions and the shifting of the onus of proof is much more
frequent and is clearly permissible. A commonplace example, and one which has
some features in common with the interim and interlocutory procedures set out
in the 1996 Act, is the operation of Section 37 of the Family Law (Divorce)
Act, 1996 (which reflects the form of the provisions of Section 29 of the
Judicial Separation and Family Law Reform Act, 1989). Section 37 provides for
the situation where a spouse either has disposed of or proposes to dispose of
assets with the intention of defeating the other spouse's possible claim for
financial relief. It permits the Court either to prevent such disposal or to
set aside such a disposal if already made. The Court has power, on an
application made ex-parte, to freeze a spouse's assets in order to prevent a
possible disposal.
113. The
corresponding provision under Section 29 of the Judicial Separation and Family
Law Reform Act, 1989 has been frequently and widely used, in particular in the
form of Freezing Orders made on an ex-parte basis, and there is no reason to
believe that this will not continue under the new legislation. There are many
other examples of similar presumptions which may fall to be rebutted in civil
proceedings. The procedure provided for by Sections 2 and 3 of the 1996 Act is
very similar in many respects to the familiar power of the Courts in other
civil proceedings to grant on an ex-parte basis interim Freezing Orders,
followed by interlocutory hearings on affidavit and subsequently final
adjudications as to respective legal rights and liabilities in regard to
property. It can often happen that such freezing Orders are sought in
circumstances where the allegations made against Defendants involve fraud or
other conduct which would be in breach of the criminal law. It has never been
seriously suggested that such procedures are unconstitutional.
114. It
seems to me therefore that the Plaintiff's argument with regard to the burden
of proof cannot be sustained.
115. The
Plaintiff next challenged the Act on the basis that it infringed the privilege
against self-incrimination or the right to silence. The Plaintiff argues that
the structure of the Act forces him to give evidence in regard to the property
affected by Orders under Section 2 and Section 3 and that this evidence could
be self-incriminating.
116. Somewhat
surprisingly in my view, the Plaintiff does not specifically challenge Section
9 of the Act, other than by way of his challenge to the Act as a whole.
117. In
dealing with the general argument made by the Plaintiff in regard to the
privilege against self-incrimination the Defendants submit that a Respondent to
proceedings under the Act is not in any way forced to give evidence which could
be self-incriminating. He has an option. He can give evidence freely and seek
to realise his assets, or he can decline to say anything that might incriminate
him, or he can give evidence omitting any particulars that might incriminate
him. Furthermore, even though an obligation is imposed upon a Respondent to
displace the evidence which has been adduced by the Applicant in proceedings
under the Act there is no obligation per se on the Respondent himself to give
any evidence. He can seek to displace the evidence that has been tendered by
the Applicant by means of cross-examination, or by means of third party
evidence, or by means of independent "real" evidence. The Defendants argue
that there is no obligation necessarily imposed by the Act for the Respondent
to say anything or to give evidence himself.
118. The
Defendants' argument here seems me to tend towards a sophisticated version of
the "the innocent have nothing to fear", which I would not accept as being
sufficient in itself to offset a threat to the privilege against
self-incrimination. There have been sufficient miscarriages of justice in the
history of crime in this and in other jurisdictions to indicate that a belief
that "the innocent have nothing to fear" is not necessarily the whole answer.
The Defendants' argument also rather blithely passes by the fact that a failure
to give evidence by the Respondent will in all probability result in the
disposal of the Respondent's assets.
119. The
provisions of Section 9 do not offer the Respondent the same type of choice.
Here the Court may direct the swearing of an affidavit, and presumably a
refusal or failure to do so would amount to contempt. It was with this aspect
of the proceedings under the Act that Moriarty J. was specifically dealing in
M
-v- D
(Supra). It is clear that the provisions of Section 9 caused him some concern,
and in this I would concur with him. In considering the making of an Order
under Section 9, the learned judge surveyed a number of authorities as follows:-
120. The
Defendants on this aspect of the Act rely on the judgment of the Supreme Court
in
Heaney
-v- Ireland
[1996] 1 IR 580. In that case the Court was faced with the challenge to the
provisions of Section 52 of the Offences Against the State Act, 1939, pursuant
to which a person detained in custody under Part IV of that Act can be required
to provide a full account of his movements and actions during a specified
period. As set out in the head note the Supreme Court held as follows:-
121. The
judgment of the Court was given by the learned O'Flaherty J. At page 590 of
the report O'Flaherty J. states:-
122. It
is clear from
Heaney's
case that the privilege against self-incrimination, or the right to silence, is
by no means absolute. This decision is, of course, binding on me. It is
certainly arguable that any encroachment on that privilege contained in
Sections 2, 3 and 9 of the 1996 Act is in pursuit of the State's entitlement
"to maintain public peace and order". However, this is qualified by the caveat
that "the constitutional rights of the citizen must be affected as little as
possible". In order to minimise any encroachment on the citizen's rights and
in order to operate the procedures under the Act in a way which in accordance
with constitutional justice, it seems to me that the Court would need to take
particular care in deciding whether to make an Order under Section 9 requiring
disclosure. This is especially so when one bears in mind the wide scope of the
discovery which may be ordered. I note that even in the
M
-v- D
case, where the primary evidence presented by the Applicant was full and
convincing, the learned judge required an undertaking to be given by the D.P.P.
not to profit from any disclosure which might take place in those proceedings
in a future prosecution of the Respondent. Moriarty J. referred to "the degree
of nexus between the Applicant and the office of the D.P.P.". The evidence
given in the instant case shows an even clearer nexus than Moriarty J. might
have envisaged between the personnel of the Criminal Assets Bureau and the
criminal investigation section of the Garda Siochana. It appears to me that
the type of undertaking sought by Moriarty J. in the
M
-v- D
case would be essential in virtually every case where an Order under Section 9
is granted. Even then there may well be difficulty in operating such an
undertaking in a secure and watertight manner.
123. The
Plaintiff also challenges the provisions of Section 6 of the 1996 Act insofar
as it refers to the discretion of the Court to provide funds for legal
representation. Section 6, insofar as it is relevant, provides as follows:-
124. Counsel
for the Plaintiff submits that by providing the Court with a discretion as to
whether to make payments to provide for legal expenses the Section encroaches
on the Plaintiff's constitutional right of access to the Court and right to
legal aid.
125. It
is well established that the Plaintiff has a constitutional right of access to
the Courts; see, for example,
MacAuley
-v- Minister for Post and Telegraphs
[1966] IR 345 and indeed the Plaintiff also has a right to be assisted in
obtaining legal representation in Court in proper circumstances; see, for
example,
State
(Healy) -v- Donoghue
[1976] IR 325. However I cannot accept that the vesting of discretion in the
Court under Section 6(1)(a) encroaches upon these rights. Even in criminal
proceedings, where the liberty of the accused is at stake, it is not suggested
that every accused is automatically entitled to legal aid. In
State
(Healy) -v- Donoghue
at page 350 O'Higgins C.J. stated:-
126. The
clear import of this dictum is that legal aid must be provided where there is
lack of means in addition to other incapacity such as ignorance or lack of
education. Neither the criminal legal aid system nor the civil legal aid
system provide legal aid for every applicant. In the case of the criminal
legal aid system the court, and in the case of the civil legal aid system the
Civil Legal Aid Board, operate discretionary means tests and other forms of
discretion in order to decide whether legal aid should be granted to an
applicant. Under the criminal justice (legal aid) Act, 1962, entitlement to
legal aid is conditioned upon it appearing to the relevant court that the
Accused's means are insufficient and that the gravity of the charge or
"exceptional circumstances" make legal aid essential in the interests of
justice. In civil cases legal aid is provided through the civil legal aid
board which was set up in 1979 and became a statutory body under the Civil
Legal Aid Act, 1995. In the scheme operated by the Board through its Law
Centres there is firstly a qualifying means test and secondly a number of other
areas where the Board has discretion to grant or withhold a legal aid
certificate. As a State Body, the Board must, of course, operate the scheme in
accordance with fair procedures and the constitutional rights of the Applicant.
127. It
seems to me that Section 6(1)(a) envisages a parallel system, where the court
has a discretion to release monies to provide for legal representation of a
Respondent. It must be presumed that the Court will use this discretion in a
constitutional way and that persons will not wrongfully be deprived of legal
representation.
128. The
next matter raised by the Plaintiff is in regard to the Plaintiff's right to
private property. The Plaintiff submits that in enacting the Proceeds of Crime
Act, 1996 the State has failed to protect his property rights from unjust
attack and refers to Article 40.3.2 and 43 of the Constitution. Article 40.3.2
has been quoted above. Articles 43 provides as follows:-
129. Counsel
for the Plaintiff argues that the essence of contemporary case law is captured
in Kelly and Hogan "The Irish Constitution" (Third Edition) at page 1076 as
follows:-
130. Counsel
for the Plaintiff submits that concepts of social justice or the common good do
not warrant an expropriation of private property on the basis that it is
tainted by criminality without the related proof of a criminal offence or at
least a charge.
131. Counsel
for the Defendants submit that if the Plaintiff was in possession or control
over assets which directly or indirectly constitute the proceeds of crime he
has no property rights in those assets and no title to them, whether protected
by the Constitution or by any other law. Both Counsel for the Plaintiff and
Counsel for the Defendants referred to
Cox
-v- Ireland
[1992] 2 IR 503. That case arose from the provisions of Section 34 of the
Offences against the State Act, 1939 which provided, inter alia, that when a
person is convicted by a special criminal court of an offence set out in the
schedule to that Act, and that person holds at the time of such conviction an
office or employment remunerated out of the central fund or monies provided by
the Oireachtas or raised by local taxation then that person shall immediately
upon conviction forfeit that office or employment, and shall be disqualified
from holding any like office or employment for a period of seven years
subsequent to the date of the conviction. The Plaintiff in that case had been
employed as a teacher in a community school and was convicted by the Special
Criminal Court of a scheduled offence and sentenced to two years imprisonment.
On his release from prison he was advised by the Department of Education that
the provisions of Section 34 of the 1939 Act applied to his case and he was
ineligible for re-employment at the school, or at any school funded by the
State, for seven years from the date of his conviction; his pension was
forfeited and his right to pay related social insurance benefit was lost.
132. It
was held by the Supreme Court that the provisions of Section 34 of the 1939 Act
could potentially constitute an attack upon the unenumerated personal right to
earn a livelihood of any person to whom those provisions applied and upon the
constitutionally protected property rights of such person. However it was also
held that the State was entitled by its laws to impose onerous and far reaching
penalties and forfeitures in respect of offences threatening public peace and
order and the maintenance and stability of the authority of the State, as well
as to ensure that persons who committed such offences were, as far as
practicable, excluded from any involvement in the carrying out of the functions
of the State. However the provisions of Section 34 were impermissibly wide
and indiscriminate and therefore failed to protect as far as practicable the
constitutional rights of the citizen, notwithstanding the fundamental State
interests which Section 34 of the Act of 1939 sought to protect.
133. It
appears to me that it was the wide and indiscriminate nature of the penalties
provided under Section 34 of the Offences Against the State Act , 1939 which
rendered the Section unconstitutional. The property rights which it attacked
had in many cases little or nothing to do with the actual offences committed by
those who were affected by it. It is true that the Proceeds of Crime Act, 1996
provide "onerous and far reaching penalties and forfeitures" but these are
directly connected with the establishment to the satisfaction of the court that
the property involved is in fact directly or indirectly the proceeds of crime.
In the case of
Clancy
-v- Ireland
(Supra) - a somewhat more parallel situation - even more draconian forfeiture
of property was held to be constitutionally justified in the interests of the
protection of the State and of the common good.
134. It
appears to me that the State has a legitimate interest in the forfeiture of the
proceeds of crime. The structure of the Act, in a similar way to ordinary
civil injunction proceedings, allows for the temporary freezing of assets and
for various actions to be taken on an interlocutory basis. The Respondent at
any time may intervene to show good title to the assets. If he does so not
only must they be returned, but the Court may order the State to pay
compensation to him. It is also provided at Section 3 that the Court shall not
make an Interlocutory Order "if it is satisfied that there would be a serious
risk of injustice". The same provision applies to the making of a disposal
order under Section 4.
135. While
the provisions of the Act may, indeed, affect the property rights of a
Respondent it does not appear to this Court that they constitute an "unjust
attack" under Section 40.3.2, given the fact that the State must in the first
place show to the satisfaction of the Court that the property in question is
the proceeds of crime and that thus, prima facie, the Respondent has no good
title to it, and also given the balancing provisions built into Sections 3 and
4 as set out above.
136. This
Court would also accept that the exigencies of the common good would certainly
include measures designed to prevent the accumulation and use of assets which
directly or indirectly derive from criminal activities. The right to private
ownership cannot hold a place so high in the hierarchy of rights that it
protects the position of assets illegally acquired and held.
137. Finally,
the Plaintiff claims that the 1996 Act is retrospective in its effect and is
therefore in breach of Article 15.5 of the Constitution.
139. The
definition of "proceeds of crime" in Section 1(1) of the 1996 Act provides that
"proceeds of crime" means any property obtained or received at any time
(whether before or after the passing of this Act) by or as a result of or in
connection with the commission of an offence.
140. The
Oireachtas has not, by this definition, declared any act to be an infringement
of the law which was not so at the time of its commission. The acquisition of
assets which derive from crime was not a legal activity before the passing of
the 1996 Act and did not become an illegal activity because of the 1996 Act.
141. In
any case, the provisions of the Act do not affect property which was held, but
is no longer held, by a Respondent. Sections 2, 3 and 4 refer to property
which is, at the time of the making of Orders under those Sections, in the
possession of the Respondent. The Plaintiff in the instant case is clearly
well aware of this aspect of the Act, since in his Statement of Claim he takes
care to assert that, prior to the coming into force of the Act, he had
transferred considerable assets into the ownership of his wife.
142. The
provisions of the Act of 1996 are not rendered impermissible under Article 15.5
by the wording of the definition of the proceeds of crime contained in Section
1(1) of the Act.
143. I
turn now to the general question of proportionality. Is the Act as a whole,
within the framework of the Constitution, a proportionate response by the
legislature to the threat to society posed by the operations of the type of
major criminals described in the evidence before this Court?
144. In
earlier parts of this judgment I have referred to a number of judgments of the
Supreme Court and of this Court which accept the principle that rights, even
constitutional rights, are not absolute, but may be restricted where required
by the common good or the need to protect society.
145. This
principle was set out by the learned Kenny J. over thirty years ago in the
landmark case of
Ryan
-v- Attorney General
[1965] IR 294 at 312 to 313 in the following terms:-
147. The
judgment of Costello J. (as he then was) in the High Court in
Heaney
and
McGuinness
-v- Ireland
[1994] 3 IR 593 set out authoritatively the test of proportionality. In that
case the question before the Court was whether the impairment of the right to
the privilege against self-incrimination entailed by Section 52 of the Offences
Against the State Act was valid having regard to the provisions of the
Constitution. In upholding the validity of the provision, Costello J. said as
follows (at page 607):-
148. Counsel
for the Plaintiff submits that this test of proportionality and minimal
impairment is "the nub of the matter" or "the heart of the matter" and in this
he is quite correct.
149. Many
of the judgments referred to earlier, and relied on by the Defendants, apply
the test of proportionality to the situation where the State is threatened by
the operations of politically motivated illegal organisations committed to the
use of armed force in pursuit of their objectives. Such organisations pose an
obvious danger to society, to public order and to the ordinary operation of the
State. Thus, the majority of the judgments on which the Defendants rely arise
from challenges to various aspects of the Offences Against the State Act, 1939,
as amended from time to time.
150. The
question before the Court in the instant case is whether the operations of the
new type of major criminals described by the two Gárda witnesses pose a
sufficient threat to the community at large or the "common good" to justify the
restriction or impairment of rights which is contained in the Proceeds of Crime
Act, 1996.
151. In
his judgment in
M
-v- D
(Supra) the learned Moriarty J., who has both wide and deep knowledge and
experience of the operations of the criminal justice system, states (at page 3):-
152. In
the present case I can go beyond "taking notice", since the Court has before it
the evidence of two very senior police officers who have many years of
experience of criminal investigation work. Both of them, as earlier outlined,
paint a picture of an entirely new type of professional criminal who organises,
rather than commits, crime and who thereby renders himself virtually immune to
the ordinary procedures of criminal investigation and prosecution. Such
persons are able to operate a reign of terror so as effectively to prevent the
passing on of information to the Gardaí. At the same time their obvious
wealth and power causes them to be respected by lesser criminals or would be
criminals.
153. It
emerged during the cross-examination of these witnesses by Counsel for the
Plaintiff that the number of such leading criminals is small by international
standards and that the sums of money involved in their operations are very much
smaller than similar sums in such jurisdictions as the United Kingdom, Holland
and the United States. I would accept that certain elements of the media, both
written and broadcast, tend to exaggerate the comparative level of this and
other types of crime in this country and to create in regard to crime an
undesirable form of hysteria which has its own dangers. Nevertheless, in the
context of a relatively small community, the operations carried out by major
criminals have a serious and worsening effect. This is particularly so in
regard to their importation and distribution of illegal drugs, which in its
turn leads to a striking increase in lesser crimes carried out by addicts
seeking to finance their addiction.
154. In
theory this type of threat to public order and the community at large may seem
less serious than the threat posed to this State by the operation of
politically motivated illegal organisations. In practice major and minor
drug-related crime is probably perceived by ordinary members of the community
as more threatening and more likely to effect the every day lives of themselves
and their children.
156. Mr.
Paul O'Mahony, formerly a research psychologist with the Department of Justice,
refers to the effect of the distribution of illegal drugs as follows (at Page
204-5):-
157. It
should be noted that this picture is painted by an author who is well known as
opposing media exaggeration of the level of crime in this country.
158. Taking
this context as a whole, it appears to me that as a matter of proportionality
the legislature is justified in enacting the proceeds of crime Act, 1996 and in
restricting certain rights through the operation of the Act. The restriction
or impairment of these rights is to some extent balanced by the various
safeguards included in the Act. As was said by Moriarty J. of the Act in
M
-v- D
(at page 3):-
159. Nevertheless,
it is also essential that any rights of persons affected by the Act be
impaired as little as possible. I would express a degree of concern about two
particular features of the Act, both of which also, I consider, caused concern
to Moriarty J. in dealing with the
M
-v- D
case. The first of these, to which I have already referred, is the operation
of Section 9 and the manner in which it may effect the privilege against
self-incrimination. It seems to me that the Court, in operating Section 9
within the boundaries of the Constitution, would have to take particular care,
whether by limiting the purpose for which any information disclosed under the
Section may be used or otherwise, to protect the privilege of a Respondent
against the revealing of information which could later be used in a criminal
prosecution.
160. Secondly,
Section 8 of the Act permits the introduction of hearsay evidence by "a member
or authorised officer" (i.e., a Garda Chief Superintendent or officer of the
Revenue Commissioners) as to his or her belief that a Respondent is in
possession or control of specified property and that the property constitutes
directly or indirectly proceeds of crime. The evidence is not, of course,
conclusive and is open to challenge by a Respondent but in my opinion a Court
should be slow to make Orders under Section 3 on the basis of such evidence
without other corroborating evidence. In
M
-v- D
Moriarity J. carefully surveyed the corroborative evidence in that case, but
drew attention to the difficutly of accepting hearsay proof of suspicion alone.
At page 4 of his judgment he states:-
161. I
entirely share the concern of the learned Moriarty J. on this aspect of the
Act. I accept that it must be presumed that proceedings, procedures,
discretions and adjudications which are provided for by an Act of the
Oireachtas are to be conducted in accordance with the principles of
constitutional justice and there is no doubt that this Court and the Supreme
Court on appeal would so conduct procedures under the Act. Nevertheless it
appears to me that both in the case of the procedures under Section 9 and in
dealing with the type of evidence allowed under Section 8 any Court would have
to take particular and special care to protect the rights of a Respondent
162. Bearing
in mind the effect of the various relevant judgments of the Supreme Court to
which I have referred above, and which are, of course, binding on me, and
viewing the provisions of the Act in the light of their proportionality to the
threat posed to the common good, I am satisfied that it has not been
established that the provisions of the proceeds of Crime Act, 1996 are invalid
having regard to the provisions of the Constitution. The Plaintiff's claim
therefore fails.