MR JOHN GILLIGAN, on remand in an English prison on drug trafficking charges, failed in the Dublin High Court yesterday to get an order preventing the State applying today for the appointment of a receiver over his properties.
Mr Justice Morris, refusing the application, said the relief sought was liberty to seek a judicial review to quash a certificate of November 19th, 1996, issued by the Criminal Assets Bureau.
It authorised the Revenue Sheriff to levy the sum of £1,147,139, presumably, said the judge, on the assets of Mrs Gilligan.
Mr Gilligan also wanted permission to challenge the constitutionality of the Proceeds of Crime Act 1996.
Mr Brian Langwallner, for Mr Gilligan, said the application had been brought as quickly as possible. This morning's application would be for the appointment of a receiver over various properties including Jessbrook House, Mucklon, Enfield, Co Meath, two houses in Lucan, other properties, in Co Kildare, a house in Blanchardstown and a number of cars.
Mr Langwallner said he understood the State intended to sell or make the property marketable and available for sale. The worst that could happen was that the properties could be sold at potential under value. His client might be able to sell at a greater price. He would lose his family home.
Mr Langwaller said there had been difficulty in contacting and getting instructions from Mr Gillian, who is held in a high security prison.
Mr Justice Morris said if he granted the application the persons going to be affected were not before him to argue their case.
Mr Langwallner said the State would not be unduly prejudiced. The Act was draconian. It allowed the State to go in and seize property, on the assumption that Mr Gilligan was a criminal. That was not a proven fact compared with similar English and US legislation, the Irish statute was more draconian on one specific fact the lack of any charge. The Irish Act required Mr Gilligan to prove", his innocence.
This was contrary to a myriad of constitutional provisions on such matters, including fair procedures, burden of proof, the presumption of innocence, and the right of adequate access to the court.
Mr Justice Morris said it is suggested this was a proper case for the court to set aside formalities because, if matters were to be dealt with in an orderly way, the consequences for Mr Gilligan would be catastrophic in that his assets and his home would be sold.
He had been told it was extremely difficult for Mr Gilligan's legal representatives to get instructions because he was in a high security prison.
In considering whether he should set aside formalities and short circuit matters, Mr Justice Morris said he had to look at the consequences not only for Mr Gilligan but for others involved.
He was far from satisfied that it was not in Mr Gilligan's capacity to mount a challenge earlier than the day before the hearing.
If he were to grant the order sought to challenge the constitutionality of the Act, then the working of the Act would be brought to a halt and that would mean the revenue sheriff or receiver would have on their hands wasting assets generating significant expenses.