Three members of the Felloni family were given leave in the High Court yesterday to challenge the constitutionality of sections of the Criminal Justice Act. Mr Justice Barr, who described the issue as "one of great public importance", said he was making his ruling with "some considerable reluctance".
He gave Antony Felloni, Lower Ormond Street, Dublin, who is serving 20 years for drugs-related offences, leave for a judicial review of the High Court decision to grant the Director of Public Prosecutions an order freezing his assets.
Felloni was joined in yesterday's proceedings by his son Luigi and daughter Regina, who are serving sentences of six years and six years, nine months respectively, also for drugs-related offences.
Mr Blaise O'Carroll SC, for the Fellonis, said he was challenging the constitutionality of sections of the Criminal Justice Act 1994.
He said the DPP had applied to freeze his client's assets under that Act on the basis that the courts could determine if a person convicted of drug trafficking had benefited from it.
He submitted that specific charges should be preferred in such applications.
In an affidavit Antony Felloni said the Act purported to authorise the DPP to apply to the Circuit Criminal Court to assess the amount by which he had benefited from drug trafficking in order that an order be made confiscating his assets.
He said this was a penal sanction contrary to the Constitution and the European Convention of Human Rights.
Felloni said the standard of proof under the Act was the same as for civil proceedings - rather than for criminal proceedings - and this was a violation of his and the other two applicants' rights.
Mr Justice Barr put it to counsel that, quite apart from his clients, an unemployed person drawing the dole could be enjoying a lifestyle indicative of great wealth and could have £1 million in the bank.
If such a person was convicted of being a drugs baron, why should he be in a special position to protect his £1 million if it was clear that it was the product of unlawful activities? the judge asked.
Mr Justice Barr said a person convicted of an offence had a right to come in and explain from where the remainder of their assets came. It would be unpalatable to many people that a drugs baron who got a 10-year sentence for dealing in heroin could come out and retire on £1 million in respect of which he had not been charged.
Mr O'Carroll said there was a precedent where the Supreme Court had found the onus was not on the convicted person to show from where his assets had come. All of his clients' assets had been frozen.
Mr Justice Barr said that in these circumstances he would recommend the Attorney General's legal aid scheme, so that they would not have to act without the benefit of a solicitor and counsel.