Vol. 452 No. 7
1 Mr. O'Donoghue asked the Minister for Justice the views, if any, she has on whether the powers available to the Garda Síochána to have money in bank accounts frozen in the course of a criminal investigation are adequate. [8519/95]
The Criminal Justice Act, 1994 confers powers on the courts to order the seizure and confiscation of criminal proceeds where a person is convicted of drug trafficking or another serious criminal offence.
Section 24 of the 1994 Act empowers the High Court to make restraint orders freezing assets which may be liable to realisation if a confiscation order is made at a later stage. The effect of a restraint order is to prohibit any person from dealing with the property to which the order applies. Applications for these orders are made by the Director of Public Prosecutions. They can be made without the need to give notice to a party against whom an order is sought.
The circumstances in which a restraint order may be made are set out in section 23 of the 1994 Act. Subsection (1) (a) of that section provides that the court may order property to be restrained where proceedings have been instituted against a person for a drug trafficking offence or for an indictable offence other than a drug trafficking offence and a confiscation order has either been made or may be made. Subsection (1) (b) of section 23 allows the High Court to make a restraint order where the court is satisfied that proceedings are to be instituted and it appears that a confiscation order may be made. This provision ensures that a restraint order can be obtained before a person is arrested or charged with an offence.
In this context I should also mention section 63 of the Act which permits the Garda Síochána to apply to the District Court, for the purpose of an investigation into drug trafficking, money laundering or an offence in respect of which a confiscation order may be made, for an order requiring the disclosure of material which is relevant to the investigation. Failure to comply with an order made under section 63 is a criminal offence.
In the circumstances, Deputies will appreciate that the 1994 Act contains very extensive provisions which enable our law enforcement authorities to identify and to secure restraint and confiscation orders in respect of the proceeds of drug trafficking and other criminal activity. The relevant sections of the Act came into operation in November 1994 and I am keeping them under active review. If they do not prove to be effective I will consider what further legislative changes in this area may be necessary and practicable. Deputies will be aware, of course, that the extent to which the Oireachtas can seek to interfere with private property rights is limited by the Constitution.
There is no doubt that certain sections of the Criminal Justice Act, 1994, came into force almost 100 days after the Brinks Allied robbery and represented the greatest piece of political procrastination since Nero watched Rome burn. Will the Minister for Justice define what she considers to be a realisable asset?
The Criminal Justice Act, 1994, was brought in by a previous Minister last year. The sections of the Act which I signed into order on 2 May required the setting up of a committee of the financial institutions that would be required to make known lodgments where they thought money laundering or some other nefarious act had led to the availability of these assets. That committee commenced its work last year and was still sitting when I took office. Any criticism the Deputy may have about the length of time it took to implement those sections of the Act should be levelled at somebody else. When I took office I made sure that work was completed so that I could bring those sections of the Act into operation.
Realisable assets would be such things as money and property. The section 24 power allows for restraint orders to freeze assets which might be realisable; in other words, to freeze property or moneys that a person might be able to get rid of so that by the time it came to confiscate that money, in the event of a confiscation order being made, it might have already been disposed of. That is what I understand realisable assets to mean.
I respectfully suggest to the Minister that there is no power in Irish criminal law for the Garda to freeze money in the course of an investigation of a crime. In other words, where money is the suspected proceeds of criminal activity the Garda Síochána has no power to freeze those assets. If the Minister accepts that will she agree to the Fianna Fáil Bill, the Criminal Law (Proceeds of Crime) Bill, 1995?
Deputy O'Donoghue made this statement before. In The Irish Times of 1 May 1995 he is quoted as saying there was still no provision in law that would allow the courts to freeze suspect money in the course of a criminal investigation. This statement is not true. Section 23 (1) (b) of the Criminal Justice Act, 1994, allows a restraint order to be made against the assets of a person who is being investigated for a drug trafficking or another serious offence before criminal proceedings are instituted.
In regard to Deputy O'Donoghue's Bill, it would not be appropriate at Question Time to indicate my attitude to a Bill that has not been brought before this House. The Law Reform Commission moved away from the proposal contained in Deputy O'Donoghue's Bill because it said it would be unconstitutional. The Deputy is attempting to seize the assets of a person before a conviction. The Act, now in place, allows for the freezing or restraint of assets while a court case is taking place. Our Constitution would not allow the confiscation of a person's assets before a conviction. Certainly we can freeze and restrain assets during an investigation and a court case.
It is wrong of Deputy O'Donoghue to continue to perpetuate the impression that the law does not allow for the freezing or restraint of assets during an investigation and before a conviction. What it does not allow is the confiscation of those assets before a conviction because that would be in breach of the personal provision in the constitution. It restrains people from realising those assets or doing anything with them.
This Act was carefully examined and following that it was decided that the only way to ensure that we meet the requirements of the Constitution — Article 43 specifically — would be to provide for the making of confiscation orders following a conviction. In the event of any attempt to go beyond that, the relevant provisions in the Act would undoubtedly have serious constitutional implications and could conflict with our obligations under the European Convention on Human Rights. I repeat, this Act allows restraint and freezing orders on the assets before a conviction is obtained.
Deputy O'Donoghue's question will have to be brief and relevant. Clearly, the Chair cannot dwell unduly long on any one question where the House is bound by very rigid time limits.
There are no powers in our criminal law available to the Garda to freeze money in banks in the course of a criminal investigation.
Clearly, this is repetition.
The Minister hides behind the Constitution. Is the Minister aware she has power to freeze assets in the course of an investigation, if they are the assets of an unlawful organisation, under the Offences Against the State (Amendment) Act, 1985? How does the Minister reconcile her view that the proposal contained in my Bill is unconstitutional, when such a power exists under the 1985 Act?
That is sufficient in the circumstances.
This question is not about Deputy O'Donoghue's Bill. The other issue raised by the Deputy related to legislation enacted for a specific purpose. The reality is that the 1994 Criminal Justice Act confers powers on the courts to order the seizure and confiscation of criminal proceeds where a person is convicted, and section 24 empowers the High Court to place restraining and freezing orders. I want it to be clear that those powers are there and are already being used in our courts.
