THE SUPREME COURT
Appeal No: 390/2002Murray CJ
THE SPECIAL CRIMINAL COURT, IRELAND, AND THE ATTORNEY GENERAL
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°.
“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.”
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  1 I.R. 321, at p. 364:
Section 43 of the Offences Against the State Act, 1939 expressly sets out the jurisdiction of the Special Criminal Court, it provides:
“. . . 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.”
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°.
“(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 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.
"(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,
(b) the amount to be recovered in his case by virtue of this section, shall be that applicable in civil proceedings.”
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  1 I.R. 405 where Walsh J. at p. 420 stated:
The learned High Court Judge (as he then was) held:
“. . . 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.”
8. Grounds of Appeal
“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.”
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.
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.
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.