Convicted drug dealer John Gilligan has won his High Court challenge to an order by the non-jury Special Criminal Court for confiscation by the State of some €17 million of his assets which were alleged to be the profits of drug dealing.
The State is expected to appeal the judgment to the Supreme Court.
Mr Justice McCracken yesterday ruled the Special Criminal Court had no jurisdiction to make the confiscation order under Section 4 of the Criminal Justice Act 1994 (the 1994 Act) and granted Gilligan a declaration to that effect.
He found the power to make a confiscation order was not a power relating to the trial of offences which latter power, he ruled, is the only purpose for which the Special Criminal Court may exist under the Constitution. The judge noted a Supreme Court judge's remark that the jurisdiction of the Special Criminal Court must be construed strictly given that it is a court which deprives a person of the right to trial by jury. Mr Justice McCracken said he would also be of the view the jurisdiction of the court must be strictly construed. Many of Gilligan's assets in this State remain frozen under an order secured some years ago by the Criminal Assets Bureau in separate proceedings under the Proceeds of Crime Act 1996.
Gilligan is serving a 28-year sentence after being convicted of possessing and importing 20,000 kg of cannabis resin into Ireland over a two-year period.
After he was sentenced, the Special Criminal Court conducted an inquiry under Section 4 of the 1994 Act to determine whether he had benefited from drug-trafficking. It concluded he had and on March 22nd last made a confiscation order requiring him to pay a sum of some €17.7 million within 12 months.
Gilligan challenged that order through a challenge to the constitutionality of provisions of the 1994 Act.
The essence of his challenge was that the provisions of the Act and the investigations under it constituted a person being tried on a criminal charge. He argued the inquiry procedure was ancillary to the trial procedure and the Special Criminal Court had no jurisdiction or power under the Constitution to conduct such an inquiry.
In his reserved decision, Mr Justice McCracken held the primary jurisdiction of the Special Criminal Court is to try and convict or acquit any person lawfully brought before that court for trial under the Offences Against the State Act 1939. He said the jurisdiction of the court must be strictly construed.
The State had argued the provisions of Section 4 of the 1994 Act (providing for a court to determine if a person has profited from drug offences and to make a confiscation order if it so holds) was a further ancillary power given to the court.
Disagreeing, Mr Justice McCracken held the provisions of the 1994 Act relating to confiscation could not be said to be ancillary to the jurisdiction of the Special Criminal Court.
They were not powers relating to the trial of offences, which was the only purpose for which the court could exist under the Constitution, but in fact constituted an inquiry and a determination by the court in relation to the benefits obtained from crime.
The judge said a trial has concluded when the accused has been convicted and sentenced.
While he accepted the procedure under the Act was not in itself a criminal procedure and was, in one sense, ancillary to a criminal procedure, namely the trial, that of itself did not give jurisdiction to the Special Criminal Court.
That court's jurisdiction was confined to the trial of offences and a determination of benefits resulting from criminal offences, followed by a confiscation order, was a separate, although not ancillary, proceeding which could not, under any circumstance, be said to be the trial of an offence.
The judge said he must hold the 1994 Act does not confer any jurisdiction on the court to operate its provisions.
Earlier, he held Section 4 of the 1994 Act does not purport to create a criminal charge nor did it require the court to make a finding that the person concerned actually committed any offence other than that for which they were convicted.
The decision was not whether the person committed drug-trafficking offences but whether they benefited from drug trafficking.
