ANALYSIS: The State faces a challenge confiscating crime proceeds, writes Carol Coulter
There are two Acts dealing with the confiscation of the proceeds of crime. One is the 1994 Criminal Justice Act, and the other is the 1996 Proceeds of Crime Act. Both have been used to confiscate the proceeds of drug-trafficking.
The Proceeds of Crime Act provides for the seizure of assets thought to be the proceeds of crime, and has even been used to pursue those considered guilty of tax evasion. It has been challenged in the High and Supreme Court, where its constitutionality was upheld.
During those challenges the State argued successfully that the seizure of criminal assets was essentially part of the civil, rather than the criminal, legal process. The burden of proof was different, and no criminal conviction was necessary to trigger the seizure. Indeed, in one of those judgments it was stated: "It is quite conceivable that an order could be made against a guiltless person who has possession of goods which are the proceeds of crime."
While it was necessary to prove that a crime was committed, the proceedings were not themselves criminal proceedings. The 1994 Act also provides for the seizure of the proceeds of crime, but as an ancillary part of prosecution for a criminal offence.
However, it requires a separate procedure proving, on the balance of probabilities, that the assets concerned derive from the proceeds of crime.
Mr Justice McCracken found that this type of procedure fell outside the jurisdiction of the Special Criminal Court, which was set up strictly to deal with specific crimes. The confiscation of assets do not form part of the sanctions this court can apply.
Therefore, by implication, the State should use means other than the Special Criminal Court to seize Gilligan's assets.
Indeed, it has already done so, using the Proceeds of Crime Act. An injunction was obtained freezing his assets some years ago.
However, that is also being challenged in the courts, on the basis that the injunction was a temporary, rather than a permanent one. Therefore it was not fought at the time.
The courts have been anxious to allow the State take action against the proceeds of crime in previous challenges to the legislation permitting it. But they have also made a strict distinction between the civil and criminal processes for doing so.
In the coming months, there fore, there will be two examinations of the freezing, with a view to seizing, the assets of John Gilligan. One will be the challenge to the action taken under the Proceeds of Crime Act, which will focus on the nature of the injunction obtained. The other will be the appeal against yesterday's judgment, reopening the whole area of seizing assets under the 1994 Criminal Justice Act, and whether this can be treated as a criminal matter.