Dáil Éireann debate -
Tuesday, 2 Apr 1996

Vol. 463 No. 6

Criminal Justice Act, 1994 (Section 44) Regulations, 1996: Motion.

Minister for Justice (Mrs. Owen)

I move:

That Dáil Éireann approves the following Regulations in draft:—

Criminal Justice Act, 1994 (Section 44) Regulations, 1996

a copy of which was laid in draft before the Dáil on the 13th day of March, 1996.

On taking office I examined the Criminal Justice Act, 1994 and expedited as far as possible the implementation of sections 32 and 57 which relate to activities which might take place in banking and financial institutions and the reporting of suspicious lodgments of large amounts of money. I discovered on taking office that those institutions had been given a period of time in which to prepare and train staff to implement those sections of the Act. The clock was already running when I took up office — they had been given until April to put those regulations into force and to complete training. They sought an extension of at least two months. I gave them an extra couple of weeks to finish their work. I then implemented those sections which I felt were immediately urgent to have the necessary regulations in place in our financial institutions.

I am pleased to introduce this motion to seek approval for regulations to be made under section 44 of the Criminal Justice Act, 1994. The purpose of the regulations is to enable the State to seize drug trafficking money being imported into or exported from the State in the form of cash. They prescribe the amount of money above which suspected drug trafficking cash may be seized under section 38 of the Criminal Justice Act, and will allow that section, and the whole of Part VI of the Act, to be fully implemented.

Section 38 empowers the Garda Síochána and Customs and Excise officers to seize cash relating to drug trafficking which is being imported into or exported from the State provided that the sum is not less than a certain amount to be prescribed under section 44. I propose under these regulations to prescribe that amount as £5,000.

Deputies will be aware that large amounts of cash are generated by drug trafficking and that supplies of illegal drugs are frequently purchased in cash. As a result, consignments of cash derived from or intended for use in drug trafficking are regularly moved across international borders. With the removal of exchange controls it is essential that our authorities have the wherewithal to seize such consignments as and when they are detected. Section 38 of the Criminal Justice Act will, with the introduction of these regulations, give them that power. With the making of the regulations, a member of the Garda Síochána or a Customs and Excise officer will now be able to seize and detain cash being imported into or exported from the State where it amounts to £5,000 or more and where the Garda or Customs and Excise officer has reasonable grounds for suspecting that the cash is derived from, or is intended to be used in, drug trafficking. Any cash so seized can initially be detained for a period of 48 hours. An order for the continued detention of the cash may be made by the District Court for a period of up to three months and further such orders may be made for a total period of two years.

Furthermore, the seized cash may be forfeited if, on application to it, the Circuit Court is satisfied the cash represents drug trafficking proceeds or was intended for use in drug trafficking.

Deputy O'Donoghue asked at Question Time why this was not introduced before now. My immediate priority when taking over this office was to make sure that the sections dealing with our financial institutions where people might launder or try to hide money were implemented as quickly as possible. I then proceeded to look in a broad way at all the areas dealing with drugs and drug trafficking. I was anxious to make sure the best methods of co-operation existed between the Customs and Excise and the Garda Síochána when implementing this section because money of this nature can be seized by both the Garda and the Customs. This is the background against which it was important to get some of those structures into place so that when this section was being implemented I could be satisfied it would work and prevent the movement of such quantities of cash resulting from drug trafficking.

I have chosen to prescribe the minimum amount of cash that may be seized and detained as £5,000. This is a tough measure, but Deputies can be assured that its effects will be felt by drug traffickers, not by anyone legitimately taking cash into or out of the country. The limit of £5,000 and the terms of section 38 of the Act will ensure that this measure is properly targeted. My aim is to ensure that effective action can be taken by the Garda Síochána and the Customs and Excise in seizing cash consignments of the size associated with drug trafficking. In electing for the amount of £5,000, I am proposing stronger measures than those in effect in, for example, the UK, where the amount is fixed at £10,000. This demonstrates the Government's determination to deal with the scourge of drug abuse and in particular to punish those who indulge in the deadly trade of drug trafficking by endeavouring to deprive them of their ill-gotten gains.

Drug trafficking is one of the most destructive evils in society. Lured by the prospect of huge financial gains, drug dealers are willing to go to any lengths to ensure their activities continue unhindered. This vile trade results in the destruction of many, mainly young, lives, and causes much misery to the family and friends of those caught up in the deadly grip of drugs. To prove successful in the war against drugs we need to target every aspect of the illegal drug trade, one of the most obvious of which is the cash on which it functions. These regulations will enable the full force of the law to be brought to bear on drug profits. By seizing not only drugs, but also the cash which buys drugs, we can increase the pressure on drug traffickers and set about reducing the supply of drugs onto the market. We have the successful efforts of the Garda and other agencies in taking drugs out of circulation. We have seen tensions building up among criminals and I have no doubt it is because they are being denied the profits they would make had they got their hands on much of the drugs that have been captured by the Garda Síochána and others.

The introduction of the regulations is part of a series of legislative measures I will bring forward in the context of a comprehensive package aimed at dealing with drug abuse and the criminal activities which it spawns. Deputies will be particularly aware of the Criminal Justice (Drug Trafficking) Bill before the Dáil at present. That is one of the most important criminal justice measures to come before this House. The measures in the Bill will increase Garda powers of detention in relation to suspected drug traffickers, with a maximum period of detention of seven days, and will allow members of the Garda Síochána not below the rank of superintendent to issue search warrants in suspected drug trafficking cases where a warrant is urgently required.

I will also, in the very near future, bring forward further measures that will bring into force the few remaining parts of the Criminal Justice Act, 1994 which do not yet have effect. Most of the Act is in force and is a vital weapon in the fight against illegal drugs, particularly as regards the confiscation of the proceeds of drug trafficking. Notwithstanding that a confiscation order has not been signed, a power which did not exist two years ago now exists. A great deal of work has been done in preparing the ground for the implementation of the remainder of the Act. I will briefly outline my plans in this regard for the information of the House. I intend to bring into operation in the very near future Part V of the Act which provides that anything that would constitute a drug trafficking offence if done on land in the State will also be an offence if done on an Irish ship. In addition, the Garda Síochána, Customs and Excise officers and members of the Naval Service will be empowered to stop, board, search and detain a ship suspected of being used in drug trafficking, even, in some circumstances, if the ship is outside Irish territorial waters. This will form an important element in our co-operation with the international community in combating drug trafficking at sea, a problem which of its very nature demands a united and co-ordinated approach.

I will also greatly strengthen Ireland's role in international co-operation against crime by bringing into operation Part VII of the Criminal Justice Act. This will enable Ireland to sign and ratify the European Convention on Mutual Assistance in Criminal Matters, a long overdue development in our criminal law which will enable us to play a full part in the co-operation with other countries which is so necessary. In addition, I will bring regulations before this House, under Part VII, which will provide for the enforcement, by means of orders under Irish law, of orders made by foreign courts for the confiscation and forfeiture of property acquired by or as a result of drug trafficking offences or other serious crimes. These measures will greatly strengthen the hands of the law enforcement agencies, in this country and abroad, in dealing with the drugs menace. The drugs problem, and the impact it has on other crime, is an issue I regard with the utmost seriousness. If tough measures have to be taken to deal with it, I will not shrink from that, whether it is increased powers of detention under the Criminal Justice (Drug Trafficking) Bill or seizure of cash under these proposed regulations. My concerns are shared by Deputies on all sides of the House and they will join with me in sending out a clear and unmistakable signal to anyone involved in drug trafficking that we mean business. I ask the House, therefore, to endorse the making of these regulations by approving the motion before it.

Deputy O'Donoghue raised a matter in a parliamentary question that did not refer to this section of the Act and I told him that I would refer to it. A number of the clauses of the 1994 Act were enabling provisions and it was left to me to do the detailed complex work of bringing in the regulations. The Act did not cover the detailed work of bringing in the regulations. I was glad to be able to introduce this new regulation and add further to the powers of the Garda Síochána.

Mr. O'Donoghue

At the outset I pay tribute to the former Minister for Justice, Deputy Geoghegan-Quinn, who was responsible for drafting and putting through this House the Criminal Justice Bill, 1994, one of the most enlightened pieces of criminal legislation on the Statute Book.

As the Minister rightly pointed out, various provisions in the 1994 Act were to be introduced by regulation. The money laundering provisions of the 1994 Act were introduced by the Minister for Justice 100 days after the Brinks Allied raid, when the greatest money laundering operation in the history of the State was under way. That represented the greatest act of political procrastination since Nero watched Rome burn. Since then the Minister for Justice has shown herself to be adept at procrastination.

Section 38 and all of Part VI of the 1994 Act are now being implemented but it was the duty of the Minister for Justice on assuming office to introduce those regulations. The Minister does not seem to appreciate that she has been Minister for Justice since December 1994. In those circumstances one would have thought the Minister would have given up her constant references to what her predecessor should have done. The Minister knows that the former Minister for Justice who drafted the 1994 legislation did not have the opportunity to implement the necessary regulations, but she has. The greatest example of political procrastination since Nero watched Rome burn has been surpassed. It took 16 months to bring the regulations to implement the provisions of this Part of the Act before the House. There is no excuse for excessive delays of that kind; to say the least it is mind boggling. At a time when we were witnessing regular substantial drug hauls and bank robberies the Minister for Justice ignored calls not just from the Fianna Fáil Party but the Garda authorities to implement the necessary legislation pursuant to Part VI of the Criminal Justice Act, 1994. That could be done quite simply. The Minister for Justice had only to specify the sum the authorities could seize or confiscate pursuant to section 38 of the Act. It took the Minister for Justice, and the rainbow coalition Government, 16 months to decide the magic figure should be £5,000. No amount of excuses in the midst of what we have seen in the past 16 months can justify that kind of delay and dereliction of duty.

Another example can be found when one looks at the situation in the security industry. At the time of the Brink's Allied raid I said it was of fundamental importance that the Minister for Justice and the Government introduce regulations for the security industry for fear there would be a repeat. Almost one year to the day later there was a replica raid in Waterford where a security firm was involved. It was abundantly clear that the most basic regulation was breached, which, of course, was that the Garda or Army escort or both would travel with the carrier of the money until such time as it was safely put away. It was abundantly clear there should have been regulations to provide for that but there were no regulations. Once again the Minister for Justice promised that the matter would be reviewed.

I referred already to the question of reviews, committees, sub-committees, interdepartmental committees and commissions. There is no substitute in the final analysis for action and, unfortunately, we have not seen that action. It is extraordinary to say the least that we have seen the same kinds of delay in relation to the implementation of Part VI of this Act as we saw with the introduction of the money laundering provisions and as we are still seeing in bringing in regulations to regulate the security industry. This begs the question as to why all the procrastination. I cannot understand it. It is difficult for any rational person to understand why it should have taken so long to implement the regulations. When the Minister was presented with an Act by her predecessor all she had to do was to present the draft regulations to the House. Why did it take so long to introduce these measures? Measures brought before the House by the Minister for Justice on each occasion appeared to have had the gestation period of the elephant.

Mrs. Owen

The Deputy should use a new line. I am fed up hearing that one.

Mr. O'Donoghue

This is inexcusable. The essential drug trafficking provisions of the Fianna Fáil Misuse of Drugs Bill were ignored by the Minister when she introduced her drug trafficking Bill. It is severaly deficient for several reasons, not least the decision that an application for detention in court would not be ex parte. An application to the court for the continued detention of a suspected drug trafficker should be ex parte. The fact that it is not means the prosecuting authorities must go to court in an adversarial way and release the information they hold in regard to the suspect. That can only damage their case. The argument was made more than once in this House that this would not be constitutional, but suspects detained, for example, under the Criminal Justice Act, 1984, do not have to be given the information on which the Garda based its suspicions. Likewise, suspects detained under the 1984 Act, whose period of detention is being extended by a superintendent, do not have to be given the information on which he reached his decision, nor must they be given an opportunity to make submissions as to why they should be released. A similar provision pertains to persons detained under section 30 of the Offences Against the State Act, 1939.

I humbly submit that in circumstances where it is obvious in legal precedent on the Statute Book that this power of detention can be ex parte or that the application to court can be made ex parte the application should be ex parte in regard to suspected drug traffickers. Everybody knows that people who engage in drug trafficking deserve the full rigours of the law to root them out and to build evidence for a trial. Releasing information prior to a trial is not in the interests of a successful prosecution.

In outlining the object failures of the Minister in this and other areas, I am trying to be as constructive as possible. Our criminal laws need to be tightened. Drug pushing and the drug culture are getting a grip on this country. In those circumstances existing failures and lacunae that need to be filled must be spelt out in stark language.

Mr. M. McDowell

I welcome the opportunity to speak on this measure. I do so in the absence of Deputy O'Donnell, our Justice spokesperson who is not available today. It is time that the Minister tendered a complete and unreserved apology and withdrew the remarks she and Deputy Hogan uttered in this House to the effect that Deputy O'Donnell had in some way abused the confidence of a Garda briefing. I was in possession of all the information Deputy O'Donnell had before she tendered any questions on the matter in this House. Her contribution to this House was not based on a Garda briefing, but on information available to her from another source at all material times. I ask the Minister to be woman enough to take this opportunity of a discussion on this subject to withdraw unreservedly the imputation against Deputy O'Donnell fostered by the Minister and Deputy Hogan to the effect that Deputy O'Donnell abused the confidence of a Garda briefing and spoke in this House on that basis to the detriment of a Garda operation. That, most emphatically, is not the case and is a charge that should be withdrawn. Doubtless the opportunity will be taken to withdraw it some day. It is sad that a Deputy should be maligned in this way by a Minister. It is equally sad that the Minister will not come before the House and admit that the information on which Deputy O'Donnell acted in this House was available to her from another source well in advance of a Garda briefing offered to her by the State and that in no sense did she compromise herself or the Garda Síochána by using or abusing information thrust upon her by the Minister by way of that briefing offered.

Mrs. Owen

She did not have to take it.

Mr. M. McDowell

Instead of interjecting to that effect, the Minister would be better advised to withdraw the imputation she made against Deputy O'Donnell. It was false and repeated in newspapers, which will have to account in a different forum to Deputy O'Donnell for the falsehoods they published about her.

Regarding this measure, the problem with the 1994 Act is that the confiscatory powers are all predicated on the establishment of criminal liability on the part of the person in respect of whose property the confiscation regime is to be operated. That is offensive to reason. Recently we were told, but this may be untrue as was the case with the vast majority of what we were told about the Urlingford seizure, that people were detained in Dublin carrying money in anticipation of some deal relating to drugs. It is extraordinary that under this Act those moneys could not be proven to be the proceeds of drug trafficking because, to prove them to be such, one must establish an offence of drug trafficking to predicated any seizure order or confiscation order. Such moneys could not be seized under the general seizure provision in respect of other offences because a principal offence giving rise to the existence of these moneys cannot be proven. It is time to change the law dealing with moneys found on people suspected of drug offences and to allow for confiscation without prosecution and conviction for a criminal offence. There is not a constitutional objection to such a measure being put in place.

If I were caught passing through Dublin with £250,000 in my possession and a reasonable inference could be drawn from the circumstances in which I were caught that such money was for the purposes of committing an indictable crime, in particular a drug trafficking offence, it should be open to the State to apply to the courts to confiscate that money, even if they cannot establish a principal offence other than possession of the money. We need a new offence, that of being in possession of moneys in circumstances which give rise to a reasonable interference that such moneys were for the purposes of an indictable offence. A law along those lines would be a far more potent weapon than the law set out in the 1994 Act.

The problem with that Act as it applies to drug trafficking offences or offences generally is that it is predicated on a court order convicting somebody of an offence from which the moneys are supposed to have derived. That is unacceptable. We need a law which, on the civil balance of probability, would make moneys found in the possession of persons in circumstances which give rise to the reasonable inference that they were in their possession either as the proceeds of a criminal offence or for the purpose of committing another criminal offence liable to confiscation on a civil standard of proof. No infringement of the Constitution would arise in such circumstances. The particularly narrow ambit of the 1994 Act is unduly restrictive and conservative. I thought so at the time of its passage but did not have an opportunity to express those opinions in the House.

It is worthwhile emphasising that it would be perfectly in order to reverse the onus of proof in certain cases, as is done here in relation to some matters where a statement is served on the person from whom the money is seized, to require that a person should give an account of how they came into possession of certain moneys, even without their conviction for a criminal offence. In that context I suggest something akin to the provisions of the Offences Against the State Act, 1972, which allowed opinion evidence of a senior garda in respect of moneys found in someone's possession to the effect that they represented the proceeds of crime or, alternatively, were in the person's possession for the purpose of committing an indicatable offence as a prima facie measure of proof which would give rise to an obligation on the part of an accused person to provide another lawful explanation as to how they came to be in possession of the moneys.

The public will not stand for a situation where people can be found transporting large sums of money without an explanation being given. Because the right to silence, so carefully maintained by the Government, is available and no explanation is ever tendered or required, such people can travel at liberty throughout the State carrying large sums of money when everybody knows that the sums of money in question must be either earmarked for some unlawful purpose or, alternatively, the proceeds of some unlawful activity unspecified. We should act, as a society, to stop that situation from persisting.

This is not an academic discourse on my part. If any of the highly speculative and inaccurate material generated from one particular source about the Urlingford drugs episode is true, it would tend to suggest that a sum of £230,000 was found in the possession of certain people in circumstances which give rise to the inference that they had it in their possession for the purpose of doing some drugs deal, but that sum does not appear to be confiscatable under this Act in present circumstances. We have to reach the stage of making our law real as this country faces a drugs crisis.

During the debate on the Justice Estimates last year when I sat beside Deputy O'Donnell I said that Mountjoy was awash with drugs, I was told by the Minister in rather schoolmarmish tones not to use exaggerated language.

Mrs. Owen

Why does the Deputy always refer to women as schoolmarmish?

Mr. M. McDowell

It would be schoolmasterly, if it was Deputy O'Donoghue. The Minister should not be so sensitive about gestation periods, schoolmasters and schoolmarms.

Mrs. Owen

I have yet to hear the Deputy say the same about a man in the House. He must be sexist.

Mr. M. McDowell

On that occasion I was told by the Minister in condescending tones not to use excessive language——

Mrs. Owen

I accept that.

Mr. M. McDowell

——but the cavalry came to my rescue in the form of Deputy Eric Byrne who used exactly the same phrase without any rebuke, schoolmarmish or not, from the Minister. Last weekend's papers provided the ultimate proof there is one drugs seizure a day in Mountjoy. On whom do I rely for that information? The answer is the governor of that institution. In the meantime I have been privileged to be informed that the Minister is establishing a drugs free special unit in Mountjoy for those prisoners who want to take refuge from the drugs epidemic in that institution.

This country has not yet got real on the drugs issue. It is enough to have a law which permits the confiscation of certain sums of money, but only if a criminal offence in respect of those moneys is shown to have been committed. That is not a sufficient weapon in the war against the drug barons. In these circumstances it is not enough to put in place the measures in this Act. We need something more. The time has come — and is well past — to put in place real and substantial measures which would represent a challenge to those confronting the State with the drugs problem.

I agree fully with the Minister's proposed drug trafficking legislation. I have said it before in her absence and repeat that she should have dovetailed it with reasonable measures to curtail the right to silence because the godfathers behind this trade will be well able to avail of the right to silence and even withstand five to seven days in detention in order to save their skins. In the future a jury dealing with a drug trafficking offence should be in a position to draw an inference from an accused person's failure to give an explanation until the date of their trial or to give any explanation at all.

If the Minister had taken a more benign and less conservative view of the legislation tendered by Deputy O'Donnell, her own drug trafficking Bill would have been far more effective in adopting a twin-track approach as this would have brought about a change in the law relating to drug offences and drug barons and, at the same time, a general change in the law relating to the right to silence, the chief weapon of defence of the real masterminds behind the drug scourge.

Minister for Justice (Mrs. Owen)

I thank the two Deputies who contributed to the debate. As I always have to anticipate in respect of any debate on justice issues, I did not get a resounding vote of thanks for what I am doing as that would go against the grain. I would probably be so shocked if either of the two Deputies dared to congratulate me or even murmur a word of appreciation that I would not be able to say a word. I am glad to be in a position to bring these regulations forward. Neither of the two Deputies spoke against their introduction.

Deputy O'Donoghue paid tribute to my predecessor for introducing the 1994 Act. I indicated that it was in place when I took office. Many of it sections contained enabling provisions only. Legislation will only have an impact when all of its sections are given effect by way of regulations. That was the job which faced me when I took office. Although the Act had been passed in mid-1994 many of its sections had not been implemented.

I am used to criticism and will continue to be subjected to it until I move on to another Department, if the Taoiseach sees fit, after we have been returned to office following the next election. The reality is that when I took office I immediately sought to implement some sections of the Act but I was bound by an agreement entered into with the financial institutions by my predecesor, Deputy Geoghegan-Quinn, which allowed them a period of time within which to train their staff before the sections could be implemented. It would have been impractical and highhanded of me not to honour that commitment. I am bringing in the regulations now because the various structures are in place to ensure their implementation.

I cannot remember if the Progressive Democrats Party voted against the Bill in 1994. I am sure its members did not do so as it would not want to publicly vote against legislation dealing with a serious criminal law issue. However, Deputy McDowell seems to be implying that the Act is obsolete. He said it should be amended to allow for confiscation without a criminal prosecution. I am implementing the regulations under the Act as it stands. The issue of whether the Act needs to be amended or strengthened is for another day.

Under the Act the standard of proof will be applicable to civil proceedings. That was inserted in the Act to ensure there would be less stringent necessities of proof and that confiscation orders could be put in place.

Mr. M. McDowell

I am worried about the onus of proof.

Mrs. Owen

I realise that but we cannot arrest people simply because they carry money. Perhaps criminals use people who are not known to the Garda to carry money for them. However, some business people hold sizeable amounts of cash on their property. Some people use cash all the time, which is unwise in this day and age. Others do not like using credit cards and cheque books. I do not want to stop legitimate business people carrying quantities of cash. This regulation deals with the import and export of money at ports of entry and not with stopping people on O'Connell Street and arresting them if they are carrying large sums of money. It is part of the Act passed by the House in 1994, all sections of which will be gradually implemented.

I will review the Act to ensure its powers are sufficiently strong. I set the figure at £5,000. It is £10,000 in the UK. Obviously the authorities there feel that is the amount of money people carry around.

Deputy O'Donoghue mentioned the security industry. There is an ongoing review of that industry. Last Saturday week I was handed yet another submission on how regulations should be implemented. A number of jurisdictions have found it difficult to reach a conclusion on how to regulate the industry. I was approached by members of the industry some years ago to see if regulations were contemplated. There is a working group in the Department of Justice to which members of the industry make submissions. I hope to make decisions on its study before the end of my term in office.

This is an important and necessary regulation. I hope to bring other parts of the Act into operation soon to ensure that the most stringent regulations are in place and that the ill-gotten gains of those involved in drug trafficking are confiscated and cannot be used to further this evil trade.

Question put and agreed to.