First published in the Sunday Business Post 12 June 2016
The photographs of a smiling John Gilligan at the Four Courts last week suggest that the convicted drug dealer revels in his unrelenting crusade to challenge the legality of every piece of legislation that has ever crossed his path.
We should thank him.
The Criminal Assets Bureau (Cab) is constitutionally robust as a consequence. Cab’s powers of civil forfeiture mean that assets from the proceeds of crime can be seized on the civil burden of proof rather than the usual burden in criminal matters of beyond reasonable doubt.
Veronica Guerin’s murder and Gilligan’s constitutional challenges fundamentally shifted the default Irish psychological position of protecting property rights.
Gilligan’s actions have enabled justice minister Frances Fitzgerald to announce astonishing new Cab reforms without as much as a raised eyebrow from the Irish Council for Civil Liberties.
Picture this scenario. A Cab officer is on her coffee break. She sees someone she has a reasonable suspicion is a drug dealer on a motorbike. The officer has reasonable grounds to believe this property is derived from the proceeds of crime. The motorbike can be confiscated immediately under what’s known as the power of administrative restraint.
Although Cab must seek the court’s permission at a later date, this far-reaching power means that Cab can constitutionally interfere with an individual’s property rights. This power was already on the books but only applied to a property with a value of more than €13,000. Under the new reforms, the threshold will be reduced to €5,000 to purposely target low-level street criminals.
Cab’s sweeping powers are quite simply extraordinary. But Cab has become a victim of its own success. Drug barons can no longer run their cartel operations from Ireland. Ill-gotten wealth derived from criminal enterprise is almost untouchable from confiscation in other jurisdictions such as Spain.
Those on the frontline fighting the war against drugs welcome Fitzgerald’s Cab reforms. But they only amount to an umbrella in a hurricane.
The Minister for Justice knows this, which is why she held bilateral meetings with her Spanish, British, Dutch and Belgian counterparts last week in an attempt to coordinate Irish and international intelligence services.
Two decades ago, Ireland responded to Gilligan’s Irish drug empire with the innovative establishment of Cab. Two decades later and our response to the Christy Kinahan international drug cartel is inward-looking.
Living on an island lends itself to insular thinking.
This is how Irish insular thinking has enabled the Spanish-based Kinahan drug cartel which the Financial Times has valued at €1 billion to operate.
The Criminal Justice (Joint Investigation Teams) Act has been on the Irish legislative books since 2004 but never used. Under the 12-year old Act, the Garda Commissioner can request another EU country to establish a joint investigation team (JIT) with another European jurisdiction.
A JIT is a specialised team consisting of judges, prosecutors and law enforcement authorities which are established for a temporary period with the specific purpose of carrying out joint criminal investigations with different jurisdictions.
Ireland has never conducted a formal joint investigation under this EU JIT legislation with the Spanish authorities, nor any authority, into the Kinahan gang.
Ireland is one of the few EU countries to have never used this powerful tool.
Ireland has one garda deployed in Madrid and has developed informal links with the Spanish authorities. But this is still only umbrella-in-a-hurricane territory. This is how out of the international loop Ireland is in the fight against transnational organised crime.
Eurojust, an EU body established to enhance the investigation and prosecution of serious cross-border and organised crime, published its 2015 annual report recently.
Eurojust supported 120 JITs in 2015 to combat organised crime, drug trafficking, terrorism, money laundering, counterfeiting and other criminal activities. Ireland did not participate in a single one of these 120 EU JIT initiatives last year.
In the period 2009 to 2015, Eurojust funded 409 JITs. The only four EU countries not to participate were Ireland, Greece, Italy and Croatia (which joined the EU in 2013).
Ireland’s hands-off approach to fighting international cartels has not gone unnoticed. In 2014, the Council of Europe conducted a review of Ireland’s fight against serious crime.
The conclusions were damning.
The Council of Europe said that there was “insufficient awareness and some degree of misconception amongst practitioners about the role of Eurojust, how Eurojust works, the role of the Eurojust National Coordination System, and member states’ obligations under Article 13 of the Eurojust Decision”.
The review also concluded that there was a “need to raise awareness so that Ireland can consider the possibility of using Eurojust tools, such as coordination meetings and Joint Investigation Teams, and benefiting from Eurojust funding.”
The 20th anniversary of Veronica Guerin’s murder falls two weeks from today. The best way to honour her legacy is to depart from the Gilligan-inspired but outdated response to organised crime. Instead, Ireland must wholeheartedly and quickly embrace international tools for fighting Irish organised crime.