18
December 1997
SHANLEY
J
THE
BACKGROUND
On
20 June 1996 Anthony Felloni was sentenced to 20 years imprison-ment on four
counts relating to the Misuse of Drugs Acts 1977 to 1984. On 10 October 1996
Luigi Felloni was sentenced to six years imprison-ment in relation to three
offences under those same Acts. On 17 October 1996 Regina Felloni was sentenced
to six years and nine months imprisonment in respect of one offence under those
Acts. All of the offences in relation to which the three members of the Felloni
family were convicted were drug trafficking offences.
Prior
to the conviction of each of the three members of the Felloni family Carney J
made an order on 4 April 1996 prohibiting the Fellonis from dealing with all
their realizable property on the grounds that the same constituted a receipt by
the defendants in connection with drug trafficking. Carney J further ordered
that the defendants be restrained in respect of all moneys held by them or each
of them in any account which they hold with the Bank of Ireland, Rotunda
Branch, Dublin 1; Alhed Irish Banks, O'Connell Street, Dublin 1; Irish Civil
Service Building Society, Westmoreland Street, Dublin 2; Irish Permanent
Building Society, St Stephen's Green, Dublin 2. It was further ordered by
Carney J that the plaintiff (the DPP) be at liberty to notify the making of the
order to the defendants and each of them by telephone message confirmed by
facsimile and by letter and that the defendants be at liberty to apply to the
Court to set aside the order on giving 24 hours notice of the said application
to the plaintiff. There was liberty given to the plaintiff under the order to
notify the said Banks and Building Societies of the making of the order and
both parties were given liberty to apply.
In
the events that occurred there was no application to set aside the order of
Carney J and the order which he had made (being an order under
section 24 of
the
Criminal Justice Act 1994) remained, in a sense, undisturbed until an
application to vary his order was brought before the High Court on 2 May 1997.
Morris J, who heard the application, refused to vary the order which was, as I
say, an application to vary pursuant to
section 24(2) of the
Criminal Justice
Act 1994 so as to allow the defendants obtain certain moneys to dis-charge
legal expenses. Morris J refused to vary the order on the grounds that the
applicants, the Fellonis, (1) had not sought free criminal legal aid and (2)
had not satisfied him that they could not fund their cases from sources other
than those to which the order of Carney J related.
In
May 1997 an application was made by the defendants (Anthony Felloni, Luigi
Felloni and Regina Felloni) to Judge Cyril Kelly in the Circuit Court for a
certificate of free legal aid for the purpose of defending an application by
the DPP for confiscation under
section 4 of the
Criminal Justice Act 1994. On
that date in May, Judge Cyril Kelly made an order granting to each of the
defendants a certificate for free legal aid. That order remains unappealed and
has not been set aside by way of judicial review.
On
2 July 1997 Judge O'Connor commenced a hearing in the Circuit Court under
section 4 of the 1994 Act. It appears that an issue arose in the course of
those proceedings as to whether or not what was proceeding before the Circuit
Judge was or was not a criminal proceeding. The lawyers who were advising the
three Fellonis in their application were concerned that, if it transpired that
the proceeding was a civil proceeding, the order made by Judge Cyril Kelly
granting them a certificate for free legal aid, relating as it would do only to
a criminal proceeding, would be worthless.
Alarmed
that such a consequence might result, it appears that the lawyers acting on
behalf of the defendants wrote to the Department of Justice enquiring as to
whether or not the legal aid scheme (first introduced by the
Criminal Justice
(Legal Aid) Act 1962) would cover the proceeding in question. On 15 July 1997
the Department of Justice wrote as follows to a lawyer representing the
Fellonis:
"Dear
Mr Orange, I am directed by the Minister for Justice, Equality and Law Reform
to refer to your letter of the 3 inst in relation to proceedings instituted by
the DPP under the provisions of the
Criminal Justice Act 1994 to seize various
assets of the Felloni family as being the proceeds of drug trafficking. In so
far as legal aid is concerned, the position is that
section 2 of the
Criminal
Justice (Legal Aid) Act 1962 provides for the granting of legal aid to a person
charged with an offence. As in these proceedings your clients have not been
charged with any offence, payment of your fees would not arise under the
provisions of that Act."
That
was the view of the Department, a view which was not taken any further in the
sense of challenging the order that had been made by Judge Cyril Kelly granting
a certificate of free legal aid to the Fellonis.
At
this stage I should mention that while some concern was being expressed, which
concern was heightened by the Department's letter of 15 July 1997, as to
whether or not Judge Cyril Kelly's certificate would cover what might arguably
be seen as a civil proceeding, no application was made to the Legal Aid Board
or to any solicitor employed by that Board for civil legal aid. That is, in a
sense, explained by the Fellonis in the affidavits which I have had before me
in that they say that they are very anxious to retain the solicitor and counsel
whom they had earlier retained in relation to criminal and other proceedings
under the
Criminal Justice Act 1994.
Today's
application is to vary the order of Carney J of 4 April 1996 to allow access to
the defendants' funds identified by him in his order for the purpose of paying
legal expenses. Such an application is clearly envisaged by
section 24(2) of
the
Criminal Justice Act 1994. The legal expenses sought by the defendants are
for the purpose of paying the fees of their lawyers at the hearing of an
argument before Judge O'Connor in the Circuit Court under
section 4 of the 1994
Act as to whether a confiscation order should be made in respect of the assets
identified in the restraint order of Carney J. Each of the defendants has filed
affidavits on this application and each of them recites that the deponent "has
no assets or funds that are not included within the ambit of the order of Mr
Justice Carney."
Restraint
orders were made against one or more of the defendants in Belfast (on 16
October 1997) and in London (on 23 October 1997) in relation to six accounts,
five of those accounts being in Belfast and one of those accounts being in
London. None of these accounts were disclosed by the defendants on this
application when it was originally made. They were disclosed in the affidavit
of Chief Superintendent O'Driscoll of 19 November 1997. The defendants explain
their failure to disclose those other accounts (the subject matter of restraint
orders made in Belfast and London) by saying that they beheved these six extra
accounts were in fact covered by the wording of the order of Carney J.
CONCLUSIONS
There
is in existence a valid order granting the defendants a certificate of free
legal aid. It was made by Judge Cyril Kelly in the Circuit Court. The letter
dated 15 July 1997 from the Department of Justice does not change this. The
order remains valid and enforceable unless overturned on appeal or quashed on
application of the Department, which latter event has not occurred. The
defendants remain entitled, therefore, to legal aid under the 1962 Act as
amended. Even if the Department's letter was to be taken into consideration, on
a preliminary construction of
section 4 of the 1994 Act it does appear to me
that the criminal offences which each of the defendants are charged with are
offences in relation to which proceedings are not concluded until after the
issue of confiscation has been dealt with by the Circuit Court.
If
one looks at
section 3(16)(f) of the 1994 Act one sees that proceedings for an
offence are concluded:
"
(i) when the defendant is acquitted on all counts;
(ii)
if he is convicted of one or more counts, but no application for a confiscation
order is made against him or the court decides not to make a confiscation order
in his case; or
(iii)
if a confiscation order is made against him in connection with those
proceedings, when the order is satisfied,"
On
a perusal of that subparagraph of
section 3 of the
Criminal Justice Act 1994 it
seems to me, therefore, that the criminal proceeding in which each of the
Fellonis were convicted does not conclude until such time as the issue of
confiscation has been determined. If that be the case, it seems to me that,
prima facie, the grant of a legal aid certificate to the Fellonis in the course
of such a criminal proceeding (as undoubtedly it was a criminal proceeding) was
a perfectly appropriate order for Judge Cyril Kelly to have made and that there
would be extreme difficulty in impugning it in any way.
Having
formed the view that prima facie the grant of legal aid to the Fellonis was a
grant to persons who had been charged with offences in criminal proceedings,
where those proceedings have not concluded it is inappropriate for this Court
at this stage to assume that the views expressed by the Department are correct.
As I say, on a preliminary perusal of the statute it seems to me that, on the
contrary, the Department's views are incorrect.
If
I am wrong in the view that I have just expressed, I would not be disposed to
vary the order of Carney J for the following reasons:
(1)
The Fellonis can still apply for civil legal aid. While they will not have the
solicitor of their choice, they will undoubtedly have the barrister of their
choice.
(2)
I have not any evidence before me that such a situation, if it obtained, would
cause any serious injustice to the Fellonis. I have, of course, the averments
made by them that their preference is to have the solicitor and counsel of
their choice continue to act for them. However, whilst that may be their
preference, I have not had set out in any detail any grounds satisfying me
that, in the event of them obtaining civil legal aid, any prejudice would
result if their original counsel, but not their original solicitor, acted for
them in the resumed hearing before Judge O'Connor.
In
any event, I am quite unhappy that the defendants have come into Court without
apparently making full disclosure of the facts as they knew them. It does seem
to me that the grounding affidavits of each of the Fellonis should have
revealed the existence of the six other accounts which have been revealed by
the Garda Siochana in the affidavit that has been put before this Court. I find
it hard to beheve that the Fellonis felt that the six accounts (being the
accounts in Belfast and London) were in fact caught by the general restraint in
the order of Carney J where he expressly goes on to make a restraint order in
respect of four particular accounts. I have to confess that, if I were looking
at the order, I would not see it as embracing the accounts in Belfast and
London. However, that is the excuse advanced by the Fellonis for not referring
to those accounts on making this application. On this application I do not
propose to determine whether they are telling the truth or not, this being an
application on affidavit. Nonetheless, it does allow me to express the view
that I do find it hard to believe -- and I go no further than that -- that they
believed that these six accounts were caught by the general restraint in the
order of Carney J.
Finally,
even if I were to accept that the omission was bona fide, that they genuinely
believed that all the accounts were caught by the order of Carney J, the
situation remains that there is in existence an order granting the defendants
free legal aid which has not been appealed or set aside. If it is set aside,
the defendants have the option of applying for civil legal aid, although it
seems to me to be a criminal proceeding that is at hearing before Judge
O'Connor. If civil legal aid is refused and if Judge Cyril Kelly's order in
respect of criminal aid is quashed, the
Criminal Justice Act 1994 allows the
Fellonis to again apply to this Court under the provisions of
section 24(2) for
a variation of the order of Carney J. And if they do apply in those
circumstances and make full disclosure, there can be no doubt that serious
consideration will be given to their application by the High Court. However, at
this time I propose refusing their application.
