High Court of Ireland Decisions

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Cite as: [2001] IEHC 219

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The High Court

Dublin

312/01

John Gilligan

Plaintiff

AND

The Special Criminal Court

Respondent

JUDGMENT OF MR. JUSTICE LAVIN GIVEN ON TUESDAY, 27^TH NOVEMBER 2001

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

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

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

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

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

Pursuant to the provisions of the relevant legislation the Special Criminal Court in this case is obligated, as I have indicated, to consider matters consequential upon those convictions. The Plaintiff here herein, the person convicted as aforesaid, seeks in these plenary proceedings by Plenary Summons dated 9th July 20.01 and Notice of Motion before this Court currently dated 26^th September' 2001 an interlocutory injunction as against the Director of Public Prosecutions, the second named Defendant herein, on the grounds that he wishes to challenge the various statutory provisions as fully set out in his Plenary Summons and Statement of Claim.

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

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

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

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

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

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

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

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

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

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

One estimate of the delay consequent upon this Court granting this form of relief is that a period of delay of not less than 18 months is envisaged. And indeed this timescale may well be exceeded. In addition to the fact that the Plaintiff has been convicted of the aforesaid offences by the Special Criminal Court I note that his assets have been frozen and that is a relevant consideration.

I also note that the Special Criminal Court having entertained a challenge to its adjudication of the consequential Orders necessary herein have rejected such challenges and have decided that it is within its discretion to continue to deal with the case. It seems to me that the facts in this case are clearly distinguishable from those in the Pesca case.

I also take into account that the Special Criminal Court, pursuant to Section 4 of the 1994 Act and Section 26 of the 1990 Act, is obliged to engage in a determination of the consequential Orders it ought or ought not to make in order to conclude the proceedings before it. Therefore, to injunct the second named Defendant, as is herein sought, would in my view be to deprive the Special Criminal Court of a necessary party to the proceedings before it.

In conclusion, taking the above matters into account and having full regard to the submissions of counsel for both parties I conclude that I have to determine this case on the ordinary civil balance of convenience test and in conclusion I have taken the

view that I ought not to interfere with the consequential inquiry which is mandatory on the Special Criminal Court.

In the circumstances I decline to grant the Plaintiff the relief which he seeks in his Notice of Motion.

MR. O'HIGGINS: May it please your Lordship. My Lord, there is a matter that I brought to your attention at the end as an addendum.

MR. JUSTICE LAVAN: And I invited to you remind me.

MR. O'HIGGINS: I am glad that your Lordship did defer it, because I have managed in the meantime to actually get a copy of the Attorney General's scheme.

MR. JUSTICE LAVAN: I have no difficulties, I intend to grant your application

MR. O' HIGGINS: Your Lordship is kind, my Lord, but I probably should…..(INTERJECTION)

MR. JUSTICE LAVAN: For the purposes of the record, yes, I am sure you should.

MR. O' HIGGINS: I should give you a copy of the scheme, because I should say, my Lord, that a certificate or a recommendation was granted in the case of Heaney v McGuinness, your Lordship might recall that it was a challenge to Section 52, it went to the Supreme Court and ultimately to Europe.

The Attorney General honoured the recommendation, but from inquiry made that was not without controversy. But I should hand in the scheme and in particular I draw the Court's attention to paragraph 1, because this may present certain difficulties for us, my Lord.

"The scheme applies to the following forms of litigation which are not covered by civil or criminal legal aid:

1. Habeas corpus.

2. Bail motions.

4. Extradition."

They do not concern us.

"3. Such judicial reviews as consist of or include certiorari, mandamus or prohibition and are concerned with criminal matters or matters where the liberty of the applicant is at issue."

Clearly, my Lord, we would qualify under "matters where the liberty of the applicant is at issue". And also they are quasi criminal matters undoubtedly and the Court in Green Street have found that it is a criminal process that is being involved.

Where I do foresee a potential difficulty, although this might be a matter for my solicitor to take up with the Attorney General, the form of proceedings here which follows from the Supreme Court decision in Mr. Gilligan's case in October of last year is that constitutional matters by and large are not appropriate for judicial review, they should be taken by way of Plenary Summons and that is how the proceedings are constituted.

MR. JUSTICE LAVAN: And that is a view that I wholeheartedly subscribe to.

MR. O'HIGGINS: If I could hand that in to your Lordship?

MR. JUSTICE LAVAN: Mr. O'Higgins, that scheme has been beside me for 12 years whilst I have sat on the bench.

MR. O'HIGGINS: Just on uberrima fides I felt obliged to draw it to your attention.

MR. JUSTICE LAVAN: And I am very grateful to you for distinguishing the scheme and for bringing to my attention the difficulties that you perceive. I considered the matter, Mr. O'Higgins, I-am satisfied that I should make the recommendation. That does not mean that you will succeed.

MR. O'HIGGINS: It does not.

MR. JUSTICE LAVAN: But I am certainly happy to make the recommendation for two seniors and one junior counsel.

MR. COMYN: May it please your Lordship, there is just one final matter and that is that I would ask your Lordship to reserve costs. One might well ask why, the application made by my Friend, but the Attorney General has given specific instructions certainly over the past few years that even where a Court is making a recommendation under the scheme the question of costs should be dealt with.

I think your Lordship will see perhaps the logic of that, because very often there are other applications made and the Attorney General wants to make sure that the taxpayers' money is preserved. So I would ask your Lordship to reserve the costs of this application, my Lord.

MR. O'HIGGINS: I have no difficulty, with that, my Lord.

MR. JUSTICE LAVAN: It seems very much the appropriate Order to be made, Mr. Comyn, and I so reserve.

MR. COMYN: May it please your Lordship. Perhaps one final matter, I think my junior counsel handed in an authority to your Lordship.

MR. JUSTICE LAVAN: His reputation with the library staff will be intact.

MR. COMYN: Thank you very much.

MR. JUSTICE LAVAN: Is that everything, Mr. Comyn?

MR. COMYN: That is everything, my Lord.

MR. JUSTICE LAVAN: There is only one further matter, gentlemen; I have had to deliver it with the assistance of the stenographer and the stenographer should furnish me with a copy as soon as possible. I shall not leave the Four Courts without approving the appropriate copy so that the parties may act accordingly.

MR. O'HIGGINS: We will make contact perhaps with your Lordship's tip staff. I wonder would your Lordship consider, the pleadings now being closed in this case, putting it into the next list of fixed dates?

MR. COMYN: I do not know, my Lord, I would have to consider that. I would ask your Lordship to leave that until I am properly equipped to do that. Of course my clients are very anxious that this thing go ahead as quickly as possible and that is for the benefit of everybody, I think that is generally agreed. But I would just like to check the position with my colleagues before I commit myself.

MR. JUSTICE LAVAN: What I propose to do is that I want to note for the record my appreciation for the clarity of your submissions.

MR. O'HIGGINS: Your Lordship is very kind.

MR. JUSTICE LAVAN: I am going to list this for mention next week to the intent that an appropriate application be brought before the President of the High Court for an early trial. I think that is how we shall deal with the matter.

MR. O'HIGGINS: Does your Lordship have a date in mind next week?

MR. JUSTICE LAVAN: This day next week at ten to eleven, which may convenience the parties.

MR. COMYN: May it please your Lordship.

MR. O'HIGGINS: May it please your Lordship.

MR. JUSTICE LAVAN: Very well.

THE HEARING WAS THEN ADJOURNED UNTIL TUESDAY, 4^TH DECEMBER AT 10:50