Gabhaim buíochas le Fine Gael as ucht an Bhille seo a chur os comhair na Dála, go háirithe leis an Teachta O'Dowd as an obair dhícheallach a rinne sé ina thaobh. Cé nach n-aontaíonn an Rialtas le gach atá ráite aige, tá sé oiriúnach go mbeadh seans ag an Teach seo díospóireacht a dhéanamh ar chúrsaí a bhaineann le drugaí.
I apologise for the absence of the Minister for Justice, Equality and Law Reform, Deputy McDowell, to debate the Proceeds of Crime (Amendment) Bill 2003. Deputies will understand that events elsewhere today require his presence.
The Government opposes the Proceeds of Crime (Amendment) Bill 2003. In saying so I do not wish to imply criticism of the motivations behind the proposals contained in it – far from it. Apart from the fact that much of the proceeds of crime may not be related primarily to the drugs area, there is probably a much more fundamental matter relating to why funds raised in particular areas are not dedicated specifically to the purpose of dealing with that precise area.
I have some sympathy for Deputy O'Dowd and his colleagues, Deputies Stanton, English and Gay Mitchell in tabling the Bill and the earnestness with which they pursued it. However, they will appreciate, for example, that old age pensions, education, health and so on are provided by the State and have to be funded by resources raised from taxation and other ways. If one were to designate specifically funds raised in a particular area there is a host of services which would have no way of competing, some of which I have just mentioned.
The Government is determined to fight the evils of drug dealing and drug misuse and to reduce the harm which these activities inflict on individuals, families and entire communities. The Government aims to do this by addressing the areas of supply reduction, prevention, treatment and research as set out in the national drug strategy about which I will speak later.
Further evidence, if it were needed, of the need for continued efforts in this fight is contained in the results of the study released yesterday on the prevalence of drug use on this island. This study, the first of its nature carried out on an all-island basis, was commissioned jointly by the National Advisory Committee on Drugs in this jurisdiction and the Drug and Alcohol Information and Research Unit in Northern Ireland. While it placed Ireland, relative to other European states, somewhere in the middle of the table in relation to drug use, it reminded us all, as the chairperson of the NACD said, that we need to continue our work to target drug users and encourage them away from drug misuse.
The Government opposes this Bill primarily on the grounds that there is a Bill currently before the House, the Proceeds of Crime (Amendment) Bill 1999, which is at a more advanced stage and which would be a more appropriate context in which to submit and debate proposed amendments to the main Act, the Proceeds of Crime Act 1996. To remind Deputies of progress on the 1999 Bill, the Government had approved the drafting of the Bill to amend the Proceeds of Crime Act 1996 in a number of technical respects, arising from the experience of the Criminal Assets Bureau in operating the Act.
The main provisions of the Bill as published include provision to enable the Criminal Assets Bureau to make applications under the Act in its own name, as opposed to a member of the Garda Síochána of at least chief superintendent rank or an authorised official of the Revenue Commissioners, as at present, and for any document issued by the bureau to be accepted as authentic, unless the contrary is shown; clarification that the details of property and income, as well as the sources of that income, which a respondent is required to reveal to a court may not be used in evidence in any criminal proceedings against either the respondent or a spouse; removal of any doubt there may be over when a person may be said to be in possession or control of property for the purposes of the Act, even when it has been seized from the person by the Garda Síochána; and changes to the 1996 Act regarding such matters as the submission of evidence under the Act, and the variation of freezing orders for certain purposes, such as the enforcement of taxes or court orders for the recovery of money.
The Second Stage of the Bill was concluded in October 2000 but the Bill was not progressed further pending the outcome of a number of court challenges to the Proceeds of Crime Act 1996. Following those court cases and recent consultations with the Criminal Assets Bureau, a number of additional proposals for inclusion in the Bill are now being proposed as official amend ments to the Bill on Committee Stage. The Minister for Justice, Equality and Law Reform has obtained the approval of the Government to draft amendments for inclusion in the Proceeds of Crime (Amendment) Bill 1999, currently on Committee Stage in the Dáil, and to move the amendments after they have been drafted in the Office of the Parliamentary Counsel.
I would like, on behalf of the Minister, to inform the House of these proposed amendments to the Proceeds of Crime (Amendment) Bill 1999. On Committee Stage, these proposals can be debated fully and, as I have stated earlier, the opportunity for further proposals for amendments can be afforded to the House.
There are 18 proposed amendments in total in two Parts. The amendments in the first Part, some of which give statutory effect to decisions of the courts, deal with the enhancment of provisions of the 1996 Act. The amendments in the second Part arise following publication of the Second Interim Report of the Tribunal of Inquiry into Certain Planning Matters and Payments, the Flood report, in September 2002. At that time, consideration was given to setting up a separate corruption assets bureau, along the lines of the Criminal Assets Bureau. However, after further consideration of this proposal and following consultations with the Office of the Attorney General, it is considered that a separate corruption bureau is not required and that the existing activities of the Criminal Assets Bureau in the fight against corruption could best be bolstered by the inclusion of additional amendments to the Proceeds of Crime Bill.
Head 1 of the proposed amendments is to provide that the definition of "proceeds of crime" in section 1 of the Proceeds of Crime Act 1996 be amended to include any property obtained or received at any time through criminal conduct of one of a number of kinds, each of which would be an offence, rather than just by or as a result of or in connection with the commission of one particular offence. "Proceeds of crime" is defined in the original Act as "any property obtained or received at any time (whether before or after the passing of this Act) by or as a result of or in connection with the commission of an offence".
The Criminal Assets Bureau seeks an amendment to this definition to indicate that it is not necessary to show that the conduct was of a particular kind of criminality if it is shown that the property was obtained through conduct of one of a number of kinds, each of which would be an offence. For example, where it is impossible to say funds are derived from a particular kind of criminality, say, drug-dealing, money-laundering, extortion or prostitution, when on the balance of probabilities it is from one or some or all of these, it would suffice to show that the property was obtained through conduct of one of a number of kinds, each of which is an offence.
The wording of the amendment is based on provisions contained in the UK Proceeds of Crime Act 2002. Part 5 of that Act enables recovery in civil proceedings of property which is or represents "property obtained through unlawful conduct" for which the Act goes on to provide that it is sufficient if it is shown that the property was obtained through conduct of one of a number of kinds, each of which would have been unlawful conduct.
Head 2 inserts, into the definition of "the respondent" in section 1 of the Proceeds of Crime Act 1996, the phrase "wherever domiciled, resident or present" in regard to a person in respect of whom an application for an interim order has been made or in respect of whom such an order has been made and includes any person who, but for the Act, would become entitled, on the death of the first mentioned person, to any property to which such an order relates, being an order that is in force and is in respect of that person. This amendment is based on the decision in McKenna v. EH, High Court, 18 July 2001, in which Finnegan J. held that it was the duty of the court to give effect to the intention of the Oireachtas. In this case the judge was satisfied that that intention was that persons outside the jurisdiction with assets inside the jurisdiction which represent the proceeds of crime should be subject to the procedures of the Act. Accordingly, he refused to set aside the order giving liberty to the plaintiff to serve notice of the plenary summons outside the jurisdiction. This issue was also referred to in McKenna v. M. & ors, High Court, 12 February 2003. The addition to the definition is based on wording used in section 243 of the UK Proceeds of Crime Act 2002.
Head 3 deals with the issue of extraterritoriality and provides that the following section be inserted in the Proceeds of Crime Act 1996:
The provisions of this Act shall have effect (i) to pursue proceeds of crime in the State where the person concerned is in another state [or territory] or (ii) to pursue proceeds of crime in another state [or territory] where the individual is in the State, regardless of where the crime has been committed.
The issue of extraterritoriality has been considered in a number of cases. In DPP v. Hollmann, High Court, 29 July 1999, O'Higgins J. held that the Act could be applied to pursue the proceeds of crime in this jurisdiction where the offence was committed abroad. This was upheld by Finnegan J. in McKenna v. EH, High Court, 18 July 2001, and McKenna v. M & ors, High Court, 12 February 2003. Following these decisions this provision ensures Irish courts (i) have jurisdiction over cases where the person and or the proceeds are within the jurisdiction, even if the crimes or some of them are committed abroad, and (ii) can appoint a receiver over assets abroad.
Heads 4 and 5 amend section 3 of the Proceeds of Crime Act 1996 to enable a section 3, interlocutory, order to be obtained in a summary manner and ensure rules of court may be applied. The purpose of providing that section 3, interlocutory, orders are obtained "in a summary manner" is to ensure a special summons procedure and that, as a result, defendants will be obliged to respond to proceedings on affidavit and so avoid the need for particulars and discovery at an early stage in the process. The need for this amendment was highlighted in the Supreme Court case, FK v AF and JF, 102/01, 30 January 2002, which decided that in the absence of any legislative provision to the contrary proceedings under the Proceeds of Crime Act must be commenced by plenary summons.
Head 6 introduces the concept of a "Consent disposal order" whereby the court may make an order, on application to it by consent of all of the parties, directing that the whole or, if appropriate, a specified part of the property be transferred, subject to such terms and conditions as the court may specify, to the Minister for Finance or such other person as the court may determine. The subsequent provisions in relation to a disposal order granted in the normal way would also apply to such consent disposal orders. For example, the respondent is deprived of his or her rights in or to the property, the Minister for Finance may sell or otherwise dispose of the property etc.
Section 4 of the Proceeds of Crime Act 1996 provides that where property has been the subject of an interlocutory order for a period of seven years, an application may be made to the High Court by the Criminal Assets Bureau for a disposal order whereby the property is transferred to the Minister for Finance. As proposed in the Private Member's Bill under debate, the CAB has sought a proposal whereby the seven year period might be reduced in situations where there is consent by the parties involved and the court is satisfied that no injustice is caused. However, the CAB says that in some cases the individuals concerned want to see final closure on the proceedings and the CAB is of the view that a provision of this type is beneficial for those situations.
Head 7 provides that in any proceedings taken under the 1996 Act, the provisions of section 11(7) of the Statute of Limitations shall not apply. Confusion has arisen in a number of court cases where it has been assumed, incorrectly, that proceeds of crime applications come within the class of action that must be made within two years under section 11(7) of the Statute of Limitations 1957 relating to certain forms of statutory forfeiture. In McK v. H, High Court, 12 April 2002, No. 10531P / 2001, and McKenna v. M & ors, High Court, 12 February 2003, Finnegan J. held that this is not so and this amendment inserts a clarifying section.
Head 8 clarifies section 6(b) of the Proceeds of Crime (Amendment) Bill 1999, as published, with the insertion of the phrase “under this Act” after the word “proceedings” to make it clear that it is proceedings under the 1996 Proceeds of Crime Act to which reference is made.
As I outlined, Part II of the proposed amendments deals with corruption and the extension of the existing activities of the Criminal Assets Bureau to the fight against corruption. Head 9 provides for the insertion of a new section 13A into the 1996 Act to allow for orders to be made to make material available for civil Proceeds of Crime Act purposes. This section is modelled on section 63 of the Criminal Justice Act 1994 and allows a member of the Garda to apply to the court for an order to make material available for the purposes of an investigation into whether a person has benefited from, is in receipt of, or controls proceeds of crime.
The terms "member" and "authorised officer" are defined in the Proceeds of Crime Act 1996. Member means a member of the Garda Síochána not below the rank of chief superintendent and authorised officer means an officer of the Revenue Commissioners authorised in writing by the Revenue Commissioners to perform the functions conferred by the Act on authorised officers.
Head 10 makes provision for powers of search in relation to computers and computerised information while head 11 provides for the insertion of a new section to the 1996 Act dealing with property held in trust. This is a provision to enable a CAB official to apply to the High Court to establish the identity of persons for whom property is held in trust where there is an investigation in relation to whether that person is in receipt of, or controls or has benefited from the proceeds of crime. Heads 12 and 13 are modelled on sections 38 and 39, respectively, of the Criminal Justice Act 1994 and provide for the seizure of bribes by a member of the Garda Síochána and the forfeiture of that bribe by order of a judge of the Circuit Court.
Head 14 applies the provisions of sections 40 – appeal, 41 – interest, 42 – procedure and 45 – disposal, of the Criminal Justice Act 1994 to the new heads 10 and 11 relating to seizure and forfeiture of a bribe. Head 15 amends section 38 of the Criminal Justice Act 1994 to allow for seizure and detention of money imported or exported in cash which is suspected to directly or indirectly represent proceeds of any criminal conduct, not just drug trafficking. Head 16 provides for an amendment to section 39 of the Criminal Justice Act 1994, consequent to the proposed amendment to section 38, to include forfeiture of money imported or exported in cash which is the subject of a section 38, as amended, order.
Head 17 extends the definition of "cash" in section 43 (1) of the Criminal Justice Act 1994 to include notes and coins in any currency, postal orders, cheques of any kind, including travellers' cheques, bankers drafts, bearer bonds and bearer shares. Head 18 proposes the replacement of the reference to "criminal activity" in section 4(a) of the Criminal Assets Bureau Act 1996 with “criminal conduct” bringing it into line with a similar amendment in the money-laundering provision, section 31, of the Criminal Justice Act 1994, as amended by section 21 of the Criminal Justice (Theft & Fraud Offences) Act 2001.
The Minister for Justice, Equality and Law Reform intends to introduce this Bill, with the amendments outlined on Committee Stage, within the next few months and he is of the opinion that it would be more appropriate to table amendments to the Act in the context of the debate on this Bill. However, without prejudice to any further debate which may happen in that context, I would offer some views on the substantive proposals contained in the Bill under debate tonight which include the reduction of the waiting time which must be observed before the courts may make an order directing the transfer of property, subject to an interlocutory order under the Act, to the Minister for Finance; and the use of the proceeds accruing from the disposition of the property transferred to drug-related initiatives identified by the Minister for Justice, Equality and Law Reform.
On the first proposal, which I presume is being put forward to facilitate the early implementation of a second on the channelling of funds to drugs initiatives, careful examination of its consequences is required. Such an examination should take place in the context of debate on the full range of amendments proposed in the Government Bill, especially those which I have outlined under Head 6. That head proposes a provision whereby the seven year period might be reduced in situations where there is consent by the parties involved and the court is satisfied that no injustice is caused.
The second proposal deals with what one could call the "ring-fencing" of the proceeds accruing from the disposition of the property transferred to the Minister for Finance for drug-related initiatives. This is not a new idea and has been examined in the Departments of Justice, Equality and Law Reform and Finance before. A number of points need to be made about this proposal.
First, a policy of ring-fencing moneys obtained by the Exchequer and the reallocation of same for a specific for a specific purpose runs contrary to the normal Estimates process and could have far-reaching implications. The Constitution requires, and Government accounting principles provide, that public moneys be spent only as voted or approved by Dáil Éireann unless otherwise provided by statute. The so-called ear-marking of Government revenues for specific expenditure purposes is generally avoided.
In addition, such a process would add additional layers of bureaucracy to the allocation of funds and would not be justified unless significant and quantifiable added value, in excess of the additional administrative costs, could be shown. Ring-fencing would add nothing to the sums realised for the Exchequer but would absorb resources. It is a fundamental principle that it is a matter for Government, with Oireachtas approval, to determine the optimum allocation of Exchequer receipts in accordance with broadly agreed socio-economic priorities.
To agree to use the revenues generated from the disposition of property transferred to the Minister for Finance under the provisions of the 1996 Act would mean that the treatment of drug victims would be financed, in part at least, by uncertain and variable revenue sources. This would not facilitate the proper planning of treatment provision and programmes by those organisations the funding is proposed to support.
Also, the majority of assets frozen to date under the Act did not derive from the activities of drug dealers and there is no logical link between those assets and drug prevention and treatment programmes. To channel all of those funds to drug initiatives could deprive other areas such as hospitals and schools of resources. One could argue for ring-fencing of receipts if it were seen to be a motivating factor in the generation of higher receipts but there is absolutely no indication that the Criminal Assets Bureau needs any further motivation in carrying out its work. The CAB continues to enjoy considerable success in depriving persons engaged in criminal activity from retaining the proceeds of their nefarious activities.
The figures speak for themselves. In 2002, the bureau obtained interim orders to the value of more than €34 million and interlocutory orders – final restraint orders – to the value of more than €10 million; taxes and interest demanded came to more than €12.8 million, with more than €10 million collected; and, social welfare savings amounted to more than €155,000.
Since its statutory inception in October 1996 to 31 December 2002, the CAB has obtained interim and final restraint orders to the value of more than €48 million and €21 million respectively. In the same period, taxes and interest demanded were in excess of €71 million, with more than €46 million collected. In addition, social welfare savings amounted to more than €1.4 million.
Finally, on this issue of ring-fencing, it is implied in the proposal that drug prevention and treatment initiatives in this State are not being adequately funded and that such a measure is required to source a channel of funds. Nothing could be further from the truth. This Government has a strong and ongoing commitment to tackling social exclusion through the many programmes and initiatives it operates in disadvantaged areas in which tackling drug misuse remains one of the key priorities.
The Department of Community, Rural and Gaeltacht Affairs co-ordinates the implementation of the national drugs strategy which was launched in May 2001. The strategy brings together all elements of drugs policy in Ireland into a single framework with responsibilities clearly assigned. It contains 100 separate actions across the four pillars of supply reduction, prevention, treatment and research to be carried out by a range of Departments and agencies. Under each of the four pillars, a series of objectives and key performance indicators is set.
The implementation of the strategy is continuing. Progress is monitored on an ongoing basis through regular meetings of the interdepartmental group on drugs chaired by Minister of State, Deputy Noel Ahern, as well as through six monthly progress reports to the Cabinet Sub-Committee on Social Inclusion.
The work being done by the local drugs task forces is another vital element in the ongoing fight against drugs. As many Deputies will be aware, there are 14 local drugs task forces in Dublin, Cork and Bray. The task forces were established in 1997 and include representatives of the statutory, community and voluntary sectors as well as local public representatives, including many Deputies in this House.
These Deputies will be aware of the ongoing valuable work the task forces carry out. The purpose of the task force is, through partnership, to address the service gaps in the area and to co-ordinate existing services. They have made an enormous impact over recent years by means of preparing a local action plan, which includes a range of measures on treatment, rehabilitation, education, prevention and curbing local supply.
The local drugs task forces have been an effective way of delivering services and engaging local communities. They are an excellent example of how Departments, State agencies, front-line workers, communities and politicians can work together in partnership and I commend the commitment and hard work of the many individuals and agencies involved in this process. Most task forces are currently implementing their second round action plans. To date, the two plans have funded approximately 500 local projects.
In monetary terms, since 1997, more than €130 million has been either spent on or allocated to projects in the local drugs task force areas through the two local action plans. Of a total of €65 million, €11.5 million has been spent on the premises initiative for drugs projects and €54 million on the Young People's Facilities and Services Fund.
In 2003, the allocation for the drugs subhead has increased by approximately 16% over 2002. This subhead funds the work of the local drugs task forces, the premises initiative for drugs projects and the National Advisory Committee on Drugs. This shows clearly that the drugs issue remains a priority for this Government and rather than starving the drugs strategy of funding, it has, in fact increased the level available in 2003.
The Young Peoples Facilities and Services Fund established in 1998 as part of the Government's overall strategy to tackle drug misuse aims to assist in the development of youth facilities, including sport and recreational facilities, and services in disadvantaged areas where a significant drug problem exists or has the potential to develop. Its overall objective is to attract "at risk" young people in disadvantaged areas into these facilities and activities and divert them away from the dangers of substance abuse. The target group for the fund is the 10-21 year old cohort whose members are marginalised through a combination of risk factors relating to family background, environmental circumstances, educational disadvantage, involvement in crime and or drugs, etc.
While the main focus of the fund has been on the local drugs task force areas, funding has also been allocated to a number of urban areas where a serious drug problem exists or has the potential to develop. The target areas selected were Galway, Limerick, Waterford and Carlow.
A separate allocation was made to seven voluntary organisations to deliver drug prevention education programmes – including peer education programmes – on a national basis. Since 1998, an amount of €68.2 million has been allocated under the fund and the bulk of this – approximately €54 million – has been allocated to local drugs task force areas. The overall amount allocated also includes funding of €9.1 million for the springboard initiative which is managed by the Department of Health and Children. In addition to these initiatives, the Department of Justice, Equality and Law Reform supports and develops evidence-based preventative measures and interventions aimed at young offenders and those most at risk of offending. These measures include the Garda youth diversion projects of which there are 64. These projects represent a community based, multi-agency crime prevention initiative which seeks to divert young persons from becoming involved or further involved in anti-social and-or criminal behaviour by providing suitable activities to facilitate personal development, promote civic responsibility and improve long-term employability prospects. By doing so, the projects contribute to improving the quality of life within communities and enhancing Garda-community relations.
The first Garda youth diversion projects were established in major urban areas but projects are now in operation in both urban and rural areas throughout the State. Recent years have seen a dramatic increase in the number of Garda youth diversion projects from 12 in 1997 to 64 at present, a process made possible, in part, by funding under the National Development Plan 2000-2006.
The allocation of funding for the 64 Garda youth diversion projects, together with the seven local drugs task force projects, for 2003 is €5.577 million compared to just over IR£400,000 when the Opposition was last in office in 1997, an increase of over 1000%. These figures underline this Government's commitment to fighting the harm to communities from the impact of drug misuse, an aim which is of course shared by Deputies on all sides of this House and which is, I am sure, the motivation behind this proposed Private Member's Bill. However, for the reasons I have outlined, I must oppose this Bill.
I said at the outset of the discussion of the merits of the two substantive proposals contained in the Bill that such discussion was without prejudice to any further debate and these matters can be further considered on Committee Stage of the Proceeds of Crime (Amendment) Bill 1999.