Dáil Éireann debate -
Wednesday, 20 Jul 2016

Vol. 919 No. 1

Proceeds of Crime (Amendment) Bill 2016 [Seanad]: Committee and Remaining Stages

Sections 1 and 2 agreed to.

SECTION 3

Deputy Brendan Howlin

I move amendment No. 1:

In page 4, between lines 36 and 37, to insert the following:

“(8) Where property is seized and detained under subsection (1) or (2), an application to the Court for an interim order or an interlocutory order in respect of the property shall be made by the bureau officer concerned as soon as he or she has enough evidence to make such an application.”.

I reread the Minister of State's reply in respect of this amendment when it was tabled in the Upper House. This is a technical amendment in the sense that where there is a robust prima facie case, the provision in the amendment would allow for an application to be made for an interim interlocutory order in respect of the property in advance of the 21 days elapsing. If one is allowed to detain a person for questioning for seven days but if, after 24 hours, one has a robust case, one should proceed to charge that individual. One would not need to wait seven days just because one is allowed to hold a person for that length of time before a charge is proffered. Where there is a robust case, one should not be debarred from making an application to the court for an interim order in advance of the 21-day period that is provided for elapsing.

The reasoning the Tánaiste is about to outline in respect of the amendment will be to the effect that this is probably one of the most litigated areas in criminal law. As a result of the fact that each sentence in the original Criminal Assets Bureau, CAB, legislation has been parsed and analysed to such a degree and there is reluctance to dislodge any of the provisions contained in that legislation, I am not going to the wire in respect of the amendment. I certainly do not want to do anything that would dislodge the legislation. However, it would facilitate matters if we included a provision whereby if a robust and clear case exists, authorised CAB officers who feel confident of the bona fides of that case could go to court before the 21-day period has elapsed. There was no legal bar to them doing that.

Minister for Justice and Equality (Deputy Frances Fitzgerald)

We have consulted on and given consideration to this matter. The Bill, as initiated, contains sufficient safeguards for affected persons against any potential abuse of the new seizure and detention powers. In the context of justice being seen to be done quickly, I understand where Deputy is coming from but, as I said on Second Stage, persons can apply to the court to have an authorisation revoked and would only need to undermine any one of the four grounds on which the chief CAB officer must rely in order to do so. It is also the case that failure by CAB to make an application order to the court for an interim or interlocutory order before the expiration of the 21-day period will open the door to a compensation action by the owners of the property. I must also inform the Deputy that CAB can go before the court prior to the 21 days elapsing.

Deputy Brendan Howlin

Can it?

Deputy Frances Fitzgerald

It does not have to wait for 21 days, it can go earlier. Deputy Howlin's amendment would make it statutory and the bureau would be obliged to go. However, it can already do this.

Deputy Brendan Howlin

The CAB can avail of it.

Deputy Frances Fitzgerald

Yes, it can do so at present. That is correct. As the Deputy has acknowledged to the nth degree, criminals convicted of some of the most heinous crimes have used the Proceeds of Crime Act to litigate against the State, at considerable expense to the taxpayer. The High Court and the Supreme Court have, quite correctly, been tied up for long periods in respect of that legislation. That is as it should be because everyone, guilty or innocent, is entitled to access the courts to ensure that his or her rights are fully vindicated.

There are provisions elsewhere in law that require persons to be charged without delay. When the Garda has sufficient evidence to do so, that is only correct. The person is going to be prosecuted for a criminal offence and his or her liberty may be at stake so it is important that such matters are placed in the hands of the court without delay. In that instance, however, the court hearing is not being made ex parte.

The amendment raises a concern which I would ask the Deputy to consider. It could open the doors to a great deal of litigation based on procedural arguments. These could tie up CAB and the High Court in a potentially endless discussion as to when there is enough evidence for the bureau to make the application to the court. It must be borne in mind that, when conducting an investigation and especially when making an ex parte application to the court, investigators are bound to be fair and to make reasonable efforts to seek and consider exculpatory evidence. This is a well understood concept in the courts and in law. Forcing CAB to cut that process unduly short might render the overall process unfair.

We have, in light of the Deputy's amendment, consulted CAB on this. The bureau has concerns that it might make the process unworkable. Deputy Howlin indicated he will not press the amendment. I ask that he takes what I have said as our best thinking on the amendment at this point and I ask him to reconsider the position.

Deputy Jim O'Callaghan

Deputy Howlin's proposed amendment concerns one of the new statutory mechanisms being introduced by means of the Bill, namely, the seizure and detention of property, or what can be referred to as administrative detention. The Bill provides for a firmly organised scheme. First, a bureau officer - if he or she is satisfied or believes that there is a reasonable suspicion that property may amount to the proceeds of crime - can detain the property for a period of 24 hours. Second, if the chief bureau officer seeks an extension for that time and believes also that the property involves the proceeds of crime - or has a suspicion that it involves the proceeds of crime - the period can be extended to 21 days. Obviously, once the 21 days have expired, the lawfulness of the detention also expires. The property cannot be held for any period longer than 21 days.

The purpose of Deputy Howlin's amendment is to ensure that CAB brings applications before the courts promptly. That is desirable. However, I have a concern about the manner in which the amendment is being put forward because it could create a slight inconsistency. People could argue that CAB could only go before the courts when it had enough evidence, as is provided for in the proposed amendment. That may create inconsistency with what is already provided for in the statute. The point which Deputy Howlin seeks to emphasise through the proposed amendment is that there may be times when property has been inappropriately seized by CAB by way of this administrative detention. This must be prepared against with some form of legislative mechanism. I believe a legislative mechanism to deal with that is provided in section 1(c) where there is provision for compensation. That mechanism should deal with the concerns raised by the Deputy.

Deputy Brendan Howlin

I have listened with care to the learned counsel and to the Tánaiste. My genuine fear is that if it were accepted, the amendment would have an inadvertent and adverse impact on the effectiveness of what is extremely important anti-gang and anti-criminal legislation. As others have pointed out, the new section 3 lies at the heart of the legislation and it introduces the notion of the bureau officer and reducing the value of the seized property to a threshold of not less than €5,000. These are measures I strongly support. On balance, I am minded to err on the side of caution and not push the amendment for those reasons.

Amendment, by leave, withdrawn.

Section 3 agreed to.

Sections 4 and 5 agreed to.

SECTION 6

An Leas-Cheann Comhairle

Amendment No. 2 is out of order because it involves a potential charge on the Exchequer.

Amendment No. 2 not moved.

Question proposed: "That section 6 stand part of the Bill."

Deputy Brendan Howlin

I tabled the amendment knowing that it was likely to be ruled out of order but I thought I had done my best on Second Stage to make an impassioned plea to the Minister. I had hoped that I would see a similar amendment in her name because it is not often in this House that one sees a consensus view, such as we saw even from the Deputies behind the Minister on this matter.

I said that I come with a degree of experience in the notion of hypothecated taxes and the notion of anything ringfenced is anathema to the denizens of Merrion Street. We understand that. I thought, however, that the Minister in her new powerful role would be able to amble down Merrion Street and talk to the inhabitants therein and win a view that it would be a really social good that goods seized from criminals in the most deprived areas would be deployed to the benefit of those areas. That is a reasonable proposition. It is not a general proposition that would apply in terms of ring-fenced taxes or ring-fenced seizures to be used for particular purposes. In this instance, many passionate arguments were made across all these benches that this is a good idea, that the proceeds of any moneys seized under these provisions would be used for the benefit of the social development of persons from communities suffering from economic and social disadvantage. That would be a really good thing to do. In the context of breaking out of the norms of other Dáileanna, it is something the Minister could have acceded to. I was disappointed that I did not see an amendment in her name mirroring the sentiments at least of the one that had been argued for by Deputies.

Deputy Jim O'Callaghan

I agree with Deputy Howlin and if he ever gets to Merrion Street, I am sure he will seek to introduce such a proposal. I also put down a statutory scheme in a Bill I drafted and sent to the Minister, which provided for the establishment of a confiscated assets account. I mentioned on the last occasion we debated this in the Dáil that in Australia and other countries, there is a similar provision whereby assets confiscated, which are the proceeds of crime and are sold, are used for the benefit of the communities which have suffered the most from the use of drugs and from crime. We should seek to replicate that. It would be very beneficial to communities that have been particularly damaged by drugs. I know it will not be considered here in the context of the amendments to this Bill. There is, however, a review continuing in respect of the proceeds of crime legislation and it should be given active consideration. Proposals should come forward since there is support around the House for it to ensure we can establish a new fund which uses the funds of criminal activities in communities. It would be wonderful for communities to see benefits, advantages and developments in their areas as a result of the confiscation of criminal proceeds.

Deputy Frances Fitzgerald

Deputy Howlin was at serious risk of really upsetting his former colleague, the Minister for Finance, Deputy Noonan, talking about ring fencing funding for certain projects, as I am sure he is well aware.

Deputy Brendan Howlin

I have escaped.

Deputy Frances Fitzgerald

He knows what the reaction is. The point behind the amendment is to have a redistribution in certain communities but I hope to get this Bill through tonight and that is one reason not to accept amendments. I would not rule out a medium-term review of this legislation to consider all of its implications. I invite the Deputy to make a submission on that point because it is worth considering, although the Deputy knows the reaction of the Department of Finance. On the international reach of the Criminal Assets Bureau, CAB, a real issue arises - for example, in a current case concerning funds which have been frozen in respect of criminal activity which has occurred outside the State where the victims of the crime are in another state. If we are to abide by our international obligations and encourage greater international co-operation in the recovery of assets in cross-border cases, we need to be able in appropriate cases to transfer funds back to the country of origin where the crimes have occurred and the proposed amendment might tie the hands of the Minister and prevent this. I am sure it could be dealt with appropriately if we were moving ahead in respect of this.

There is another important issue, and I made this point in the Seanad, to do with the uncertain nature of the value of the assets seized by the bureau in any given year in addition to the potential delays through the possibility of legal challenge to court disposal orders. The provision of continuing funding to community projects or organisations would have to be considered because the revenue source would be uncertain. We would have to do work on the implementation of this amendment because it would not be a constant source of funding that a community might depend on. The question would arise of what kind of projects it would fund. I am sure that could be dealt with but depending on the revenue in a multi-annual way could be problematic and could make it difficult for organisations or communities involved in the delivery of such services to plan. However, that is not insurmountable. There is also the bigger point about ring fencing any funding and the administrative cost that arises in respect of that.

The question of reinvesting the money in the work of CAB has arisen in some jurisdictions where money seized was, for example, reinvested in police services. We do not want to create an incorrect perception of a link between the motivation behind the choice of CAB’s targets and its funding stream or the funding stream of community initiatives. If we are to legislate for a community redistribution fund it may be safer to do so in discrete legislation separate from the proceeds of crime legislation. I appreciate that the amendment has been ruled out of order but I am certainly not against examining this issue and working through the various points that have arisen and then seeking Deputy Howlin’s support to make sure he can convince those in the Departments of Finance and of Public Expenditure and Reform about it.

Deputy Brendan Howlin

This is done elsewhere. There are models such as the one in Australia where this is done. It is a matter of having the will to do it. We do it here with the funds of suitors and the dormant accounts fund. Under the legislation, we take inactive accounts or funds of suitors, use them for a public good and if somebody subsequently says it is his or her money there is a provision for that. It does not mean that people who benefit from the funds of suitors or the dormant accounts cannot plan - of course, they can. It is a supplement for a defined and clear set of purposes. One could make the same argument about the national lottery because if people do not buy the tickets how can the delivery of services be planned? That line of argument does not hold water.

I am obviously not going to win the argument tonight but in a way it is disappointing that the first argument used by the Minister is that she wanted to get the Bill through - in other words, if the amendment were accepted she would have to go back to the Seanad. That is not a compelling reason to do something because I think there would be a consensus in the Seanad also to do this. I do not have a legitimate amendment before the House.

I hope this argument will surface again in another context and that the Tánaiste will be willing to take on people who feel that the way we have always done things in the past must be how we do things in the future on such issues.

Question put and agreed to.

SECTION 7

Deputy Brendan Howlin

I move amendment No. 3:

In page 6, between lines 14 and 15, to insert the following:

“Certain payments not to be proceeds of crime

7. (1) Subsection (2) applies if by any enactment to be passed it is provided that a person who pays or gives another person money or other consideration for the purpose of engaging in sexual activity with a prostitute is guilty of an offence, while the receipt of money or other consideration paid or given for such a purpose is not made an offence.

(2) If this subsection applies, then the money or other consideration referred to in subsection (1) shall not, by reason only of the passing of an enactment providing as referred to in that subsection, be the proceeds of crime for the purposes of the Principal Act.”.

This amendment is a little esoteric and one would wonder about its relevance to the Bill. It is an issue a lawyer raised with me and I thought it was worth teasing out. I hope I signalled the issue in my contribution on Second Stage. The new criminal provisions to deal with prostitution in this country would move criminal responsibility away from the sellers of sex to the buyers. The proceeds of the transaction would accrue to the prostitute. In a pithy statement I tried to encapsulate what would happen - we might not put the prostitute in jail but we would put them in the poorhouse because we are criminalising the proceeds of crime.

We have not debated the provisions of the sexual offences Bill in any great detail, which follow what, I understand, people describe as the Swedish model. It criminalises the purchase of sex but decriminalises the sale of sex. The victim is perceived to be the prostitute, that is, the person who is required by whatever economic circumstances to sell sex.

This provision would mean that, while a person would be decriminalised in terms of the act, the gains made would be criminal assets and she would be subject to having them seized. I do not know whether the Tánaiste has a view on this, but it is worth thinking it through if we are going to be consistent.

In the previous Administration we had discussions on moving towards the Swedish model of recognising that women - almost exclusively women are the ones selling sex and in very vulnerable situations, often having been trafficked - should not be criminalised in this way either if we are decriminalising their action in the selling of sex.

Deputy Jim O'Callaghan

Deputy Howlin has tabled an interesting amendment, but I am concerned about its breadth. It refers to a person who pays or gives another person money or other consideration for the purpose of engaging in sexual activity with a prostitute. That could apply in circumstances where a man pays another man money in respect of sexual activity he has had with a prostitute. It would not necessarily involve the payment of money, which is the intention, by the man to the prostitute.

I am slightly concerned that the amendment would enable pimps and other individuals to receive money from other men who were availing of the use of prostitutes who are under the unfortunate control of these pimps, and that they would then be able to say that the money is excluded under the proceeds of crime legislation.

Deputy Frances Fitzgerald

This amendment would apply proceeds of crime legislation to conduct which, as it stands, is not criminal. Under current law, neither payment for sexual services nor the receipt of payment for providing such services is a criminal offence. I understand that the intention is to provide in the Criminal Law (Sexual Offences) Bill 2015 for an offence of payment for sexual activity with a prostitute. That was the subject of considerable debate in the Seanad and a series of committee work that was done.

While the Bill was passed by the Seanad earlier this year, it has not yet been enacted and we have not had a discussion on it here. I hope we will move on to the Bill when the Dáil resumes after the summer recess. It is a matter for both Houses to pass the Bill.

While the proposals in the Criminal Law (Sexual Offences) Bill are generally well supported and have cross-party support in the Dáil, we have to conclude work on it. I would have some difficulty in introducing provisions in this Bill relating to the proceeds of crime arising from conduct that is not currently criminalised. It is not appropriate to introduce a provision that pre-empts the work of the House on the Bill. I take the point the Deputy has raised. When we are working on the other Bill in the House, we can be mindful of it.

A number of other points are worthy of consideration. The exemption for purchasing sexual services from criminal conduct for the purposes of the proceeds of crime could lead to sex workers being pressured into holding moneys as legitimate-seeming fronts for traffickers or other organised criminals. It might also make it more difficult for CAB to pursue the proceeds of crime held by, for example, pimps or traffickers. CAB would, for example, have to show a derivation from trafficking-related prostitution, as distinct from non-trafficking-related prostitution. Those matters need to be considered.

Another point relates to money-laundering legislation. It is the case that while the amendment would disapply the proceeds of crime legislation to money obtained by a person who offers sexual services, that money would still be the proceeds of criminal conduct for the purposes of the Criminal Law (Money-laundering and Terrorist Financing) Act 2010. To attempt to exempt the purchasing of sexual services in that respect could have potential effects on international obligations or the regulatory system for money laundering prevention and detection. There is also the potential for sex workers to be used as legitimate-seeming fronts for holding moneys for traffickers.

If the amendment was accepted and the offence of purchasing sexual services was introduced, money obtained from providing such services would be the proceeds of criminal conduct under money-laundering legislation, but not under the proceeds of crime legislation. Given that we have not concluded work on the Criminal Law (Sexual Offences) Bill, it would be better to wait to introduce this amendment to this Bill.

Deputy Brendan Howlin

I take the Tánaiste's point and the very valid point by made by my Fianna Fáil colleague. I wanted to make the point in advance of the Bill so we could reflect upon it. The point is made. I will withdraw the amendment.

Amendment, by leave, withdrawn.

Section 7 agreed to.

Title agreed to.

Bill reported without amendment and received for final consideration.

Question proposed: "That the Bill do now pass."

Deputies

Vótáil.

An Leas-Cheann Comhairle

As only one teller has been nominated for the Níl side, I must declare the question carried.

The Dáil adjourned at 9.50 p.m. until 10 a.m. on Thursday, 21 July 2016.