The constitutionality of the Criminal Justice Act 1994 under which the State confiscates assets gained by drug trafficking may by challenged by three members of the Felloni family.
Judge Kieran O'Connor was told by counsel for the Fellonis at Dublin Circuit Criminal Court that the powers conferred on the Director of Public Prosecutions to bring confiscation proceedings presented the "appalling vista" that a person's assets could be totally taken away retrospectively.
Anthony Felloni (53), of Lower Dominick Street, Dublin is serving a total of 20 years in prison for four heroin dealing offences. His daughter, Regina, is serving six years and nine months, and his son, Luigi, six years for similar offences.
Mr Blaise O'Carroll SC said the Fellonis were entitled to details of what transactions, including lodgements to bank accounts, were alleged to be gains from drug dealing, rather than the DPP just making a round claim.
The suggestion of a possible constitutional challenge came at a preliminary hearing set by Judge O'Connor to prepare for a full hearing of the DPP's motion to have some £300,000 in cash and assets confiscated from the three jailed Felloni family members.
Transactions on accounts in Ireland and England and on assets held in the names of the three have been frozen by court orders on the application of the Criminal Assets Bureau.
Judge O'Connor adjourned the case to January 30th and said he hoped the full hearing of the DPP's motion could be dealt with a fortnight later.
Mr O'Carroll said he would be able to indicate on January 30th if his client were seeking a judicial review. If it was decided to challenge the constitutionality of the Act, the High Court proceedings could be initiated on February 3rd. The court was told that banks and other financial institutions holding large sums of cash in the names of Anthony, Regina and Luigi Felloni had refused to give details of transactions on these accounts to the Fellonis' legal advisers because of Garda investigations.
Mr O'Carroll said the institutions claimed the Act precluded them from passing on this information. He was seeking an order for discovery of the information.
Mr Shane Murphy BL, for the DPP, said he doubted if the Director believed it would frustrate the investigation at this stage if the information the defence required was provided. He said he would take instructions on that matter.
Mr O'Carroll accepted that there would be no difficulty if the financial institutions were reassured by the DPP.
Judge O'Connor said he would have no hesitation in making an order for discovery. The defence was entitled to the information. "It seems to me the Act is somewhat one-eyed in that it laid down how the DPP's claim should be made but doesn't seem to provide for how such a claim might be defended," Judge O'Connor said.
The State applied in July 1997 to confiscate £134,000 cash and a house in Finglas valued at £46,500.
Mr Murphy said the DPP was granted an order of restraint by Mr Justice Carney in the High Court on April 5th, 1996, in relation to "specific realisable property in possession or under the control of the three respondents". That order froze all their known accounts and assets.
Judge O'Connor was told at a hearing in November that a further £115,000 sterling in bank accounts allegedly held by Anthony and Regina Felloni in Belfast and Liverpool had been frozen by the High Courts in Belfast and London.
Mr Murphy said the court could take these accounts into consideration in the State's application.
It is alleged by the State that all these assets were the proceeds of illegal drug dealing by the three. This is the first such application to be opposed since the Act came into operation.