I welcome the Minister.
Criminal Justice (No. 3) Bill, 1993: Committee Stage.
Sections 1 and 2 agreed to.
SECTION 3.
Amendment Nos. 1 and 19 are related and may be discussed together.
I move amendment No. 1:
In page 5, subsection (1), between lines 27 and 28, to insert the following definition:
"`Combat Drugs Fund' means a fund established under the terms of this Act for the allocation of certain moneys raised under the Act to organisations or groups working to combat the medical or social effects of drug abuse;".
I did not receive a copy of the amendments until 2 p.m. today. We made this point on the Order of Business but I wish to make it personally to the Minister.
The amendment proposes the establishment of a combat drugs fund to allocate certain moneys raised under the Act to organisations or groups working to combat the medical or social effects of drugs. The purpose of the amendment is to direct the moneys raised through the confiscation of assets to medical areas so that there are funds available for people who have suffered from drug related conditions, to assist research into drugs and ensure that assistance is given to the families of those affected by the drugs culture and the work of drug barons and those who bring drugs into the country, which cause extreme stress.
I sympathise with the intention behind the amendment. Senator Neville is attempting to make the punishment fit the crime. Redistributing the money which the authorities confiscate from people who engage in this obnoxious trade to the community which has been damaged by it is sensible. I will listen with interest to what the Minister says. I am sure she will have a sympathetic approach. The amendment itself seems to be more a definition of such a fund than something which actually enables the establishment of one. I am not sure whether it legally empowers the Minister as it stands. I seek to be informed.
Amendment No. 19 which is being discussed with this amendment clarifies our approach to this matter.
The second of these amendments raises a very specific point in relation to actions for compensation. The amendments essentially relate to what should be done with the proceeds of confiscation orders.
The suggestion that proceeds of crime confiscated under this Bill should be earmarked for a specific purpose in the drugs rehabilitation area was first raised in the other House and I was very attracted to it. However, at the same time I mentioned that it should not be forgotten that under the Bill the proceeds will go to the Exchequer which funds our health services and the fight against crime.
While I continue to appreciate the thinking behind the amendments, the position is that I specifically raised the question of applying the proceeds of confiscation orders directly for drug related projects or other specific projects with the Minister for Finance. He informed me that he would be opposed to any such proposal. His reasons for adopting that view are not related to the merits of what is being proposed in the sense of the worthiness of the type of expenditure being proposed. However, he has said that as a matter of general policy, any proposal to create a fund or other mechanism whereby money which accrues to the State could be expended in any other way than by way of the Estimates which are approved by Dáil Éireann could not be supported.
He also pointed out that any departure from the normal Estimates procedures would create difficulties from the point of view of accountability and would undoubtedly be of concern to the Comptroller and Auditor General. While, as I have indicated, I had a certain sympathy for these amendments, the reality is that in the light of the views which have been expressed by the Minister for Finance I could not accept them.
The remaining part of Senator Neville's amendment No. 19 raises a separate issue in relation to a court directing that money paid under a confiscation order be paid into court in connection with legal proceedings which a victim may have initiated and the use of such moneys to satisfy such judgment or order as the victim may obtain. I have examined this matter and I believe it is already covered insofar as it would be practicable to do so under the existing provisions of the Bill.
I should first make the distinction between a civil suit for compensation where victims on their own initiative take separate proceedings for compensation and compensation payable under the Criminal Justice Act, 1993. Under the 1993 Act, a court on conviction of any person of an offence may make an order requiring that person to pay compensation to any person who has suffered injury or loss as a result of the offence. One of the purposes of making such a provision in the 1993 Act was to remove the need for victims of crime to have to take civil proceedings in order to secure compensation from an offender.
A compensation order under the Criminal Justice Act, 1993, would normally be made at the time of sentencing. Confiscation proceedings arise after sentencing and are separate proceedings. Under section 10 (3) (b) of the present Bill it is provided that before a court makes a confiscation order it must take account of any order, including a court order, involving any payment by the defendant. This would mean that in assessing the amount of realisable property of a defendant, a deduction would be made in respect of a compensation order which had been made under the 1993 Act.
In relation to pending civil actions for compensation, section 10 (1) provides that when considering whether to make a confiscation order the court may take into account any information placed before it showing that a victim of an offence to which the proceedings relate has instituted or intends to institute civil proceedings against the defendant in respect of loss, injury or damages sustained in connection with the offence. That provision will ensure that the interests of parties who initiate civil proceedings against offenders are safeguarded.
In his amendment Senator Neville has proposed that we should allow the proceeds of confiscation orders to be available for the satisfaction of civil judgments obtained at any stage by victims. This would, in effect, mean that confiscated proceeds could be tied up indefinitely because of the possibility that a claim might be made against them in relation to a civil action taken against the offender. In my view this would not be a realistic course to follow and I could not accept it. As I have indicated, section 10 of the Bill already provides substantial protection from the effects of a confiscation order for compensation payments which may be due to the victims of crime whether they arise under compensation orders made under the 1993 Criminal Justice Act or out of civil proceedings initiated by a victim. I consider that the provision we have made in this area in the Bill goes as far as it would be practicable to go and accordingly I would not be prepared to accept the Senator's proposal.
I am disappointed the Minister cannot accept our amendments. It is important that if funds are coming from the area they should be allocated to solve the extreme social and health problems that drugs and their illegal importation are causing. Could the Minister even look at setting up advisory clinics for drug addicts as well as providing moneys for research into drugs? Because of the level of drug smuggling and drug trading, substantial funds will be provided when the Bill becomes operational.
I can relate this to the roads fund which we debated already. Almost none of the motor car taxation collected remains in the area in which it is collected because it goes into central funds. It can be said that the money confiscated in the case of drugs, comes from a questionable source but, because it is coming from that area, it should be ploughed back to assist drug abusers and their families. Whether that is done in the way I have suggested or through clinical research, the money should not be lost in the Department of Finance. It should be used to solve the drugs problem, perhaps by assisting the Garda Drug Squad.
I have to accept what the Minister says because once the Minister for Finance has set his face against it, that, effectively, is it; in practical terms the amendment is gone. Senator Neville's analogy with the road fund is well made. It is a grievance that has long been felt in this country because people pay motor tax which disappears into the Central Exchequer and they do not feel that they get their money's worth.
I would like to throw in the question of what constitutes a victim. I presume people are principally regarded as victims if they have been the victim of violent crime, mugging and robbery related to drugs, but I think it would be quite difficult to tie it in with a specific drugs baron; or maybe it would not, I do not know. What interests me is the class of victim. I am thinking of people who have been deliberately introduced to hard drugs by these criminals. They seem to be real victims and I would like to know — and perhaps the Minister or her advisers would tell me — whether they would have the status in law of a victim that would enable them to take action as a result of acquiring the addictive habit or damaging their health through acquiring the HIV infection.
During the week I read a horrifying story in the newspaper about an inner city drugs baron. I think I know the party referred to although I do not know the person personally. This person does not take drugs himself but, ironically, engages in sporting activities with young people in the north inner city and has a whiter than white lifestyle. I understand that some of these people have now taken to giving heroin free to young people. Their addiction in many cases in the north inner city leads to the acquisition not only of a drug habit but also a virus which is almost always fatal. A person placed in that situation by these wicked people should have the opportunity to strike back at them by seeking compensation through the courts.
We have a group of young people from Portugal in the Public Gallery. The group is here on a student exchange visit. I wish them a pleasant stay in Ireland.
It would be nice to make funds available for victims who are caught in this vulnerable situation. However, there are many groups in the inner city areas who are helping to deal with this problem. They are receiving funds from the national lottery, the Department of Education and the Department of Health and that money is allocated through the Department of Finance. While I agree with Senator Neville's intention, the money is already allocated.
Theoretically it would be possible for a person who was introduced to hard drugs and who became a victim, as has been outlined by Senator Norris, to take a case against the person who supplied him or her. It would be a matter for the courts to decide whether that person was a victim. It probably would be difficult because the pusher or drug baron could claim that the person took the heroin voluntarily. It would be a difficult case to prove. They are not the type of victims envisaged; the Senator was correct in his first definition of the victim.
In relation to Senator Neville's proposal regarding advisory clinics and so forth, I have long held the opinion that we must hold a public health and education campaign about drugs and drug abuse similar to that which was so successful in educating the public about smoking and its harmful effects. I have had discussions with my colleagues in the Department of Education and the Department of Health to formulate a programme which would have the same visibility as the anti-smoking programme. It should show the evils and results of drug abuse and soft drugs being made attractive to young people. It should also show the hardship, heartbreak, health hazards and fatalities that occur as a result of drug abuse. We need co-operation from both Departments. We have an advisory committee which has made a number of proposals in this area. I would support such a programme.
Senator Norris is correct in saying that when the Minister for Finance decided against the proposal, which was initially made in the Lower House and has now been made in the Seanad, there was no way I could pursue it further although I would have favoured it. The Minister for Finance probably believes that if he gave in on this issue an analogous situation would arise where money taken in by a county in road tax would be demanded for investment in roads.
I might support that, too.
I might support it also. However, I must operate within my parameters as Minister for Justice and the parameters laid down by Government in relation to Exchequer funding. Unfortunately, within those parameters and in view of the opposition of the Minister for Finance, there is no way I can accept the amendment.
If it is possible, the Minister should direct the use of some funds against the vile people who entice others into drug addiction by giving them free drugs. It is one of the most vile things I have heard in a long time. I also read the report mentioned by Senator Norris and it sickened me. We should act immediately against such people. I urge the Minister to root those people out and deal with them in the most severe way possible.
Amendment, by leave, withdrawn.
Amendment No. 2 is a Government amendment and is consequential on amendments Nos. 4 and 5; amendment No. 17 is related to amendment No. 2; amendment No. 7 is related to amendments Nos. 4 and 5; amendments Nos. 11 and 20 are consequential on amendments Nos. 4 and 5; and amendment No. 23 is consequential on amendment No. 2. Amendments Nos. 2, 4, 5, 7, 11, 17, 20 and 23 may be discussed together.
Government amendment No. 2:
In page 11, subsection (16), lines 17 and 18, to delete paragraph (f) and substitute the following paragraphs:
"(f) Proceedings for an offence are concluded—
(i) when the defendant is acquitted on all counts;
(ii) if he is convicted on one or more counts, but no application for a confiscation order is made against him or the court decides not to make a confiscation order in his case; or
(iii) if a confiscation order is made against him in connection with those proceedings, when the order is satisfied,
(g) an application under section 7 of 11 of this Act is concluded—
(i) if the court decides not to make a confiscation order against the defendant, when it makes that decision, or
(ii) if a confiscation order is made against the defendant as a result of that application, when the order is satisfied,
(h) an application under section 8 or 14 of this Act is concluded—
(i) if the court decides not to vary the confiscation order in question, when it makes that decision; or
(ii) if the court varies the confiscation order as a result of the application, when the order is satisfied,
(i) a confiscation order is satisfied when no amount is due under it,".
As Minister for Justice I accept responsibility for the fact that these amendments did not arrive until shortly before the debate began. I regret that as do all Members on the Government side. It was not possible to bring them here earlier due to difficulties we experienced. Those difficulties were not within my Department but I am the Minister and so must take responsibility for the late arrival of these amendments.
All the Government amendments have in one way or another arisen in response to the vigorous debate on this Bill in the Select Committee of the other House. Various proposals were made by Deputies and I undertook to examine them seriously with the parliamentary draughtsman before coming to Committee and Report Stages in the Seanad. The amendments propose stiffer penalties and stronger action against people involved in drug trafficking.
Amendment No. 2 and its related amendments are designed to supplement and strengthen the confiscation provisions of the Bill insofar as they apply to drug trafficking. The main amendments are Nos. 4 and 5; the other amendments deal with various issues which follow from them. The provisions of amendments Nos. 4 and 5 are extremely severe in that they allow the DPP to reopen an issue which has already been before a court. This will only arise where the DPP can produce evidence not previously considered by the court.
We must also remember this involves depriving persons convicted of the evil trade of drug trafficking of their illgotten gains. I listened carefully to the contributions made in this House on the Bill and I believe there is the widest possible support among Senators for measures which will have the effect of ensuring that wherever possible, drug traffickers are not allowed to hold on to their illegal profits. In that context I considered whether further measures could be included in this Bill.
I believe it would be unacceptable that a trafficker who has managed to conceal all or part of his or her proceeds should be able to avoid the making of a confiscation order or an increase in the amount of a confiscation order where additional information as to the whereabouts of concealed proceeds becomes available to the DPP. This is the situation which is being addressed in the amendments and I hope they may prove acceptable to the House.
Amendments Nos. 4 and 5 comprise two new sections which will be included in the Bill in relation to the making of confiscation orders against persons convicted of drug trafficking. Where a court which has previously determined that a person who was convicted of drug trafficking has not benefited therefrom, the first of these sections provides a procedure whereby the DPP can request the court to reassess that determination where he provides new evidence which was not considered by the court when it made its original determination. If the court is satisfied on the basis of the new evidence that the defendant did in fact benefit from drug trafficking, it will be required to assess that benefit and make a confiscation order for the appropriate amount.
It should be noted that payments received by the defendant after the date on which the court originally concluded he or she received no drugs benefit can be taken into account under the section. However the DPP will not be entitled to rely on the assumptions provided for in section 5 in relation to such payments. Also, the power to seek a reassessment under the section will only be available to the DPP during the period of six years after the defendant was convicted.
The second of the new sections is provided for in amendment No. 8. On the basis that a person convicted of drug trafficking received a certain amount of benefit from that activity, it enables the DPP to apply to a court which has made a confiscation order against that person to revise the confiscation order based on additional information provided by the DPP which satisfies the court that the person's benefit from drug trafficking was under-estimated when the confiscation order was made.
As in the case of the proposed section 7, the court will be entitled to have regard to payments received by the defendant since the earlier determination of his or her proceeds were made, but the section 5 assumptions will not apply in that regard. Similarly, a six year time limit will apply to the DPP in seeking the revision of a confiscation order. Amendments Nos. 2, 7, 11, 17, 20 and 23 are consequential on amendments Nos. 4 and 5, which are concerned with the changes required in the light of the insertion of the proposed new sections in the Bill.
This is a complex change and I am disappointed I cannot respond. However, we will consider this change on Report Stage. The Minister is introducing a facility whereby, if a person's benefit from the proceeds of crime has been under-calculated up to a period of six years, the situation may be reviewed. The reviewed figure or the balance between what has already been confiscated and the reviewed figure can then be confiscated. There could be several confiscations of proceeds of crime during the six year period after a person has been convicted. Is that a reasonable summary of the amendments before the House? I cannot comment in detail because I only received the amendments at 2.15 p.m. for a debate at 2.30 p.m.
The Senator is correct and I appreciate the fact that the amendments have only arrived in the House. I could propose a compromise, but I do not know if it would be acceptable to you, a Chathaoirligh, or to Senator Neville. Now that I have formally moved the amendment and explained what it proposes to do, I am prepared, as a gesture to Senator Neville and to the other spokespersons, including the spokesperson from my own side of the House, not to put the amendment until Report Stage. That would give us a break between Committee Stage and Report Stage and allow the spokespersons an opportunity to consider the amendments in greater detail.
Are you withdrawing the amendment?
I am not withdrawing the amendment, but I am not forcing it to a vote.
The question will be asked if the amendment is agreed.
If I withdraw the amendment, will I be able to reintroduce it on Report Stage?
Yes.
Amendment, by leave, withdrawn.
Section 3 agreed to.
NEW SECTION.
I move amendment No. 3:
In page 11, before section 4 (but in Part I), to insert the following new section:
"PART II
4.—The Minister is hereby authorised to create, by ministerial order, a Drugs Enforcement Agency which shall have responsibility for co-ordinating Government activities in combating drug trafficking and in promoting and assisting greater international co-operation in relation to criminal law enforcement procedures related to drugs offences, such body to involve the Garda Síochána, the Customs and Excise, the Defence Forces, the Department of Health and other agencies as the Minister deems fit. The Drugs Enforcement Agency will have a maximum of 15 members and will come into existence by ministerial order following the publication of regulations to be laid before both Houses of the Oireachtas.".
This amendment seeks to create a drugs enforcement agency which will enable the authorities to pursue drug barons to the countries which continue to export illegal drugs to Ireland. Some countries export more illegal drugs than legitimate goods as part of their GNP. Some are wealthy and use their drugs to purchase arms. The European Union should not continue to trade for their legitimate products and turn a blind eye to the export of illegal drugs; if it does, it will mean that it does not care about the effects of such drug trading. As a member of the European Union we must use our influence to change the Union's attitude to the present situation. As a nation we should promote a European drugs enforcement agency which would cooperate with the US Drugs Enforcement Agency and similar bodies around the world. We know the source of the drugs problem and we should deal with it.
We have seen the problems caused by drug trafficking in the confiscations which have taken place off the south-west coast of Ireland. It is frightening to dwell on the level of confiscations which are regarded as a small fraction of the total amount of drug trafficking and drug smuggling taking place off the south-west coast.
The drugs enforcement agency should be an advisory body to the Government when it comes to control of the drugs problem. It should be available to a cross section of Departments, including the Department of Health and the Department of Foreign Affairs. We hinted at this earlier when we discussed the first amendment in relation to the combat drugs fund. Such a fund might be made available if the Minister was in a position to take such a move, but, as she has already stated, she is not. Moneys should be available to set up a drugs enforcement agency and part of its role would be as an advisory body to the Department of Justice, the Department of Health and the Department of Foreign Affairs.
We must take drug trafficking seriously and structures, such as I have outlined, must be set up to control the situation which has developed into epidemic proportions. It is impossible to calculate the cost of drugs control to the State. Unless we get to the source of the problem, we are wasting our time. Measures taken in the area of drugs control and the elimination of drug trafficking have failed. The drugs problem is increasing, but this amendment will make a real effort to deal with it.
It is fair to say there is some confusion as to whether we should have a drugs enforcement agency. Different people have different views about the role of such an agency. For example, the US Drugs Enforcement Agency is used on a regular basis when people make representations to me. It is a major organisation and its personnel have a specific operational role. I seriously considered the possibility of setting up a drugs enforcement agency here after I paid a visit to the south-west last year. I received considerable representations from Members of this House and the public about what was perceived to be the lack of co-operation between the three agencies involved — the Garda, the Customs and Excise and the Naval Service. I also availed of the opportunity to meet representatives of the US Drugs Enforcement Agency who recently visited this country. We discussed in detail the reasons it was originally set up, its operational role and how we might learn from what it was doing in the United States.
There are a number of positive things going for us, including the fact that we have a single police force under a single command. We would like to preserve this because we do not want a situation like that which exists in some European countries or in the United States where there are state police, federal police, municipal police and so on. In the US a different section of the police force deals with a single area of operations, but there is a considerable lack of co-operation and a lot of jealousy and competitiveness. I do not want to bring the Garda, the Customs and Excise or the Naval Service down that road because it would not benefit anyone.
Senator Neville's amendment takes a different approach to that type of drugs enforcement agency. He suggests a co-ordinating body with a maximum of 15 members, made up of the Garda and other specified bodies. That is different to the US Drugs Enforcement Agency whose personnel is involved in a direct operational role. It would be more appropriate to refer to the type of body Senator Neville proposes as a co-ordinating or a liaison committee rather than an enforcement agency. Having regard to the limited type of agency Senator Neville proposes, I am not in a position to accept the amendment, not least because there is no legislation necessary or no amendment to the legislation necessary to establish the type of group he has in mind.
I hope it is clear from what I have said that Senator Neville and I and Members of this and the other House share the same objective. We want to secure the best arrangements possible for safeguarding our coast and country from the problems and detrimental effects of drug trafficking. That is a matter which has been of concern to me since becoming Minister for Justice. As I said, I visited the south-west and spoke to the three agencies involved, the Customs and Excise, the Garda Síochána and the Naval Service. We have the highest level of co-operation at senior level between the Garda Commissioner, the Chairman of the Revenue Commissioners and the Department of Defence. However, we need the same level of co-operation at operational level on the ground where the immediate decisions are taken. We must realise that Customs and Excise must enforce one aspect while the Garda Síochána has a different role. The role of the Customs and Excise is to seize drugs and once that is done, its role is complete. The Garda Síochána on the other hand, is anxious — I am sure it has support in this and the other House — to get the drug traffickers and the drug barons who are bringing this misery into this country. It believes that if it can get these people out of circulation, it will have done a substantial job on behalf of the people. I, and Members of the House, support them in that regard. The Naval Service provides support and backup for both agencies.
We need a comprehensive system of liaison between the three groups. We must have high level co-operation between them at operation level. I want the three groups to achieve a cohesive and co-ordinated response to this scourge. We do not want this country to be a soft target. We are putting in place legislation such as this which will ensure that those involved in drug trafficking get severe sentences for their crimes. We must also have in place a confiscation order procedure which will take away their assets which is the best aspect of this legislation.
Looking at the situation I was conscious of the need to ensure a co-ordinated and a cohesive response. I asked an assistant secretary in my Department to fully inform himself of the situation, how it could be corrected and what recommendations should be made to me which I, in turn, could make to Government. I received his report ten days ago. I am studying that report and as part of that study I have sent it to the three agencies involved and, indeed, to other agencies and Departments. I want to ensure that it has been fully considered before I make a recommendation to Government.
I strongly believe that the co-ordinated effort and response in this area should be headed by one individual, in other words, one person should be made responsible for all three agencies. We can no longer have three different agencies going after a particular problem in three different ways. We cannot have competition between the different agencies who, at the end of the day, are trying to achieve the same goal. That is my view, but I await response from the various Government agencies, Departments and, in particular, the three agencies involved before I am in a position to put a recommendation to Government. I want to do that quickly because I believe it is important.
When discussing this we should be prepared to congratulate members of the Customs and Excise, the Garda Síochána and the Naval Service who were fully involved in a successful high profile case in the south-west some months ago and who brought it to a successful conclusion in the courts. It was a significant, cooperative and co-ordinated response which I would like to see in all cases.
I join with the Minister in congratulating the Customs and Excise, the Garda Síochána and the Naval Service on the work they do. Our amendment seeks to put a drug enforcement agency as outlined and about which I spoke on a statutory basis. The Minister stated that such an agency does not need statutory enforcement. Given that the activities of drug barons and drug pushers, who generate vast amounts of wealth, affect many people, devastate many families and cause many deaths, we believe the enforcement and co-ordination of activities against such people should be put on a statutory basis.
I agree with the thrust Senator Neville's amendment. However, after listening to the Minister, I go along with her on the basis that we trying to pool information between the three agencies. I congratulate these agencies, particularly the Garda Síochána, on the work it must do each day confiscating drugs, going after drug barons and dealing with the victims who are usually in a very bad state. I also must deal with this aspect of the drug problem.
The Garda Síochána involved in this area has a huge body of people working in the area of the confiscation of drugs and combating drug barons. I look forward to reading the Minister's report when published. It is important that there is a body to correlate all the different segments because we need a referral group to outline the situation in regard to the drug problem.
I was also interested in this amendment because I was anxious to hear the Minister's thoughts on this proposal. I am pleased she is moving in the direction of trying to create an Irish equivalent of what is known in America as a drugs tsar who would be in position to co-ordinate the various agencies involved in fighting drugs. I urge the Minister to go down that road because it is the way forward. This is a small country and we do not have the same level of activity or operational procedures as in the United States which is essentially a federation where different police agencies operate, where different agendas are pursued by these agencies and where, perhaps, because of the vastness of the country, it was necessary to set up a Drugs Enforcement Agency. We need greater co-ordination and rationalisation.
I must declare an interest because my brother-in-law is a Customs and Excise officer in Rosslare and has been involved in some of the successes of the Customs and Excise in the area of drug detection. I echo the congratulations to the various agencies expressed by Members on both sides of the House and by the Minister. This problem seems to be worsening. Because of our peripheral location, I hope that any decision the Minister takes will not only receive encouragement from her colleagues in Europe but also the financial backing required to ensure that once this co-ordinating structure is in place it will be effective because this is not just about law enforcement. Tackling drugs and illegal trafficking involves surveillance and intelligence gathering; it is about long hours, days and months of operational activity involving various State agencies to ensure that the suspect is caught and does not slip through the net.
We all know the consequences of these drug activists slipping through the net. We heard about them earlier today from Senator Norris. The Minister here and in the other House has outlined the horrific consequences of drugs going on to the streets of our towns and villages. I urge the Minister to ensure that once this report has been circulated and the proper consultative processes are gone through, this rationalisation and co-ordination of the agencies is set up under one individual in this country.
Amendment put.
The Committee divided: Tá, 15; Níl, 21.
Tá
- Belton, Louis J.
- Burke, Paddy.
- Cotter, Bill.
- Cregan, Denis (Dino).
- D'Arcy, Michael.
- Dardis, John.
- Enright, Thomas W.
- Farrelly, John V.
- Henry, Mary.
- Honan, Cathy.
- Manning, Maurice.
- Naughten, Liam.
- Neville, Daniel.
- Norris, David.
- Ross, Shane P.N.
Níl
- Bohan, Eddie.
- Byrne, Seán.
- Calnan, Michael.
- Cashin, Bill.
- Daly, Brendan.
- Fahey, Frank.
- Farrell, Willie.
- Finneran, Michael.
- Fitzgerald, Tom.
- Lanigan, Mick.
- Lydon, Don.
- McGennis, Marian.
- McGowan, Paddy.
- Mooney, Paschal.
- Mullooly, Brian.
- O'Kennedy, Michael.
- O'Sullivan, Jan.
- Ormonde, Ann.
- Roche, Dick.
- Townsend, Jim.
- Wright, G.V.
Tellers: Tá, Senators Burke and Cotter; Níl, Senators Mullooly and Calnan.
Amendment declared lost.
Sections 4 to 6, inclusive, agreed to.
NEW SECTIONS.
Amendments Nos. 4 and 5 not moved.
SECTION 7.
I move amendment No. 6:
In page 13, subsection (1), line 19, to delete "on indictment".
It should be possible to make confiscation orders for offences other than drug trafficking apply not only to persons on indictment but to summary cases. Many cases are heard in District Courts where the same leeway as indictment is available to the court. It would extend and improve the Bill if "on indictment" in section 7 was withdrawn and if the District Courts could have the leeway I have outlined.
I am opposed to this amendment. The intention of the Bill is to ensure there is a mechanism available where people who have been convicted of serious crimes can be deprived of any material benefit accruing to them as a result of those crimes. Very elaborate procedures are being proposed to try to achieve this.
The District Court is a court of summary jurisdiction and, by definition, the offences with which it deals are less serious in nature. In the case of less serious offences, that court has a wide array of options open to it to ensure a person does not benefit from an offence. This can be particularly reflected in the level of fine the court may impose. Moreover, under the terms of the Criminal Justice Act, 1993, it is open to the District Court, on conviction of any person of an offence, to require that person to pay compensation in respect of any loss resulting from that offence. For example, if a person is convicted of larceny of £100 from an individual, the court can order payment of that amount to the victim as compensation.
The key question which must be addressed on Senator Neville's amendment — I appreciate the thinking behind it — is whether the balance of advantage lies with providing a confiscation facility for the District Court in addition to the range of options already available to it. There are, of course, clear advantages with a court of summary jurisdiction. This enables relatively minor offences to be dealt with expeditiously. There must be doubts about whether the use of confiscation procedure would be appropriate in such courts, especially given the danger that because of the nature of the procedure, it might contribute to clogging up the work of those courts.
The type of detailed investigation of an offender's means which would usually be required for a confiscation order to be made could be greatly disproportionate to any benefit which might be gained in the case of minor offences. Serious offences are generally dealt with by the Circuit Court and the confiscation procedure will be available there. The District Court has already available to it the options I have outlined. In deciding whether to proceed by way of summary trial or on indictment, the Director of Public Prosecutions, on exercising his discretion in these matters, could take into account whether there would be an advantage in proceeding by way of indictment in terms of a subsequent application for a confiscation order.
In all circumstances, our key concern to ensure that people do not benefit from the proceeds of crime can be met without accepting the terms of this amendment. As a general point, I would prefer to deal with the provision of any further options being made available to the District Court in the context of the forthcoming Law Reform Commission report on sentencing policy.
Amendment, by leave, withdrawn.
Section 7 agreed to.
SECTION 8.
Government amendment No. 7:
In page 14, subsection (1), paragraph (a), lines 9 and 10, to delete "section 4 or section 7" and substitute "section 4, 7, 8, or 9,".
Amendment, by leave, withdrawn.
An Leas-Chathaoirleach
Amendment No. 9 is consequential on amendment No. 8 and amendments Nos. 8 and 10 are related. Amendments Nos. 8, 9 and 10 may be discussed together.
Government amendment No. 8:
In page 14, between lines 26 and 27, to insert the following new subsection:
"(2) Nothing in this section shall prevent the Director of Public Prosecutions from making more than one statement.".
These amendments are concerned with procedural matters that arise in the context of section 8 and are essentially designed to fine tune the arrangements already provided for in the Bill on the tendering of statements to the courts. Senators will recall that section 8 of the Bill relates to statements which are submitted by the Director of Public Prosecutions and the defendant to a court which is considering the making of a confiscation order. Subsection (1) of that section provides that the DPP may submit a statement to the court which is relevant to the determination of whether the defendant has benefited from crime and the assessment of any such benefit. As the section is worded at present, the DPP could be limited to one statement in this respect.
The purpose of amendment No. 8 is to ensure that the DPP will be able to submit a further statement or statements to the court under section 8 (1) where it would be appropriate for him to do so. This would be the case, for example, where fresh information about the amount of the defendant's criminal proceeds becomes available to the DPP after the original statement has been presented to the court and while proceedings were continuing.
Amendment No. 9 is consequential on amendment No. 8 and provides, in effect, that a follow-up statement tendered to the court by the DPP will be treated in the same way as his original statement. Thus the court will then be able to require the defendant to indicate whether they accept an allegation on any statement submitted by the DPP under section 8.
Amendment No. 10 is the counterpart of amendment No. 8 and allows a defendant to submit more than one statement to the court on any matters relevant to determining the amount that might be realised at the time the confiscation order is made.
These are technical amendments dealing with procedural matters. They do not involve any changes in principle to the approach taken in the Bill, but will improve the operation of section 8 in practice.
Having briefly studied these amendments and listened to the Minister, we accept them. The courts should have the fullest information to determine the guilt or innocence or the level of confiscation or otherwise of a person being charged. The person should also have the right to respond. From my brief reading of the Minister's statement, I take it that this amendment does this. In our support for the general thrust of the Bill, in strengthening it as much as possible and in support of fair play to the defendant, this side of the House is happy to accept these amendments.
Amendment agreed to.
Government amendment No. 9:
In page 14, subsection (2), paragraph (a), line 28, after "subsection (1)" to insert "or (2)".
Amendment agreed to.
An Leas-Chathaoirleach
Amendment No. 10 is a Government amendment and has already been discussed with amendment No. 8.
Government amendment No. 10:
In page 15, between lines 17 and 18, to insert the following new subsection:
"(5) Nothing in this section shall prevent a defendant from making more than one statement.".
Amendment agreed to.
Section 8, as amended, agreed to.
SECTION 9.
Government amendment No. 11:
In page 15, subsection (1), line 30, to delete "section 4 or section 7" and substitute "section 4, 7, 8, or 9,".
Amendment, by leave, withdrawn.
Section 9 agreed to.
Section 10 agreed to.
SECTION 11.
An Leas-Chathaoirleach
Amendments Nos. 12 and 14 are Government amendments, are related and may be discussed together.
Government amendment No. 12:
In page 16, subsection (2), lines 35 and 36, to delete "under this Act" and substitute "under section 4 or section 7 of this Act, in the case respectively of a conviction for a drug trafficking offence or a conviction for an offence other than a drug trafficking offence,".
The purpose of this amendment and amendment No. 14, which are largely technical in nature, is to fine tune sections of the Bill. They clarify further the procedure for the making of confiscation orders under sections 11 (2) and (4) of the Bill. Senators will recall that section 11 (2) enables the High Court to make a confiscation order against a person who has been convicted of drug trafficking or another offence on indictment, but who dies or absconds before the confiscation order can be made.
Section 11 (4) enables a confiscation order to be made in the case of a defendant in respect of whom criminal proceedings have been instituted on indictment but who absconds before the proceedings are concluded. At present, section 11 (2) and (4) provide that where the appropriate conditions are fulfilled, the High Court may exercise the powers of a court to make a confiscation order under this Act. They do not, however, refer to the specific powers under the Act which are involved. I have been advised that it might be better to make it clear that in the case of a conviction or proceedings related to drug trafficking, the powers provided in section 4 will apply. Where other offences are in issue, the provisions of section 7 will operate.
This is the effect of amendments Nos. 12 and 14, which propose the deletion of the words "under this Act" in section 11 (2) and (4) and their replacement by new words along the lines I have indicated. What is involved is simply a clarification and an improvement of the existing text.
Amendment agreed to.
Government amendment No. 13:
In page 16, subsection (3), line 39, after "offences" to insert "in respect of which a confiscation order may be made under this Act".
This amendment makes it clear that a confiscation order will only be made by the High Court under section 11 (3) against a person who absconds before the conclusion of their trial if that person is being proceeded against on indictment. The making of confiscation orders generally is being restricted to convictions and to proceedings for indictable offences and it would be desirable to amend section 11 (3) to make it clear that this principle would apply where a person had absconded.
This amendment appears simple enough. At present the section applies where proceedings for one or more offences have been instituted against the person but have not been concluded. The Minister now proposes that if the person absconds and the case is concluded, the confiscation can take place.
That is correct.
Amendment agreed to.
An Leas-Chathaoirleach
Amendment No. 14 has already been discussed with amendment No. 12.
Government amendment No. 14:
In page 16, subsection (4), lines 42 and 43, to delete "under this Act" and substitute "under section 4 or section 7 of this Act, where the relevant proceedings have been instituted respectively in respect of a drug trafficking offence or an offence other than a drug trafficking offence,".
Amendment agreed to.
Section 11, as amended, agreed to.
Section 12 agreed to.
NEW SECTION.
Government amendment No. 15:
In page 17, before section 13, to insert the following new section:
.—(1) An appeal against the making of a confiscation order shall lie to the Court of Criminal Appeal.
(2) If it upholds the appeal, in whole or in part, the court may, on an application by a person who held property which was realisable property, order compensation to be paid to the applicant if—
(a) it is satisfied that the applicant has suffered loss as a result of the making of the confiscation order and;
(b) having regard to all the circumstances of the case, the court considers it to be appropriate.
(3) The amount of compensation to be paid under this section shall be as the court considers just in all the circumstances of the case.".
The purpose of this amendment is to provide specifically for the procedure for the appeals against confiscation orders which will be made under the Bill. The reason for making specific provision in this regard is that while in the normal course an appeal against a criminal conviction would be provided for under our Courts Acts, a confiscation order will not be part of any sentence imposed on a person for drug trafficking or some other offence. Accordingly, the amendment allows an appeal against a confiscation order to be made to the Court of Criminal Appeal. In addition, it enables that court to order the payment of compensation where an appeal in respect of the confiscation order is successful in whole or in part.
I have no difficulty with the amendment. It is a tenet of our legal system that we have the right of appeal right up to the Supreme Court. I take it from the Minister's contribution that if this is not submitted, and if a confiscation order is incorrectly calculated, there is no avenue for the person whom the order has been made against to appeal this order and have it reviewed. I understand, from my reading of it and the Minister's remarks, that the amendment would introduce such a situation. This would suggest that an amendment of this kind is desirable under the course of natural justice.
Amendment agreed to.
Section 13 agreed to.
NEW SECTION.
Government amendment No. 16:
In page 17, before section 14, to insert the following new section:
.—(1) This section applies where—
(a) the High Court has made a confiscation order by virtue of section 11 (4) of this Act, and
(b) the defendant has ceased to be an absconder.
(2) If, on an application by the defendant or the Director of Public Prosecutions in respect of the confiscation order, the High Court is satisfied that—
(a) the value of the defendant's proceeds of drug trafficking or his benefit as mentioned in section 7 (4) of this Act in the period by reference to which the determination in question was made ("the original value"), or
(b) the amount that might have been realised at the time the confiscation order was made,
was less than the amount ordered to be paid under the confiscation order, the court—
(i) may make fresh determination of the value of the defendant's proceeds or benefit under section 4 of this Act in the case of drug trafficking and under section 7 of this Act in the case of an offence other than a drug trafficking offence, and
(ii) may, if it considers it just in all the circumstances, vary the amount to be recovered under the confiscation order.
(3) For any determination under section 4 of this Act by virtue of this section, section 5 (5) shall not apply in relation to any of the defendant's proceeds of drug trafficking taken into account in determining the original value.
(4) Where the court varies a confiscation order under this section it may, on an application by a person who held property which was realisable property, order compensation to be paid to the applicant if—
(a) it is satisfied that the applicant has suffered loss as a result of the making of the confiscation order; and
(b) having regard to all the circumstances of the case, the court considers it to be appropriate.
(5) the amount of compensation to be paid under this section shall be such as the court considers just in all the circumstances of the case.
(6) No application shall be entertained by the court under this section if it is made after the end of the period of six years beginning with the date on which the confiscation order was made.".
This amendment enables the defendant or the DPP to apply to the High Court to vary a confiscation order made against an absconder under section 11 (4) where the absconder has returned and the court is satisfied that the amount of his or her benefit was overestimated when the confiscation order was made, or that his or her assets are not sufficient to satisfy the order. Similar provision for the variation of confiscation orders is already included in the Bill in section 13 in relation to confiscation orders where an absconder is not involved.
Amendments were made to the Bill in the Dáil to tighten up on the position regarding those who abscond and in the context of reviewing the overall effect of these changes I believe that a separate provision along these lines in relation to the cases of those who abscond is warranted.
In this context provision is also being made for the payment of compensation where the High Court varies a confiscation order by virtue of section 11 (4). Compensation will be payable to a person who suffered loss as a result of the making of the order.
I will accept the amendment, but I have not had the opportunity to read it in detail. While I accept the principle as outlined by the Minister, there is much detail in the amendment which my party has not had the opportunity to consider. While accepting the amendment, my party will consider the amendment in detail on Report Stage.
An Leas-Chathaoirleach
May I ask if the amendment is agreed, or is it being withdrawn?
My understanding is that the amendment can only be resubmitted on Report Stage if it is withdrawn now. I therefore propose to withdraw the amendment to enable it be considered on Report Stage.
Amendment, by leave, withdrawn.
Sections 14 and 15 agreed to.
SECTION 16.
An Leas-Chathaoirleach
Amendment No. 17 has already been discussed with amendment No. 2.
Amendment No. 17 not moved.
Section 16 agreed to.
Section 17 agreed to.
SECTION 18.
An Leas-Chathaoirleach
Amendment No. 18 is consequential on amendment No. 43 and they may be discussed together.
I move amendment No. 18:
In page 19, subsection (1), line 47, after "purpose" to insert "Including a court audit".
I invite the Minister to respond.
While I appreciate the thinking behind these amendments, we should not proceed with the appointment of court auditors as envisaged by Senator Neville. Sufficient powers for appropriate persons are already contained in the Bill.
Under the provisions of the Act, it will be a matter for the DPP to initiate proceedings for confiscations. Those proceedings, although separate, follow on from court proceedings in which the prosecution would have been taken in the name of the DPP. Not only would the DPP be best placed to decide on whether confiscation proceedings would be worthwhile, but also this decision is one that should lie with an independent law officer.
Regarding the assembling of evidence in connection with possible confiscation proceedings, the DPP will, of course, rely on the Garda Síochána to carry out the necessary inquiries. Under sections 50 and 51 of the Bill, a member of the Garda Síochána can seek orders to make material available in connection with such inquiries and for the issue of search warrants.
Regarding court proceedings themselves under section 9, the court may order the defendant to provide information. In those circumstances it would appear that the only possible advantage which might be argued in favour of the appointment of auditors of the kind envisaged in the amendments is that it would bring a level of expertise to these matters which would not otherwise be available; but in reality that is a matter which can be dealt with administratively and no provision is needed in the Bill to achieve this. For example, as part of the recent law enforcement package, I announced the decision to recruit three professional accountants for the Garda Fraud Squad. Their expertise will assist members of the Garda Síochána, but there is no need for this to be placed on a statutory footing.
Equally, professional accountants could be used, where necessary, to assist in relation to investigations arising from this Bill without impinging on the role and powers being given to the DPP and the gardaí. For example, if it were to be decided to set up a special unit in the Garda Síochána regarding confiscation proceedings, all relevant expertise could also be made available to it, including the appointment of accountants.
The fact that it would be a matter for the gardaí or the DPP to attend court would have no implications for the effectiveness of such accountants. It is also the case that the Bill will allow the courts to appoint receivers to realise a confiscation order. In all the circumstances I do not believe that the amendments proposed by Senator Neville are necessary to ensure that appropriate levels of resources and expertise will be available to ensure that the provisions of the Bill are implemented effectively.
I believe the amendment will improve the effectiveness of the Bill. Its purpose is to empower the Minister to appoint an auditor to assess the wealth of the offender. This auditor should have not less than seven years experience. The amendment refers to such an auditor as a court auditor. It is necessary to ensure that those who benefit from the proceeds of crime, especially drug related crime, do not escape the effects of the Bill. We must ensure, at a time when cash can be transferred relatively easily by electronic means from banks in this country to other countries, that court auditors shall, on application to the High Court, have full powers of discovery and, with the assistance of the Garda, full powers of research. It should be an offence, punishable by a fine not exceeding £5,000 and/or imprisonment for a term of up to 12 months and on indictment a fine not exceeding £10,000 and/or imprisonment for a term of up to five years, to impede the court auditor in the exercise of his or her duties. It is important that the auditor is appointed to ensure the effectiveness of the legislation in tracing and knowing precisely the assets of a criminal charged and found guilty. It is possible for criminals to have moneys stacked in offshore accounts and relatively easy to transfer money to these accounts. If a person is dealing in international drug trafficking, he or she is likely to have a bank account in a country other than Ireland. However, if that person transfers cash, it is important that these movements be traced and a court auditor is available to the courts to do so.
Amendment put.
The Committee divided: Tá, 16; Níl, 24.
Tá
- Belton, Louis J.
- Burke, Paddy.
- Cotter, Bill.
- Cregan, Denis (Dino).
- D'Arcy, Michael.
- Dardis, John.
- Doyle, Joe.
- Enright, Thomas W.
- Farrelly, John V.
- Henry, Mary.
- Honan, Cathy.
- Manning, Maurice.
- Naughten, Liam.
- Neville, Daniel.
- Quinn, Feargal.
- Ross, Shane P. N.
Níl
- Bohan, Eddie.
- Byrne, Seán.
- Calnan, Michael.
- Cashin, Bill.
- Cassidy, Donie.
- Daly, Brendan.
- Fahey, Frank.
- Farrell, Willie.
- Finneran, Michael.
- Fitzgerald, Tom.
- Lanigan, Mick.
- Lydon, Don.
- McGennis, Marian.
- McGowan, Paddy.
- Mooney, Paschal.
- Mullooly, Brian.
- O'Kennedy, Michael.
- O'Sullivan, Jan.
- O'Toole, Joe.
- Ormonde, Ann.
- Roche, Dick.
- Sherlock, Joe.
- Townsend, Jim.
- Wright, G. V.
Tellers: Tá, Senators Burke and Cotter; Níl, Senators Mullooly and Calnan.
Amendment declared lost.
I would like to acknowledge the fact that the Mayor of Pouzec in Brittany is with us in the House and I welcome him. Fáilte go hÉireann, you are welcome to Ireland. For the benefit of Senators I should say that his town is twinning with a famous town in County Leitrim known as Ballinamore.
Amendment No. 19 has already been discussed with amendment No. 1.
Amendment No. 19 not moved.
Section 18 agreed to.
NEW SECTION.
Government amendment No. 20:
In page 20, before section 19, to insert the following new section:
19.—(1) The powers conferred on the High Court by section 20 of this Act shall be exercisable where—
(a) (i) proceedings have been instituted in the State against the defendant for an offence which is a drug trafficking offence or an indictable offence other than a drug trafficking offence or an application has been made in respect of the defendant under section 7, 8, 11 or 14 of this Act,
(ii) the proceedings or the application have not or has not been concluded, and
(iii) either a confiscation order has been made or it appears to the court that there are reasonable grounds for thinking that a confiscation order may be made in the proceedings or that in the case of an application under section 7, 8, 11 or 14 of this Act the court will be satisfied, as the case may be, as mentioned in section 7 (3), 8 (4), 11 (2), 11 (4) or 14 (2) of this Act,
or
(b) (i) the court is satisfied that proceedings are to be instituted against a person in respect of an offence which is a drug trafficking offence or an offence in respect of which a confiscation order might be made under section 9 of this Act or that an application of a kind mentioned in subsection 1 (a) (i) of this section is to be made in respect of a person, and
(ii) it appears to the court that a confiscation order may be made in connection with the offence or that a court will be satisfied as mentioned in subsection 1 (a) (iii) of this section.
(2) For the purposes of section 20 of this Act, at any time when those powers are exercisable before proceedings have been instituted—
(a) references in this Act to the defendant shall be construed as references to the person referred to in subsection (1) (b) (i) of this section, and
(b) references in this Act to realisable property shall be construed as if, immediately before that time, proceedings had been instituted against the person referred to in subsection (1) (b) (i) of this section for an offence which is a drug trafficking offence in respect of which a confiscation order might be made under section 9 of this Act.
(3) Where the court has made an order under section 20 of this Act by virtue of subsection (1) (b) of this section, the court shall discharge the order if proceedings in respect of the offence are not instituted or the relevant application is not made within such time as the court considers reasonable.
That amendment was discussed with amendment No. 2 and I agree to withdraw that series of amendments to give Opposition spokespersons an opportunity to look at them between now and Report Stage.
Acting Chairman
It is being resubmitted on Report Stage. Is that agreed? Agreed.
Amendment, by leave, withdrawn.
Sections 19 and 20 agreed to.
SECTION 21.
Acting Chairman
Amendment No. 22 is an alternative to amendment No. 21 and both may be discussed together.
Government amendment No. 21:
In page 22, between lines 34 and 35, to insert the following new subsections:
(7) Where a restraint order is made which applies to an interest in a company or to the property of a company, the registrar of the High Court shall furnish the Registrar of Companies with notice of the order and the Registrar of Companies shall thereupon cause the notice to be entered in the Registrar of Companies maintained under the Companies Acts, 1963 to 1990.
(8) Where notice of an order has been given under subsection (7) of this section and the order is varied, the Registrar of the High Court shall furnish the Registrar of Companies with notice to that effect and the Registrar of Companies shall thereupon cause the entry made under subsection (7) of this section to be varied to that effect.
(9) Where notice of an order has been given under subsection (7) of this section and the order is discharged, the Registrar of the High Court shall furnish the Registrar of Companies with notice to that effect and the Registrar of Companies shall thereupon cancel the entry made under subsection (7) of this section.
Government amendment No. 21 and amendment No. 22 in the name of Senator Neville provide for the registration of restraint orders made under section 20 of the Bill with the Registrar of Companies. Senator Neville's amendment is identical to an amendment which was tabled by Deputy Gay Mitchell in the Lower House. When the matter was discussed there I indicated that I was sympathetic to what the Deputy had proposed in his amendment and that I would like to have the opportunity to have it discussed with the Registrar of Companies. After detailed consultations I am satisfied that it would be feasible to have restraint orders registered in the Companies Office and the wording which is set out in my amendment has been agreed with the Registrar of Companies in this respect. There is no real difference between my amendment and that proposed by Senator Neville but I believe it is necessary to go further than the Senator's amendment in providing for the action to be taken by the Registrar of Companies on receipt of notice of the making of a restraint order or any variation or cancellation thereof. This is the approach which is adopted in my amendment and also in the provisions of section 21 which deal with the registration of restraint orders in the Land Registry and Registry of Deeds. In the circumstances I would hope that Senator Neville might see his way to withdrawing his amendment in preference to acceptance of mine.
I thank the Minister for taking the amendment. She indicated on two occasions in the other House that she would look at this approach. She has dealt with it in a slightly different and probably more comprehensive way. It again highlights an issue which I and other Senators have brought up here on numerous occasions; that those of us on this side of the House do not have the facility to word amendments in a fashion which is legally acceptable. In another jurisdiction or another state we would have some assistance from the State to help us in formulating amendments. However, we do not have that facility here and in many ways it inhibits those of us who are not legally qualified in wording amendments and in pursuing changes that we wish to have in Bills. I thank the Minister for taking the amendment and I withdraw it.
I enthusiastically welcome this provision the Minister is including in the Bill. As Senator Neville has acknowledged, his intention and purpose was the same. The terminology here is very effective and tight. The reason I am sure it has commended itself to the Minister is that registration of title is probably the most expeditious way of dealing with property. Since the Registration of Title Act and all the regulations that followed from it came into place, the folio is the full story. Everything that would operate or intend to operate to prevent conveyancing on properties should be registered on that folio. Clearly the Minister's intention is to ensure that before any property which might be the subject of an interest on the part of a person who had ill-gotten gains from trafficking can be disposed of, the restraint order which has now been introduced is clearly registered on the title. That is very effective and will mean that nobody can say, at any time, that they had neither notice nor knowledge because the folio itself dates conclusive evidence of the actual title and any inhibitions or restraints that appear on it are immediately effective to restrain. This is an excellent provision and I am glad it has the support of all parties.
Amendment agreed to.
Amendment No. 22 not moved.
Section 21, as amended, agreed to.
Sections 22 and 23 agreed to.
SECTION 24.
Acting Chairman
Amendment No. 23 has already been discussed with amendment No. 2.
Amendment No. 23 not moved.
Section 24 agreed to.
Sections 25 and 26 agreed to.
SECTION 27.
Acting Chairman
Amendments Nos. 24, 25, 30 and 31 are related and may be discussed together.
I move amendment No. 24:
In page 26, subsection (9) (a), line 28, to delete "£1,000" and substitute "£5,000".
The penalties as they stand are very low for the types of offence that are dealt with in the Bill, especially money laundering which is a most serious offence. The international illegal drugs industry would not be at epidemic level if it was not so easy to launder money. When this money is laundered it comes into mainstream business and competes with legitimate businesses which are contributing legally to our economy by employing people and paying taxes.
People who are involved in drug pushing know they can convert their illgotten gains to legitimate use. For this reason the penalties should be substantially increased. The amendment increases fines from £1,000 to £5,000 while amendment No. 25 increases sentences from a maximum of 12 months to a maximum of two years in the case of summary conviction. It should be possible on summary conviction to impose a fine of up to £5,000 and apply a consecutive sentencing approach of up to two years.
On many occasions in this House we have discussed money laundering. It came up during the discussion of many Bills over the past five years. Everybody accepts that it is very serious. It is now being dealt with here and I believe that the fines and sentences — the sanctions imposed by this Bill — are not adequate to deal with the seriousness of the offences we are discussing.
People will sympathise with the intention of Senator Neville's amendment. The Minister probably sympathises also. However, the amendment applies only to subsection (9) (a) which deals with summary procedures. If the Senator looks at subsection (9) (b) he will see that the sentence to be imposed on conviction on indictment — in which case there is evidence of crime of a very serious nature although I am not saying that any offence covered in this section is not serious — is an unlimited fine or imprisonment for a term not exceeding 14 years or both. The section provides for the effective and heavy sanctions we all wish to see implemented and which is clearly the Minister's intention.
The Senator will be aware that a number of proceedings have been taken on a constitutional basis in respect of the rights of defendants on summary procedures. The High Court has held — and I think the Supreme Court has also held when it has been tested there — that a summary procedure cannot be used for relatively serious offences. If it is used there is a risk that the High Court or Supreme Court might strike it down.
The fundamental rights of citizens, even those charged for an offence as serious as the one we are discussing, must be taken into account. Adequate documents, notices and exhibits must be served on the defendant. That is why summary jurisdiction limits the penalty to £1,000 or 12 months. If the fine were increased to that suggested by Senator Neville — and I am not attempting to second guess what might happen in court — there would be a grave risk, having regard to current jurisdictions, that it would be challenged successfully in the High Court. That would defeat the purpose Senator Neville and the Minister wish to achieve.
While I appreciate Senator Neville's intentions, a series of court decisions on penalties that can be imposed by a court of summary jurisdiction make it impossible for me to accept the amendment. At present, the maximum sentence, which is generally provided by statute, that the District Court may impose is 12 months. In practice, the normal maximum penalty which we include in legislation on summary conviction is about £1,000.
The net effect of the judgments to which I have referred is that increases of the kind proposed in this amendment would be unlikely to withstand constitutional challenges in the context of their appropriateness for courts of summary jurisdiction. The issues involved are not specific to this Bill and, to a large extent, the constraints which arise are outside the control of the Oireachtas. In practice and as a matter of law, where a judge of the District Court regards the offence involved as being of a level of seriousness for which the sanctions available to that court would be insufficient, it is open to the judge to refuse jurisdiction and to refer the matter to the Circuit Court.
In view of the Minister's response and the difficulties that could arise, the amendment is not being pressed.
Amendment, by leave, withdrawn.
Amendment No. 25 not moved.
Section 27 agreed to.
SECTION 28.
An Leas-Chathaoirleach
Amendments Nos. 27, 28 and 29 are consequential on amendment No. 26 and all may be discussed together.
Government amendment No. 26:
In page 27, between lines 23 and 24, to insert the following subsection:
"(2) This section shall apply in respect of the carrying out of one or more of the operations which are included in numbers 2 to 12 and 14 of the list annexed to Council Directive 89/646/EEC, activities to which Council Directive 79/267/EEC as amended applies or any other activity which may be prescribed in regulations made under subsection 9 (b) of this section."
Section 28 places an obligation on certain bodies to take measures to prevent money laundering through, for example, taking measures to establish the identity of a person for whom they propose to provide a service. The basic approach which the section takes at present is to specify in subsection (1) the bodies on which these obligations are placed and, as well as mentioning specific institutions, there is a power to prescribe other persons or bodies in regulations.
The section arises primarily in the context of giving effect to an EU directive on money laundering. Both before and since the Bill was published I have arranged with my Department to have extensive consultations with representatives of financial institutions and their regulatory bodies such as the Central Bank. I appreciate the great co-operation which my Department received during these consultations.
In relation to section 28, there was general agreement that the approach it contains was basically sound. However, certain improvements were suggested which I agreed to bring forward in the present amendments. The main effect of these amendments is to enshrine in the section a specific reference to the services covered by the EU directive on money laundering. The directive defines those services by reference to two other directives and both of these are mentioned specifically in the amendments. This will put beyond doubt the ability of the legislation to implement in full the money laundering directive.
In addition a power is being given to prescribe by regulation activities which will be brought within the scope of the reporting requirements of section 28. This will mean that in practical terms if it comes to light that there are certain activities not already covered by the section which are liable to be used for money laundering, the reporting requirements of section 28 can be applied to them. While the basic approach of section 28 is being retained, the amendments are practical improvements to it and I trust they are acceptable to the House.
If Senator Neville would like to consider these amendments between now and Report Stage, I will be happy to withdraw them on that basis.
The amendments are acceptable. They enhance the Bill and clarify section 28.
It is significant and welcome that Senator Neville accepts the amendments. This section is a comprehensive cover in respect of the directive and is entirely consistent with the purpose and content of the Bill.
The Minister, quite rightly, has reserved the right under section 28 (1) (m) to designate any other person or body prescribed in regulations made under subsection 9 of the section. That is very important. The nature of financial services, financial transactions and the bodies engaged in financial services is changing rapidly. No matter how comprehensive a list may be, it is always possible that some other body or person could emerge who would not be within the scope of the detailed provisions in this subsection. It is prudent that subparagraph (m) has been included. It will enable the Minister of the day to prescribe in regulations any other person or body to be subject to the provisions regarding money laundering.
Amendment agreed to.
Government amendment No. 27:
In page 27, to delete lines 26 and 27 and substitute "of a kind mentioned in subsection (2) of this section".
Amendment agreed to.
Government amendment No. 28:
In page 27, to delete line 42 and substitute "kind mentioned in subsection (2) of this section".
Amendment agreed to.
Government amendment No. 29:
In page 29, between lines 2 and 3, to insert the following paragraph:
"(b) following consultation with the Minister for Finance, prescribe activities for the purposes of subsection (2) of this section which appear to the Minister to be liable to be used for the purpose of committing or facilitating the commission of offences under section 27 of this Act or any corresponding or similar offences under the law of any other country or territory,".
Amendment agreed to.
Section 28, as amended, agreed to.
Section 29 agreed to.
SECTION 30.
Amendments Nos. 30 and 31 not moved.
Section 30 agreed to.
Sections 31 to 33, inclusive, agreed to.
NEW SECTIONS.
An Leas-Chathaoirleach
Government amendments Nos. 32 to 39, inclusive, form a composite proposal and all may be discussed together.
Government amendment No. 32:
In page 31, before section 34 (but in Part V) to insert the following new section:
"PART VI
Drug Trafficking Money Imported or Exported in Cash.
34.—(1) A member of the Garda Síochána or an officer of customs and excise may seize and, in accordance with this section, detain any cash which is being imported into or exported from the State if its amount is not less than the prescribed sum and he has reasonable grounds for suspecting that it directly or indirectly represents any person's proceeds of, or is intended by any person for use in, drug trafficking.
(2) Cash seized by virtue of this section shall not be detained for more than forty-eight hours unless its detention beyond forty-eight hours is authorised by an order made by a judge of the District Court and no such order shall be made unless the judge is satisfied—
(a) that there are reasonable grounds for the suspicion mentioned in subsection (1) of this section, and
(b) that detention of the cash beyond forty-eight hours is justified while its origin or derivation is further investigated or consideration is given to the institution (whether in the State or elsewhere) of criminal proceedings against any person for an offence with which the cash is connected.
(3) Any order under subsection (2) of this section shall authorise the continued detention of the cash to which it relates for such period, not exceeding three months beginning with the date of the order, as may be specified in the order, and a judge of the District Court, if satisfied as to the matters mentioned in that subsection, may thereafter from time to time by order authorise the further detention of the cash but so that—
(a) no period of detention specified in such an order, shall exceed three months beginning with the date of the order; and
(b) the total period of detention shall not exceed two years from the date of the order under subsection (2) of this section.
(4) Any application for an order under subsection (2) or (3) of this section may be made by a member of the Garda Síochána or an officer of customs and excise.
(5) At any time while cash is detained by virtue of the foregoing provisions of this section a judge of the District Court may direct its release if satisfied—
(a) on an application made by the person from whom it was seized or a person by or on whose behalf it was being imported or exported, that there are no, or are no longer, any such grounds for its detention as are mentioned in subsection (2) of this section, or
(b) on an application made by any other person, that detention of the cash is not for that or any other reason justified,
(6) If at a time when any cash is being detained by virtue of the foregoing provisions of this section—
(a) an application for its forfeiture is made under section 35 of this Act; or
(b) proceedings are instituted (whether in the State or elsewhere) against any person for an offence with which the cash is connected.
the cash shall not be released until any proceedings pursuant to the application or, as the case may be, the proceedings for that offence have been concluded.".
The main purpose of these amendments is to make provision for the seizure of cash relating to drug trafficking being imported into or being exported from the State. As Senators will be aware, large amounts of cash are generated by drug trafficking and supplies of illegal drugs are frequently purchased in cash. As a result consignments of money derived from or intended for use in trafficking are moved across international borders. With the removal of exchange controls in this country, our authorities are not in a position to seize those consignments when they are detected. I believe this needs to be tackled and that is what is proposed in my amendments.
I should acknowledge that amendments designed to have the same effect as these amendments were put down by Deputy Gay Mitchell and Deputy O'Donnell in the other House. However, the scope of those amendments was effectively limited to the seizure of suspicious cash and they did not make provision for additional measures, such as the forfeiture of such cash, which are also required in this context.
In the other House I explained I was not prepared to follow this path before having available to me the report of a senior official in my Department, which among other matters was to consider whether customs officers or the Garda should have such powers. The draft report recommends that powers along the lines of these amendments should be available. While I have not completed my considerations of other aspects of the report, I believe this recommendation should be given effect in this Bill.
The amendments comprise eight sections; the proposed new sections 34 to 41, inclusive, will form a new Part VI of the Bill. The proposed new section 34 provides for the detention and seizure by a garda or a customs officer of cash being imported into or exported from the State, provided the amount is not less than a certain amount to be prescribed under section 40. The garda or customs officer must have reasonable grounds for suspecting the cash is derived from or intended for use in drug trafficking.
An order of the District Court will be required to enable the cash to be detained beyond 48 hours. An order for continued detention of the cash may be made by that court for a period of up to three months and further such orders may be made for a total period of two years. A person from whom the cash was seized will be entitled to apply for its release to a district judge. The cash will not be released if its forfeiture is being sought under section 35, or proceedings are being taken against a person for an offence connected with the cash.
The proposed new section 35 allows a Circuit Court judge to order the forfeiture of cash held under section 34 if satisfied, on an application by the DPP while the cash is still detained, that it represents drug trafficking proceeds or is intended for use in trafficking. The civil standard of proof will apply to an application under the section. The proposed section 36 provides for appeals to the High Court against forfeiture orders made under section 35. The civil standard of proof will also apply in respect of these appeals.
The proposed section 37 requires cash detained for more than 48 hours to be placed in an interest-bearing account. The interest will be added to the cash on its forfeiture or release. The proposed section 38 provides for the giving of notice of orders made by a district judge authorising the continuing detention of cash under section 34 (2) and for procedural matters. The proposed section 39 contains definitions for the purposes of the new Part VI.
The proposed section 40 sets out a procedure for prescribing the amount of cash in relation to which the power of seizure under section 34 will apply. The proposed section 41 provides in standard form for the disposal of money forfeited under section 35.
As I have already indicated, I believe there is a need to ensure appropriate measures can be taken to deal with the importation or exportation of cash connected with drug trafficking. I hope the amendments I have proposed to tackle the problem will be accepted by the House.
I fully accept the thrust of these amendments as outlined by the Minister. They reflect many of my party's views on these issues. I have not had the opportunity to consider the comprehensive detail of these amendments. I ask the Minister to give us a chance to look at and assess these provisions in detail before Report Stage, as she did with the earlier amendments.
The Minister is well disposed to doing as Senator Neville asks and has done so in relation to other provisions. We are moving into an era of more liberalised trade after GATT and the removal of exchange controls. Since Ireland will want to operate as freely as possible for legitimate commercial and financial transactions there will be a risk that people who have earned ill-gotten gains as defined in this Bill could use the new liberalised trade regime to transfer and launder funds. It is therefore important that in these new sections the Minister has introduced a series of effective and stringent provisions on confiscation and external forfeiture, not just within the State but in consultation and in conjunction with other states.
Clearly, there is a degree of urgency associated with provisions of this kind, because of the abuses already taking place. For that reason this legislation is needed now. I am happy to note this Bill anticipates the need to update, review, revoke or amend as may be required in the light of experience or in the course of the operation of the Act. The current section 34 (9) states:
The Government may amend or revoke an order made under this section including an order made under this subsection.
This is essential. We need urgent and immediate action, but if it transpires that even stronger action is required or that we need to revoke a provision which did not achieve what it intended, it is good the Government has reserved such power to itself here. This series of sections dealing with international co-operation is long overdue, not on the part of this jurisdiction but of all the nations concerned about the awful spread of the drug trafficking virus.
Amendment, by leave, withdrawn.
Amendments Nos. 33 to 39, inclusive, not moved.
Sections 34 to 38, inclusive, agreed to.
SECTION 39.
Government amendment No. 40:
In page 37, subsection (7), between lines 33 and 34, to insert the following new paragraph:
"(d) section 1 (3) (c) of the Extradition (Amendment) Act, 1994."
This is a technical amendment. It arises because certain technical details in relation to extradition, which were included in the Bill as originally published, have been superseded by the recent enactment of the Extradition (Amendment) Act, 1994. That Act made reference to section 24 of the Extradition Act, 1870, and section 5 of Extradition Act, 1873, both of which deal with the obtaining of evidence in the State for use in foreign criminal proceedings. As Senators will be aware, section 24 of the Extradition Act, 1870, and section 5 of the Extradition Act, 1873, are being repealed by section 39 of the Bill. This amendment carries those repeals through to section 1 (3) (c) of the Extradition (Amendment) Act, 1994. This is a tidying up operation which does not give rise to any point of substance. In the circumstances, I hope Members will accept the amendment.
Are we repealing a recent section of a Bill which went through the Dáil?
Yes, we are repealing section 39 on the basis that it has been superseded by the Extradition (Amendment) Act, 1994, which was passed recently.
We accept the amendment.
Amendment agreed to.
Section 39, as amended, agreed to.
Sections 40 to 42, inclusive, agreed to.
SECTION 43.
Government amendment No. 41:
In page 41, between lines 28 and 29, to insert the following subsection:
"(2) Section 50 of this Act shall have effect as if references in that section to drug trafficking or an offence in respect of which a confiscation order might be made under section 7 of this Act included any conduct which is an offence under the law of a country or territory outside the State and would constitute drug trafficking or an offence in respect of which a confiscation order might be made under section 7 of this Act if it had occurred in the State."
This amendment arises from further consultation I had with the Garda authorities in connection with the Bill. While the Garda authorities are happy with section 43 to the extent that it deals with searches for material relevant to foreign investigations, they have suggested to me that it would be desirable to make additional provision in that section in relation to obtaining access to information which is held in this country and is required for the purpose of investigating an offence committed abroad where a search would not be required. The type of situation the Garda authorities have in mind is one where specific records are being kept by an Irish institution such as a bank and it would not be appropriate for the Garda Síochána to seek a search warrant to gain access to them.
I have considered this matter in detail and I am satisfied that it would be appropriate to allow the Garda Síochána, on behalf of a foreign law enforcement authority, to obtain access, with the authority of a judge of the District Court, to information relating to offences committed in other countries under the same conditions as they can secure such information where Irish offences are suspected. In that regard, Senators will recall that section 50 of the Bill enables a member of the Garda Síochána to apply to the District Court requiring the production of material relating to drug trafficking, money laundering offences or other offences in respect of which a confiscation order might be made. The amendment I propose would enable section 50 to apply in the case of corresponding offences committed abroad. The amendment represents a useful addition to the international co-operation measures in the Bill and I hope it is accepted by the House.
As someone who argued for a drugs enforcement agency earlier in the debate and discussed the EU's involvement in controlling drugs inside and outside the EU by putting sanctions and pressure on those who engage in drug trafficking, I welcome this amendment. It allows the State to co-operate with other countries, which have the same objective, to control the areas covered under the Bill. I ask the Government to encourage international co-operation, especially in the area of drug trafficking. I accept the amendment.
This provision is radical and sweeping and I welcome it. This is an area where one requires radical and sweeping authorities; these are my words, the Minister might be more prudent. For the first time the Garda have the power and authority to gain access to a bank's records and to transmit the information to a foreign enforcement agency. This is revolutionary, but I am glad it is happening. We expect this type of consideration from other jurisdictions in respect of offences committed here.
I welcome this belated action on behalf of the community of nations, and I know the Minister has played an active role in bringing this about at European Union level. If we expect access and support against drug traffickers and money launderers in relation to actions which originated here, it is essential that law enforcement agencies from other countries should have the same access here. I am sure the financial services will recognise this as a revolutionary measure. Those who are engaged in bona fide operations have no need to fear. If a foreign law enforcement agency has good reason to believe that a bank's records need to be checked, then they should have access to them, through the Garda Síochána. If this was happening in any other area, we would say it was a radical measure and we would be reluctant to give an authority such power. However, we are enthusiastic that this facility should be made available through the Garda Síochána.
Amendment agreed to.
Section 43, as amended, agreed to.
NEW SECTIONS.
Government amendment No. 42:
In page 42, before section 44 (but in Part VI), to insert the following new section:
()—(1) The Government may by regulations make such modifications of this Act as appear to it to be necessary or expedient for the purpose of adapting any of the provisions of this Part of this Act to enable the State to provide co-operation under those provisions for an international tribunal or other body established for the prosecution of persons responsible for serious violations of international humanitarian law committed outside the State.
(2) Where it is proposed to make regulations under subsection (1) of this section, a draft of the regulations shall be laid before each House of the Oireachtas and the regulations shall not be made until a resolution approving of such draft has been passed by each such House.".
The primary purpose of this amendment is to enable this country to comply with certain obligations which apply to us in relation to the establishment of a special international tribunal to deal with war crimes in the former Yugoslavia. As Senators may be aware, the tribunal has been established by United Nations resolution which requires states to provide the tribunal with assistance in its investigations and other work. A number of these forms of assistance are provided for in Part VI of the Bill in respect of international co-operation in criminal matters, for example, the taking of evidence for foreign courts. However, as Senators will be aware, Part VI only applies in the context of co-operation between states at present.
I thought it best, therefore, to take the opportunity presented by this Bill to enable this country to enshrine in our legislation a capacity to co-operate fully with tribunals set up to deal with the type of unspeakable and horrific war crimes which have been committed in the former Yugoslavia. In the circumstances, I propose to amend the Bill to enable Part VI to be modified by way of Government regulation which will allow appropriate assistance to be made available to the United Nations tribunal and to any such body which may be set up in the future to prosecute persons responsible for war crimes or other serious violations of human rights. Given that in particular circumstances fairly extensive modifications of Part VI may be required for that purpose, my amendment also provides that any regulations which are made by the Government in this respect must be approved in draft by each House of the Oireachtas before they are made. I hope the amendment will be accepted.
As the Minister said, this allows the State to respond and co-operate under the provisions of an international tribunal established for the prosecution of persons responsible for serious violations of international humanitarian law committed outside the State. On many occasions Members have expressed disgust, shock and, indeed, shame as members of the human race about what is happening in former Yugoslavia and in East Timor, which was discussed last week.
We support any legal assistance which will enable the Minister to co-operate fully in bringing those involved in the perpetration of inhumane acts to justice. We are happy to support the Government in its role in co-operating with the international tribunal set up to deal with the situation presented. We recognise there will be a check on it because the Houses of the Oireachtas must agree to the regulations of the Minister in this area. The Oireachtas will be able to check the Government's and the Minister's regulations in any area. The principle dealt with in this section is of full co-operation in international tribunals set up to deal with violations throughout the world, including those being perpetrated in former Yugoslavia and in East Timor. We support this principle and the check which states the Oireachtas must approve any regulation.
One may wonder why a provision relating to vigorous co-operation in a war crimes tribunal is included in legislation, the purpose of which is mainly to deal with drug trafficking, money laundering, the ill-gotten gains of drug trafficking and such matters. It is clear that an unacceptable development, which is of concern to the people, is the horrific level of war crimes which are a feature of this time. Because of the urgency of this, I welcome that the Minister is taking this initiative and the Government is proving to be an initiator and not just a reactor in this area. It is a shame on the community of nations that during what we thought was an enlightened period of co-operation, horrific murders, genocide and unspeakable things are being done on our doorstep in Europe, in Rwanda — it is important not distinguish one from the other — and, as Senator Neville rightly pointed out, in East Timor.
Fortunately, the people are becoming more aware and concerned. Over the years, in UN services, in voluntary activities and in a range of areas, the people have proven that they are not only concerned with what happens in their jurisdiction. True republicans — I use that word deliberately — are concerned about the well-being of every citizen in every country and about the horrific things being done to some. As a former Minister for Foreign Affairs and as someone who has been involved in European co-operation over the years, I am appalled by the inadequate and ineffective response of the EU heretofore in relation to developments in former Yugoslavia, in Rwanda and elsewhere. Wherever we see injustice, we should be the first to condemn, take action and, if necessary, to penalise ourselves in the pursuit of the abolition of such injustice.
Today we celebrated the emergence of freedom in South Africa and I hope the transition to democracy will be peaceful. However, when I was Minister for Foreign Affairs from 1977 to 1979 I got no co-operation from EU members states when trying to impose sanctions on South Africa, particularly in respect of sporting contacts. We paid a price in this regard and I was privileged to propose something which the Government adopted. In 1978 a world cup golf promotion was to be launched here. State agencies, including Bord Fáilte and An Bord Bainne were promoting it. However, a South African team was involved and I suggested — this was not fashionable at the time — that the Government withdraw all official association with that awful regime although only two people were involved. It was essential that we stated our principle at that time. Consequently the golf tournament went elsewhere and some other country got all the publicity which we could have enjoyed in Waterville — I was conscious of the cost to Waterville. What was right was more important than what was immediately beneficial to us.
This measure is the same and it is essential, given the lack of effective action on the part of the EU in the past and at present in respect of Bosnia. It grieves me to hear people I knew as foreign ministers make almost ex cathedra statements that they will achieve something overnight and then withdraw from what they said. I am speaking about the former British Foreign Minister, Lord Owen. Each time statements were made, the EU did not implement the purpose of those statements; that is worse than making no statement. The world knows — this is not trial by television — the savage brutality which has been visited on old women, young children and defenceless people in Bosnia, which is on our doorstep. Yet we are ineffective in dealing with it. The reason is that we are concerned that the consequences of effective action might spill over on us in some way. That is not a good enough reason because there is always a price to pay for appropriate action.
For many years larger EU member states were concerned about the consequences for themselves in regard to other countries, particularly South Africa where no sanctions were imposed on trade or armaments. The view was that someone else was suffering far away which we did not know about. I am glad to say that amorality has been undermined.
I am happy this view has been promoted in this legislation by the Minister and the Government, who are consistent in this regard. Ireland has a role to remind colleagues in the UN or in the EU that certain developments are not consistent with the principles we stand for as nation states or as a community of nations in the EU. I do not accept our indifference or inability to do anything about the awful events in Bosnia over the past two years. I visited former Yugoslavia many times. Each time I hear about these events, I wonder how many of those I met and worked with are now subjected to this awful brutality. That is only a personal reflection. I have not visited Rwanda, but to stand back from the horror of what is happening there undermines the order of nature, never mind a civilised society. I hope this provision relating to co-operation in war crimes tribunals will be acted upon. No voice is more consistent or entitled to be consistent than the Irish voice and I hope others will follow, because if we just consider our own immediate interests then we are conceding to savages. I use the term "savages" meaning those who have repudiated everything civilisation stands for. If we concede to them on the basis of not risking our own interest, then we are conceding everything. I hope we will not see again the shame of a European Community that was so ineffective in implementing the actions that were proposed; the same criticism applies to a lesser degree to the United Nations. Unlike the European Union, the United Nations is not a co-ordinated, structured empowered organisation. It has only the authority that is given to it by the sum of its member States. It cannot exceed the rights of the Security Council and the plenary groups of the United Nations.
Although we have a great record of independence in foreign policy and nonalignment in military action, I hope any exception to that record would be in the context of devoting ourselves to doing what the generations before us did, that is, opposing injustice wherever we find it, at whatever cost to ourselves. I welcome these provisions enthusiastically.
Amendment agreed to.
Amendment No. 43 not moved.
SECTION 44.
Government amendment No. 44:
In page 43, between lines 6 and 7, to insert the following new subsections:
"(3) A report may be made to the Garda Síochána under this section in accordance with an internal reporting procedure established by an employer for the purpose of facilitating the operation of this section.
(4) In the case of a person who was in employment at the relevant time, it shall be a defence to a charge of committing an offence under this section that the person charged made a report of the type referred to in subsection (1) or (2) of this section, as the case may be, to another person in accordance with an internal reporting procedure established for the purpose specified in subsection (3) of this section.".
The purpose of this amendment is to enable reports of transactions where there is a suspicion of money laundering made to the Garda Síochána under section 44 of the Bill to be made in accordance with internal control procedures established by an employer in order to facilitate the operation of section 44. As Senators may be aware, an amendment on similar lines was put down by Deputy Gay Mitchell in the other House. In response to that amendment I indicated that I accepted in principle what Deputy Mitchell was trying to achieve and that I would be prepared, in consultation with Garda authorities and other parties, to consider bringing forward an amendment to deal with the matter. The amendment I am proposing fulfils the commitment I gave to Deputy Mitchell in that regard.
I believe there is a strong case to be made in support of the amendment. In particular I am sure Senators would accept that it would be preferable, as would be achieved by this amendment, for the Garda to receive reports under section 44 from designated persons within institutions who would be experienced in the operation of the section and would be aware of the type of information that should be provided in such cases, rather than to have individual employees from all over the country telephoning Garda headquarters, or perhaps their local Garda station with details of suspicious transactions.
Before I conclude on the amendment I should mention that it provides protection from conviction of the offence of failing to make a report under section 44 for an employee who makes an appropriate report in accordance with internal control procedures established by his or her employer.
I thank the Minister for her response.
Amendment agreed to.
Government amendment No. 45:
In page 43, between lines 13 and 14, to insert the following new subsection:
"(4) In determining whether a person has complied with any of the requirements of this section, a court may take account of any relevant supervisory or regulatory guidance which applies to that person or any other relevant guidance issued by a body that regulates, or is representative of, any trade, profession, business or employment carried on by that person.".
This amendment proposes that in determining whether a person has complied with the obligation to report suspicious money laundering transactions to the Garda under section 44, a court may have regard to any professional rules or guidelines which apply to the person in the conduct of their business. The amendment is designed to ensure that persons who are covered by section 44 are not obliged to take unreasonable measures in order to avoid prosecution under the section. I believe that where a person takes steps to detect and report laundering which are in line with the best practice in their particular business or profession, that factor would be taken into account by a court in deciding whether a person has met their obligations in terms of section 44.
I might mention in this connection that even in advance of this Bill becoming law, a steering group with representatives of the Department of Finance, my own Department, the Central Bank and of the institutions likely to be most affected by the reporting arrangements in relation to money laundering specified in the Bill, has been established to begin the process of drawing up guidelines for the various sectors involved. I believe that it would be appropriate in the Bill itself to give statutory recognition to the existence of such guidelines. I hope Senators might be able to agree to my amendment.
I take it that the Minister is being sensitive to professionals, such as lawyers or doctors who are dealing with people who may be sensitive to disclosure of information by virtue of their professional relationship with the person involved. I take it that the court can take this into account but without this amendment the court could refuse to take such a position into account. I am asking this question because I have not had the facility to study this heretofore. If the Minister confirms this I am quite happy with the amendment.
Yes, I can confirm that.
The Minister is taking a radical and original approach to what up to now were regarded as sacred principles that should never be breached. Professional bodies have professional obligations. They have a competence and a responsibility, particularly of maintaining confidentiality. That is the basis of our professions. Anything entrusted to doctors, lawyers, accountants and other professionals in their relationships between a client or patient and the professional concerned must be treated with the utmost confidentiality.
Despite the fact that I would be very concerned to see those sacred principles being changed in any way I am happy to find that the only exception to this rule is where somebody discloses information that could lead to the conviction of people engaged in drug trafficking and money laundering. I am happy that the well established confidentiality rule to that extent, and to that extent only, is being put aside. This is essential. I did not think I would see the day I would support a provision of this kind, but I am happy to support it in this context as Senator Neville obviously is.
While the purpose of this Bill is to elicit information in relation to drug trafficking and money laundering, it would be unthinkable if those who helped, and perhaps even initiated, the inquiries were subject to sanction under existing law or statutory instrument. That is not the intention of the Minister and I am glad that this exception has been made.
When the Minister refers to business or employment carried out by a person, does that cover a journalist? There has been a great deal of controversy over the years with regard to journalists revealing confidential information.
I am told it would not include journalism because a journalist would not be a designated officer to report money laundering.
Amendment agreed to.
Section 44, as amended, agreed to.
Sections 45 to 55, inclusive, agreed to.
FIRST SCHEDULE.
Amendments No. 46 and 47 are related and may be discussed together.
Government amendment No. 46:
In page 51, subparagraph 1 (1), line 25, to delete "and".
In the course of our Second Stage discussion here and the extensive debate which took place on the Bill in the other House, reference was made to the very valuable and significant part the Naval Service has played in helping to combat drug trafficking. We are all aware of the success the Naval Service has achieved in that area and we hope it will be maintained. The purpose of amendment No. 47 is to strengthen and clarify the position of the Naval Service in preventing illegal drugs from reaching this country. In that regard, I propose to amend the First Schedule to ensure that the powers of an enforcement officer under section 31 of the Bill in relation to measures against drugs transported on ships will be specifically conferred on members of the Naval Service not below the rank of petty officer. Senators will be aware that section 31 in conjunction with the First Schedule enables an enforcement officer to stop and board a ship and to search and detain it in connection with drug trafficking.
At present, the definition of an "enforcement officer" in the Bill applies to members of the Garda Síochána, customs officers and other persons specified by ministerial order. In the context of the report which has been completed by an official of my Department which dealt specifically with inter-agency co-operation in this area, that definition should be extended to include in the Bill itself rather than in subsequent regulations appropriate members of the Naval Service to give clear recognition to the vital role of that service in the fight against drug trafficking. Accordingly, I would be grateful if that amendment could be favourably considered.
Amendment No. 46 makes a minor change to the Bill which is consequential on amendment No. 47.
Amendment agreed to.
Government amendment No. 47:
In page 51, paragraph 1 (1), between lines 25 and 26, to insert the following:
"(c) a member of the Naval Service of the Defence Forces not below the rank of petty officer, and".
Amendment agreed to.
First Schedule, as amended, agreed to.
Second Schedule agreed to.
Title agreed to.
Bill reported with amendments.
Report Stage ordered for Wednesday, 18 May 1994, subject to the agreement of the Whips.
Sitting suspended at 5.50 p.m. and resumed at 6 p.m.