It is proposed to take amendments Nos. a1 and 9 together. Recommittal is necessary in respect of these amendments as they do not arise out of Committee proceedings.
Private Members' Business. - Criminal Assets Bureau Bill, 1996: Report and Final Stages.
Acting Chairman
Bill recommitted in respect of amendment No. a1.
I move amendment No. a1:
In page 3, line 9, after "THE FINANCE ACT, 1983," to insert "AND THE WAIVER OF CERTAIN TAX, INTEREST AND PENALTIES ACT, 1993.".
This amendment simply changes the Title of the Bill.
I take it this amendment arises out of the discussion on Committee Stage and copperfastens what the Minister thought was implicit in the Bill.
I believe this amendment relates to the amnesty and this section is to deal with an individual who has given false information. Perhaps the Minister will explain the amendment in detail so that Members will understand exactly what it refers to.
There was a discussion on Second Stage between me and the Minister of a vigorous kind in relation to whether the relevant section of the amnesty Act permitted a taxpayer's affairs to be reopened if the statement by the person that the moneys in question were not unlawfully obtained by him was proven to be false. It seems to me that this section is to copperfasten that and to make it clear that the waiver Act is to be amended to make it clear and explicit that that is now a ground on which an application can be made to the appeal commissioners to reopen a taxpayer's affairs. On that understanding I welcome it because there was a possible loophole which ought to be securely closed.
I concur with Deputy McDowell's contribution. This amendment amends section 5 of the 1993 amnesty legislation, that is, the Waiver of Certain Tax, Interest and Penalties Act. As Deputy McDowell has said, there was a vigorous discussion on Second Stage of the Bill on 25 July last. Deputy McDowell put forward a closely argued view of how section 5 of the 1993 Act would operate in relation to certain illegal proceeds. As the Minister stated in his reply on Second Stage, the position needed to be clarified in view of the differences as to how to interpret the Act and detailed legal advice would be needed.
Deputies can be assured that money from illegal sources is clearly outside the scope of the incentive amnesty under the 1993 Act. There is no disagreement on this point. The only question which arises relates to the procedure by which information or evidence of illegal source of funds is to be obtained. Some evidence will be available from the Garda and from the operations of the Criminal Assets Bureau. The new point, however, is whether the Revenue Commissioners can avail of the investigation procedure in section 5 of the amnesty legislation to secure evidence of illegal source of moneys.
Section 5 provides that an inspector will be debarred from continuing an investigation into a taxpayer's affairs in respect of a pre-5 April 1991 period if the taxpayer concerned produces an amnesty certificate received from the chief special collector. That barrier to the continuation of an investigation does not apply if the inspector can satisfy the appeal commissioners that there are reasonable grounds which indicate that the declaration made by the taxpayer did not contain a full and true statement of the declared amounts.
Deputy McDowell was concerned whether the section 5 procedure could apply when what was at issue was the source of the income rather than the amount declared. The Minister has now received the further legal advice as promised. The advice is that there is a difficulty with section 5 and the section should be amended. The effect of the amendment is that there will not be a barrier to the pursuit of an investigation if the appeal commissioners are satisfied that there are reasonable grounds to show that the declaration regarding the source of amnesty funds made by a taxpayer to the chief special collector is false. I commend the amendment to the House.
Amendment agreed to.
Amendment reported.
Acting Chairman
Amendments Nos. 1, 3 and 4 are related and it is proposed that they be discussed together.
I move amendment No. 1:
In page 3, line 26, to delete "a family" and substitute "the family".
I welcome this amendment which extends the compensation Act to cover the family of a bureau member and a bureau member who has retired or left the bureau. An incident which occurred in my constituency of Dublin North-East last year is a classic indication of the necessity for this amendment. In the estate in which I live indiscriminate gunfire was directed at the window of the home of a Garda inspector. Fortunately, nobody was injured, but it could easily have caused death or injury to the garda or to a member of his family. This outrage was linked to drug-related crime in another part of the area in which the garda inspector worked. He has since retired from the force. Another amendment to this Bill will ensure that the protection of the Act will extend to former bureau members.
This amendment also points to the ruthlessness and viciousness of the criminals who are involved in the drug trade — we have already seen the murder of a journalist. I also welcome the extension of cover to solicitors in the Chief State Solicitor's Office.
Amendment agreed to.
I move amendment No. 1a:
In page 5, lines 22 and 23, to delete "or suspected of criminal activity".
Amendment agreed to.
Acting Chairman
Recommittal is necessary in respect of amendments Nos. 1b, 1c, 1d, 1e, 1f and 1g as they do not arise out of Committee proceedings. Amendments Nos. 1b, 1c and 1d may be taken together.
Bill recommitted in respect of amendment Nos. 1b to 1g, inclusive.
I move amendment No. 1b:
In page 5, line 30, to delete "and".
Amendment No. 1c deletes the reference in the original subsection (c) to the investigation of social welfare claimants suspected of being engaged in criminal activity. The original subsection was intended to cover cases involving criminals and their associates. Associates were included because of the possibility of intimidation by these individuals. It is now thought more appropriate to deal with the possibility of intimidation by introducing a specific subsection which is introduced in amendment No. 1d, which allows the Minister for Social Welfare to transfer cases where the Minister has reasons to suspect that officers of that Department may be subject to intimidation of any kind. Amendment No. 1b is a consequential amendment deleting the word "and".
Amendment agreed to.
I move amendment No. 1c:
In page 5, lines 35 and 36, to delete "or suspected to be or to have engaged in criminal activity," and substitute "in criminal activity, and".
Amendment agreed to.
I move amendment No. 1d:
In page 5, between lines 36 and 37, to insert the following:
"(d) at the request of the Minister for Social Welfare, to investigate and determine, as appropriate, any claim for or in respect of a benefit, within the meaning of section 204 of the Social Welfare (Consolidation) Act, 1993, where the Minister for Social Welfare certifies that there are reasonable grounds for believing that, in the case of a particular investigation, officers of the Minister for Social Welfare may be subject to threats or other forms of intimidation,".
Amendment agreed to.
I move amendment No. 1e:
In page 10, line 48, after "the Bureau" to insert ", provided that where such document is adduced in evidence, subsection (7) shall apply".
Amendment agreed to.
I move amendment No. 1f:
In page 11, line 2, after "the hearing" to insert ", provided that, where the identity of such a bureau officer or member of the staff of the Bureau is relevant to the evidence adduced in the proceedings, subsection (7) shall apply".
Amendment agreed to.
I move amendment No. 1g:
In page 11, to delete lines 3 to 10 and substitute the following:
"(7) In any proceedings where a bureau officer or a member of the staff of the Bureau may be required to give evidence, whether by affidavit or certificate, or oral evidence—
(a) the judge, in the case of proceedings before a court, or
(b) the person in charge of the proceedings, in any other case, may, on the application of the Chief Bureau Officer, if satisfied that there are reasonable grounds in the public interest to do so, give such directions for the preservation of the anonymity of the bureau officer or member of the staff of the Bureau as he or she thinks fit, including directions as to—
(i) the restriction of the circulation of affidavits or certificates,
(ii) the deletion from affidavits or certificates of the name and address of any bureau officer or member of the staff of the Bureau, including the deponent and certifier, or
(iii) the giving of evidence in the hearing but not the sight of any person.".
Amendment agreed to.
Amendments Nos. 1b, 1c, 1d, 1e, 1f and 1g reported.
I move amendment No. 2:
In page 11, to delete lines 13 to 40 and substitute the following:
"11. —(1) A person who publishes or causes to be published—
(a) the fact that an individual—
(i) being or having been an officer of the Revenue Commissioners or an officer of the Minister for Social Welfare, is or was a bureau officer, or
(ii) is or was a member of the staff of the Bureau,
(b) the fact that an individual is a member of the family of—
(i) a bureau officer,
(ii) a former bureau officer,
(iii) a member of the staff of the Bureau, or
(iv) a former member of the staff of the Bureau,
or
(c) the address of any place as being the address where any
(i) bureau officer,
(ii) former bureau officer,
(iii) member of the staff of the Bureau,
(iv) former member of the staff of the Bureau, or
(v) member of the family of any bureau officer, former bureau officer, member of the staff of the Bureau or former member of the staff of the Bureau,
resides,
shall be guilty of an offence under this section.
(2) A person guilty of an offence under this section shall be liable—
(a) on summary conviction, to a fine not exceeding £1,500, or to imprisonment for a term not exceeding 12 months, or to both, or (b) on conviction on indictment, to a fine not exceeding £50,000, or to imprisonment for a term not exceeding 3 years, or to both.
(3) In this section references to bureau officer, former bureau officer, member of the staff of the Bureau and former member of the staff of the Bureau do not include references to the Chief Bureau Officer, the Acting Chief Bureau Officer or the bureau legal officer.".
Amendment agreed to.
I move amendment No. 3:
In page 12, lines 17 and 18, to delete "the members of a bureau officer's family or the members of the family" and substitute "any member of the family of a bureau officer or".
Amendment agreed to.
Bill recommitted in respect of amendment No. 3a.
I move amendment No. 3a:
In page 12, between lines 27 and 28, to insert the following:
"14. —(1) A judge of the District Court, on hearing evidence on oath given by a bureau officer who is a member of the Garda Síochána, may, if he or she is satisfied that there are reasonable grounds for suspecting that evidence of or relating to assets or proceeds deriving from criminal activities, or to their identity or whereabouts, is to be found in any place, issue a warrant for the search of that place and any person found at that place.
(2) A bureau officer who is a member of the Garda Síochána not below the rank of superintendent may, subject to subsection (3), if he or she is satisfied that there are reasonable grounds for suspecting that evidence of or relating to assets or proceeds deriving from criminal activities, or to their identity or whereabouts, is to be found in any place, issue a warrant for the search of that place and any person found at that place.
(3) A bureau officer who is a member of the Garda Síochána not below the rank of superintendent shall not issue a search warrant under this section unless he or she is satisfied that circumstances of urgency giving rise to the need for the immediate issue of the search warrant would render it impracticable to apply to a judge of the District Court under this section for a search warrant.
(4) Subject to subsection (5), a warrant under this section shall be expressed to and shall operate to authorise a named bureau officer who is a member of the Garda Síochána, accompanied by such other persons as the bureau officer thinks necessary, to enter, within one week of the date of issuing of the warrant (if necessary by the use of reasonable force), the place named in the warrant, and to search it and any person found at that place and seize and retain any material found at that place, or any material found in the possession of a person found present at that place at the time of the search, which the officer believes to be evidence of or relating to assets or proceeds deriving from criminal activities, or to their identity or whereabouts.
(5) Notwithstanding subsection (4), a search warrant issued under subsection (3) shall cease to have effect after a period of 24 hours has elapsed from the time of the issue of the warrant.
(6) A bureau officer who is a member of the Garda Síochána acting under the authority of a warrant under this section may—
(a) require any person present at the place where the search is carried out to give to the officer the person's name and address, and
(b) arrest without warrant any person who—
(i) obstructs or attempts to obstruct that officer or any person accompanying that officer in the carrying out of his or her duties,
(ii) fails to comply with a requirement under paragraph (a), or
(iii) gives a name or address which the officer has reasonable cause for believing is false or misleading.
(7) A person who obstructs or attempts to obstruct a person acting under the authority of a warrant under this section, who fails to comply with a requirement under subsection (6) (a) or who gives a false or misleading name or address to a bureau officer who is a member of the Garda Síochána, shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500, or to imprisonment for a period not exceeding 6 months, or to both.
(8) The power to issue a warrant under this section is in addition to and not in substitution for any power to issue a warrant for the search of any place or person.
(9) In this section, `place' includes a dwelling.".
The purpose of this amendment is to provide the bureau with an effective means of investigation into suspected criminal assets. Clearly a great deal of the work of the bureau will involve complex and painstaking investigations to uncover the existence of criminal assets and to gather sufficient evidence to support administrative proceedings in relation to them. The circumstances in which funds of this nature are acquired are, particularly secretive, and the manner in which they are held is designed to avoid detection. It is vital that the bureau should have adequate powers to investigate reasonable suspicions of the existence of criminal assets and to uncover financial trails of evidence leading to and from those assets. This amendment, therefore, proposes in subsection (1) that a district judge on application from a garda who is a member of the bureau may issue a search warrant if satisfied that there are reasonable grounds for suspecting that evidence of or relating to assets or proceeds deriving from criminal activities or their identity or whereabouts is to be found in any place.
Subsection (2) contains an emergency provision similar to that provided for recently in the Criminal Justice (Drug Trafficking) Act, 1996, permitting the issue of such a warrant by a garda in the bureau not below the rank of superintendent. This is strictly limited by subsection (3) to circumstances of urgency where a search warrant is needed immediately and it would not be practicable to apply to a district judge.
Subsection (4) sets out the effect of a search warrant which is that it allows a garda who is a member of the bureau, accompanied by other persons if necessary, to search the place named in the warrant and any person at the place at the time of the search. The power in relation to the persons is important as, clearly, it would be self-defeating to allow a search to be frustrated by the simple expedient of a person putting a vital paper or computer disc in his or her pocket. The garda would be permitted under subsection (4) to seize and retain any material found which he or she believes to be evidence of or relating to assets or proceeds deriving from criminal activities or to their identity or whereabouts.
The normal life of a warrant will be one week, but warrants issued by superintendents will, under subsection (5), expire after 24 hours, to emphasise the strictly limited circumstances in which such warrants are contemplated.
Subsections (6) and (7) provide for the effective execution of search warrants to make it an offence with a power of arrest without warrant for a person to obstruct a search under the warrant or to refuse to give his or her name and address or to give a false or misleading name and address.
Subsection (8) states, for the avoidance of any doubt, that the power to issue a search warrant under this section is in addition to any other search warrant provisions there may be.
Subsection (9) makes it clear, again for the avoidance of doubt, that a search warrant under this section can apply to a private dwelling.
Amendment agreed to.
Amendment reported.
I move amendment No. 4:
In page 12, line 30, after "or" to insert "of".
Amendment agreed to.
I move amendment No. 5:
In page 12, between lines 39 and 40, to insert the following:
"15. —(1) Where a bureau officer who is a member of the Garda Síochána has reasonable cause to suspect that a person is committing or has committed an offence under sections 12, 13 or 14 or under section 94 of the Finance Act, 1983, the bureau officer may—
(a) arrest that person without warrant, or
(b) require the person to give his or her name and address, and if the person fails or refuses to do so or gives a name or address which the bureau officer reasonably suspects to be false or misleading, the bureau officer may arrest that person without warrant.
(2) A person who fails or refuses to give his or her name or address when required under this section or gives a name or address which is false or misleading, shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500."
This amendment inserts into the Bill a new section relating to the powers of arrest. The power of arrest will allow Garda bureau officers to make an arrest in the case of the obstruction, intimidation or assault of a bureau officer or staff member of the bureau. The Criminal Justice (Miscellaneous Provisions) Bill, 1996, will provide a power of arrest in all offences where a prison term of at least five years is prescribed on indictment. This will apply to the majority of offences to which this new section applies. However, it is considered appropriate to provide for the power of arrest in the bureau Bill itself, and this is what this does.
Subsection (1) gives to Garda members of the bureau power to arrest without warrant a person where there is a reasonable cause to suspect that the person has committed or is committing an offence. Under sections 12, 13 or 14 of the Bill, namely, obstruction, intimidation or assault, or under section 94 of the Finance Act, 1983, namely, certain revenue offences such as knowingly or willingly delivering an incorrect tax return power is also given such that a person can be required to give his or her address to a garda and if the person refuses to do so or the garda reasonably suspects that the name or address is false or misleading, the person may be arrested without warrant. Subsection (2) makes a refusal by a person to give his or her name and address or giving of a false or misleading name and address an offence in respect of which liability to a fine not exceeding £1,500 arises on summary conviction. I commend this amendment to the House.
On Committee Stage I pointed out that I thought the power of arrest was a good idea for the offences under this Bill but I am slightly concerned that I heard the Minister refer to the power of arrest without warrant for somebody who is suspected of making a false tax return. That is a fairly stringent power. Whereas we are all for stringency, that is a very wide power. Perhaps the Minister will amplify her reply. It seems strange that if one is suspected of making a false tax return that one can be arrested without warrant.
The power of arrest without warrant is not for someone suspected of making a false tax return. It is for someone who is suspected of knowingly or willingly making a false tax return.
That is the same as far as I can see. I have my doubts.
Amendment agreed to.
I move amendment No. 6:
In page 12, between lines 39 and 40, to insert the following:
"16. —Where a person is charged with an offence under section 13 or 14, no further proceedings in the matter (other than any remand in custody or on bail) shall be taken except by or with the consent of the Director of Public Prosecutions.".
This amendment inserts a new section into the Bill. On Committee Stage some concern was expressed that prosecution under sections 13 and 14 could arise in relation to an assault on or intimidation of a bureau member where there was not any connection between the assault or intimidation and the work of the bureau itself. I understand that Deputy McDowell was particularly concerned about this. It was suggested that the consent of the Director of Public Prosecutions should be required for prosecution of offences under sections 13 and 14 of the Bill. Those sections relate to assault or intimidation of bureau members or their family. Because of the severe penalties provided for and the widely drawn nature of the sections it was considered by the committee that it would be a safeguard if the consent of the DPP was required for prosecution. This would ensure that prosecutions were only taken under these sections in respect of assaults on the member or on a bureau officer's family where such assaults were connected to the work of the bureau. This suggestion of the committee is accepted and the amendment provides that the DPP's consent is required in order that a prosecution can be taken under sections 13 or 14. I commend the amendment to the House.
Amendment agreed to.
Bill recommitted in respect of amendments Nos. 7 to 9, inclusive.
I move amendment No.7:
In page 13, to delete lines 7 to 11 and substitute the following:
"(3) The provisions of the Garda Síochána (Compensation) Act, 1941, and the Garda Síochána (Compensation) (Amendment) Act, 1945, shall, with any necessary modifications, apply to—
(a) bureau officers and members of the staff of the Bureau, and
(b) the Chief State Solicitor and solicitors employed in the Office of the Chief State Solicitor, in respect of injuries maliciously inflicted on them because of anything done or to be done by any of them in a professional capacity for or on behalf of the Bureau, as they apply to members of the Garda Síochána.".
This amendment substitutes a new subsection (3) of section 15 of the Bill. That subsection extended the powers of the Garda Compensation Acts to bureau officers and to members of the staff of the bureau. This amendment further extends the provisions of the Garda Compensation Acts to include the Chief State Solicitor and solicitors employed in the Chief State Solicitor's office in respect of injuries maliciously inflicted on them because of their involvement in the work of the bureau. I commend this amendment to the House.
I thought I raised on Committee Stage the issue of whether it should apply to former members of the bureau. Has that been considered or is it covered by the earlier amendment?
I am advised that that has already been dealt with.
With another amendment?
Yes.
That is fair enough.
Amendment agreed to.
I move amendment No. 8:
In page 14, between lines 26 and 27, to insert the following:
"21.—(1) Section 184 of the Income Tax Act, 1967, is hereby amended by the substitution of the following subsection for subsection (3) (inserted by the Disclosure of Certain Information for Taxation and Other Purposes Act, 1996) of that section:
`(3) In this section, "information" includes information received from a member of the Garda Síochána.'.
(2) Subsection (4) (as amended by the Disclosure of Certain Information for Taxation and Other Purposes Act, 1996) of section 144 of the Corporation Tax Act, 1976, is hereby amended by the substitution of the following paragraph for paragraph (b) of that subsection:
`(b) In this section, "information" includes information received from a member of the Garda Síochána.'.
(3) Paragraph (d) (inserted by the Disclosure of Certain Information for Taxation and Other Purposes Act, 1996) of subsection (6) of section 12 of the Stamp Act, 1891, is hereby deleted.
(4) The proviso to subsection (7) (as amended by the Disclosure of Certain Information for Taxation and Other Purposes Act, 1996) of section 39 of the Capital Acquisitions Tax Act, 1976, is hereby deleted.
(5) Subsection (2) (as amended by the Disclosure of Certain Information for Taxation and Other Purposes Act, 1996) of section 104 of the Finance Act, 1983, is hereby amended by the substitution of the following proviso for the proviso to that subsection:
`Provided that the Commissioners may withdraw an assessment made under this subsection and make an assessment of the amount of tax payable on the basis of a return which, in their opinion, represents reasonable compliance with their requirements and which is delivered to the Commissioners within 30 days after the date of the assessment made by the Commissioners pursuant to this subsection.'."
This amendment in the form of a new section amends a number of tax provisions which had been amended earlier by sections 5 to 9 of the Disclosure of Certain Information for Taxation and Other Purposes Act, 1996. The Minister for Justice has asked that the provisions relating to the passing of Garda information to Revenue in that Act be amended. The provisions introduced in the 1996 Act clarify that Revenue may use information received from the Garda in making assessments and provide that where Revenue uses such Garda information it may not reveal the Garda source of information except with the permission of the chief superintendent. The Minister for Justice is concerned with the latter provision. Her concern is that the provisions in relation to the source of information may set an undesirable precedent in criminal justice legislation and undermine the generally accepted practice whereby the Garda can protect its sources. Accordingly, it has been decided to delete all references to Garda sources introduced in the 1996 Act. The Garda will introduce administrative procedures governing the level at which information is passed to the Revenue.
This provision amends a number of taxation provisions relating to the making of assessments on foot of information received in the absence of a return. Subsection (1) amends section 184 of the Income Tax Act, 1967, in relation to the making of an assessment to income tax. It removes the proviso inserted by the Disclosure of Certain Information for Taxation and Other Purposes Act, 1996, stipulating that the source of Garda information used in an assessment could only be released with the consent of the chief superintendent. However, it leaves intact the right of an inspector to use Garda information in making an assessment as provided for in the 1996 Act. Subsections (2) and (5) make similar provision in the case of assessments relating to corporation tax. stamp duties, capital acquisitions tax and residential property tax respectively.
Amendment agreed to.
I move amendment No. 9:
In page 14, between lines 26 and 27, to insert the following:
"22.—Section 5 of the Waiver of Certain Tax, Interest and Penalties Act, 1993, is hereby amended in subsection (1) by the substitution for `arrears of tax, as the case may be' of `arrears of tax, as the case may be, or that the declaration made by the individual under section 2 (3) (a) (iv) is false.'.".
Amendment agreed to.
Amendments No. 7 to 9, inclusive, reported.
Question proposed: "That the Bill do now pass."
I am not clear that the Garda Síochána Compensation Act provision applies to former members. Will the Minister check that that is the case before the Seanad deals with the matter? Form the amendments here I do not understand that it applies to former members. I may be missing something.
I can assure the Deputy I will have the matter checked.
We welcome the passage of this Bill and the sooner it is passed by the Seanad and enacted into law the better. We hope this Bill will do the job it sets out to do. It is one of the tools which many of us believe is required to get at the assets which criminals possess and may be a significant weapon in dealing with the drug barons. Heretofore, we have failed, through lack of legislation or whatever, to get at the assets and create the massive disincentive that is necessary to run the drug barons out of this country. I sincerely hope the Criminal Assets Bureau Bill will make a significant contribution. I ask the Minister to keep the Bill under review as it becomes operational. Some amendments or additions may be necessary and if we identify any we will certainly urge the Government to bring them forward. We urge that the Bill be signed and enacted into law as soon as possible so that the bureau will have the full weight of the law behind it.
I assure Deputies it is our intention to enact the Bill as quickly as possible and it will be going to the Seanad on 9 October. Any areas of doubt or concern, such as those raised by Deputy McDowell, will be double checked between now and then.
I thank Members from all sides for their tremendous interest in and co-operation in dealing with this legislation, enabling its speedy passage. The only question it begs is how it took all sides of the House so long to get to the point of implementing this type of legislation and putting in place the bureau. I thank the Members who contributed so vigorously on Committee Stage. It was a very constructive debate and contributed towards forming the amendments passed here. I thank the staff here for their co-operation and the staff in the Department of Finance for their commitment to the Bill.
Question put and agreed to.