I thank the Minister for Justice, Deputy Owen, for coming into the House today and for her and the Government's support for Deputy O'Donoghue's Bill. I am sure the Minister will join me in congratulating Deputy O'Donoghue for introducing this important legislation. This Bill was presented to the Dáil the day after the terrible murder of Veronica Guerin and a short time after the equally terrible murder of Detective Garda Jerry McCabe. The Minister will agree that these murders and the increased public perception that the level of organised crime is spiralling out of control have galvanised Members of the Oireachtas with a firm and determined sense of purpose to move forward together in the fight against crime.
As Deputy O'Donoghue and the Leader of Fianna Fáil stated, our party will be completely constructive in relation to any other legislation introduced by the Government to bolster the fight against crime. Much of the legislation introduced by the Government during yesterday's meeting of the Dáil will be welcomed by this side of the House. A point may be made about there being a famine and then a feast, but that is another day's work.
I commend this Bill to the House because it seeks to deal with the problem of crime and the term "untouchable" which is associated with that problem. This is the central criminal concept the Bill seeks to address. The Taoiseach correctly stated that no one in the community is untouchable. In so far as various criminal elements have sought to place themselves on an untouchable pedestal in recent years, this imaginative Bill created by Deputy O'Donoghue is to be welcomed as spearheading the fight against those who claim to be untouchable. The legal concepts in the Bill are interesting, bold and imaginative. The Minister will agree that it brings civil law concepts to bear in the fight against crime.
The first of the two civil law concepts being brought to bear in the criminal sphere is the notion of interim and interlocutory orders. Members are aware of these orders from their use in common law injunctions where a person enters courtex parte and says stop, a wrong is about to happen. That concept is now being transposed to the criminal sphere. It will enable an officer of the Revenue Commissioners or another authorised person — the Bill was correctly amended in this regard by the Dáil — to enter court to request the freezing of assets which they believe are the proceeds of crime and which should not remain in the ownership or control of the person in whose name they are held. It is very important that an officer of the Revenue Commissioners can enter court directly to make an application.
The second vital element of the Bill introduces the concept of the civil burden of proof to cases involving criminal assets. The existing criminal law stipulates that to secure a conviction one must prove beyond a reasonable doubt that a person has committed an offence. The creative aspect of the Bill is that the civil burden of proof will apply, in other words, the lesser proof of the balance of probabilities which will basically be 59 out of 100 as opposed to 99 out of 100. These two civil law concepts will be transposed to the criminal sphere.
I hope the Minister agrees that, good as it is, the Bill will not be enough in itself. What are needed are convictions, action and freezing orders because members of the public are not interested in legislation; they are interested in results. People want results. They want to feel safe and know that gangsters are not roaming the streets. One aspect of this Bill I hope we will see will be a reporting mechanism to the Dáil and Seanad. We would like to know how many freezing orders will be made over the next few months. We would like a proper report from the Minister.
My second point deals with publicity. I accept that in certain cases some proceedings may be held in private and that there are specific provisions in the Bill relating to this. The use of publicity against some of these untouchables is itself a way of dealing with them. If freezing orders are made, the public has a right to know and would like to know, and we as legislators should know. I think the Minister is on record as saying that assets have been frozen under the Criminal Justice Act, 1994. I would like to know if there have been freezing orders under the Criminal Justice Act, 1994.
I was delighted when the Government decided to accept this Fianna Fáil Bill. Almost all the Government amendments have been good. The amendments in relation to receivers — where one may be appointed to administer the property — and the sections relating to the bankruptcy of the respondent and dealing with the official assignee, winding up, immunity, etc., are welcome. We have had similar freezing legislation before. This was the subject of a High Court decision I believe in the Clancy case. In that case, Justice Barrington said there were three requisites to any freezing legislation: one, the respondent had a right to be heard, two, there would be a scheme of compensation in cases where somebody's assets had been wrongfully frozen. In this legislation the respondent has a right to be heard at the interlocutory stage, and that is good. However, there appears to be a dilution in the amendment to the original Bill in relation to the respondent putting in an affidavit as to his or her sources of income over the last ten years. In the original Bill, this requirement of an affidavit for ten year income was mandatory but is only at the discretion of the court in the amended Bill. In all cases where the Garda or Revenue Commissioners have come to the conclusion that an interim freezing order should be made or subsequently an interlocutory, the affidavit of the respondent in relation to his or her means should be obligatory. This would put an onus on such a person to state in writing how and why they came to own this and that.
Part of the public frustration is that the Revenue Commissioners have in several cases by way of personal audit arrived at ordinary citizens' doors and asked how they earned this and that. If the Revenue Commissioners or the Garda Síochána come to the initial conclusion that a restraining order should be made, it should be mandatory for this affidavit to be sworn by the respondent.
Another point I make relates to loss. The public do not want this Bill to result in large compensation claims from people who have had restraining orders made against them and subsequently discharged. I accept, and Deputy O'Donoghue accepts, that somebody who is the subject of a restraining order which turns out to be based on incorrect information is entitled to compensation. However, that compensation should be reasonable and confined to actual loss as opposed to economic loss. If somebody puts a freezing order on my bank account which contains £10, I might be entitled to get back my £10 and interest on that sum. However, I am not entitled to claim that if I had had that £10 on a Friday I could have invested it in a few shares or put it on a horse and won £1 million and therefore claim £1 million compensation. It is important that we do not open the door to astronomical claims for compensation against the State, but there is a question mark on the degree of loss for which a wrongly accused person can apply.
If we are going to get tough with the godfathers of crime, let us get really tough with them. There is an ironclad determination in the Fianna Fáil Party that the godfathers of crime will be tackled head on. Despite the introduction of this legislation, there is still a feeling throughout the country that many people will continue their gangster activities unhindered. Two weeks ago, on 14 July, I was shocked to read on the front page of theSunday Independent that crime bosses had halted a crackdown by the Revenue Commissioners on the selling of illegal cigarettes. The import of the story was that the Revenue Commissioners had been stopped in their investigation into the illegal sale of cigarettes by an intolerable level of intimidation.
I presume the person who wrote the story is a responsible journalist. I also presume that her claim that she was informed about this by the Revenue Commissioners is true. If that is the case, it is extremely serious that the Revenue Commissioners could admit that they have been intimidated into stopping a serious investigation. I hope the Minister can give an assurance that nobody is selling illegal cigarettes in any part of Dublin city.