THE legislation providing for the setting up last year of the Criminal Assets Bureau was held by the High Court yesterday to be constitutional.
The challenge to the Proceeds of Crime Act was taken by Mr John Gilligan, who is at present being held in England in connection with alleged drugs related offences.
In an 80 page reserved judgment, Mrs Justice McGuinness said the question was if the Act, within the framework of the Constitution, was a proportionate response by the legislature to the threat to society posed by the operations of the type of major criminals described in evidence.
She said it appeared that as a matter of proportionality, the legislature was justified in enacting the Act and restricting certain rights through the operation of it.
She had evidence from two very senior police officers who painted a picture of an entirely new type of professional criminal who organised, rather than committed, crime and thereby rendered 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 gardai," she continued. "At the same time, their obvious wealth and power cause them to be respected by lesser criminals or would be criminals."
It emerged during cross examination of those witnesses that the number of such leading criminals was small by international standards and that the sums involved in their operations were very, much smaller than similar sums in such jurisdictions as the UK, the Netherlands and the US.
She would accept that certain elements of the media, both written and broadcast, tended to exaggerate the comparative level of this and other types of crime in this State 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 had a serious and worsening effect.
This was particularly so in regard to their importation and distribution of illegal drugs, which in its turn led to a striking increase in lesser crimes carried out by addicts seeking to finance their addiction.
Mrs Justice McGuinness went on: "In theory this type of threat to public order and the community at large may seem less obvious 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 affect the everyday lives of themselves and their children." She would express a degree of concern about two features of the Act, both of which had caused concern to Mr Justice Moriarty in a previous case.
The first was the operation of section 9, and the manner in which it might affect the privilege against self incrimination.
A court would have to take particular care, whether by limiting the purpose for which any information disclosed under the section might 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.
Secondly, section 8 permitted the introduction of hearsay evidence by a Garda chief superintendent or Revenue Commissioners officer as to his other belief that a respondent was in possession or control of specified property, and that the property constituted directly or indirectly proceeds of crime.
The evidence was not, of course, conclusive and was open to challenge. But in her opinion a court should be slow to make orders on the basis of such evidence without corroborative evidence.
Mrs Justice McGuinness recalled that last November the High Court had made an order under the Act preventing Mr Gilligan from disposing of or otherwise dealing with, specified property.
In an affidavit in those proceedings, Chief Supt Michael F. Murphy had deposed that to his belief the property forming the subject matter of the application was directly or indirectly the proceeds of crime.
The officer averred that this belief was supported by a long history of involvement in en me by Mr Gilligan and the accumulation by him of very substantial assets in a short period without his enjoying any apparent lawful source of income.
He had also averred the belief by gardai that Mr Gilligan had a significant involvement in the importation of narcotics. Mr Gilligan had not sworn an affidavit in those proceedings.
In his statement of claim in the present proceedings, Mr Gilligan stated he was a businessman and professional gambler and went into considerable detail in regard, to the properties affected by court order.
He stated it had been his intention, pursuant to a separation agreement between himself and his wife, Geraldine, to convey much of this property into his wife's sole name, but that this intention had not in fact been carried out. The separation agreement was not produced.