Amendments Nos. 1, 2 and 6 are related and may be discussed together by agreement.
NEW SECTION.
Proceeds of Crime (Amendment) Bill 1999: Committee Stage.
I move amendment No. 1:
In page 3, before section 1, to insert the following new section:
1.—Money realised on the making of disposal orders under the Principal Act as amended by this Act shall be used for community development purposes in disadvantaged areas."
This amendment was first tabled by Labour Party Members in the Dáil, where the Minister of State at the Department of Justice, Equality and Law Reform, Deputy Brian Lenihan, rejected it. I am tabling the amendment again because it is a good idea. A lot of money will result from this legislation. Will it simply go to the Exchequer? Will there be no visible relationship between it and the money put into initiatives to help communities affected by crime, particularly with regard to preventative measures?
On Second Stage I suggested that the moneys could be put into education initiatives. The Minister of State is aware, for example, of a project in Clondalkin, the Carline Centre of Learning, where young people who could potentially be involved in crime in the future are given training and encouraged to take up other options in life. The initial idea was to take young people involved in joyriding and show them how to work on the mechanics of a car, so as to give them a positive attitude to cars, use their energy in a positive way, give them a means of employment in the future and get them back into mainstream education. I would like to see money from the proceeds of crime going into such areas.
I raised another concern on Second Stage. This legislative initiative is welcome in that it gets money for the Exchequer and returns ill-gotten gains to the public coffers, which is a good thing. However, I am concerned that the criminals involved are still carrying out their businesses with a detrimental effect on other people's lives and communities. Apart from bringing money in, how will this measure ensure that something is done about crime? The Minister of State might respond.
I agree with Senator Tuffy that these moneys should be ploughed back into the areas most affected by crime. I support the amendment.
I too support the amendment. I have been speaking about this matter for quite some time. I think the first legislation in this area — the Proceeds of Crime Act — was introduced by the former Minister and Deputy, Nora Owen. Many of us on both sides of the House argued that the moneys gained from certain criminal activities should be ring-fenced for the communities most affected by disadvantage. Since then there has been significant progress in this area. The Government has outlined, in a kind of statistical manner, the situation in the RAPID areas. We know exactly from the district electoral divisions where areas of disadvantage are greatest.
There is a need to ring-fence moneys from this procedure so that those communities, which have been ravaged and worst affected by drugs and whose fabric has been virtually destroyed as a result of the drugs trade over the past 20 years, can see tangible proof in this legislation that they will receive money.
Psychologically, it is important for a community to see that half, one third or one quarter of the money going towards building a swimming pool, for example, has come from some of these gangsters who have murdered people in the community for many years as a consequence of the drugs trade. Not only is it financially important the money is kept for these communities but it is psychologically important because people will be able to point to a new scheme which has been provided as a result of money which has come back to the communities via these people who attempted to kill their children as a result of the drugs trade. It is important we ring-fence this money. I support amendment No. 1 and ask the Minister of State to consider it.
The Criminal Assets Bureau has seized in excess of €60 million. I realise the Department is ploughing moneys into crime prevention and so on but any moneys seized by the Criminal Assets Bureau should be additional to those funds and should be put back into the communities which have been ravaged by the scourge of drugs, in particular. Those moneys should go to the Department of Justice, Equality and Law Reform rather than to the Exchequer. I hope the Minister of State will raise that matter with his colleague, the Minister for Finance.
I do not believe any right-thinking person would disagree with the suggestion that this funding should be ploughed back into communities which have been ravaged by drugs and all sorts of criminality. I hope the Minister of State will be able to address this matter. Admittedly, given the seven-year period involved, not all of the €60 million would come on stream at the same time. It is preferable that the money will come on stream year after year, depending on when it is released. Moneys coming in from the proceeds of crime should be put back into those communities.
I understand why Senators Tuffy and Cummins tabled these amendments. The issue was discussed at length on Second Stage in the other House and, indeed, in committee when the Minister undertook to go back to the Department of Finance to see whether he could elicit a more sympathetic response to it. There are some arguments, in principle, against it. One is that additional layers of bureaucracy would have to be established to monitor the allocation of any such additional funds. This could not be justified unless significant added value in excess of the additional administrative costs could be shown.
Senators are well aware of the existence of partnership groups, RAPID groups and various other groups which disburse moneys and determine priorities in areas of disadvantage. The ring-fencing of moneys for community-based initiatives in disadvantaged areas, as Senator Tuffy's amendment proposes, would create another such body because clearly one would have to be established to distribute the earmarked funds. Senators must be familiar with the arrangement regarding disadvantaged areas whereby facilities including dormant accounts, the RAPID programme, the young people's facilities and services fund and partnerships are in simultaneous operation. In order to give flesh and bones to Senator Tuffy's amendment, it would be essential to establish yet another entity to disburse the money in the manner envisaged in that amendment.
Moreover, we must bear in mind that not all the funds obtained by the Criminal Assets Bureau are drugs-related. Some funds come about as a consequence of tax offences, for example. The acquisition of such funds by the CAB is an uncertain and variable revenue source. This militates against properly planned programmes and locally based community initiatives. The Department of Finance confirmed once again in October that its policy in this area had not changed.
Senator Cummins's amendment refers to the question of the fight against drugs. A recent study by the European Monitoring Centre for Drugs and Drug Addiction ranked Ireland fifth in the EU in terms of the amount spent in fighting illegal drugs. We spend some €183 million per annum on prevention, treatment and supply reduction. Senator Cummins also rightly referred to the matter of timing and that the seven-year rule is only now coming into play. Moneys are only transferring to the CAB at this stage and being transferred from the bureau to the Exchequer. It is only now that the Exchequer is beginning to receive the benefit of these funds. The initial case was taken in 1996 and, as the Senators have observed, it was the former Minister, Nora Owen, who introduced the legislation. This legislation, however, was formulated by the current Minister for Arts, Sport and Tourism, Deputy O'Donoghue, and taken up and enacted by former Deputy Owen as a Government measure.
This is what we call "joined-up Government".
One can resume joined-up Government. It has happened in the past in terms of the Tallaght strategy.
Does this mean the Minister of State will accept the amendment?
The initial case came before the courts in 1996 and continued some time after the enactment of the legislation. The bureau has had funds for some seven years but those funds are only now coming into operation. Senator Cummins's amendment No. 6 seeks to shorten the time for the distribution of the funds from the CAB to the Exchequer from seven to three years. This would be welcome news for the Exchequer as the accumulated funds from the past three to four years would become payable immediately. On advice from the Attorney General, however, I cannot agree with that element of the amendment. Acceptance of such a provision could expose the legislation to some constitutional hazard in that a balance must be struck between the acquisition of property rights and the rights of persons claiming ownership in them, and their expropriation by the State.
I welcome the Minister of State's response and ask him to elaborate on the constitutional barriers to reducing the length of time from seven to three years. It would be beneficial if the funds were to come on stream in a shorter period than seven years. The Minister of State might expand on any constitutional prohibition on such a reduction.
My amendment No. 2 proposes the insertion of a definition of "drug related initiatives" into the Bill as meaning, "voluntary and State funded programmes established to discourage people from taking drugs, or established to assist in the rehabilitation of drug users". The insertion of this definition would enable the Minister for Justice, Equality and Law Reform to ensure that the proceeds of crime seized by the State are applied to the appropriate organisations and initiatives, which are focused on addressing the damage caused by those engaged in illegal drug activity. The three amendments are being discussed together but I ask the Minister of State to explain why the constitutional prohibition must be seven years. Can it not be reduced? Will the Minister of State accept the amendment relating to drug-related initiatives, as proposed?
The Minister of State's response to my amendment and that of my Fine Gael colleagues is that he is concerned that the measure proposed would bring about another layer of bureaucracy and would require another implementation body. I share his concern about that type of approach. The problem for the Carline learning centre, to whose funding difficulties the Minister of State has given assistance, is that it must apply to several bodies for funding and does not know from year to year whether it will have sufficient funds to carry out its work. The work of the centre is very much related to the work of the Department of Justice, Equality and Law Reform. The centre advises public representatives that it would like to see definite funding from a particular Department, for example, the Department of Justice, Equality and Law Reform. While the Department works in this area it needs to become more involved. It must take positive measures to prevent crime or, as in this case, to make reparation for the effects of crime.
Most communities are, to some extent, disadvantaged by crime. There are people who are so wealthy they may not feel the effects to any extent, but crime is as much an issue in middle class suburban areas as in working class areas. Nevertheless, the effect of crime is greater in some areas than others and some areas have been very much neglected.
The Minister of State referred to the RAPID programme. Yesterday, I heard the Minister for Community, Rural and Gaeltacht Affairs, Deputy Ó Cuív, who is responsible for RAPID, speaking about the programme on "Five Seven Live". The RAPID programme was announced with great hurrahs some years ago but I cannot see any extra funding coming through the programme. It is completely ephemeral. I would not be surprised to hear a claim that an extra roll of Sellotape had been acquired as a result of RAPID funding. I am sure the Minister of State will contradict what I am saying but whether he will do so with clarity is another matter. We want to see money being made available and making a difference to communities. This is the type of thinking behind the amendment.
The issue of Garda resources was raised on the Order of Business. The Minister of State is aware of this problem in the areas he represents. Developing communities, such as Lucan south and north Clondalkin, do not have enough gardaí. They experience everything from anti-social behaviour to gangland murders. We need more gardaí on the ground and more Garda resources. Such measures could be funded by means of disposal orders. I do not suggest a partnership approach or piecemeal funding, rather I have proposed that the Department of Justice, Equality and Law Reform use the disposal orders for definite funding of positive community measures.
I do not understand what the Minister of State means when he refers to the ring-fencing issue. The measure proposed in the Fine Gael amendment would benefit his Department and various spending allocations within it. Is it his view that it is a good idea to funnel additional money into drugs related schemes, particularly in communities about which other colleagues have spoken? This is the only chance we will get to do that. Irrespective of the seven-year aspect, this is a new source of money which will come back into the coffers of the State.
The Minister of State makes the lame argument that the amendment would lead to more bureaucracy and additional administrative pressures. The Department has already conceded on that point with regard to the drugs courts, albeit in the form of a pilot scheme. A new drugs court has been established to help expedite the cases of those who come before the courts for crimes relating to drug habits. The Department of Justice, Equality and Law Reform is much maligned in both Houses but it responded fairly and swiftly in this area by establishing a drugs court with a small administrative bureaucracy. The same principle applies to this issue.
The Minister of State's second argument is that the money need not be ring-fenced because it will always be there. If the money goes into a big black hole in the Department of Finance it will be lost to other schemes. On the other hand, there is a connection between money gained through drug related crime and funding of drug-related community initiatives. The Minister of State represents a constituency similar to that of Senator Tuffy and myself. He must appreciate the psychological effect of being able to point to a new facility in a disadvantaged area and telling the people of the area that the money for the facility came from those who had been trying to kill their children over the previous ten years. It is important for the State to make the bold assertion that funding for community facilities has come back from drugs barons into disadvantaged communities. This is an argument of justice as much as anything else. The people who are most affected by drugs crime will see the proceeds of crime being put to good use. For the State to reaffirm itself and tell communities it cares is as important an issue as the issue of finance.
In recent years, the Government has dramatically increased funding for treatment programmes, particularly community led programmes. That is to be welcomed. Nevertheless, one of the key proposals in the White Paper on volunteerism was to move from annual to multi-annual budgeting so that community groups would know, over a three or four-year period, what they are going to get. If funding was derived in the way proposed in amendments Nos. 1 and 2, the Minister of State could tell disadvantaged communities what they will receive over a period of several years instead of having them rely on year to year funding as they do currently. I ask the Minister of State to look again at this issue.
Almost all of the drug treatment programmes in my own constituency continually ask that money coming back from the Criminal Assets Bureau be ring-fenced. This is something the Department of Justice, Equality and Law Reform would want to support if the considerations of the Department of Finance in the matter could be put to one side.
In the constitutional scheme of things the Minister for Finance can never be put aside, much as we would all like to do so from time to time. Senator Brian Hayes's contribution was eloquent and the Department of Justice, Equality and Law Reform welcomed his support for a point of view on this matter. The more money the Department can get for various areas the better.
Nevertheless, the general point stands. The Exchequer is a general fund and there is a disposition not to favour specific earmarked funds. For many years in the Department, the funds of suitors were applied for various public purposes. They were used to redecorate the King's Inns and the Cork Opera House. The amount of the fund was contingent and uncertain and had to be used for certain capital projects which arose from time to time. Ultimately, it was found to be unsatisfactory and it was decided to put the fund at the disposal of the Courts Service for the upkeep of the courthouse system. There is now an earmarked fund for that purpose.
The amendments have the general objective that the money realised be used for community development purposes in disadvantaged areas or for State-funded programmes established to discourage young persons from taking drugs or to assist in the rehabilitation of drug users. These are all services which the State must provide. This contingent and uncertain sum will not fund them with any degree of precision, regularity or reliability. Senator Cummins was anxious that I should read into the record the opinion on the constitutional issue he raised. There were two reasons for the seven-year limitation period. First, there is the question of rights a third party may have to some of the property. The other reason is the constitutional issue, to which I referred. The primary purpose of the legislation is not to enrich the Exchequer with appropriated property but rather to freeze proceeds of crime to deprive those concerned of the benefits of criminal proceeds. The most constant criticism of the legislation has been that it penalises individuals without the individual affected being convicted of any offence. A reduction of the period between the interlocutory order and the disposal order to three years might render the legislation more open to challenge on the grounds that it is penal confiscation without due process. The shorter the period before the forfeiture stage, the greater the chance that the forfeiture may be viewed as penal from a constitutional perspective and thereby invalidate the legislation.
The period of seven years does not overcome all the relevant periods under the Statute of Limitations but it does address the majority of them. At the end of seven years, any contractual claims against real property will have been defeated, albeit that claims by mortgagees and other claims against real property will not have been defeated in that time. In drawing up the seven-year time limit, a view was taken that the Oireachtas was entitled to strike a balance. It was a balance that had to be carefully considered in light of constitutional considerations. Seven years was settled on as a defensible period of time. That is why that is written into the legislation. In fact, we have taken the pain of that now because the seven-year period is passing and funds will be coming into the Exchequer, although with no great regularity or predictability, depending on the success of the operations of the Criminal Assets Bureau.
Senator Tuffy referred to the Carline project, a very worthy endeavour in her constituency. In talking about services that are provided to young persons, it is important to distinguish carefully from where the referrals are coming. Are they coming from schools in the context of children who are not getting all they should from the education system and where an alternative is required? In that case, the referral is essentially educationally based and funding should come from the Department of Education and Science. I understand that the project to which Senator Tuffy referred does receive such funding from the Department of Education and Science. On the other hand, are the referrals coming from social workers engaged in health board care work, where particular persons are seen to be at risk and vulnerable in their family settings? They may require community supports which might include the type of support or services provided by Carline, in which case funding should be earmarked from the health boards.
As regards the justice system, however, it is not enough to make a generalised appeal to prevent crime. People must be referred to such a service from the probation service or from the juvenile liaison officer at an earlier stage or, ultimately, from the courts. I agree with the Senator that there is merit in that. One of the difficulties in funding organisations such as Carline has been an insufficient funding base in the Department of Justice, Equality and Law Reform. If there is to be such a funding base, it must be carefully laid down under the Children Act where we are going, what particular service is being provided and how it helps a group that is at risk of offending.
The Minister for Justice, Equality and Law Reform has established a departmental taskforce or project team on youth justice to examine how the scope for rationalising the delivery of services under the Children Act 2001, which provides a modern statutory framework for a youth justice system, can be improved. Submissions were invited, the deadline for receipt of which was last Friday. The purpose of the taskforce is to make decisions. The submissions are currently being examined in the Department and a definite conclusion will be drawn from them. I will also look into the issue raised by the Senator concerning the immediate funding requirements of Carline. In fact, I have already been engaged in that.
To return to Senator Brian Hayes's general points on this issue, the Exchequer is not a black hole. At this time of year when we are engaged in the great operations of raising income and expending money, we know that very well. The Exchequer is a place to which people are reluctant to commit and on which substantial demands are made. That there is one central Exchequer fund enables any Government to determine where its priorities are. There is a case to be made that needlessly earmarking excessive funds can lead to a distortion of priorities. The funds available from this will be committed to the Exchequer and I have no doubt they will be applied for good purposes.
Amendment, by leave, withdrawn.
Section 1 agreed to.
Section 2 agreed to.
SECTION 3.
I move amendment No. 2:
In page 4, between lines 14 and 15, to insert the following definition:
"‘drug related initiatives' means voluntary and State funded programmes established to discourage people from taking drugs, or established to assist in the rehabilitation of drug users;".
I do not intend to press this amendment.
Amendment, by leave, withdrawn.
Amendments Nos. 3, 8 and 10 are related and may be discussed together by agreement.
I move amendment No. 3:
In page 5, line 16, to delete "State;"," and substitute the following:
"State,
(c) for the avoidance of doubt, “criminal conduct” shall be construed as involving conduct irrespective of whether that conduct has resulted in a criminal conviction;”.
The amendment seeks to extend the definition of what actually amounts to criminal conduct. The Minister for Justice, Equality and Law Reform has taken a very narrow approach to establishing what criminal conduct means in constituting an offence or more than one offence. Is there a case for a broader definition of criminal conduct? Is there a case, for example, for establishing a definition of criminal conduct irrespective of whether the conduct has resulted in a criminal conviction?
Many people are engaged in criminal conduct who are never caught or convicted. The amendment would more accurately reflect the literal interpretation of the words "criminal conduct" which the Minister has chosen. Under the narrow definition proposed in the Bill such people would not be considered to be engaged in criminal conduct. I wonder whether we should establish the fact that criminal conduct may not necessarily mean or involve a criminal conviction. The amendment could possibly broaden the ambit of the Bill and would certainly make more possibilities available to the Criminal Assets Bureau. I ask the Minister of State to consider that definition.
The amendments suggest adding to the definition of criminal conduct a provision to construe criminal conduct as involving conduct irrespective of whether that conduct has resulted in a criminal conviction under both the Criminal Assets Bureau Act 1996 and the Proceeds of Crime Act 1996. Essentially, the Senator is moving these amendments on the basis of putting a matter beyond doubt or for the avoidance of doubt. The Senator's intention is clear enough and has some merit but the basis upon which the 1996 legislation — with which we are dealing here — was founded is well established. As I mentioned earlier, it is not penal or criminal legislation, it is civil legislation. It is a civil forfeiture procedure which seeks to sequester the proceeds of a person's crimes, rather than seeking to obtain a conviction against that person.
In dealing with this Bill it is important to realise that it does not constitute legislation which is part of the penal or criminal code. It is called the Proceeds of Crime (Amendment) Bill but the remedy provided to the Criminal Assets Bureau under its provisions is civil in character. It concerns a civil forfeiture and for that reason, after the matter had been considered in considerable detail, the Minister was advised by the Office of the Attorney General that the references proposed by Senator Cummins's amendments should be avoided in the legislation, lest the balance that exists between civil forfeiture, as against the criminal forfeiture that operates under the Criminal Justice Act 1994, should be upset. It is argued that by clarifying that definition of crime, in the way Senator Cummins understandably advocates, one would upset the balance upon which the legislation proceeds, namely that it is a civil forfeiture procedure.
Amendment, by leave, withdrawn.
Section 3 agreed to.
SECTION 4.
Amendments Nos. 4 and 5 are related and may be discussed together by agreement.
I move amendment No. 4:
In page 6, to delete lines 33 to 36.
The wording in lines 33 to 36 would reverse a Supreme Court decision and would undermine normal court procedures in an undesirable way. We wish to uphold the existing Supreme Court decision and normal court procedures. It is important that due process is allowed so that the Act can stand up legally and under the European Convention on Human Rights.
Rather than being brought by way of an originating notice of motion, which is a very basic document, applications should be brought by the Criminal Assets Bureau in the ordinary way by normal detailed pleadings where the case would be set out in some detail with the right to raise particulars and file a defence. The Supreme Court recently upheld the application of normal procedures in the case of McK. v. F. This provision in the Bill seeks to reverse that Supreme Court decision. We accept the Supreme Court decision and our amendment seeks to retain it. Clearly if the procedures which normally apply were upheld by the Supreme Court, the case for changing them just to suit the Criminal Assets Bureau is weak. Leaving the Bill as is will open the way for further legal challenges possibly leading to another very high profile defeat for the Criminal Assets Bureau.
The Minister has previously said the amendments benefited defendants and that the matter could be remitted for a plenary hearing. We believe a defendant will be able to apply for the filing of affidavits if our amendment accepted.
It is correct to say that the Supreme Court decided in the absence of any expressed provision that the appropriate procedure was by way of plenary summons followed by the exchange of pleadings between the parties. Under the rules of the superior courts, where no expressed procedure is prescribed, all proceedings must be included in that residual category. As no expressed provision was specified in the Proceeds of Crime Act 1996, the Supreme Court ruled as a matter of law that in the absence of an expressed provision, the appropriate provision under the rules of court was to proceed by way of plenary summons and exchange of pleadings.
While the Supreme Court has indicated that on its construction of the rules of court this is the arrangement to be followed, as was its decision in the case to which the Senator referred, it does not mean this must be the procedure. Far from suggesting that this was the appropriate procedure, the Supreme Court was simply construing the rules of court and identifying what procedure, as a matter of law, the rules required. It is still open to the Oireachtas or even to the rules committee in the courts to prescribe otherwise.
The provisions in the Bill allow the matter to appear on a court list at the earliest opportunity with the full case of both parties set out in a formal manner. As drafted, the Bill proposes that proceedings would begin by way of originating notice of motion, which would be grounded on an affidavit. Hence the Criminal Assets Bureau would be obliged to put its case on sworn affidavit before instituting proceedings. Under the arrangement that has obtained since the Supreme Court decision, the Criminal Assets Bureau is not required to do that and can simply make an allegation as I am sure the Senator is aware. Not alone that, this type of procedure with an originating notice of motion grounded on affidavit allows the matter to be brought into the court list at an early opportunity, which is always desirable in a matter of this kind affecting the property rights of an individual.
Were the alternative procedure to apply, by way of plenary summons and statement of claim, with which Senators are familiar from personal injury litigation, matters could drag on for a number of years and proceedings could proceed in a very dilatory manner, without opportunity to bring the substance of the matter to court prior to the close of the pleadings and the service of a notice of trial, at which point it enters the court list. In the case of a matter, which has originated by a notice of motion, the matter can be brought to the court in a matter of weeks.
At that stage the respondent party to the application can put its case on affidavit on oath. The court can then decide, having looked at the case candidly proposed by both sides how the matter can be efficiently disposed of and whether it would require a full trail with evidence heard or whether it can be disposed of on the sworn evidence already before the court. This is the procedure proposed in the Bill. Were we to adopt the alternative procedure, the various pleadings having closed and the notice of trial having been served, the matter would enter a court list and might take a considerable time to be heard.
It is worth noting that the form of procedure in the Bill has been used by the Oireachtas and the court rules committee in other analogous contexts. For example, the enforcement of the planning legislation is done by way of this procedure whereby a notice of motion is issued and served along with an affidavit setting out why the applicant — often, but not necessarily, a local authority — maintains a breach of the planning code has taken place and the matter is then brought into a court list where it can be adjourned from time to time but at least the matter is brought expeditiously before the court. This is a far superior procedure than leaving it to the realm of a residual category in the rules of court whereby a case proceeds by way of plenary summons and statement of claim, which may extend proceedings over a long period of time.
No specification was made as to how the application for an order should be made and in the absence of specific rules of court the Supreme Court decided, as the Senator outlined, in McK. v. F. that the section 3 application was a plenary trial after full pleadings. This is unsatisfactory as it allows any issue about proceeds of crime to be pleaded in general terms so that the parties are not really aware of the case to be made until the trial opens. Under existing legislation, it would be possible for the bureau to start an application on a writ, which would seem very prejudicial to a defendant. Equally the current position means that defendants are under no obligation to specify at an early stage the case they will make. This can allow for the duplication of proceedings and a multiplicity of hearings with unnecessary costs. The provision that applications may be made by originating motion allows for the hearing to be placed on the court list at the earliest opportunity with the full case of both parties set out in a formal and sworn manner.
While what the Minister of State has outlined makes sense, if in the absence of their being prescribed elsewhere, the Supreme Court sets out what it considers are the necessary procedures, surely it views these procedures as being fundamental. The Minister of State believes legislators may prescribe an alternative procedure to that which the Supreme Court might prescribe in the absence of the legislators specifying what is required. It could be argued that the need for pleadings is fundamental, which is why the Supreme Court would require them when nothing is specified in legislation.
I have perused the judgment of the Supreme Court and in no sense did it suggest any fundamental reason for so deciding other than that the rules of court provide that where no procedure is prescribed the procedure by way of plenary summons applies. The Supreme Court did not suggest there is a fundamental reason we must have the plenary procedure other than that the fact that the rules of court had not provided for any other procedure. It is important to realise that order 1, rule 6 of the rules of the superior courts mandates the use of the plenary summons procedure in all instances where there is no other procedure specified. Frequently another procedure is specified under legislation or under the rules of court. If we used the words "in a summary manner" in legislation for the jurisdiction of the High Court, the procedure by way of special or summary summons will apply.
In this instance, no procedure was specified in the legislation and, therefore, the residual hold-all section of the rules came into force. The Supreme Court is stating that if there is no express provision in the Act as it stands, we are obliged to provide the rules which state that this is the form of procedure for this type of application where nothing else is provided. The Supreme Court did not state there is anything more fundamental than that in arriving at its conclusion.
Amendment, by leave, withdrawn.
Section 4 agreed to.
Amendment No. 5 not moved.
Section 5 agreed to.
Amendment No. 6 not moved.
Section 6 agreed to.
Sections 7 to 11, inclusive, agreed to.
NEW SECTION.
Government amendment No. 7:
In page 9, before section 12, but in Part 2, to insert the following new section:
12.—The Principal Act is hereby amended by the insertion of the following sections after section 16:
16A.—(1) The following documents are admissible in any proceedings under this Act, without further proof, as evidence of any fact therein of which direct oral evidence would be admissible:
(a) a document constituting part of the records of a business or a copy of such a document;
(b) a deed;
(c) a document purporting to be signed by a person on behalf of a business and stating
(i) either—
(I) that a designated document or documents constitutes or constitute part of the records of the business or is or are a copy or copies of such a document or documents or
(II) that there is no entry or other reference in those records in relation to a specified matter, and
(ii) that the person has personal knowledge of the matters referred to in subparagraph (i).
(2) Evidence that is admissible by virtue of subsection (1) shall not be admitted if the Court is of the opinion that in the interests of justice it ought not to be admitted.
(3) This section is without prejudice to any other enactment or any rule of law authorising the admission of documentary evidence.
(4) In this section—
"business" includes—
(a) an undertaking not carried on for profit, and
(b) a public authority;
"deed" means any document by which an estate or interest in land is created, transferred, charged or otherwise affected and includes a contract for the sale of land;
"document" includes a reproduction in legible form of a record in nonlegible form;
"public authority" has the meaning given to it by section 2(1) of the Local Government Act 2001 and includes a local authority within the meaning of that section;
"records" includes records in nonlegible form and any reproduction thereof in legible form.
16B.—(1) For the purposes of this section—
(a) a person is corruptly enriched if he or she derives a pecuniary or other advantage or benefit as a result of or in connection with corrupt conduct, wherever the conduct occurred;
(b) “corrupt conduct” is any conduct which at the time it occurred was an offence under the Prevention of Corruption Acts 1889 to 2001, the Official Secrets Act 1963 or the Ethics in Public Office Act 1995;
(c) “property” includes—
(i) money and all other property, real or personal, heritable or moveable,
(ii) chooses in action and other intangible or incorporeal property, and
(iii) property situated outside the State,
and references to property shall be construed as including references to any interest in property.
(2) Where, on application to it in that behalf by the applicant, it appears to the Court, on evidence tendered by the applicant, consisting of or including evidence admissible by virtue of subsection (5), that a person (a "defendant") has been corruptly enriched; the Court may make an order (a "corrupt enrichment order") directing the defendant to pay to the Minister or such other person as the Court may specify an amount equivalent to the amount by which it determines that the defendant has been so enriched.
(3) Where—
(a) the defendant is in a position to benefit others in the exercise of his or her official functions,
(b) another person has benefited from the exercise, and
(c) the defendant does not account satisfactorily for his or her property or for the resources, income or source of income from which it was acquired,
it shall be presumed, until the contrary is shown, that the defendant has engaged in corrupt conduct.
(4) In any proceedings under this section the Court may, on application to itex parte in that behalf by the applicant, make an order prohibiting the defendant or any other person having notice of the order from disposing of or otherwise dealing with specified property of the defendant or diminishing its value during a period specified by the Court.
(5) Where in any, such proceedings a member or an authorised officer states on affidavit or, where the respondent requires the deponent to be produced for cross-examination or the Court so directs, in oral evidence that he or she believes that the defendant-
(a) has derived a specified pecuniary or other advantage or benefit as a result of or in connection with corrupt conduct,
(b) is in possession or control of specified property and that the property or a part of it was acquired, directly or indirectly, as a result of or in connection with corrupt conduct, or
(c) is in possession or control of specified property and that the property or a part of it was acquired, directly or indirectly, with or in connection with the property referred to in paragraph (b),
then, if the Court is satisfied that there are reasonable grounds for the belief aforesaid, the statement shall be evidence of the matters referred to in any or all of paragraphs (a) to (c), as may be appropriate.
(6) (a) In any such proceedings, on an application to it in that behalf by the applicant, the Court may make an order directing the defendant to file an affidavit specifying—
(i) the property owned by the defendant, or
(ii) the income and sources of income of the defendant, or
(iii) both such property and such income or sources.
(b) Such an affidavit is not admissible in evidence in any criminal proceedings against the defendant or his or her spouse, except any such proceedings for perjury arising from statements in the affidavit.
(7) Sections 14 to 14C shall apply, with the necessary modifications, in relation to assets or proceeds deriving from unjust enrichment as they apply to assets or proceeds deriving from criminal conduct.
(8) The standard of proof required to determine any question arising in proceedings under this section as to whether a person has been corruptly enriched and, if so, as to the amount of such enrichment shall be that applicable in civil proceedings.
(9) The rules of court applicable in civil proceedings shall apply in relation to proceedings under this section.'.
This is an important amendment that was referred to on Second Stage last week, when notice was given of inclusion of two additional provisions relating to hearsay evidence in the context of admissibility documents and a corrupt enrichment provision. The hearsay provision is contained in the new section 16A of the principal Act. As outlined on Second Stage, the need for the provision on hearsay evidence has arisen following a decision of the Supreme Court in the Criminal Assets Bureau v. Hunt case, delivered on 28 February 2003. In that case the court took the view that the reference at the end of section 8(5) of the 1996 Act to information, documents or other material obtained by bureau officers being admissible in future proceedings did not bypass the rules of evidence but merely allowed such documents to be admitted in accordance with the usual rules, notwithstanding their origin.
The decision obliges the Criminal Assets Bureau to prove bank records by means of the bankers' books evidence legislation, business and administrative records and transactions in land and other property by means of oral evidence, thereby adding a considerable administrative burden to its workload in preparing cases for court. The bureau has expressed concerns about the added administrative burden in proving large volumes of business and administrative records and transactions in land and other property arising from that decision.
The proposed amendment will be restricted only to proceeds of crime cases under the remit of the bureau. Due to the manner in which the provision is worded to refer to documents that are admissible, the measures available to both applicant and respondent or a third party who might make an application under the Act.
Subsection (1) sets out that certain documents are to be admissible in any proceedings where evidence of any fact of which direct oral evidence would be admissible without further proof. The documents concerned are a document which consists of a part of a record of a business or a copy of that document, a deed and a document which purports to be signed by a person on behalf of the business and which states that designated document or documents constitute the record, or part of the record, of the business, or is a copy or copies of such records or documents, or there is no entry or other reference in the records to such matters, provided that in both those instances the person has knowledge of those matters.
Subsection (2) contains an important safeguard that sets out that a document is not admissible under subsection (1) if the court is of the opinion that, in the interests of justice, it ought not to be admitted. Subsection (3) provides that the section is without prejudice to any other enactments and rules of law which authorise documentary evidence. Subsection (4) sets out certain necessary definitions of the expressions "business", "deed", "document", "public authority" and "records".
The amendment should facilitate the admissibility in evidence of large volumes of records which are generally of a routine nature and which are not in dispute between the parties. Provisions allowing for the relaxation of the ban on hearsay on documentary records are common in legislation and often essential to make the documents admissible before the court in the absence of their makers or persons who kept them. It is onerous to require for every document that the person who either made or kept the document to prove the continuity of possession of a document in a case involving a multiplicity of documents. The essential safeguard is inserted that the court has the important residual discretion not to admit a document where the interests of justice so require. Where any question arises, the court can refuse to admit the document without better proof of who made it, in the course of what duty and who has kept it since.
The other new section 16B contains a corrupt enrichment order provision. This provision deals with the position where someone by means of a corrupt act is able to benefit from the enhancement of value of property acquired arising from the corrupt act. On Second Stage the example was given of a person who bribes a council official to allow him or her to build 60 rather than 50 houses in a development. This amendment will provide for a procedure to go after the additional profit generated by the bribe by obtaining a corrupt enrichment order against the individual concerned.
Subsection (1) defines the concept of unjust enrichment as meaning that a person who derives pecuniary or other advantage or benefit as a result of or in connection with corrupt conduct. Corrupt conduct is then defined by reference to the Prevention of Corruption Act, the Official Secrets Act and the Ethics in Public Office Act. A definition of property is included.
Subsection (2) provides that where it appears to the court on hearing evidence that a person has been corruptly enriched, the court can make a corrupt enrichment order directing that person to pay to the Minister for Finance or other person specified by the court an amount equivalent to the amount by which the court determines the person has been enriched. Subsection (3) provides, until the contrary is shown, for a presumption of corrupt conduct on the part of a defendant when three conditions are fulfilled: that the defendant is in a position to benefit others in exercising his or her official functions, some other person has benefited and the defendant does not account satisfactorily for his or her property or the resources or income from which it is derived.
Subsection (4) provides that the court has power to prohibit disposal of or dealing with the property concerned or prevent diminution of its value. Subsection (5) sets out that the evidence to be furnished to the court by the Criminal Assets Bureau is a belief that the defendant has derived a specified pecuniary or other advantage or benefit as a result of the corrupt conduct, is in possession or control of property acquired directly or indirectly as a result of or in connection with the corrupt conduct and is in possession or control of specified property and that the property was acquired directly or indirectly as a result of or in connection with the property already referred.
Subsection (6) provides for the court to make an order which directs the defendant to file an affidavit specifying his or her property or income or both and contains a safeguard that such an affidavit is not admissible in criminal proceedings against the defendant or his or her spouse except in perjury proceedings. Subsection (7) applies the provisions of the new sections 14 to 14C, relating to search warrants, orders to make material available, prejudicial disclosure and trust to this provision of corrupt enrichment. The civil standard of proof is applied to these proceedings and the rules of court applicable to civic proceedings are applied to proceedings under this section. The Minister has a considerable interest in the introduction of a principle of this kind into Irish law and Senators will welcome the provision that puts this matter beyond legal doubt and spells it out in the Statute Book.
These are substantial amendments and form a major part of the Bill before the House. I agree with the Minister of State that they are necessary. However, I wonder why they were not included in the Bill ab initio. I would certainly agree with the corrupt enrichment order which provides that anyone who has benefited from crime should be penalised.
I am somewhat concerned about the kite which the Minister for Justice, Equality and Law Reform, Deputy McDowell, has flown on a few occasions as regards planners giving permission for 50 or 60 houses. Is there any evidence that cases such as this have arisen, because we have heard the Minister mutter something to this effect on numerous occasions, as if it was the norm every day of the week in local authorities? It has not come to my notice on any occasion that developers would get permission for 60 rather than 50 houses, or whatever. Is there evidence that this practice is widespread throughout the country or is it just something the Minister heard about, anecdotally, and wishes to legislate for?
We agree with the whole concept of the amendments as put forward. We cannot disagree with anything that gives greater powers to combat crime, to bring criminals to heel and seize their money and we will support such an initiative. However, we wonder why such lengthy amendments are being tabled after the Proceeds of Crime (Amendment) Bill 1999 was introduce. They provide much of the meat on the bones of the actual Bill that came before the House initially.
It was decided not to have a corruption assets bureau and that the Criminal Assets Bureau was the right body for that task. The Senator inquired whether there was any particular conduct that gave rise to what is being proposed here. If one examines the report of the Tribunal of Inquiry into Certain Planning Matters and Payments by Mr. Justice Flood, there was one obvious example of conduct which this particular provision would apply to in an appropriate case. Clearly, it is a perspective, in effect, but the purpose of a provision such as this is to give far greater legal clarity to the position of the bureau and that of the person who has been unjustly enriched as a result of corrupt conduct. It gives a clear remedy, which allows the value to be recouped by the Minister for Finance or another person. While it might have been possible to construct this proposal as a general matter of civil obligation, without enactment, clearly, spelling it out in statutory black and white enormously strengthens the capacity of the law to deal with this type of conduct. The Minister took considerable legal and constitutional advice before finally settling on the formula which I am now introducing to the House.
I would like the Minister of State to clarify a number of matters as regards the new section 16A and subsection (2), which states:
Evidence that is admissible by virtue of subsection (1) shall not be admitted if the court is of the opinion that in the interests of justice it ought not to be admitted.
What is the reason for the amendment in the first place, since the courts have decided it was not in the interests of justice that various proofs be not admitted? Will that not be decided in any event because that provision is included? I wonder whether the legislation is trying to be clever, but perhaps it is not. It might not ultimately address the problem it purports to deal with. That is something that occurred to me as I was reading the amendment.
As regards the section dealing with the corrupt enrichment order, I do not have any problem with that, as such, but am concerned, nonetheless, if it relates to an issue such as planning. Where this happens, the damage will still have been done to a community. We are currently hearing a good deal about what happened in previous development planning matters, and whether the correct decisions were made and the reasons behind them. Once land is built on and a particular community is developed, in the building sense, the effects are there and the damage is done. Even though the Exchequer gets its money, will a particular community ever get any redress as regards the problems it has experienced as a result or will it see the perpetrators brought to justice in terms of having to serve jail sentences? Will this mean that some of these people will get away with it, even though they pay money over to the Exchequer?
The answer to both points raised by the Senator is "No". Taking them in sequence, I will deal first with the question of the relaxation of the hearsay rule, as proposed by the Minister. The common law developed the rule that evidence is not admissible if the person submitting it is not available in court to give the evidence on oath and be subjected to cross-examination. In general, it is in the interests of justice that this should always be so, when persons are giving accounts of the transaction of events from memory.
However, the application of the rule to the proof of documents has occasioned considerable inconvenience down the years. In the proof of a document the rule requires that not alone should the original be produced in all cases, but that the maker of the document or the person who kept it in the course of his or her business or calling, should be available to prove it. If the document has been out of the possession of that person in the intervening period, the continuity of its possession must be proven to the court's satisfaction and successive keepers or handlers of a document should also be available to give evidence.
A famous decision was handed down in England and Wales in the 1960s, where a prosecution as regards a stolen car racket collapsed because counsel was not in a position to call the makers of the records for the manufacturers who installed the relevant chassis numbers on the cars and could match them to registration details. So, in the Criminal Evidence Act 1992, the Oireachtas provided for substantial relaxation of the rule as regards documentary matters in the general law of evidence.
What is being proposed here is the specific relaxation applicable to the Criminal Assets Bureau. It seems a reasonable relaxation. The reason the formula "in the interests of justice is improved" is being inserted is that in all these matters relating to the proffering of evidence, some residual or ultimate discretion must be left to the court to do justice between the parties. However, it seems that a rigid application of the hearsay rule to documents can, in itself, produce injustice in the sense that it puts far too onerous a burden, either on the prosecuting authority in a criminal case, or on the Criminal Assets Bureau in these civil proceedings. If the rule is being relaxed both parties to the procedure still have to be protected by ensuring there is residual discretion in the interests of justice.
I do not want to anticipate how the courts will construe that issue. However, where some question of irregularity might arise as regards any particular document, and where it did not appear to come out of the ordinary course of business, the court might require the full traditional form of proof.
As regards the corrupt enrichment order, Senator Tuffy raised the question of the communities affected by unjust planning decisions. Of course, the Minister for Finance is the personification of the State for the purpose of recouping the ill-gotten gains that have resulted from the corrupt inducement or activity. Clearly, when corruption takes place, that is not in the public good or interest and can have an effect on communities. The only way to compel the wrong doer to disgorge the wrongful benefit which he or she has acquired from corrupt conduct, is to compel him or her to disgorge it back to the community. That is done through the medium of the Minister for Finance in this legislation.
We could embark on an argument similar to the argument we had on the Criminal Assets Bureau as to whether these moneys would be better committed to specified worthy social purposes on a ring-fenced basis. I assure the House it is not the intention of the Minister, in introducing this provision, to sanction corruption or to suggest that because a clear unequivocal civil remedy is provided for in the legislation that some countenance is being given to this type of activity. In fact, the motivation for this measure is the very activity that has been exposed in recent years. The awareness that there is a powerful civil remedy is a valuable one, though I agree with Senator Tuffy that it is always desirable that persons who contravene the criminal law should also meet their desserts before the courts.
I am mindful in section 16B of the proposed new section which deals with the corrupt enrichment order, because we debated this matter at the Joint Committee on Justice, Equality, Defence and Women's Right. I advocated that the evidential barrier to criminal activity may well be too high and should probably be reviewed when one sees criminals who are known to the community and the Garda walking the streets and because it is not possible to get sufficient evidence to obtain a prosecution they appear to operate with impunity. I note that the evidential barrier is changed in this section.
Are the nine subsections in section 16B standalone subsections? Subsection (3)(a) states: “[Where] the defendant is in a position to benefit others in the exercise of his or her official functions, ... it shall be presumed, until the contrary is shown, that the defendant has engaged in corrupt conduct.” That significantly shifts the burden of proof in this scenario. As a stand-alone statement it appears stark but, perhaps, it is contingent on the processing of a whole range of other issues to arrive at that conclusion. If one deals with the subsection on its own it raises questions. I was mindful of this at the Joint Committee on Justice, Equality, Defence and Women’s Rights and that we should proceed on that basis when dealing with serious crime. In this instance, perhaps because of some of the activities at the tribunals, the Department and others are mindful of this as money generally can be tracked through the banks and other ways. Therefore, it should be possible to prosecute without going that far. I raise the question in order to hear the view of the Minister of State.
The provision contained in subsection (3) represents a legislative device to which we often have recourse in legislation where we seek to vary the incidence of proof in accordance with the means of knowledge of the parties to a particular proceeding. It is found in some criminal statutes, mainly statutes relating to summary criminal matters, for example, where the possession of a licence is essential to the commission of a lawful activity and the burden of proving the existence of the licence is cast upon the accused person rather than on the prosecuting authority.
In the context of civil proceedings, as these would be envisaged under the legislation, it is open to the Oireachtas to provide for it, as we have done in carefully guarded terms, because the defendant must be in a position to benefit others in the exercise of his or her official functions and another person must have benefited from the exercise. Not alone must one have the official but one must have also the person who has benefited. The third element is that the defendant in this statutory in personam action does not account satisfactorily for his or her property or for the resources, income or sources of income from which it was acquired. That third element has to be established and then, and only then, it shall be presumed until the contrary is shown. It is still open to the defendant to prove the contrary, that the defendant has engaged in corrupt conduct.
We are laying down a rule about when a court can draw an inference about corrupt conduct and no more than that. That technique is available in criminal statutes but it has to be worded with great care and indicating the precise circumstance which allow us to draw the inference. It has been done in criminal legislation. The courts have been empowered to draw inferences from various matters, for example, in relation to the presence of forensic signs on bodies and so on. Such legislation is in existence and we have simply applied that general principle in specific terms to this particular context to allow the court draw an inference of corruption, which ultimately is an essential inference in the commission of this statutory tort.
Amendment agreed to.
Amendment No. 8 not moved.
Sections 12 and 13 agreed to.
SECTION 14.
I move amendment No. 9:
In page 10, between lines 5 and 6 to insert the following:
"and
(c) by the addition of a paragraph (e) as follows-
‘(e) under the Companies Acts 1963 to 2003 for the carrying on of any function exercisable by the Director of Corporate Enforcement,’.”.
This amendment would extend the powers of the Criminal Assets Bureau to take action against companies under the Companies Acts where appropriate to assist in its mission.
Senator Tuffy wishes to add to the list of the functions of the Criminal Assets Bureau the function under the Companies Acts 1963 to 2003 for the carrying on of any function exercisable by the Director of Corporate Enforcement. Were the functions of the Criminal Assets Bureau extended to necessary actions under the Companies Acts for the carrying on of any function exercisable by the Director of Corporate Enforcement we would have to consult with the director's office and the Criminal Assets Bureau on the impact of both bodies on their operational remit. The function of the Office of Director of Corporate Enforcement is to improve the compliance environment for corporate activity. The director has already been invested with extensive powers. In any event the Criminal Assets Bureau can pursue the proceeds of all types of crime. It may not be necessary to extend the functions of the Criminal Assets Bureau as proposed. However, my officials will consult with both bodies concerned and I will return to the issue on Report Stage if Senator Tuffy tables the necessary amendment.
Amendment, by leave, withdrawn.
Section 14 agreed to.
Sections 15 to 20, inclusive, agreed to.
Amendment No. 10 not moved.
Section 21 agreed to.
Section 22 agreed to.
Title agreed to.
Bill reported with amendment.
When is it proposed to take Report Stage?
Next Tuesday.
Report Stage ordered for Tuesday, 7 December 2004.
Sitting suspended at 4.30 p.m. and resumed at 5 p.m.