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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Gilligan -v- The Special Criminal Court & ors [2005] IESC 86 (21 December 2005)
URL: http://www.bailii.org/ie/cases/IESC/2005/S86.html
Cite as: [2005] IESC 86, [2006] 2 IR 389

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Judgment Title: Gilligan -v- The Special Criminal Court & ors


Neutral Citation: [2005] IESC 86

Supreme Court Record Number: 390 & 402/02

High Court Record Number: 2001 11212 P

Date of Delivery: 21/12/2005

Court: Supreme Court


Composition of Court: Murray C.J., Denham J., Geoghegan J., Fennelly J., Macken J.

Judgment by: Denham J.

Status of Judgment: Approved

Judgments by
Result
Concurring
Dissenting
Denham J.
Appeal dismissed - affirm High Court Order
Murray C.J., Geoghegan J., Fennelly J., Macken J.

Outcome: Dismiss

- 10 -


THE SUPREME COURT

Appeal No: 390/2002
402/2002
Murray CJ
Denham J.
Geoghegan J.
Fennelly J.
Macken J.

Between/
JOHN GILLIGAN

Plaintiff/Respondent
and

THE SPECIAL CRIMINAL COURT, IRELAND, AND
THE ATTORNEY GENERAL

Defendants/Appellants

Judgment delivered the 21st day of December, 2005 by Denham J.

1. Two issues were raised on this appeal: (a) the jurisdiction of the Special Criminal Court to make an order under s. 4 of the Criminal Justice Act, 1994, as amended, and, (b) the constitutionality of the confiscation provisions of the Criminal Justice Act, 1994, s.4.
2. John Gilligan, the plaintiff/respondent, hereafter referred to as the plaintiff, was convicted by the Special Criminal Court of drug trafficking offences under the Misuse of Drugs Act, 1977 to 1984, and, on the 15th March, 2001, he was sentenced to 28 years in prison, later reduced on appeal by the Court of Criminal Appeal to 20 years imprisonment.
3. An application was brought before the Special Criminal Court under s. 4 of the Criminal Justice Act, 1994, as amended by s. 25 of the Criminal Justice Act, 1999, to determine whether the plaintiff had benefited from drug trafficking. On the 22nd March, 2002, O’Donovan J. delivered the judgment of the court. In the view of the Special Criminal Court such a determination involved five matters, namely (i) the cost to the plaintiff of purchasing drugs; (ii) the amount of drugs involved in the plaintiff’s drug trafficking activities; (iii) the expenses incurred by the plaintiff with regard to the shipment, sale and distribution of such drugs; (iv) the consideration received by the plaintiff when disposing of those drugs; (v) the net profit, if any, accruing to the plaintiff as a result of his drug trafficking activities. The Special Criminal Court stated that in arriving at its conclusions it had regard to and had taken into account the findings of the court when convicting and sentencing the plaintiff in respect of the drug offences.
The Special Criminal Court stated that it was satisfied that during the material period the plaintiff was responsible for the importation into the State of a net amount of cannabis resin totalling 17,530 kilos which cost him £21,036,000 to purchase. The Special Criminal Court was also satisfied that the plaintiff disposed of those 17,530 kilos of cannabis resin for a price of £2,000 per kilo; in other words for a sum of £35,060,000. The Special Criminal Court made allowances for £100,000 which the court held the plaintiff paid to John Dunne to import the cannabis resin into the State and expenses. It was the view of the Special Criminal Court that the plaintiff had benefited from his drug trafficking activities to the extent of £13,924,000 or €17,679,833. The Special Criminal Court made a confiscation order against the plaintiff invoking the provisions of s.4(4) of the Criminal Justice Act, 1994, as amended, requiring the plaintiff to pay a sum of €17,679,833 within a period of 12 months.
4. The plaintiff brought proceedings in the High Court, seeking, inter alia, a declaration that the Special Criminal Court has no jurisdiction to make a determination pursuant to s.4 of the Criminal Justice Act, 1994, as amended by s. 25 of the Criminal Justice Act, 1999, and he sought also a declaration that a number of the provisions of the Criminal Justice Act, 1994, as amended, are unconstitutional.
5. In accordance with the jurisprudence of this Court I shall consider first the non-constitutional issue, it being well settled that the Court should reach constitutional issues last.
6. 1 The Attorney General and the Director of Public Prosecutions have brought this appeal raising the issue of the jurisdiction of the Special Criminal Court to make an order pursuant to s.4 of the Criminal Justice Act, 1994, as amended.
6.2 The Special Criminal Court is a special court for the trial of offences established under Article 38 of the Constitution of Ireland. Article 38.3.1° provides:
The outstanding feature of the Special Criminal Court is that there is no right to trial by jury in such a court. The constitutional right to trial by jury is specifically excluded: Article 38.5. The nature of the Court is also made apparent in Article 38.6 which provides expressly that the provisions of Articles 34 and 35 of the Constitution shall not apply to a Special Criminal Court. Thus it is a unique and special court envisaged under the Constitution. The constitution, powers, jurisdiction and procedure of such special courts shall be prescribed by law: Article 38.3.2°.

6.3 Offences Against the State Act, 1939
Legislative provision has been made for the Special Criminal Court. The Offences Against the State Act, 1939, is an Act, as stated in its long title, to make provision in relation to actions and conduct calculated to undermine public order and the authority of the State, and to establish Special Criminal Courts in accordance with Article 38 of the Constitution and to provide for the constitution, powers, jurisdiction and procedure of such courts. Section 35 gives power to the Government to establish such courts. It provides that if the Government is satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order and that it is therefore necessary that this part of the Act shall come into force, the Government may make and publish a proclamation declaring that the Government is satisfied as aforesaid and ordering that this part of the Act shall come into force.
The Special Criminal Court may hear trials in non-subversive crime. As Keane J. stated in Kavanagh v. Government of Ireland [1996] 1 I.R. 321, at p. 364:
“. . . there is nothing to prevent the Government from bringing Part V into force where it is satisfied, for the reasons mentioned in the subsection, that the Director of Public Prosecutions should have power to require the trial before a special criminal court rather than by a jury of persons engaged in non-subversive crime, e.g. where there appeared to be a significant risk that those engaged in organised crime would resort to the intimidation or corruption of juries.”

Section 43 of the Offences Against the State Act, 1939 expressly sets out the jurisdiction of the Special Criminal Court, it provides:
The Act provides expressly that the Special Criminal Court has jurisdiction to try and to convict a person lawfully brought before the court for trial. It also provides expressly for an ancillary jurisdiction, such as to enable recognisances be entered into, to admit to bail, to administer oaths, to punish for contempt, and to estreat recognisances and bail bonds. The fact that these ancillary matters are expressly stated infers that they should be expressly prescribed by statute. This is consistent with the words of Article 38.3.2°.
The Constitution states clearly that the Special Criminal Courts are “for the trial of offences”. Thus it is limited to the trial of offences. The Special Criminal Court is expressly given some ancillary powers by s. 43 of the Offences Against the State Act, 1939. This section confirms the criminal nature of the jurisdiction of the Special Criminal Court by the ancillary orders it anticipates will be made by that Court.
No express statutory provision gives to the Special Criminal Court the jurisdiction established under s. 4 of the Criminal Justice Act, 1994, as amended. While I am quite satisfied that not every matter of procedure needs to be expressly provided in legislation before it may apply to the Special Criminal Court, the jurisdiction in issue is different in category and character to the trial of offences anticipated by the Constitution and the Offences Against the State Act, 1939. It is not a ‘trial of an offence’. It is a different type of proceeding.
6.4 Criminal Justice Act, 1994
The power of confiscation created in s. 4 of the Criminal Justice Act 1994, as amended, is a new type of jurisdiction established under that legislation. It does not expressly refer to or give jurisdiction to the Special Criminal Court. It provides:
Thus, the legislation does not expressly provide that the Special Criminal Court shall have jurisdiction under the Act. Even if legislation relating to ancillary matters may in some circumstances apply by implication to the Special Criminal Court, the very nature of the proceedings in issue, which are not a trial, militates against any such implication in this instance.
7. The High Court

The High Court (McCracken J.) held that the Special Criminal Court did not have jurisdiction to make a determination pursuant to s. 4 of the Criminal Justice Act, 1994, as amended. The High Court referred to and relied on McElhinney v. The Special Criminal Court [1990] 1 I.R. 405 where Walsh J. at p. 420 stated:
The learned High Court Judge (as he then was) held:
8. Grounds of Appeal
The Attorney General and the Director of Public Prosecutions appealed against the determination of the High Court. It was submitted that the learned High Court judge erred in law in finding that the power to make a determination and a confiscation order following conviction was not sufficiently ancillary to the ‘trial of offences’ to come within the jurisdiction of the Special Criminal Court pursuant to Article 38.3 of the Constitution, and that the powers contained in s. 4 of the Criminal Justice Act, 1994, as amended, were not conferred on the Special Criminal Court.

9. Decision
I am satisfied that the learned judge was correct in law and did not err and I would affirm the decision of the High Court. The Special Criminal Court is a unique court established under the Constitution and legislation (especially the Offences Against the State Act, 1939) which procedure limits some rights of an accused, especially his right to trial by jury. Consequently, legislation should be strictly construed insofar as it extends the jurisdiction of the Special Criminal Court. The Constitution provides that the constitution, powers, jurisdiction and procedure of the Special Criminal Court shall be prescribed by law. In significant matters this is addressed expressly in legislation, e.g. Part IV of the Offences Against the State Act, 1939. This does not mean that every pleading and procedural matter has to be expressly stated to apply to the Special Criminal Court. But a significant jurisdiction, such as bail, should be and has been expressly provided for by legislation. Similarly, a significant ancillary jurisdiction, such as is created in s.4 of the Criminal Justice Act, 1994, as amended, should be expressly stated to apply to the Special Criminal Court, if it is so intended. Given the nature of that Court, a court of trial, matters other than a trial may not be inferred into its jurisdiction. Consequently, I am satisfied that the Special Criminal Court does not have jurisdiction to make orders pursuant to s. 4 of the Criminal Justice Act, 1994, as amended.
10. Conclusion
For the reasons given I would dismiss the appeal in this matter and affirm the order of the High Court as to the jurisdiction of the Special Criminal Court. The decision as to the jurisdiction of the Special Criminal Court is sufficient to dispose of the case.
As the Special Criminal Court had no jurisdiction to make an order under s. 4, as amended, the purported order was null and void and it is not a bar to related or other proceedings in other courts.


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URL: http://www.bailii.org/ie/cases/IESC/2005/S86.html