I am sure Members of the House will be able to agree that this is clearly a major Bill which forms a vital part of the comprehensive programme for criminal law reform which I have under way at present. I am pleased that Second Stage is being taken in this House so quickly after its deliberations on another major part of that programme — the Public Order Bill — and I am grateful for having been facilitated in this regard. I believe there is widespread public support for the measures contained in the present Bill and that it proposes some of the most powerful weapons against major criminals ever to come before this House.
Briefly, the Bill has three main objectives: first, it will enable the courts to order the seizure and confiscation of the proceeds of drug trafficking and other serious offences; second, it will create a specific offence of money laundering and will require financial institutions to assist in the prevention and detection of money laundering; and third, it will enable this country to co-operate with other states in the criminal field and to become a party to a number of international conventions which deal with drug trafficking, money laundering and mutual assistance in criminal matters.
I would like to set out some of the general background to this measure and then set out in some detail some of its more important provisions. All the available evidence strongly suggests that large scale crime is becoming more sophisticated in its scope with increasing international dimensions. It has also come to be recognised that where large amounts of criminal proceeds are involved, it is by no means sufficient that the perpetrators of crime should be dealt with simply by way of imprisonment and fines. Other measures are called for. In particular, I am referring to measures, such as confiscation of criminal assets. This is required to target those who reap substantial rewards from crime at the expense of others and society as a whole.
Nowhere is there a greater need for these additional measures than in the area of drug trafficking. We all know of the tremendous profits that can be made from drugs and that this obnoxious trade is being carried on by those evil parasites who prey on others — especially young people — for the sole purpose of financial gain. I have no doubt that Members of this House will share the abhorrence and concerns expressed in the other House about the activities of such people.
I do not believe it is an exaggeration to say it is hard to imagine a greater threat to the quality of life in this and in many other countries than that posed by the activities of those whose business is the supply of drugs. The reality of what happens is all too simple and there is a pattern about it that is all too familiar to us in our role as public representatives. The drugs godfathers set about creating the market for their products among young — often very young — people. Very soon those whom they have successfully targeted are addicts. Addicts then tend to live for nothing but their next fix. The obsession with feeding their addiction is such that over time virtually all social values go. Typically, members of the addict's immediate family will be the first to be deceived and defrauded.
Shortly after that the addict is likely to start committing crime in the community beginning with petty theft and in many cases moving on to much more serious crimes. At some point along the way the heroin drug abuser is likely to acquire the HIV virus and perhaps spread it further into the community. Many addicts will likely end up serving increasingly longer sentences in prison as part of, in many cases, their greatly shortened lifespans. The addicts themselves are just the immediate victims. There is also the agony suffered by their families and friends. Then there is the misery suffered by the community generally because of the level and serious nature of crimes committed by many of those who become addicted. Of course none of this is of the slightest concern to drug traffickers once they continue to reap substantial profits from their handiwork.
This Bill, however, will provide us with the opportunity to strike at the very heart of drug trafficking and other serious crime. By enabling criminals to be deprived of their ill gotten gains we will help remove, to a significant extent, the incentive which draws people into this type of crime. In addition, we will ensure that money which might otherwise have been used for criminal purposes is no longer available for such purposes.
Broadly speaking, under the terms of the Bill, where a person is convicted on indictment of a non-drug trafficking offence the court will be able to make a confiscation order against the offender up to the amount of the benefit the court is satisfied was obtained as a result of the offence in question. However, where a drug trafficking conviction is involved the amount of the confiscation order will not be limited to the benefit the trafficker has derived from a particular offence but will extend to all the profits that person has made from drug trafficking.
Money-laundering is another important feature of serious crime which is addressed in the Bill. Laundering itself is not new as criminals have always sought to cover up the illegal origins of what is frequently called dirty money. However, the growing trend towards the removal of restrictions on the movement of persons and capital between countries has made it much more difficult for law enforcement authorities to keep up with criminals who have become increasingly mobile and ingenious in their attempts to conceal and disguise their criminal proceeds.
Our present law does not contain effective measures to deal with the modern reality in this area. The Bill fills this gap by making money laundering a specific offence with very heavy penalties. In addition, the Bill contains provisions which are designed to prevent and detect money laundering in line with the EC Directive 91/308/EEC on prevention of the use of the financial system for the purpose of money laundering. For example, obligations are being imposed on banks and other financial institutions to carry out identity checks on customers and to report suspicious transactions to the Garda Síochána.
The third significant feature of the Bill is that it will provide a legislative basis for this country to enter into arrangements with other countries whereby we will be able to obtain and to provide assistance in criminal matters. This will significantly ease the task of foreign investigation and prosecution agencies in cases where crucial evidence or witnesses may be in this country. Equally, we will benefit by being able to make requests for similar assistance from countries party to the relevant international conventions.
Mutual assistance arrangements between states are the subject of a number of international conventions and a measure of the comprehensiveness of the approach which we are taking is that the Bill will enable this country to become party to the most important of those conventions, namely, the Council of Europe Convention on Mutual Assistance in Criminal Matters, 1959; the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988; and the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds of Crime, 1990.
It might be helpful at this stage if I was to outline briefly the nature of these conventions. The 1959 mutual assistance convention applies to a wide range of measures, such as the taking of evidence for foreign courts, the service of summonses and carrying out searches for evidence required in connection with foreign investigations or prosecutions. The UN Convention, which is generally referred to as the Vienna Convention, requires states to co-operate in the fight against drug trafficking, in particular in relation to the confiscation of the proceeds of trafficking. The general thrust of the 1990 Council of Europe convention on money laundering and related matters is similar to the Vienna Convention but its scope is much broader in that it is not limited to the proceeds of drug trafficking.
Turning now to specific provisions of the Bill, Senators will appreciate that in view of its size and technical nature it would not be practical for me to go through all the Bill in detail at this stage. Obviously, this is something we will do on Committee Stage. What I propose, therefore, is to concentrate on the main provisions.
Part I of the Bill deals with the Short Title, Commencement and Interpretation providing extensive definitions in relation to terms used later in the Bill.
Part II, which includes sections 4 to 14, is concerned with the confiscation of criminal proceeds and is at the heart of the Bill. Section 4 confers powers on a court to make a confiscation order, on the application of the Director of Public Prosecutions, against a person who has been convicted on indictment of a drug trafficking offence. For this purpose a drug trafficking offence is widely defined and the definition is contained in section 3 in Part I of the Bill. Where a court determines that the offender has benefited from trafficking it will make a confiscation order for the amount of the benefit he or she has received from all drug trafficking and not merely from the specific offence in respect of which he or she has been convicted.
The section also provides that in determining whether a person has benefited from drug trafficking or the amount of that benefit the court will apply the civil standard of proof. In this regard, I would like to emphasise that there is no question of reducing the burden of proof that the prosecution must discharge in order to obtain a conviction in relation to a particular offence. That burden will remain on the prosecution in the usual way to prove beyond reasonable doubt that the defendant is guilty of the offence with which he or she is charged. However, to insist that the same burden be discharged in relation to confiscation proceedings would an intolerable task on the Director of Public Prosecutions. It would inevitably mean that many convicted traffickers would be able to retain a large portion of their illegal gains.
Section 5 makes provision for the assessment of a defendant's proceeds of drug trafficking in connection with the making of a confiscation order under section 4. The main feature of the section is that the court will be required to assume that all property in the hands of the defendant at the time of conviction and all income or other assets received by him or her in the previous six years were part of the proceeds of drug trafficking. It will be a matter for the defendant to show that particular assets or property were not derived from trafficking and I believe it is appropriate that this type of burden should be placed on the defendant given the nature of drug trafficking and that the type of information involved will be within his or her knowledge.
The court will also be in a position not to apply the assumptions if it is satisfied that there would be a serious risk of injustice if they were to be applied in a particular case. I should emphasise that where a court is satisfied that proceeds of drug trafficking arose prior to six years before the conviction arose, these too can be confiscated; the difference would be that the same evidential assumptions would not apply.
The situation where the defendant's assets are less than the amount the court assesses to be his or her proceeds of drug trafficking is covered in section 6. If that proves to be the case the confiscation order will be made for the amount of the defendant's actual assets.
The making of confiscation orders where a person is convicted on indictment of non drug trafficking offences is provided for in section 7. The procedure will be similar to that in drug trafficking cases but the maximum amount of the confiscation order will be restricted to the value of the defendant's benefit from the specific offence involved and the type of assumptions which are provided for in section 5 will not apply.
Sections 8 and 9 are concerned with the provision of information by the Director of Public Prosecutions and the defendant in confiscation proceedings. Section 10 includes a provision, inter alia, that before making a confiscation order a court can take account of a civil action that may be instituted against the defendant in respect of his or her crime and any other order that involves any payment to another person, for example, a compensation order made under the Criminal Justice Act, 1993.
The effect of section 11, which has to be read with section 12, is to allow confiscation orders to be made against persons who have died or absconded. These will apply where a person has been convicted of an offence on indictment but subsequently dies or absconds and also where a person against whom proceedings have been instituted absconds.
Part III of the Bill is concerned with the enforcement of confiscation orders. Perhaps the most important point in this regard is that under section 15 such orders will be enforceable by the Director of Public Prosecutions in the same way as a civil debt to the State for the amount involved. In this way the DPP will be able to rely on the whole range of civil remedies available in respect of civil debts in order to realise and collect money due under a confiscation order. In addition, specific provision is made to enable the court to appoint a receiver in respect of the defendant's property.
The section also makes provision for the enforcement of a confiscation order by the committal to prison of a defendant who does not comply with such an order. The period of imprisonment to be served will be related to the amount to be paid or which is outstanding under the order and will be determined in accordance with a table at the end of the section. Where a defendant serves a term of imprisonment under section 15 this will not affect the power of the DPP to take other action to enforce the confiscation order, in other words, imprisonment will not be in substitution for compliance with a confiscation order.
Part III also provides in sections 19 and 20 for the making of restraint orders by the High Court. The purpose of these sections is to ensure that confiscation orders will not be frustrated by the transfer by criminals of their assets to other parties. The effect of a restraint order will be to prevent any person dealing with the property covered by the order without the permission of the High Court.
The operation of sections 19 and 20 is not restricted to the situation where a confiscation order has actually been made and, subject to the satisfaction of certain conditions, they allow the DPP to obtain a restraint order against a person who has not yet been charged with a criminal offence in respect of which a confiscation order might be made. To avoid alerting criminals that their property may be restrained, provision has been made to enable a restraint order to be sought without notice to the defendant. It will be open to a defendant in restraint proceedings, or another person whose property has been affected, to seek the discharge or variation of a restraint order.
Part IV of the Bill is concerned with money laundering. Section 27 creates a new offence of money laundering. It is wide in scope and will apply whether a person has laundered their own criminal proceeds or proceeds from crimes committed by others. The maximum penalties for the offence will be imprisonment for up to 14 years and/or an unlimited fine. This reflects the seriousness of the offence. In addition, it should be noted that an offence will be committed where laundering is carried out in respect of criminal proceeds derived from crimes committed before section 27 comes into operation or from offences abroad.
Section 28 obliges banks and other financial bodies whose services are likely to be used to conceal criminal proceeds to adopt measures to prevent and assist in the detection of money laundering. In particular the section requires that customers be identified and records relating to identification and to transactions be retained in case they may be needed for money laundering investigations. These requirements are provided for in the EU Directive on the prevention of the use of the financial system for the purpose of money laundering.
Part V of the Bill is concerned with drug offences at sea. The purpose of this Part is to give effect to certain provisions of the UN drugs convention. Sections 29 and 30 extend the scope of our criminal law to deal with drug trafficking on Irish and other ships. Sections 31 and 32 make provision for prosecution and enforcement matters arising out of sections 29 and 30.
Part VI of the Bill makes provision for international co-operation with other countries in criminal matters. I have already referred to various international conventions operating in this field and it is our intention to ratify those conventions as quickly as possible after the Bill has been enacted. The overall effect will be to enable this country to play a full part at international level in the fight against drug trafficking and other serious crime.
I do not consider it necessary at this stage to go into great detail on Part VI of the Bill. However, in order to illustrate the broad nature of the provisions I believe it appropriate to list the forms of assistance covered — the enforcement of confiscation and forfeiture orders; the service of summonses and other judicial documents; the taking of evidence for criminal proceedings; the transfer of prisoners to give evidence or assist criminal investigations; and searches for material required for foreign investigations.
Part VII is in effect the miscellaneous part of the Bill. I will refer briefly to a number of its provisions. Section 44 supplements the earlier money laundering provisions by requiring the disclosure by banks and other financial bodies of suspicious transactions to the Garda Síochána. In addition, section 45 makes it an offence for a person to prejudice an investigation that may be under way following a disclosure made under section 44.
Section 48 allows a court to make a forfeiture order in respect of property which was used or intended to be used in the commission of an offence. Section 50 empowers a court, under specified conditions, to order a person to disclose to the Garda Síochána material which is required for the purpose of investigating serious crime or in connection with confiscation proceedings. Additional provision is made in section 51 for the issue of search warrants to allow the Garda to obtain access to information where the disclosure procedure under section 50 has proved unsuccessful or where it would not be practicable or appropriate. Sections 52, 53 and 54 provide for the payment of compensation in connection with the operation of the confiscation and related provisions of the Bill.
I have set out an outline of the main provisions of the Bill and I am confident that it will be found acceptable in principle by all sides of the House. I assure Senators that I will consider fully the points they make today and during later Stages. In that context, it may be helpful for me to mention that I hope to be in a position on Committee Stage to bring forward a number of amendments arising mainly from the debate in the other House and representations which have been made to me by interested bodies on the detail of specific provisions of the Bill.
Given the provisions I have outlined, the importance of this Bill in terms of tackling the activities of major criminals and drug traffickers in particular will be self-evident. I am determined, and I am sure I will have the support of every Member of this House, that this country should adopt the strongest possible measures to ensure that we do not allow a situation where criminals can live off their ill-gotten gains. Equally, we must not allow this country to become a soft target for international crime. This Bill sends out a clear message that we are prepared to take whatever measures necessary to make sure that does not happen. I commend the Bill to the House.
Before I resume my seat, a Chathaoirligh, may I explain to Members that it will be necessary for me to leave the House in about ten minutes to make my concluding remarks, which I already started, to the Second Stage of the Extradition Bill in the Dáil.