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Cite as: [2000] IESC 54

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Holland v. Criminal Assets Bureau [2000] IESC 54 (7th April, 2000)

THE SUPREME COURT

58/00

KEANE C.J.

McGUINNESS J.

HARDIMAN J.

IN THE MATTER OF THE PROCEEDS OF CRIME ACT, 1996 AND CRIMINAL ASSETS BUREAU ACT, 1996

BETWEEN:

PATRICK HOLLAND

Applicant

and

THE CRIMINAL ASSETS BUREAU, THE ATTORNEY GENERAL, THE CHIEF STATE SOLICITOR, THE DIRECTOR OF PUBLIC PROSECUTIONS and IRELAND

Respondent

JUDGMENT of the Court delivered by Keane C.J. on the 7th day of April 2000 [Nem. Diss.]

1. The applicant, who is a prisoner in Portlaoise Prison, applied to the High Court for liberty to issue proceedings by way of judicial review claiming inter alia a declaration that the Criminal Assets Bureau Act, 1996 and the Proceeds of Crime Act, 1996 were invalid having regard to the provisions of the

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(2)

2. Constitution. His application having been refused by the High Court, he has now appealed to this court.

3. The applicant has sworn an affidavit in which he says that the first named respondents have seized a house owned by the applicant’s wife and himself in Brittas Bay, Co. Wicklow together with the contents of the house. While he claimed what he described as an order of prohibition restraining the first named respondent from proceeding with the sale of the house, it appears from the notice of appeal which he has served to this court that the house and its contents have now in fact been sold so that that relief would, in any event, no longer be appropriate.

4. It is also clear, however, that the applicant has put forward arguable grounds for claiming that certain provisions of the Proceeds of Crime Act, 1996 are unconstitutional. The court is aware that the constitutionality of the 1996 was upheld by the High Court (McGuinness J.) in Gilligan .v. Criminal Assets Bureau [1998] 3 IR 185 and its constitutionality has also been litigated in other High Court proceedings. However, while notices of appeal were served in Gilligan, and, it may be, in other cases, it is clear that there has been no decision of this court as to the constitutionality of the impugned provisions of the 1996 Act.

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(3)

5. The court will, accordingly, allow the appeal and give the applicant liberty to apply by way of judicial review for a declaration that

(1) Sections 2 and 3 of the Proceeds of Crime Act, 1996 are in breach of Article 38.1 of the Constitution in that they require the plaint if to establish that the property in question was not the proceeds of crime, thereby failing to protect the presumption of innocence to which the applicant is entitled as a constitutional right;

(2) Section 1 of the said Act is invalid having regard to the provisions of the Constitution, since it imposes forms of punishment which operate retrospectively contrary to Article 15.5 of the Constitution;

(3) Sections 2 and 3 of the 1996 Act are invalid having regard to the provisions of the Constitution in not affording the applicant the fair procedures to which he is entitled by virtue of Article 40.3 and Article 34 of the Constitution, the proceedings being in essence criminal rather than civil in nature.