The legislation under which the Criminal Assets Bureau operates is essentially a criminal law dressed up in civilian clothing, it was asserted in the Supreme Court yesterday. It did not carry the normal protections of fair criminal procedures, including the presumption of innocence.
Dr Michael Forde SC was continuing his submissions in a challenge to the constitutionality of the 1996 Act taken by John Gilligan, who is serving a sentence for drugs offences in Portlaoise Prison, and by another man and a company who cannot be identified by court order. Dr Forde is representing all three.
The Proceeds of Crime Act, 1996, essentially compelled persons to prove they were not criminals, he said. No democratic state with a similar constitution had enacted a similar law and all comparable measures were constructed as criminal laws.
Under the Act, an innocent owner of property deemed by the CAB to be the proceeds of crime could not be compensated, Dr Forde said. The Act infringed the presumption of innocence and the privilege against self-incrimination and breached provisions of the Constitution and international law.
If a little more thought had gone into the Act, it might be workable, counsel said. But it was a measure aimed at crime "godfathers" which was rushed through the Oireachtas in response to public outrage over the murder of journalist Veronica Guerin.
Continuing his arguments yesterday, Dr Forde urged the five-judge court to look behind the 1996 Act. Like the Trojan horse, it was not as it appeared, he said. It was essentially a criminal law. In no other civil action did the entire onus of proof rest on the defendant.
It forced people into admitting involvement - however peripheral - in crime without affording them the protections of fair criminal procedures.
If the Supreme Court struck down the Act, the State could still get at the proceeds of crime through the tax system.
Criminal law arrest, questioning and search powers had been used to build up CAB cases.
The hearing continues today.
