Gilligan v. Criminal Assets Bureau [1997] IEHC 106; [1998] 3 IR 185 (26th June, 1997)

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.

the Court is empowered to make an Interim Order prohibiting any person named as a Respondent from disposing of or otherwise dealing with the whole or, if appropriate, a specified part of the property or diminishing its value during a period of twenty-one days from the date of the making of the Order. The total value of the property to which such an Interim Order applies must be not less than £10,000. The Court may vary or discharge this Interim Order at any time while it is in force where an application is made by the Respondent or any other person claiming ownership of the property if it is shown that inter alia the property is not the proceeds of crime as defined in the Act.

Under Section 3 of the Act the Court is empowered to grant an Interlocutory Order prohibiting the Respondent or any other person from disposing of or otherwise dealing with the property unless it is shown to the satisfaction of the Court on evidence tendered by the Respondent or any other person that the property does not constitute the proceeds of crime as defined in the Act. Again the value of all the property to which the Order would relate must be over £10,000. It is also provided that the Court "shall not make the Order if it is satisfied that there would be a serious risk of injustice". At any time when an Interlocutory Order pursuant to Section 3 is in force the Court, on application to it at any time by the Respondent or any other person claiming ownership of any of the property concerned may, if it is shown to the satisfaction of the Court that the property does not constitute proceeds of crime or that the Order causes any other injustice, discharge or, as may be appropriate, vary the Order. An Interlocutory Order is to continue in force (if it is not discharged or varied) until the determination of an application for a disposal Order pursuant to Section 4 of the Act in relation to the property concerned.

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.

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.

"The phrase 'in due course of law' in Article 38.1 carries with it a sufficient guide and direction for the Courts. It is a phrase of very wide import which includes in its scope not merely matters of constitutional and statutory jurisdiction, the range of legislation with respect to criminal offences, and matters of practice and procedure, but also the application of basic principles of justice which are inherent in the proper course of the exercise of the judicial function. The sense of justice is fundamental in human nature and from it derives essential rights which do not require any positive law for their enunciation."

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:-

"Rightly or not, trial by jury had for centuries been regarded popularly as a most important safeguard for the individual, a protection alike against the zeal of an enthusiastic executive or the rigidity of an ultra conservative judiciary. Especially was this so in the history of Ireland. It seems to me reasonably clear that the Saorstát Eireann Constitution meant to preserve and extend this right."

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:-

"It also ensured that fair trials could not be circumvented by the use of investigating bodies instead of by a trial and court. In effect, the categories of Governmental investigation in which this privilege plays an especially important role is where there are general investigations by executive agencies or such like bodies and the questioning of a suspect by the police and State agencies prior to criminal trials.... In my opinion the privileged avoidance of self-incrimination extends further than answers which themselves will support conviction. They must logically embrace all answers which furnish a link in the chain of evidence needed to prosecute a conviction. It is sufficient to sustain the privilege where it is evident from the implications of the questions and the setting in which they were asked that a responsive answer to the question or an explanation as to why it cannot be answered could also be dangerous because injurious disclosure could result."

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.

Section 6 of the Act permits the Court, where it believes it necessary to do so, to allow assets otherwise frozen pursuant to Section 2 and/or Section 3 of the Act, to be employed for the purposes of legal expenses in or in relation to proceedings under the Act. The Applicant argues, not that this discretion to grant or withhold legal expenses might be abused, but that it should not exist at all. He refers to the constitutionally recognised right of access to the Courts as set out in McCauley -v- Minister for Posts and Telegraphs [1966] IR 345 and to the right to legal representation adumbrated in State (Healy) -v- Donoghue [1976] IR 325, and submits that the Act in imposing any discretion on a Judge to refuse the necessary defrayment of legal expenses is unconstitutional.

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.

"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of the State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or secure the payment of taxes or other contributions or penalties."

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.

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.

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:

"It must be presumed that all proceedings, procedures, discretions and adjudications permitted or prescribed by the Bill are intended to be conducted in accordance with the principles of constitutional justice, and that as between two or more reasonable constructions of the terms of the Bill, that construction that is in accordance with the provision of the Constitution would prevail over any construction that is not in accordance with such provision."

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:-

"It is claimed that the guarantee of fair procedures means that an enquiry into allegations of criminal conduct can only be undertaken by means of the criminal process. The Constitution, however, does not require that a person against whom allegations of criminal misconduct has been made must be charged with a criminal offence and I do not think it is be construed as requiring that a charge be proffered against such a person before allegations of criminal mis-conduct can be investigated by bodies other than the Court".

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.

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.

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.

'An Act of the Oireachtas, or any provision thereof, will not be declared to be invalid where it is possible to construe it in accordance with the Constitution; and it is not only a question of preferring the constitutional construction to one which would be unconstitutional where they both may appear to be open, but it also means that an interpretation favouring the validity of an Act should be given in cases of doubt.'

'At the same time ....... the presumption of constitutionality carries with it, not only the presumption that the constitutional interpretation or construction is the one intended by the Oireachtas but also that the Oireachtas intended that proceedings, procedures, discretions and adjudications which are permitted, provided for or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice. In such a case any departure from those principles would be restrained and corrected by the Courts.'

(4) must have regard to the fact that the presumption of constitutionality carries with it not only the presumption that the constitutional interpretation or construction is the one intended by the Oireachtas but also that the Oireachtas intended that proceedings, procedures, discretions and adjudications which are permitted, provided for or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice."

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.

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

"What is a crime? The anomalies which still exist in the criminal law and the diversity of expression in statutes make a comprehensive definition almost impossible to frame. 'The criminal quality of an Act cannot be discerned by intuition; nor can it be discovered by reference to any standard but one: Is the Act prohibited with penal consequences?' said Lord Atkin in Proprietary Articles Trade Association v. Attorney General for Canada . A recent text book, Cross and Jones, suggests as a definition; 'A crime is a legal wrong the remedy for which is the punishment of the offender at the instance of the state'. Professor Kenny in the earlier editions of his Outlines of Criminal Law says that 'crimes are wrongs whose sanction is punitive and is remissible by the Crown if remissible at all'. If we regard the Revenue Commissioners as a branch of the executive acting for the state (and in discharging their functions under the Customs Acts, I think they must be so regarded), an offence under Section 186 would fall within both these definitions. Moreover the offences enumerated in Section 186 possess several features which are regarded as indicia of crimes.

"Apart from authority, it seems to me clear that a proceeding, the course of which permits the detention of the person concerned, the bringing of him in custody to a Garda Station, the entry of a charge in all respects in the terms appropriate to the charge of a criminal offence, the searching of the person detained and the examination of papers and other things found upon him, the bringing of him before a District Justice in custody, the admission to bail to stand his trial and the detention in custody if bail be not granted or is not forthcoming, the imposition of a pecuniary penalty with the liability to imprisonment if the penalty is not paid has all the indicia of a criminal charge."

"...... the treatment of a person who is accused of an offence under Section 186 is such as is commonly accorded to a person guilty of a serious crime. The present Plaintiff was arrested, taken to the cells in the Bridewell, cautioned, charged, put into the dock and remanded on bail. If he had not been able to procure bail, he might have been remanded in custody. His belongings were searched. If he were convicted he would be sentenced to pay £100 in respect of each offence - £1,400 in all - and for any offence in respect of which he did not pay his penalty he would sentenced to gaol for not less than six months."

"It is not, however, a feature of civil proceedings that the Plaintiff can have the Defendant detained in jail before the proceedings commence and keep him there unless he can obtain bail. Nor may he obtain a warrant to enter and search the Defendant's house or shop and seize goods and if obstructed break open any door and force or remove any impediment to such search, entry or seizure. Nor yet is it a feature of civil proceedings that a Plaintiff can put the Defendant in jail because he cannot pay the damages awarded.

The vocabulary of Section 186 of the Act of 1876 is the vocabulary of the Criminal Law; the preliminary detention in jail unless bail be found (Section 197) and the right to enter, search and seize goods in the Defendants' house or premises (Section 204 and 205) are, as yet, unfamiliar features of civil litigation. In their initiation, conclusion and consequences, proceedings under Section 186 have all the features of a criminal prosecution. Note that parliament in inserting directions in the form of conviction (set out in Schedule C. to the Act and directed by Section 223 of the Act to be used) speaks unequivocally:

Finally, the mode of withdrawal of proceedings is the time-honoured formula employed by the Attorney General in criminal charges - nolle prosequi (Section 256). Well might Mr. Justice Murnaghan say, as he did in Gettins' case 'the proceedings before the District Justice have all the marks of criminal procedure and are in no way distinguishable from criminal proceedings for which the punishment is a penalty with imprisonment in default of payment' .

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:-

"The essential ingredient of a trial of a criminal offence in our law, which is indivisible from any other ingredient, is that it is had before a Court or Judge which has got the power to punish in the event of a verdict of guilty. It is of the essence of a trial on a criminal charge or a trial on a criminal offence that the proceedings are accusatorial, involving a prosecutor and an accused, and that the sole purpose and object of the verdict, be it one of acquittal or of conviction, is to form the basis for either a discharge of the accused from the jeopardy in which he stood, in the case of an acquittal, or for his punishment for the crime which he has committed in the case of a conviction.

The proceedings of the inquiry to be held by this tribunal have none of those features. The tribunal has no jurisdiction or authority of any description to impose a penalty or punishment on any person. Its finding, whether rejecting an allegation of criminal activity or accepting the proof of an allegation of criminal activity, can form no basis for either the conviction or acquittal of the party concerned on the criminal charge if one were subsequently brought, nor can it form any basis for the punishment by any other authority of that person."

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

"It is submitted on behalf of the Plaintiff that the proceedings in substance and in fact are clearly of a criminal nature, impose criminal sanctions and bear all the hallmarks of criminal charges. Therefore, they are inconsistent with the requirements of a trial in due course of law as enshrined in the provisions of the Constitution: Article 38 (1) of which provides: 'no person shall be tried on any criminal charge, save in due course of law'. It is submitted that once the substance of Section 279 (1) is examined, there are present all the requirements for the creation of a criminal offence by the Oireachtas. .........

The submissions on the part of the Plaintiff, as elaborated on in oral argument, took the form not so as to allege that the section created a criminal offence but, rather, that here was an ersatz civil proceeding which was really criminal in nature and that it was at least an indirect violation of Article 38 (1) of the Constitution in that it sought to impose a badge of criminality on a person through the Courts exercising their civil jurisdiction. This criminal conduct would be established on the balance of probabilities - which is the standard of proof required in civil proceedings; Banco Ambrosiano SPA v. Ansbacher and Company [1987] I.L.R.M. 669; rather than by proof beyond reasonable doubt which is the standard of proof in a criminal trial. Further, it was submitted that the protection the trial with the jury affords to a person on a criminal charge was not available to such a person once this form of proceeding was invoked."

"It is clear, in the first instance that the subsection in question does not create a criminal offence. To hold that it did would be to disregard the provisions of both subsection 3 and subsection 4 of Section 297. Further, none of the indicia of a criminal offence identified in Melling's case are present: there is no prosecutor; there is no offence created; there is no mode of trial of a criminal offence prescribed and there is no criminal sanction imposed. Indeed, the Court did not understand Counsel for the Plaintiff to press this point. Rather, the Plaintiff's case was put on the basis that the civil proceedings were really a disguise for what was truly an attempt by the Oireachtas to impose a criminal sanction in a civil context. The Court rejects this construction of the section. It holds that the section is clearly within the policy entitlement of the Oireachtas to enact; it is designed to protect creditors and others who may fall victim of people engaged in fraud. It is true that fraud is an ingredient in many criminal offences but is also an ingredient in various civil wrongs: cf. Northern Bank Finance v. Charlton [1979] I.R. 149. It is true that the proof of fraud will be to the civil standard, but it is also so that the more serious an allegation that is made in civil proceedings, then the more astute must the Judge be to find that the allegation in question has been proved."

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.

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:

The Act of 1985 admittedly provides for the freezing of a bank account and the payment of the funds in it into the High Court without notice to the account holder but it does not confiscate his property or deprive him of fair hearing. He is entitled to claim the funds in the High Court and he is entitled to a fair hearing there though, admittedly, the onus of proof is on him to establish his title. In the event of a mistake having been made there is provision for the payment of compensation.

Mr. Condon has submitted that the Act is unnecessary and that, if the Minister's suspicions are well-founded, he could have applied for an Interim Injunction in the High Court. But, on the other hand, the Act is designed to deal with the activities of unlawful organisations and, in this situation, the onus of proof may be very important. Mr. Fennelly has pointed to the fact that there are times, even in criminal proceedings, where parliament has reversed the onus of proof in relation to particular issues. If, he submits, it is permissible to do it in criminal proceedings a fortiori it must be permissible to do it in civil litigation".

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

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.

"The Act, whilst understandably silent on the nature of proof sufficient to induce the Court to exercise its discretion in any particular case, unquestionably imposes an initial onus of proof on an Applicant, and provides by Section 8 thereof for trial of issues either by Affidavit or oral evidence, and that the standard of proof sufficient to determine any such issue or issues shall be that applicable to civil proceedings. To obtain an ex-parte Order such as was granted in the present case pursuant to Section 2, it must be shown to the satisfaction of the Court that a person is in possession or control of specified property that directly or indirectly constitutes proceeds of crime, or was partly or wholly acquired with or in connection with property that directly or indirectly constitutes proceeds of crime, such impugned property being not less that £10,000 ......

I am not concerned with construing the Act as a whole, but it is noteworthy that, whilst its scheme indeed introduces significant innovations, a wide discretion is entrusted to the Court to ensure compliance with the 'audi alteram partem' rule and other precepts of natural justice and to ensure that injustice is not perpetrated against meritorious Respondents, for example by the compensation provisions comprised in Section 16 of the Act."

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.

Once those ingredients are in place, it is still open to the Accused to demonstrate in any one of a number of ways, such as by cross-examination, submissions or by giving evidence, that a prima facie situation pointing to his guilt should not be allowed to prevail. I believe that this analysis complies with our well-established criminal law jurisprudence in regard to having trials in due course of law. That constitutional requirement applies whether the offence is made an offence under a pre or post constitutional enactment. It protects the presumption of innocence; it requires that the prosecution should prove its case beyond all reasonable doubt; but it does not prohibit that, in the course of the case, once certain facts are established, inferences may not be drawn from those facts and I include in that the entitlement to do this by way even of documentary evidence."

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.

"It is clear that such possession is to amount to evidence only; it is not to be take as proof and so the probative value of the possession of such a document might be shaken in many ways; by cross-examination; by pointing to the mental capacity of the accused or the circumstances by which he came to be in possession of the document, to give some examples. The important thing to note about the Section is that there is no mention of the burden of proof changing, much less that the presumption of innocence is to be set to one side at any stage."

"The Constitution should not be construed as absolutely prohibiting the Oireachtas from restricting the exercise of the right to the presumption of innocence. The right is to be implied from Article 38, which provides that trials are to be held 'in accordance with law', and it seems to me that the Oireachtas is permitted in certain circumstances to restrict the exercise of the right because it is not to be regarded as an absolute right whose his enjoyment can never be abridged."

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.

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.

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:-

"Reference was also made to the case of In Re O [1991] 2 QB 520. In that case an Order restraining assets under Section 77 of the Criminal Justice Act, 1988 was in place against the Applicants. When the Applicants sought to vary the Order, the Crown Prosecution Service obtained a further Order requiring them to disclose their assets by affidavit. The Applicants sought to appeal on the ground that the Court had no jurisdiction to make such an Order, which in any event was repugnant to the rule against self-incrimination. The Court held that in the absence of any express jurisdiction there was an ancillary power to make a disclosure Order inherent in the 1988 Act to ensure the effectiveness of the Restraint Order. However, since the Act did not abrogate the common law rule against self-incrimination, a party might decline to comply with the disclosure Order if there was a risk of self-incrimination, and since the use of such information should be limited to the purpose for which the Disclosure was ordered, a condition should be attached to such Orders, preventing the use by the Crown Prosecution Service of any material so disclosed in criminal proceedings against the party giving disclosure or his spouse.

In Istel Limited -v- Tully [1993] AC 45 an Ex Parte Order was granted in civil fraud proceedings requiring the Defendant to disclose information relating to dealings with certain assets and to produce copies of documents in respect of such dealings. The Order was subsequently set aside insofar as it related to such disclosure on the ground that it infringed the Defendants' privilege against self-incrimination. The case was appealed to the House of Lords. The House of Lords held that although the privilege against self-incrimination could only be removed or altered by Parliament, there was no reason to allow the Defendants in civil proceedings to rely on it, where their protection was adequately secured by other means. It was further noted that in In Re O the Crown Prosecution Service was a party to the proceedings and consented to the Order. Here, the Crown Prosecution Service was not a party and hence it could be argued that the Order was not capable of binding it. It is clear from a letter received from the Crown Prosecution Service that that agency had undertaken not to profit from any disclosure in the current proceedings and would only rely on evidence obtained independently of the proceedings. It appears that in the absence of such an undertaking, the House of Lords would not have made the Order, given the possible prejudice which could occur in future criminal proceedings.

Applying this judgment to the present case, I am satisfied that, noting the degree of nexus between the Applicant and the Office of the Director of Public Prosecutions, it will be necessary if discovery is ordered that an undertaking be given by the Director of Public Prosecutions similar to that given by the Crown Prosecutions Service in Istel Limited -v- Tully , in order to prevent possible prejudice in any future criminal proceedings.....I have also been referred to and considered the case of Ray Thomas (Disclosure Order) [1992] 4 ALL ER 814, in which I am disinclined to follow the view of Leggett L.J. that disclosure of assets did not amount to self-incrimination, but merely facilitated an assessment of the amount to be recovered from a Defendant who had benefited from drug trafficking."

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:-

7. That the prima facie entitlement of an innocent person to refuse, as a matter of principle, to give an account of his movements must yield to the right of the State to protect itself; a fortiori the entitlement of those with something relevant to disclose concerning the commission of a crime to remain mute must be regarded as a lesser order; and that accordingly there was a proper proportionality in Section 52 between any infringement of the citizen's rights and the entitlement of the State to protect itself."

"...the State is entitled to encroach on the right of the citizen to remain silent in pursuit of its entitlement to maintain public peace and order. Of course, in this pursuit the constitutional rights of the citizen must be affected as little as possible. As already stated, the innocent person has nothing to fear from giving an account of his or her movements, even though on grounds of principle, or on the assertion of constitutional rights, such a person may wish to take a stand. However, the Court holds that the prima facie entitlement of citizens to take such a stand must yield to the right of the State to protect itself. A fortiori, the entitlement of those with something relevant to disclose concerning the commission of a crime to remain mute must be regarded as of a lesser order."

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.

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:-

Where a man's liberty is at stake, or where he faces a very severe penalty which may affect his welfare or his livelihood, justice may require more than the application of normal and fair procedures in relation to his trial. Facing, as he does, the power of the State which is his accuser, the person charged may be unable to defend himself adequately because of ignorance, lack of education, youth or other incapacity. In such circumstances his plight may require, if justice is to be done, that he should have legal assistance. In such circumstances if he cannot provide such assistance by reason of lack of means, does justice under the Constitution also require that he be aided in his defence? In my view it does...."

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:-

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.

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.

"None of the personal rights of the citizen are unlimited: their exercise may be regulated by the Oireachtas and the common good requires this. When dealing with controversial, social, economical and medical matters on which it's notorious views change from generation to generation, the Oireachtas has to reconcile the exercise of personal rights with the claims of the common good and its decision on the reconciliation should prevail unless it was oppressive to all or some of the citizens or unless there is no reasonable proportion between the benefit which the legislation will confer on the citizens or a substantial body of them and the interference with the personal rights of the citizens. Moreover, the presumption that every Act of the Oireachtas is constitutional until the contrary is clearly established applies with particular force to this type of legislation."

"The Court is satisfied that that the State is entitled, for the protection of public peace and order, and for the maintenance and stability of its own authority, by its laws to provide onerous and far reaching penalties and forfeitures imposed as a major deterrent to the commission of crimes threatening such peace and order and State authority, and it is also entitled to ensure as far as practicable that amongst those involved in the carrying out of the functions of the State, there is not included persons who commit such crimes. The State must in its laws, as far as practicable, in pursuing these objectives, continue to protect the constitutional rights of the citizen."

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):-

"In considering whether a restriction on the exercise of rights is permitted by the Constitution, the courts in this country and elsewhere have found it helpful to apply the test of proportionality, a test which contains the notions of minimal restraint on the exercise of protected rights, and of the exigencies of the common good in a democratic society. This is a test frequently adopted by the European Court of Human Rights (see for example Kearns Newspapers Limited -v- United Kingdom (1979 2 EHRR 245) and has recently been formulated by the Supreme Court in Canada in the following terms. The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They must:-

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.

"It seems to me that I am clearly entitled to take notice of the international phenomenon, far from peculiar to Ireland, that significant numbers of persons who engage as principals in lucrative professional crime, particularly that referrable to the illicit supply of controlled drugs, are alert and effectively able to insulate themselves against the risk of successful criminal prosecution through deployment of intermediaries, and that the Act is designed to enable the lower probative requirements of civil law to be utilised in appropriate cases, not to achieve penal sanctions, but to effectively deprive such persons of such illicit financial fruits of their labours as can be shown to be the proceeds of crime."

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.

"Drug abuse has single-handedly transformed the Irish criminal scene and caused a significant escalation in the level of criminal violence in two distinct ways. First, drug dealing quickly graduates to the point where it depends on intimidation and coercion to control territories, enforce debt payments, and ensure loyalty. The rapid growth of the illegal drugs trade has therefore been accompanied by a proportionate growth in the opportunities for and occasions of serious violence. Secondly, the addictive process undermines the individual addicts sense of values. The addict in the grip of opiate addiction can be so desperate and focused on his own need for a fix that he becomes entirely reckless about the harm he inflicts on others in order to satisfy that need. This process is so powerful that it can degrade even well socialised and normally sensitive individuals and prompt them to depraved and gratuitously brutal acts.

The resort to violence and intimidation within drug dealing circles also has unfortunate knock on effects throughout the criminal world. The drugs sub-culture has escalated the violence of the ordinary criminal world by demonstrating the effectiveness and potential rewards of intimidation. The use of extreme violence to settle drug dealing disputes also sets an example which other criminals and their associates find it difficult not to follow. The threat of assassination promotes assassination because criminals will be tempted to make pre-emptive strikes. Once extreme violence is used it is difficult to turn back to less severe measures."

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:-

"I specifically reserve to another occasion consideration of the hypothesis of how a case in which hearsay proof of suspicion alone is tendered, particularly if likely to be substantiated by a plea of privilege on challenge, should be addressed by the Court, although I acknowledge concern that significance, circumspection and care for such a Respondent's entitlements may require to be exercised, and that a generalised advertence to 'the innocent having nothing to fear' would not appear to in any realistic sense satisfy the requirements of Sections 2 or 3 of the Act."

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.

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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Gilligan v. Criminal Assets Bureau [1997] IEHC 106; [1998] 3 IR 185 (26th June, 1997) URL: http://www.bailii.org/ie/cases/IEHC/1997/106.html Cite as: [1998] 3 IR 185, [1997] IEHC 106

High Court of Ireland Decisions

Gilligan v. Criminal Assets Bureau [1997] IEHC 106; [1998] 3 IR 185 (26th June, 1997)