By Eoin Marsh
The High Court has dismissed human-rights challenges brought by John Gilligan and Geraldine Gilligan over proceedings taken against them under the Proceeds of Crime Act 1996.
The cases formed part of long-running litigation involving the Criminal Assets Bureau. Earlier constitutional challenges to the 1996 Act had already failed in the Supreme Court.
In the present proceedings, both plaintiffs sought to rely on the European Convention on Human Rights Act 2003. They sought declarations that provisions of the 1996 Act were incompatible with Ireland's obligations under the Convention and also claimed damages.
Mr Justice Feeney held that this route was unavailable because the relevant section 3 proceeds-of-crime orders and the litigation in which they were made predated December 31, 2003, when the European Convention on Human Rights Act came into force.
The judge followed the Supreme Court's decision in Dublin City Council v Fennell, which established that the 2003 Act does not retrospectively apply to past events or litigation already pending when it commenced. Later applications within those existing proceedings did not convert them into new Convention claims.
The court nevertheless considered the substantive arguments in case that conclusion was wrong.
One argument was that the proceeds-of-crime regime was effectively criminal or penal and therefore engaged Article 7, which protects against retrospective criminal penalties. Feeney J rejected that submission. He held that proceedings under the 1996 Act are civil, directed against property rather than the conviction or punishment of an individual.
John Gilligan also argued that the procedure breached his Article 6 right to a fair hearing, including because of alleged uncertainty over section 3, the burden of proof, delay and access to legal aid.
The court found no breach. It held that the legislation provided safeguards, including the ability to apply under section 3(3) to discharge or vary an order, and that Gilligan had known for years that this procedure was available before eventually using it.
Both plaintiffs' claims were dismissed and the declarations sought were refused.