The Proceeds of Crime Act of 1996 affects the right to a fair trial in assuming - without charge, indictment, trial or conviction - the existence of a criminal offence, the Supreme Court was told yesterday.
The legislation under which the Criminal Assets Bureau operates was without precedent anywhere in the English-speaking world and the Act was an "exceptionally rushed" measure passed in an atmosphere of near public hysteria, the court heard.
A challenge to the Act's constitutionality has been taken by John Gilligan, who is serving a sentence for drugs offences in Portlaoise prison, and by another individual and a company who cannot be identified by order of the court.
Proceedings taken by the individual and the company are being heard first by the five judge court and the Gilligan challenge will be heard after these. Much of the legal submissions are common to both hearings, which have come before the Supreme Court by way of appeal from High Court rulings.
Gilligan's proceedings are against the Criminal Assets Bureau, the Revenue Commissioners, the Garda, Ireland and the Attorney General. He is seeking a declaration that the 1996 Act is unconstitutional on a number of grounds.
It is submitted the legislation affects the right to a fair trial in that it assumes, without charge, indictment, trial or conviction, the existence of a criminal offence. It is also argued the Act affects the presumption of innocence in that it assumes, without due process of law, that a person was guilty of a criminal offence.
It is also claimed the Act attacks a person's good name by assuming their guilt without due process of law, charge, indictment, trial or conviction and asks the individual to demonstrate they are not a criminal and had not acquired their assets as a consequence of the proceeds of crime.
Dr Michael Forde SC, who is representing all three appellants, said forfeiture under the Act was not contingent on a person being charged with an offence, let alone a conviction. The Act applied to all crimes.
Even US legislation did not apply to all crimes, Dr Forde said. US legislation required a much closer identification of a crime and the property involved. Under the Act, the crime involved need not have been committed in Ireland and property being confiscated could be anywhere in the world.
In submissions from the individual and the company, they do not contend the Oireachtas cannot pass a law providing for the confiscation of the proceeds of crime. Their case is that the 1996 Act, in its overall structure and particular provisions, does not conform to either the Constitution or the European Convention on Human Rights and Fundamental Freedoms.
It is argued that even the most powerful state in the world submits to the jurisdiction of an international human rights tribunal.
The 1996 Act, it is submitted, was an exceptionally rushed measure passed without careful scrutiny in an atmosphere of near public hysteria. This explained why it had comparatively few sections and did not address a host of important questions which its application was bound to raise.
In particular, it is claimed, the Act contains an extraordinarily broad definition, namely "proceeds of crime" and stated relevant orders would be made or unmade, as the case may be, where "there is a serious risk of injustice".