Supreme Court: John Gilligan loses challenge to freezing and disposal of assets

About this case:

• Judgment:
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In the Supreme Court, Mr Gilligan and various members of his family brought a number of appeals concerning property seized by the Criminal Assets Bureau (CAB). The property at issue was subject to a disposal order under the Proceeds of Crime Act 1996, and the Gilligan’s sought to challenge the order made – contending that there had not been a fair trial as provided for in the Constitution.

Issues under appeal

Firstly, the Gilligans appealed three judgments of the High Court: firstly, the judgment of the 27th January 2011 concerning applications brought by the Gilligans pursuant to s. 3(3) of the Proceeds of Crime Act 1996, and two judgments delivered on the 20th December 2011 in respect of; s. 4 applications brought by CAB in respect of properties owned by the Gilligans; and a challenge to the Proceeds of Crime Act 1996 on grounds based on the European Convention on Human Rights.

In addition, Gilligan’s sought to set aside a judgment of the Supreme Court delivered on 19th December 2008 – which Justice Dunne referred to collectively as the “Greendale” motions.

After setting out the various motions before the Court, Ms Justice Elizabeth Dunne stated that at the heart of the appeal was firstly the “Greendale” motions; and secondly the contention that “there was no trial of the issue as to whether or not the property at issue was acquired directly or indirectly with the proceeds of crime when the operative s. 3 order was made freezing the property in the hands of the Gilligans” pursuant to the Proceeds of Crime Act 1996. It was contended that there was no valid s. 3 order; therefore the 27th January 2011 hearing before Justice Feeney was without jurisdiction and could not stand, and ultimately no disposal order under the Proceeds of Crime Act 1996 could be made in respect of the property.

The Greendale Motions

The decision of the Supreme Court in Re Greendale Developments Limited (No. 3) 2 IR 514 set out the position as to setting aside a judgment of the Supreme Court.

Thus, the Gilligans brought a series of “Greendale” motions seeking to rescind the aforementioned final judgment of the Supreme Court delivered in 2008.

It was contended that there was an “incompleteness” to the judgment – that there were a number of express findings undermining the s. 3 orders made, but that the Court failed to proceed to explore the consequences of those findings.

At this stage, Justice Dunne emphasised that a final judgment or order of the Supreme Court is not easily rescinded or varied; and that the purpose of a Greendale application is not to permit an aggrieved party to argue a point or issue that could have been raised previously which was not in fact raised or indeed, to reargue a point or issue previously raised.

Justice Dunne was satisfied that the Gilligans failed to establish an entitlement to revisit the 2008 Supreme Court judgment “by reason of any matter that would bring them within the Greendale jurisprudence”. Justice Dunne said “the remedy under a Greendale application has been described as one that can only arise in rare and exceptional cases”, and that “it should be something extraneous to the proceedings themselves”.

For the Gilligan’s to succeed, it would have been necessary to show that “through no fault of theirs, they had been the subject of a breach of their constitutional rights” – Justice Dunne was satisfied that there had been no such breach, and that there was nothing extraneous in the circumstances of the case “going to the very root of the fair and constitutional administration of justice which would necessitate the setting aside of the judgment of the Supreme Court”.

The operative section 3 order

Justice Dunne stated that the Proceeds of Crime Act 1996 gives a party affected by a s. 3 order a number of opportunities to challenge the making of a s. 3 order:

If the making of a s. 3 order is not opposed, a party affected by such an order is not precluded from bringing such a challenge at a later stage in the proceedings.

Justice Dunne was satisfied that there was a full trial of the real issue in the case, namely whether the properties concerned were acquired directly or indirectly by the proceeds of crime. At the trial, the evidence initially produced by CAB remained in substance the same as it relied on in all subsequent court appearances, whether moved on its behalf or on behalf of the Gilligans – thus there were multiple opportunities to engage with the evidence or to challenge its authenticity, reliability or value.

Further, the essence of what CAB asserted was never undermined, and must therefore be taken to have reached a status comparable to that required of any applicant in proceedings where the legal onus of proof rests upon it.

Dismissing the applications on the Greendale motions, and all of the appeals, Justice Dunne stated that in all the circumstances she was satisfied that the Gilligans obtained a fair trial in Convention terms.