Special Criminal Court lacks jurisdiction to make confiscation orders under Criminal Justice Act 1994 as it is not a trial court.

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:

“Special Courts may be established by law for the trial of offences in cases where it may be determined in accordance with

such law that the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of

public peace and order.”

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:

“(1) A Special Criminal Court shall have jurisdiction to try and to convict or acquit any person lawfully brought before that Court

for trial under this Act, and shall also have the following ancillary jurisdictions, that is to say:—

(a) jurisdiction to sentence every person convicted by that Court of any offence to suffer the punishment provided by

law in, respect of such offence;

(b) jurisdiction, in lieu of or in addition to making any other order in respect of a person, to require such person to enter

into a recognisance before such Special Criminal Court or before a justice of the District Court, in such amount and with

or without sureties as such Special Criminal Court shall direct, to keep the peace and be of good behaviour for such period

as that Court shall specify;

(c) jurisdiction to order the detention of and to detain in civil or military custody, or to admit to bail in such amount and

with or without sureties as that Court shall direct, pending trial by that Court and during and after such trial until

conviction or acquittal, any person sent, sent forward, transferred, or otherwise brought for trial by that Court;

(d) power to administer oaths to witnesses;

(e) jurisdiction and power to punish, in the same manner and in the like cases as the High Court, all persons whom such

Special Criminal Court finds guilty of contempt of that Court or any member thereof, whether such contempt is or is not

committed in the presence of that Court;

(f) power, in relation to recognisances and bail bonds entered into before such Special Criminal Court, to estreat such

recognisances and bail bonds in the like manner and in the like cases as the District Court estreats recognisances and bail

bonds entered into before it.”

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:

"(1) Where a person has been sentenced or otherwise dealt with by a court in respect of one or more drug trafficking offences

of which he has been convicted on indictment, the court shall, subject to subsections (2) and (3), determine whether the

person has benefited from drug trafficking.

(2) A court may decide not to make a determination under

subsection (1) of this section where, following such preliminary inquiries, if any, as it may make, it is satisfied that having regard

to—

(a) the present means of the convicted person, and

(b) all of the other circumstances of the case, including the matters which are to be taken into account under section

12(3) of this Act,

the amount, if any, which might be recovered under any confiscation order which might be made would not be sufficient to

justify proceeding with consideration of the making of such an order.

(3) The duty of a court to make a determination under subsection (1) of this section shall not apply if the convicted person has

died or absconded, and accordingly the provisions of section 13 of this Act shall apply in such a case.

(4) If the court determines that the person in question has benefitted from drug trafficking, the court shall determine in

accordance with section 6 of this Act the amount to be recovered in his case by virtue of this section and shall make a

confiscation order under this section requiring the person concerned to pay that amount.

(5) For the purposes of this Act, a person who has at any time (whether before or after the commencement of this section)

received any payment or other reward in connection with drug trafficking carried on by him or another has benefited from drug

trafficking.

(6) The standard of proof required to determine any question arising under this Act as to—

(a) whether a person has benefited from drug trafficking,

or

(b) the amount to be recovered in his case by virtue of this section, shall be that applicable in civil proceedings.”

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:

“. . . that the provisions of the Offences Against the State Acts relating to the procedure of the Special Criminal Court must be

construed strictly because among other things they deprive a person of the constitutional obligation of a trial by a jury in

indictable offences of a non minor character which although an obligation can also be construed as being a right conferred upon

an accused person.”

The learned High Court Judge (as he then was) held:

“I would also be of the view that the jurisdiction of the Special Criminal Court must be construed strictly in the light of the

provisions of Article 38.3. The defendants argue that the provisions of Section 4 of the 1994 Act is a further ancillary power

given to the Special Criminal Court, and indeed is an obligation imposed on that court. The section does not, of course expressly

purport to grant powers to the Special Criminal Court as opposed to any other court, nor does it seek to relate any of the

powers granted to Article 38.3. In my view the provisions of the 1994 Act relating to confiscation cannot be said to be ancillary

to the jurisdiction of the Special Criminal Court in the way that the powers set out in Section 43 of the 1939 Act are ancillary.

They are not powers relating to the trial of offences, which is the only purpose for which the Special Criminal Court may exist

under the constitution. They in fact constitute an inquiry and a determination by the court in relation to the benefits obtained

from crime, and I do not think this position is altered by the provisions of Section 3(16)(f) which uses the rather strange

wording that “proceedings for an offence are concluded”. It should be noted that that subsection does not provide that the

trial is concluded by the events set out, but merely that the proceedings are concluded. In my view the trial has concluded

when the accused has been convicted and sentenced. The defendants have argued, and I accept, that the procedure under

the Act is not in itself a criminal procedure, and I would accept that it is in one sense ancillary to a criminal proceeding, namely

the trial, but that of itself does not give jurisdiction to the Special Criminal Court. As I have said, the jurisdiction of that court is

limited to the purposes set out in Article 38.5, namely the trial of offences, and a determination of benefits resulting from

criminal offences, followed by a confiscation order, is a separate, although possible ancillary, proceeding which could not under

any circumstances be said to be the trial of an offence.”

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.