The Supreme Court yesterday rejected a challenge to the constitutionality of parts of the Proceeds of Crime Act, 1996. The ruling means the Criminal Assets Bureau may continue to seek orders to freeze assets which it suspects are the proceeds of crime.
However, the court made it clear its decision related only to the specific action before it. It described the legislation as "unquestionably draconian".
The Chief Justice, Mr Justice Keane, who gave the five-judge court's judgment, cautioned: "It is indeed probable that the special character of the legislation and the broad nature of the obligations imposed upon the court to make orders which 'it may regard as appropriate'; to refrain from others where it is satisfied 'there would be a serious risk of injustice'; and to award and to determine compensation to be payable by the Minister in certain circumstances in respect of loss incurred by the owner of property, are among the aspects of the legislation which may be expected to give rise to difficulties in practice if not in principle."
"However, the resolution of any such problems must await another day," he said.
The challenge was taken by a number of persons against whom CAB has sought orders. The court's decision means the CAB may continue to seek freezing orders and also retains many of its other controversial powers.
The matter was before the court through appeals taken by some persons being pursued by the CAB against a High Court judgment of June 1999, which rejected the challenge to the constitutionality of the 1996 Act. The Supreme Court upheld the High Court's decision to freeze a sum of £300,000.
Chief Supt Felix McKenna, head of the CAB, described yesterday's judgment as "very good" for the bureau.
In his 87-page judgment, the Chief Justice said the effect of the statutory scheme was, subject to limitations, to "freeze" for an indefinite period property which senior members of the Garda suspect to be the proceeds of crime.
This legislation was enacted by the Oireachtas because criminals had developed sophisticated and elaborate forms of money-laundering, he said.
Senior garda∅ had given evidence about the problems posed for the law-enforcement agencies of the State as a result of the significant extension of the practice of laundering the proceeds of illegal activities, such as the import and sale of drugs on a substantial scale.
The Chief Justice said the principal argument on behalf of the appellants was that the provisions of the 1996 Act formed part of the criminal law and not the civil law. It was argued those affected by the Act were deprived of some important safeguards which were historically a feature of the criminal law.
It was specifically submitted that the presumption of innocence was reversed; the standard of proof was on the balance of probabilities rather than beyond reasonable doubt; there was no provision for trial by jury regarding any of the issues and the rule of double jeopardy was ignored.
Rejecting the argument that the Act was criminal in nature, Mr Justice Keane said the court was satisfied such proceedings for the forfeiture of property, even when accompanied by parallel procedures for the prosecution of criminal offences arising out of the same events, were civil in character.
The issue here was not a challenge to a valid constitutional right to property but concerned the right of the State to take, or the right of a citizen to resist the State in taking, property which is proved on the balance of probabilities to be the proceeds of crime.
A person in possession of the proceeds of crime can have no constitutional grievance if deprived of their use, he said.
The Chief Justice also rejected arguments that the procedures operated under the Act were so unfair as to be unconstitutional.