Proceeds of Crime (Amendment) Bill 1999: Committee Stage.

I welcome the Minister for Justice, Equality and Law Reform, Deputy McDowell, and his officials to this meeting for the purpose of consideration of Committee Stage of the Proceeds of Crime (Amendment) Bill 1999.

Chairman, in the interest of expediency may I suggest a slightly different approach to beginning our proceedings? We are dealing with Committee Stage amendments in an unusual situation in that we are amending a Bill which was originally circulated in 1999, in the last century. The amendments effectively amount to a new Bill. If one were following a perfect course of action, we would have asked the Minister to withdraw the existing Bill and start afresh. However, I understand the exigencies of the situation and I support the need to change the law. From that point of view, I am prepared to go along with the process which effectively involves the introduction of a substantially new Bill on Committee Stage.

It would possibly be helpful if the Minister would give us a two-minute thumbnail sketch on what he wants from the Bill and we could then agree to many of his amendments without difficulty. I realise it is an unusual approach to even invite the Minister to do this. What essentially is he now seeking to achieve in the Bill? It would help us in the organisation of our work. I confirm that I intend to deal with the Bill in the most positive and constructive way possible.

Of course Deputy O'Keeffe can speak for himself. We all take different views on these matters but I agree with him that it would be desirable to get an initial introduction from the Minister. He should first outline from where the 1999 Bill originated. It was a modest proposal in the context of the 1996 Act. Why did it rest on the stocks for so long? What is the impact of the new amendments, which are much longer than the Bill? After the Minister has outlined the position we should be given an opportunity to respond following which we can proceed to the text of the Bill. I do not expect there would be undue delay on most of the amendments.

I would be happy to oblige. The Proceeds of Crime Act 1996 provided for the civil forfeiture of property which is the proceeds of crime. The House will be aware of the general provisions of the Act. Applications under the Act could be made by a member of the Garda Síochána not below the rank of chief superintendent or an authorised CAB officer to the High Court. The High Court could, if it was satisfied on the balance of probabilities, make a freezing order and after seven years that property could be disposed of for the benefit of the Exchequer. The belief of the applicant that the property is the proceeds of crime is admissible in evidence provided the court is satisfied that there are reasonable grounds for the belief and that the initial hearing is done on anex parte basis, but there is provision for a full interlocutory hearing after 21 days where the respondent has an opportunity to show the High Court, again only on the balance of probabilities, that the property is not the proceeds of crime.

On 25 November 1997, the previous Government approved the drafting of a Proceeds of Crime (Amendment) Bill to amend the 1996 Act in a number of technical respects. That Bill was published in 1999 and passed Second Stage in October 2000. I was appointed Attorney General in mid-1999 and was Attorney General until June 2002.

The main provisions of the Bill, as published, are as follows. First, it makes provision to allow the CAB make applications under its own name as opposed to a member of the Garda Síochána using his personal name and for any document used by the bureau to be accepted as authentic unless the contrary was shown. Second, it clarifies that the details of the property and income as well as the source of that income which a respondent is required to reveal to a court may not be used in evidence in any criminal proceedings against either the respondent or a spouse. That is in order to uphold constitutional rights against self incrimination. Third, it removes any doubt that there might be when a person may be said to be in possession or control of property for the purpose of the Act even when it has been seized from that person by the Garda Síochána. Finally, it makes changes to the 1996 Act regarding such matters as the submission of evidence under the Act and the variation of freezing orders for certain purposes such as the enforcement of taxes or court orders for the recovery of money.

Second Stage of the Bill was concluded in 2000 but it was not proceeded with pending the outcome of a number of court challenges to the Proceeds of Crime Act 1996. Following those court cases, and further recent consultations with the Criminal Assets Bureau, a number of additional proposals for inclusion in the Bill are now being proposed as official amendments to the Bill on Committee Stage. For the most part the amendments concern matters that have been brought to the Department's attention by the Criminal Assets Bureau arising from its experience in the operation of the legislation.

Some of the amendments give statutory effect to the decision of the court as set out in Part 1, and there are five principal amendments. First, there is an amendment to the definition of "proceeds of crime" to indicate that it is not necessary to show that the conduct was a particular kind of criminality if it is shown that the property was obtained through conduct of one of a number of kinds of criminality which would be an offence. In other words, if one finds somebody engaged in car stealing and drug trafficking, one does not have to go to the court and say that these are drug trafficking proceeds or car stealing proceeds if one can satisfy the court that, on the balance of probabilities, it is one or the other. That would be sufficient.

Second, provision is made for service of proceedings outside the jurisdiction. Third, and this is important because it deals with a recent court decision, provision is made to ensure that the Proceeds of Crime Act 1996 can be applied to pursue the proceeds of crime in this jurisdiction where the offence was committed abroad. That is a fairly crucial distinction. If, as turned out to be the case, the Act was interpreted as meaning that it applied only to proceeds of crime committed in this jurisdiction, it introduced a very considerable element of uncertainty in regard to drug dealing and the like. Fourth, an amendment is proposed to clarify that section 11(7) of the Statute of Limitations 1957 does not apply to the Proceeds of Crime Act 1996. Finally, an amendment is proposed to ensure that the interlocutory order can be obtained in a summary manner and does not have to be proceeded with on the basis of a plenary summons, statement of claim and so on.

Head five also contains a provision for rules of court to apply and head six contains procedures for a forfeiture in certain cases before a period of seven years has elapsed. Following publication of Mr. Justice Flood's second interim report, consideration was given to setting up a separate corruption assets bureau along the lines of the Criminal Assets Bureau. However, following consultation with the Criminal Assets Bureau and the Attorney General, Mr. Brady, it was considered that a separate corruption bureau would not be required and that existing activities of the Criminal Assets Bureau in the fight against corruption would best be enhanced by the inclusion of additional amendments in the Proceeds of Crime (Amendment) Bill set out in Part 2 of the appendix.

Those heads include measures formerly under contemplation for a proceeds of corruption Bill, and they include the following seven provisions. First, provision for production orders for civil purposes in the Proceeds of Crime Act. Second, a provision for powers of search in regard to computers and computerised information. Third, a provision to secure disclosure of the identity of persons for whom property is held in trust or where there is an investigation into whether that person is in receipt of, or controls or has benefited from the proceeds of crime. Thus, regarding money held in trust for a suspected criminal or person in possession of the proceeds of crime, provision is made to look through the trust to see who is the beneficial owner is. Fourth, provision for seizure and forfeiture of bribes, which were considered important because people who took bribes in the course of their official duties should, in behaving corruptly, have the bribes taken from them. Fifth, provision to apply certain provisions, including appeals under section 40, interest under section 41, procedure under section 42 and disposal under section 45 of the Criminal Justice Act 1994 to the new seizure and forfeiture provisions. Sixth, provision to amend sections 38 and 39 of the Criminal Justice Act 1994 dealing with seizure, detention and forfeiture of drug trafficking money being imported or exported in cash so as to extend those sections to include cash wherever located in the State from any criminal conduct, not just drug trafficking proceeds. If one is laundering large sums of money that statutory provision applies to it regardless of whether it is the proceeds of drug trafficking. It extends the drug trafficking remedy to large lumps of cash. Seventh, an amendment to expand the definition of "cash" and an amendment to replace the reference to "criminal activity" in the Criminal Assets Bureau Act 1996 with "criminal conduct," thus bringing it into line with a similar provision in the money laundering provisions of the Criminal Justice Act 1994.

Significant changes were proposed. The Proceeds of Crime Act operates on the basis of a civil forfeiture process. One of the proposals provides for District Court orders to be made to make material available for civil purposes in a manner similar to that which applies for criminal purposes under section 63 of the Criminal Justice Act 1994. The proposal to secure disclosure of the identity of persons for whom property is held in trust would allow the High Court to go behind a trust to establish the identity of the settler of the trust, the trustees and beneficiaries of the trust and where there is an investigation of a person in regard to whether they have control of or have benefited from the proceeds of crime. As I said, there were provisions in regard to cash and extending the drug trafficking provisions.

It may be of some assistance also to tell the committee what was not included. Consideration had been given to two other matters following the publication of the Flood report. First, a provision to provide for freezing of legitimately acquired property where the value had been enhanced, for example, as a result of a favourable planning decisions obtained following a bribe. Second, a provision to allow the use of findings by a tribunal to ground an application to freeze assets. I shall deal with them very briefly because it is important that people realise why they were not proceeded with. In regard to the assets, if, for instance, I gave a city council official a bribe to give me a favourable decision in regard to planning permission on my house, it is my house and the money I spent on it was my money. It is my property. To extend the principle to say that my property was enhanced as an indirect consequence of a corrupt act could have endangered the core basis on which the courts have upheld the forfeiture of assets, which is that to deprive Joe Bloggs of the proceeds of crime is not to punish him by a civil process because it is not his property in the first place and never was.

However, if one said that Deputies McDowell or Costello's houses, which are undoubtedly their properties, every last stick of which they paid for, has had an enhanced value by reason of a criminal act and that half the value of the house or whatever should be taken away from them, one is in danger of undoing the whole Supreme Court jurisprudence on which the CAB is based. One is taking someone's property from them which is undoubtedly their property legally. Thus, it may be argued that one effectively strays over the line into the area of punishment and retribution by depriving people of the value of their own property because it has been enhanced by an indirect criminal act. To press that point home, if, for instance, I gave a bribe to a local authority official to refuse planning permission to my neighbour building an extension close to my house, one could argue that the value of my house had stayed exactly the same or that it would have lost some value if my neighbour's planning permission had been granted, but depriving me of the value of my property in those circumstances crosses the line from forfeiture of something which is not one's property to punishment or retribution of some kind for getting away with it. That was one of the big problems in this area.

The second issue is a provision to allow the use of findings by a tribunal of inquiry to ground an application to freeze assets. One of the principal underpinnings of the distinction between tribunals and the administration of justice, which is crucial to many powers of tribunals, is the repeated statement by the Supreme Court that they are bereft of consequence and they do not amount to a deprivation of one's rights. Whatever the finding of Mr. Justice Flood, the late Mr. Justice Hamilton or whoever, it is a statement of opinion. It is a report but it does not have legal consequence for any person. If we had gone down the road of giving legal consequence to the reports of tribunals, we would have been in danger of disbanding some of the constitutional underpinnings of the distinction between tribunals and the rest.

All of this was carefully considered in deliberations between the Office of the Attorney General and my Department. We considered matters at great length and we decided that those two proposals, which were put into the public domain at the time, were seriously problematic and could have serious unintended consequences. The worst case scenario would be that we would get two Supreme Court decisions which undermined CAB and the tribunals. In the circumstances we decided not to proceed. That is the background.

On the question of timing, Second Stage was taken on 1 June 2000. The cases were pending at the time. The Bill was restored to the Order Paper in June 2002. In September 2002 the second Flood report was published. The debate then started between the Attorney General's office and my Department on the two constitutional issues to which I have referred and on the question of whether the corruption assets bureau and the other radical proposals were good or bad ideas. It took time to reach conclusions and decide on the way to proceed. That is the explanation as to why we are in this situation.

That is hugely helpful to our thinking. The Minister mentioned the various court challenges, and the amendments take into account the court decisions in the meantime. Is there a Supreme Court decision due in this general area? Have all existing court challenges been taken into account in the final framing of the amendments?

In the nature of the beast, there is a constant stream of challenges because everybody who gets on the wrong end is tempted to challenge some aspect of the general CAB regime. The most significant challenge of recent times was one which this Bill was already contemplating the need to repair. It was a challenge which succeeded. It held that the existing text of the Criminal Assets Bureau legislation restricted the proceeds of crime notion to proceeds of crime committed within the jurisdiction and, therefore, we have lost that. We were already preparing to make it clear because we had a High Court decision in our favour, but we were not sure that it would survive in the Supreme Court, and it did not.

Taking the Minister's last point about the difficulty in dealing with the two matters he mentioned, and particularly the freezing of legitimately acquired property even though it has obtained enhanced value through criminal activity, would it be possible to include in the legislation a provision which would assess the value of the enhancement that was obtained through the criminal activity without interfering with the value of the property that was obtained legitimately?

That is an issue from which we still have not completely walked away. The distinction of an actionin rem — which is an action directed to the property — or an action in personam — which is an action directed to the corrupt person — is a live one. We are still thinking of making it an actionable wrong to unjustly enrich oneself by means of a corrupt act and therefore to expose oneself to civil liability where one does so. In other words, if a person bribes a corporation official to allow him or her build 60 rather than 50 houses on an estate, the person is not simply criminally liable for the corruption in question but is civilly liable on the balance of probabilities——

——to the community or to the local authority. That is the issue, that one would have to find out who is the appropriate plaintiff in such actions. The point is that somebody can bring an action on behalf of the community to recover unjust enrichment which is arising from corruption.

I fully accept what Deputy Costello has said. The distinction here is whether one could look at an asset and start a——

For example, if a person obtained a rezoning of agricultural land for residential or property development use and its value multiplied ten-fold as a result, it is not difficult to estimate the enhanced value obtained through bribing a planning official or whoever in the process. Given that the tribunals are dealing with a vast amount of planning rezoning corruption, this is an area from which the Minister should not shy away because one can identify the degree of enhancement that has taken place. It would be a terrible shame if that area, which has probably been the focus of most tribunal activity in recent times, did not come under the remit of the Bill.

This is not something from which I am walking away. If possible, I intend bringing forward an amendment on Report Stage on the issue.

I welcome that. In the present situation, is it the case that the CAB would be likely to seize property belonging to drug dealers where there is no perceptible evidence that they have the necessary finances to purchase that property but might have part of the finances? Would there not have been contests in many instances in cases of that kind, that is, money-laundering, where part of the assets of the person in question would have been legitimately purchased using their own resources but that in most cases the vast majority of it would have come from the proceeds of crime?

While that is true in a sense, one could not possibly have a system whereby if a person proved that an aunt gave him or her a fiver which was invested in a mansion the person built, it therefore ceased to be the proceeds of crime because a tiny fraction of it was a voluntary gift from an aunt. The law does not proceed on that basis at present.

There is one matter on which one must be clear. It is easy for these purposes to visualise it as real property, but the proposed amendment on which I am working may encompass something as broad as the following. Suppose a supermarket owner gave a bribe to a public service official to turn a blind eye to X or Y. One would not see something tangible which he got from that activity but one would know that he himself had become wealthier and one could estimate that the sum total of his corrupt action is that he either nobbled a competitor or enriched himself in some way. Tangible property is only one example of where dispossessing people of the benefit of corruption can occur.

It is very difficult to quantify in that situation.

The Supreme Court case which formed part of the reason for introducing the new provisions on the proceeds of crime acquired outside the jurisdiction had to do, I think, with a British citizen who had acquired property in Wicklow and argued that he had been working at various things. The judge acknowledged that he had worked beneficially for a period of time when he was not in prison and that there could be a contribution there. It was struck down because it was out of the jurisdiction.

There seemed to be a recognition in that judgment that some of the value of the property could have been obtained in a legitimate fashion, so I do not see why we cannot extend the principle to the proceeds of corruption involving planning, rezoning or something like that. I am glad the Minister is thinking of introducing an amendment on Report Stage but that should be a central part of this legislation because there is such a quantity of white collar corruption——

I agree, and if I can go down that road I will do so. That is what I am signalling. However, it is not always easy to quantify the benefit to somebody of a corrupt act. For instance, imagine that I own 30 acres near Dublin Airport and bribe a local authority planning official to rezone it from A to B; ten years later this comes to light, and it is then discovered that, in any event, a subsequent county council decision swept all of that land into areas designated for development. One cannot, as it then stands, say that I have got value from my corrupt bribe because I could prove that it would, thereafter, have in all probability been rezoned in any event.

The other point that must be borne in mind is that, unlike proceeds of crime such as drug supply and so on, there is no necessary correlation between the amount of a bribe and the benefit to the briber. One could get a lot of bang for one's buck if, say, one gave a €1,000 bribe to an official and got a benefit of €1,000,000 in return. The connection between the two is——

The bribe can be seized under the Minister's proposed new provision. Therefore, he should be able to deal with the enhancement also on a reasonable basis.

I ask the committee to bear in mind that sometimes the benefit is totally intangible, like foot tripping a competitor or not building a road through one's land and building it through someone else's land instead. There are all sorts of examples.

An altruistic bribe.

I have a general comment and will be brief. Given that there are so many amendments, and now the Minister is suggesting that we will have other amendments on Report Stage, it is a pity that we did not start again on Second Stage. The Minister referred to delays and so on, but if we adopt all of his amendments, plus those he will introduce on Report Stage, it will be a substantially different Bill to when it started off. It may have been quicker to deal with it by taking Second Stage again. In general I have no major problem with the Bill.

NEW SECTIONS.

Amendments Nos. 2 and 31 are related to amendment No. 1, therefore, amendments Nos. 1, 2 and 31 will be discussed together by agreement.

I move amendment No. 1:

In page 3, before section 1, to insert the following new section:

"PART 1

Preliminary and General

1.—(1) This Act may be cited as the Proceeds of Crime (Amendment) Act 2004.

(2) The Principal Act and Part 2 of this Act may be cited together as the Proceeds of Crime Acts 1996 and 2004.

(3) The Act of 1996 and Part 3 of this Act may be cited together as the Criminal Assets Bureau Acts 1996 and 2004.

(4) The Prevention of Corruption Acts 1889 to 2001 and Part 5 of this Act may be cited together as the Prevention of Corruption Acts 1889 to 2004.".

I move amendment No. 1 to amendment No. 1:

After subsection (4), to insert the following subsection:

"(5) A Statute Law Restatement of the Acts referred to in this section shall be published within 6 months of the enactment of this Act.".

I think we have covered the ground, and the Minister's opening remarks were helpful in allowing us to get to grips with the amendments. My amendment arises from the point mentioned by Deputy Ó Snodaigh. We are going to end up with very complex legislation that is substantially different from the Bill as originally initiated.

I am seeking a restatement of the Acts referred to in this section. The Statute Law (Restatement) Act 2002 was heralded as something that would help to tidy up the Statute Book, and the Minister had an interest in this approach when he was Attorney General. To date, we have had just one solitary restatement, of the sale of goods legislation.

When an Act has been amended a number of times, and in such a complex way as this Bill, given the amendments thereto now proposed, the Act should be reprinted as amended. I understand the Office of the Attorney General has power to do this but it is not happening. That is why I propose a time limit in this case of six months. It is important that we have a restatement as soon as the Bill goes through the Legislature.

We made that point on a number of occasions in regard to this legislation. I understand this is the oldest legislation still on the stocks. It was introduced in 1999 and, five years down the road, has still not been passed. I think the Minister promised in his election manifesto a proceeds of corruption Bill, some aspects of which he appears to have incorporated into amendments to this Bill. The Minister also deals with the recent Supreme Court decision in regard to other jurisdictions. He will probably go further down the road on Report Stage by introducing another substantial and important amendment in regard to enhancement received from criminal activity.

These are all major matters, and it is important that they be restated in proper legislation. We are ending up with hybrid-type legislation in which things are grafted on from time to time and the original Bill is nothing like the final amended version. The final version will consist largely of a series of amendments and will be far greater that the rather modest legislation tabled originally.

As I understood it, the purpose of the original legislation in 1999 was to more or less streamline and make more flexible the original 1996 Act. Its purpose was to smooth things out and make things easier for CAB. Now we have a Bill with large amendments designed to achieve purposes much different from the original intention. They incorporate what the Minister had intended to put into separate proceeds of corruption legislation.

It is a bad way of progressing legislation. I understand it originated from a different government, but it is nevertheless important that it be put on a proper statutory footing. In view of this, I support the proposal that a statute law replacement of the Acts be put in place as soon as possible.

Is the Deputy dealing with amendments Nos. 1, 2, and 31?

First, the statute law restatement legislation was one of my great hobby horses when I was Attorney General. We pushed it through, and it is now the law that Acts can be republished in a consolidated form. It is happening now, I am glad to say. It is time consuming and is sometimes only done informally. For instance, some of the Deputies present will be aware that, in regard to the immigration and refugee legislation, my Department was already operating on the basis of informal restatements so that people could see the law in its real state rather than having a series of interrelated statutes before them. I accept the principle of Deputy Jim O'Keeffe's suggestion that a restatement should follow.

The business plan for the Department of Justice, Equality and Law Reform's criminal law reform division provides for a restatement of the corruption Acts to be undertaken later this year. I intend to add the proceeds of crime legislation to the restatement. I hope such a restatement will be published by the end of the year. I do not want to impose a statutory time limit on myself because the effect of that would be that somebody in the Office of the Attorney General would have to down tools on some other project to comply with the limit. Some other project would not be done because the restatement would have to be done.

An intention to restate the corruption law in late 2004 is part of the business plan for the Department of Justice, Equality and Law Reform's criminal law reform division. I am prepared to amend our business plan to include a restatement of the proceeds of crime legislation, as appropriate, so that people can follow it in a single narrative text, rather than having to search a series of statutes to find out what the law is. I fully accept that it would have been desirable to start again, or to consolidate the entire statutory framework in a single consolidated Bill. We would have done so if we lived in a perfect world, but we live in an imperfect world. One cannot turn around theQE2 that easily. I ask the committee to accept my undertaking that I will do it, rather than putting a statutory obligation on me to do so.

We are of the one mind. We need a restatement. I accept the Minister's undertaking. I will withdraw my amendment to the amendment on that basis.

Amendment to amendment withdrawn.

Amendments Nos. 2 and 31 are simple, standard drafting amendments. Amendment No. 2 contains a clear statement of the various Acts which are affected in section 2. Amendment No. 31 involves a change in the Long Title to ensure that it covers everything in the ambit of the expanded Bill.

Amendment agreed to.

I move amendment No. 2:

In page 3, before section 1, to insert the following new section:

"2.—In this Act—

‘Act of 1994' means the Criminal Justice Act 1994;

‘Act of 1996' means the Criminal Assets Bureau Act 1996;

‘Act of 2001' means the Prevention of Corruption (Amendment) Act 2001;

‘Principal Act' means the Proceeds of Crime Act 1996.".

Amendment agreed to.
Section 1 deleted.

As amendments Nos. 3, 20 to 23, inclusive, and 29 are related, they may be discussed together, by agreement.

I move amendment No. 3:

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.".

I hope the Minister will accept this amendment. The original 1996 Act was passed following the tragic assassination of Veronica Guerin. The legislation was brought forward in the context of major problems with drugs, particularly heroin, and organised criminal activity.

We were concerned to deal with the proceeds of crime and money laundering. Very dangerous people were operating at that time. They were prepared to kill a journalist who was doing Trojan work in revealing publicly the darker side of Irish life, such as underworld activities. The vast majority of criminal activity centred in disadvantaged and deprived areas, just as the Celtic tiger was beginning to roar. Many marches and protests took place as communities started to come together. The institutions and agents of the State were not doing their jobs properly. Communities in many areas were left to their own devices.

The situation has not improved greatly since that time, however. There are approximately 15,000 heroin addicts in this country. Merchants' Quay and other agencies have informed us that the supply of funds is inadequate to support the rehabilitation process and to assist the community which has been badly hit by the onset of hard drugs. We are now moving into the arena of cocaine, the new serious drug that is spreading throughout the disadvantaged areas.

It is clear that there is a need for a special fund. Approximately 52% of the money in the dormant accounts fund, which has been earmarked for a particular purpose, is allocated to RAPID areas. If any fund should be earmarked for a particular purpose, it is the fund that consists of the proceeds of crime. If communities could see that illegally obtained moneys, acquired at the expense of the most vulnerable people, were being ploughed back into such areas with a view to building them up and making them less disadvantaged, it would be a powerful weapon in the fight against crime. We should give each community the resources to fight, to get on its own two feet and to provide the facilities that are required by young people. We need to build an awareness of the need to ensure that young people do not pursue a life of crime, drug addiction or, worse still, drug pushing.

A substantial amount of money needs to be invested. Many of us represent constituencies where disadvantaged communities are to be found. When we hear that the national unemployment level is approximately 4.5% or 6%, we know that the same cannot be said of many blocks of flats or local authority housing estates in the areas we represent. Such areas have high unemployment levels. They have suffered as a result of the Government's recent cutbacks in community-based schemes such as community employment and job initiative. The schemes helped to maintain solidarity and stability in such communities by employing local people who might not have had the necessary high-powered skills to get employment in the financial services industry, etc. A considerable investment needs to be made in such areas.

The moneys that are needed can be acquired from the proceeds of crime that are seized by the Criminal Assets Bureau under this legislation. Hardly anything else would have the same effect on such communities, which are fighting to maintain themselves. The proceeds of crime are taken from people who do not have any concern for communities, who have bled communities dry and who are parasites on the community. Such money should be reinvested in communities.

I ask the Minister to give the committee a breakdown of the amount of money that has been seized in each of the years since the establishment of the Criminal Assets Bureau. Has all of the money simply been put back into the Exchequer? I am aware that assets are frozen for a seven-year period, so it is likely that not very much money has gone directly back into the Exchequer. The money that is waiting to go into the Exchequer funds, the Minister for Finance and the treasury could be used for the purposes I have mentioned.

One of the Minister's new amendments to the Bill allows for the money to be unfrozen at an earlier stage, with the consent of all the parties, rather than waiting for seven years to elapse. The provision will mean that such money can more quickly be made available to the communities that need it. It is a wonderful idea. Deputy O'Dowd produced a Private Members' Bill last year proposing the same idea, more or less.

I thought the pilot drugs court in the inner city was about to founder quite recently. We would all like to see that extended to other areas because it has a good success rate. That will also require funding.

There are many reasons why we should ring-fence the money seized by the Criminal Assets Bureau under this legislation and direct it into the areas which have suffered from criminal activity and turn them into stable and solid communities.

My views are in line with those of Deputy Costello. I would take a slightly different approach to where the money should be spent. My views are a reverberation of those put forward by my colleague, Deputy Fergus O'Dowd, who has developed some thinking on this issue and put his views before the Dáil in the recent past. However, our thinking is essentially the same. Funds seized should be ring-fenced and used for a specific purpose. I hope the Minister has had discussions with the Minister for Finance to enable him to adopt, in principle, an approach along these lines.

Deputy Costello's amendment refers to disposal orders and funding being used for community development purposes in disadvantaged areas. Mine proposes that funds be used for drug related initiatives, that is, voluntary and State-funded programmes established to discourage people from taking drugs or to assist in the rehabilitation of drug users. The differences are a matter of detail but we should establish the principle. These are funds seized from criminal activity largely in the drugs area and enormous amounts of money are involved.

The Criminal Assets Bureau has been very successful and, like Deputy Costello, I would like to know what level of money is involved. The seven year period is too long and should be reduced to three or four years. An indication from the Minister as to whether or not he accepts the idea of ring-fencing would be helpful. We could then discuss how best to lay down a statutory framework for spending the money. It should obviously be in the drugs area where it will have an influence on discouraging the use of drugs.

Amendments Nos. 20 and 21 seem to be more relevant to amendment No. 4 than amendment No. 3.

This matter was discussed at great length in the Dáil on the occasion of Deputy O'Dowd's Private Members' Bill, when the Minister for Defence stood in for me. I think I must have been in Hillsborough on that day. The issue was considered very carefully at that time. Deputy Smith stated:

To agree to use the revenues generated from the disposition of property transferred to the Minister for Finance under the provisions of the 1996 Act would mean that the treatment of drug offenders would be financed, in part at least, by uncertain and variable revenue sources. This would not facilitate proper planning of treatment provision and programmes by those organisations that funding is proposed to support.

Deputy Smith went on to say:

Also, the majority of assets frozen to date under the Act did not derive from the activities of drug dealers and there is no logical link between those assets and drug prevention and treatment programmes. To channel all of those funds to drug initiatives could deprive other areas, such as hospitals and schools, of resources. One could argue for ring-fencing of receipts if it were seen to be the motivating factor in the generation of higher receipts [in other words, if the CAB felt more motivated to get in money because it was seen to be going to this or that purpose] but there is absolutely no indication that the CAB needs any further motivation in carrying out its work. The CAB continues to enjoy considerable success in depriving persons engaged in criminal activity from obtaining the proceeds of their nefarious activities.

The figures speak for themselves. In 2002, the bureau obtained interim orders to the value of more than €34 million and interlocutory orders to the value of more than €10 million. Taxes and interest demanded came to €12.8 million, with more than €10 million collected, and social welfare savings amounted to more than €155,000.

There are more up-to-date figures. From its inception in October 1996 to the end of last year, the CAB has obtained interim and final restraint orders to the value of more than €51 million and €22 million, respectively. Final orders are interlocutory orders which are dealt with on the balance of probability.

Is there additionality there? Is the final order related to money which would, in an initial stage, have been included in the interim order?

I do not know if those are cumulative or are two layers of the same cake. I do not want to mislead the Deputy. I imagine they must be cumulative. I cannot imagine how they would have been distinguished one from the other but I am not sure about that.

Recently, the first disposal order, which is the seven year order, was successfully taken and more than €1 million was taken on a final disposal order.

The Deputies opposite asked about the period of time provided, which is seven years. I have always understood the reason for the seven year period to be that it allows the statutory period of six years for an actionin rem, or a personal action against the person from whom the property was taken, which is the normal statute period, to expire. In other words, if I am caught in possession of property and do not defend it but some of it belongs to my aunt, for example, she would have a period of time in which to make a claim on the property against me and to make a declaration that the property was hers and was not mine in the first place.

We did not want punitively to extinguish potential third party claims against the money. The view was taken that it would not be a great social evil to balance third party rights in these matters since orders could extinguish them. The full six year period provided under the statute of limitations for those kinds of personal actions would have expired so that it could be argued at the beginning that we were not merely attacking the possessor but the rights of third parties, who might not be aware of what was going on. We wanted to avoid any question of penal confiscation and simply to have it as a civil law declaration as to the status of the property because we were worried that somebody might bring us to Strasbourg, from an ECHR point of view, and say this was an unacceptable use of civil law to achieve what were properly criminal law purposes. That is where the six and seven year periods derive from.

Apart from quoting what the Minister for Defence said on my behalf on the last occasion, I have to say that hypothecation of assets is something to which the Department of Finance is rigidly opposed. They always say it is a bad idea. Their constant argument is that unless one can demonstrate that hypothecation of assets would increase the flow, there is absolutely no justification for it. A euro spent on old age pensions is just as good as a euro spent on inner city deprived areas or a euro spent on any other subject. They are rigidly opposed to creating some moral order of expenditures. I know I will be told about things which money should not be spent on. Mistakes are made from time to time and misjudgments are made on expenditure.

The economists have a phrase for the use of money, termed fungible. It means that money, whatever it is used for, is just money. Earmarking money for this or that purpose, such as spending a euro on providing an artificial hip for Mrs. So and So in her 60s, may make good politics but it does not make very good economics.

The lotto money is earmarked for specific purposes so that destroys that argument. In this instance, the public perception was that moneys seized in this manner would be directed towards tackling the specific problems created by the crimes. The Minister for Finance has the tax revenue and this is additional money. This should be spent on additional programmes which would not normally be funded by the Exchequer.

I agree with Deputies Costello and Jim O'Keeffe. My leaning would be more towards Deputy O'Keeffe's idea that this type of money should be ring-fenced. Normally ring-fencing is used to deal with drugs-related initiatives or anything that would discourage young people from becoming involved in the drugs scourge. That could mean investment in sports programmes, for instance.

I do not write the scripts for the Department of Finance but it would say that if it was generally perceived that the money from the lotto went towards buying a Government jet, it could discourage sales. People like to feel good about the lotto because it is a voluntary activity. If the money goes to community and sporting projects, people feel good about engaging in gambling and therefore it improves the flow of money to lotto. I can see that the argument that money is just money might discourage people from playing the lotto if the argument was made that such money was spent on the Government jet.

I went through the lottery Bill. Finding some way of providing extra money for sporting purposes was the genesis of the Bill.

The argument is that these are additional moneys, whether it is the lotto or CAB money or dormant accounts. They should not go into the same pot as the normal Exchequer funding. The dormant accounts fund is kept separate and that is the type of argument I am making.

The Minister said the majority of the money does not now come from drug dealers, but as the activities of CAB expand that may change. CAB was set up to deal with the drug dealers. Now that CAB will be enabled to seize money held abroad and co-operate with its foreign equivalent bodies, I presume the flow of money will increase. It is a strong argument that these are windfall gains and not the regular stream of funding to the Exchequer. It is additional funding that can be beneficial to a particular area in the same way as the lottery funding was ring-fenced for sporting activities and then subsequently diverted for health activities and so on. Much of the dormant accounts fund is ring-fenced for certain purposes such as activities in the RAPID area and the drugs task force.

Of all the moneys seized, money which is the proceeds of crime would be the ideal type of windfall money to be ring-fenced in the fight against crime. The public would see that this money is being ploughed back for purposes relating to the fight against crime and the building up of communities. The building of communities by whatever means, such as the provision of facilities, would be very desirable. I cannot see how the Minister for Finance can argue that money of this nature should not be ring-fenced.

There is another argument to be made about the money that is part of a regular stream of funding to the Exchequer. The money from motor taxation is being ring-fenced for local authorities to defray the cost of the water charges. The rules of the Exchequer and the Minister for Finance are more honoured in the breach than in the observance. The Minister should go back to the Department of Finance and say to the Minister for Finance——

"Do not bully me."

Yes. He should say, "This is my patch," and that he believes, in the interests of the fight against crime and building up communities that are most vulnerable to crime, this money should be seen to be used for this purpose. The public would acknowledge that in the ballot box, not just in nice remarks.

I have no doubt that in the fastnesses of Merrion Street, somebody is studying these remarks and watching the Deputy's recommendation carefully. In the real world in which I am forced to live, unfortunately, the chance of the Department of Finance agreeing to this form of hypothecation is small and for good reason in this case.

As Minister for Justice, Equality and Law Reform, and as a former Attorney General, I have always thought there was a good argument for ring-fencing fines imposed by the criminal courts for the very reason that the fines would be more vigorously assessed, levied and recovered if they went to fund, for instance, the criminal injuries compensation tribunal or something similar. District Court judges deciding whether to fine Joe Bloggs €300 or €200 for a drunk driving offence and believing that money will just be lost in the maw of the Exchequer are a little inclined to be lenient with the fine.

There could be a different approach to fines. The informal system of the court poor box shows that if people are motivated to use financial penalties because they can see the money was being used for a particular purpose, there might be greater use of fines. That said, I am fairly convinced that my little journey over to Merrion Street on foot of the advice received from Deputies Costello, O'Keeffe and Ó Snodaigh would be a forlorn journey and therefore I am not accepting the amendment.

Could we suggest that the Minister might consider making such a journey between now and Report Stage, with the full backing of the Opposition?

I will ask.

And we might review the situation further on Report Stage.

To avoid a vote, I will undertake to ascertain if there has been any change of policy on hypothecation but I cannot guarantee a positive outcome.

The Minister should use the argument he made about fines.

Amendment, by leave, withdrawn.
Section 1 agreed to.
Sitting suspended at 10.40 a.m. and resumed at 2.15 p.m.
SECTION 2.

This may be the appropriate time to discuss amendments Nos. 20 to 22, inclusive, 29 and 33 with amendment No. 4. Is that agreed? Agreed. The amendments concern definitions and so on.

I move amendment No. 4:

"PART 2

Amendments to Principal Act

"2.—Section 1 of the Principal Act is hereby amended—

(a) in subsection (1)—

(i) by the substitution of the following definitions for those of ‘the applicant', ‘proceeds of crime', ‘property' and ‘the respondent':

‘"the applicant" means a person, being a member, an authorised officer or the Criminal Assets Bureau, who has applied to the Court for the making of an interim order or an interlocutory order and, in relation to such an order that is in force, means, as appropriate, any member, any authorised officer or the Criminal Assets Bureau;

"proceeds of crime" means any property obtained or received at any time (whether before or after the passing of this Act) by or as a result of or in connection with criminal conduct;

"property", in relation to proceeds of crime, includes—

(a) money and all other property, real or personal, heritable or moveable,

(b) choses in action and other intangible or incorporeal property, and

(c) property situated outside the State where—

(i) the respondent is domiciled, resident or present in the State, and

(ii) all or any part of the criminal conduct concerned occurs therein, and references to property shall be construed as including references to any interest in property;

"the respondent" means a person, wherever domiciled, resident or present, in respect of whom an interim order or interlocutory order, or an application for such an order, has been made and includes any person who, but for this Act, would become entitled, on the death of the first-mentioned person, to any property to which such an order relates (being an order that is in force and is in respect of that person); and

(ii) by the insertion of the following definitions:

"consent disposal order" means an order under section 3(1A) or 4A(1); "criminal conduct" means any conduct—

(a) which constitutes an offence or more than one offence, or

(b) which occurs outside the State and which would constitute an offence or more than one offence—

(i) if it occurred within the State,

(ii) if it constituted an offence under the law of the state or territory concerned, and

(iii) if, at the time when an application is being made for an interim order or interlocutory order, any property obtained or received at any time (whether before or after the passing of this Act) by or as a result of or in connection with the conduct is situated within the State;',".

I move amendment No. 1 to amendment No. 4:

"In section 2(a)(ii), in the definition of “criminal conduct” after “conduct” where it secondly occurs to insert “, whether or not that conduct has resulted in a criminal conviction”.

I wish to make a minor point in respect of the Minister of State's main amendment, with most of which I agree. It arises in the context of what exactly amounts to "criminal conduct". The Minister has taken a narrow approach establishing that criminal conduct means conduct which constitutes an offence or more than one offence. Is there a case for a broader definition of criminal conduct? Is there a case for establishing a definition of criminal conduct, whether or not that conduct has resulted in a criminal conviction? Many people are engaged in criminal conduct who are never caught or convicted.

Under the narrow definition proposed by the Minister of State, such people would not be considered to be engaged in criminal conduct. I wonder if we should establish the fact that criminal conduct may not necessarily mean or involve a criminal conviction. I will not press the matter but if it was accepted, it could broaden the ambit of the Bill and possibilities available to the CAB. I imagine the Minister of State had the issue examined by his officials so I will await to hear their verdict on whether it is possible to proceed in this manner.

Is this similar to amendment No. 1 to amendment No. 20?

Yes. However, amendment No. 23 is a somewhat different amendment.

The Bills office has linked amendment No. 23 with the other amendments.

It deals with the time limit for the execution of warrants, as far as I can see.

It is a point of no little relevance as recent controversies have highlighted. However, it is not concerned with criminal conduct.

We are discussing it with amendments Nos. 20 and 21.

My point is in regard to time limits in the issuing of warrants. If the Garda finds it necessary to secure a warrant it is obviously a matter of importance and perhaps great urgency. The importance of the seven day limit was highlighted in the recent Curtin case. Perhaps seven days is too tight but there should be some time limit because the use of a warrant breaches a person's normal constitutional rights. Therefore, there should be a time limit beyond which warrants cannot be executed.

As I understand the drafting of the provision, such warrants would continue indefinitely. That is a dangerous approach. If seven days is not adequate or sufficient, we should set another time limit. This is why I suggested the term "not exceeding 14 days". If the Minister of State considers that further reasonable time is necessary, I would go along with it but, as currently drafted, the warrant would continue indefinitely. We should consider that in the context of some of the people the CAB has to go after. However, we are making law for everyone and must be careful we do not unduly breach constitutional limits.

The Deputy's other amendment is to amendment No. 29. Again, it is the same definition.

Yes. The two issues are the definition of "criminal conduct". The other issue is the length of time a warrant will last.

The point about the warrant time limit is well made by Deputy O'Keeffe. The original application specifies one week, unless it appears to the judge that another period would be most appropriate in the particular circumstances. That is an incredibly vague statement. There is no question of reasonable evidence or of a case being made by the Garda. It seems that the judge can give an unlimited period of time for a search warrant to be effective and operational. In such circumstances, there is scope for abuse. Later on, power is given to the seizing and retention of materials, documents and computers — not just a specific computer but any computer that might appear or any material. The powers are quite wide and I do not see the reason for it. If the Garda seeks a warrant for a specific offence which has been committed, why should it require an open type search warrant which could be extended indefinitely? It seems a grave interference with the rights of citizens.

We are dealing with amendments Nos. 4, 20 to 23, inclusive, and 29 together. Deputy Jim O'Keeffe has tabled amendments to Government amendments Nos. 4, 20, 23 and 29. I will deal with the Government amendments before I come to Deputy O'Keeffe's amendments.

I have no major problems with the Government amendments, other than on the points I raised.

Does the committee wish me to clarify the purpose of the amendments?

Yes, briefly.

Amendment No. 20 inserts a definition of criminal conduct in the Criminal Assets Bureau Act 1996. It is included to reflect the inclusion of the definition of criminal conduct in the Proceeds of Crime Act 1996 contained in the earlier amendment. Its purpose is to provide for consistency between the definition of criminal conduct between that Act and the Criminal Assets Bureau Act 1996. The redefinition of place is to ensure that it is clear that the scope of the application of these provisions is intended to also include places other than a dwelling.

On the proposed amendment No. 22, the change in paragraph (a) is consequent on the previous amendment, replacing the reference to “criminal activity” with “criminal conduct” and is done for consistency with the previous amendments. The amendment in paragraph (b) will allow for the Criminal Assets Bureau to co-operate formally with similar assets recovery agencies abroad, such as the assets recovery agency in the UK. Section 5 of the Criminal Assets Bureau Act 1996 provides for this already but the advice from the Office of the Attorney General is that its scope is much narrower than was originally envisaged. For example, we have been advised that agencies such as the UK assets recovery agency do not come under any of the categories referred to in section 5 of the 1996 Act as it is a civil forfeiture agency. The advice from the Office of the Attorney General also confirmed that an order under section 6 would not suffice to effect this change and a change to section 5 of the Criminal Assets Bureau Act 1996 is required to allow for co-operation with such bodies.

On amendment No. 23, the present section 14 search warrant provision of the Criminal Assets Bureau Act is being amended in a number of ways pursuant to these amendments. Subsection (a) replaces references to “criminal activities” in subsections (2) and (4) of section 14 with the words “criminal conduct”. This is done for consistency to reflect the change in the revised definition of money laundering referred to in the earlier amendments. Subsection (b) contains two changes. Briefly, the first change deletes the reference to the time limit of one week which applies to these search warrants and inserts in its place the words “within a period to be specified in the warrant”. This is being done to take account of a new insertion in the section of new subsection (4A), which is the subject of a later amendment and which provides for a time limit of one week unless the judge decides that another period is more appropriate. The second change is that provision is made to exclude material, which is the subject of legal privilege from the search. Subsection (3) inserts a new subsection that provides, as before, that the time limit which is to apply to a search warrant is one week, but allows for the possibility that a judge may apply a different time limit if it appears appropriate in the particular circumstances of the case. This will allow a case to be made when applying for the search warrant for seeking a longer time limit, for example, if a number of search warrants were sought in different areas of the country and co-ordination was required to allow them to be executed simultaneously. Subsection (d) is merely a drafting change; subsection (e) is a new provision which takes account of the need when executing a search to provide for making and retaining a copy of documents or records and if necessary for seizure and retention of computers or other storage medium on which a record may be kept. That is modelled on the Criminal Justice (Theft and Fraud Offences) Act 2001. Subsection (f) builds on the previous subsection relating to seizure of computer media by inserting a new subsection (6A) in the search warrant provision, section 14 of the Criminal Assets Bureau 1996. Subsection (g) inserts a new subsection (9) in section 14 by replacing the definition section in that subsection and providing for a definition of computer at the place, which is being searched, which follows the wording already contained in section 48 of the Criminal Justice (Theft and Fraud Offences) Act 2001. It also clarifies that the definition of material includes a copy of the material and a document or record. Again this definition follows the section 48 model.

In amendment No. 29, the term "cash" is redefined and extended to make it clear that it also includes such items as postal orders, cheques, travellers cheques, bank drafts, bearer bonds and bearer shares. The amendment replaces the reference to criminal activity with criminal conduct, again for consistency purposes and inserts a definition of proceeds of crime in the Criminal Justice Act 1994, for consistency with definitions contained in this Bill.

Let me draw the attention of the committee to the amendment of section 43 of the 1994 Act, where a new subsection (1) to replace the present subsection is proposed. The new subsection contains an expanded definition of cash and a new definition of criminal conduct and proceeds of crime, but it fails to maintain the definition of exported, which is contained in the existing subsection (1), that is where cash is being exported. This omission was an oversight in the stamped copy of the amendment, in that while the new subsection 1(a) does not require a definition of exported, the new amended subsection (8) still does. I will move to re-introduce this definition on Report Stage.

The Bill as published amended the definition of "applicant" as defined in section 1 of the Proceeds of Crime Act 1996. It replaced the definition in that Act by a broader definition to include the Criminal Assets Bureau as an entity in addition to the existing categories of a member and an authorised officer. The purpose of this is to give the Criminal Assets Bureau the flexibility to take proceedings in its own name in addition to taking proceedings as it does already in the name of a member or authorised officer of the bureau. The new definition of proceeds of crime introduces the concept of criminal conduct in place of criminal activity in the existing definition as set out in the Proceeds of Crime Act 1996.

The definition of property in the Proceeds of Crime Act 1996 is being amended to provide for inclusion of a reference to property which is situated outside the State but where there are specific links to this jurisdiction, that is that the respondent is domiciled, resident or present in the State and all or any part of the criminal conduct takes place within the State. This amendment takes cognisance of the recent decision of the Supreme Court in NKv. D, which held that the Proceeds of Crime Act 1996, as currently construed has no application to the proceeds of crime committed outside the State. As a result of these changes, the Act will now apply to foreign criminality.

The definition of respondent has been amended from the original meaning contained in the proceeds of Crime Act 1996 to include a reference to wherever the person is domiciled, resident or present, to reflect the fact that in some instances, the service of proceedings may be out of the jurisdiction, as already referred to. An additional change provides that the respondent may be a person who is not only the subject of proceedings, for which interim or interlocutory orders have been made, but also may be the person in respect of which such orders have been applied for. In addition to the changes to definitions which are already set out in the proceeds of crime Act 1996, new definitions which define consent, disposal order or criminal conduct are proposed for inclusion by way of amendment.

The first of the amendments tabled by Deputy Jim O'Keeffe makes it clear that an offence need not have been committed to trigger the forfeiture provision and the making of interlocutory orders and so on. The advice from the Attorney General is that the term criminal conduct is the terminology used in the legislation we are referring to here, including the 1994 Act, which relates to the seizure of drugs. As Deputy O'Keeffe will be aware, it is clear that this Act applies, as Deputy O'Keeffe envisages, whether a criminal offence is being committed. In the 1994 Act, a criminal offence must have been committed, so the last thing we want is to qualify or expand the definition, so that somebody prosecuting a person charged under the 1994 Act could argue that a criminal offence need not have taken place there. I understand the point Deputy O'Keeffe makes regarding what he understands to be the law under this Act is the position. Perhaps something may be done to clarify the situation and at the same time meet the concerns of the Attorney General. I will undertake to have that matter re-examined. I will convey Deputy O'Keeffe's views to the Minister regarding whose absence, I convey his apologies.

The Deputy also referred to the question of 14 days and tying down the requirement to 14 days. The proposed amendment in the name of Deputy Jim O'Keeffe seeks to put a limit of 14 days on existing Government amendments to section 14 of the Criminal Assets Bureau Act 1996, which adds subsection 4(a) stating that the period to be specified in the warrant shall be one week unless it appears to the judge that another period would be appropriate in the particular circumstances of the case. In preparing this legislation, we have consulted the Criminal Assets Bureau. It has been its experience that cases may arise where a number of different warrants are required to be executed at the same time. This has occurred in the case of Creaven and others v. McKay and others, where five different search warrants were required in order to seize the proceeds of the applicants’ criminal conduct. This resulted from the proceeds being located in several different locations. All the search warrants had to be executed at the same time to avoid tipping off the defendant about the search. It is considered that in exceptional circumstances like this it is appropriate that the time to be determined be left to the discretion of the judge who has all the facts before him or her in a particular case. To impose a time limit of 14 days or any other period may create difficulties in co-ordinating a number of search warrants. The basic law is that the search has to be executed within seven days unless the judge determines in the particular circumstances of the case that the period be extended. It will be a matter for the judge to decide in each particular case. The onus is on the applicant to convince the judge that there is a good case for extending the time. The normal period is seven days, but we have introduced this element of flexibility at the behest of the Criminal Assets Bureau based on its experience in trying to operate this.

On the definition of criminal conduct, I accept it is an issue that must be carefully teased out and I accept the Minister of State has undertaken to do so and we can return to it on Report Stage. If a legal basis to underpin it can be found, it would improve the Bill, but if it cannot, I accept it is not the right course of action.

Regarding the other amendment, I probably have spent too long reading constitutional reports, but I have a sense of unease about the possibility of an unlimited time being available for search warrants. I accept the Minister of State's point that this will require a decision of the judge. I will withdraw it, re-examine it and perhaps a reformulation might meet with approval on Report Stage. I understand that the issuance of multiple warrants and special searches over a wide area involving many people must take place simultaneously. If a warrant is not executed within a reasonable time, the CAB could go back to the judge and get another one. I will withdraw the amendment, reflect on it and re-examine it for Report Stage.

The point at issue was well made by Deputy Jim O'Keeffe. There is a problem about specifying that the normal period is one week unless it appears to the judge that effectively any other period would be appropriate. The word "any" is not inserted but that is the effect of the text. I tabled a question recently to the Minister for Justice, Equality and Law Reform regarding the number of search warrants refused by the courts. The answer given was to the effect that 99.9% of such applications for warrants are granted. It is pretty much a formality for a garda to go to court to apply for a search warrant. Undoubtedly whatever is said in the courts is taken as gospel. The Minister may argue that is not the case, but the statistics speak for themselves.

I do not know how this will be affected by the Minister's new Garda Síochána Bill under which he intends to transfer authority for the granting of search warrants from the District Court to a Garda superintendent or a Garda inspector. Once that legislation is enacted, will that mean that a garda would be in a position to give an open-ended extension for a search warrant that might well be served within his or her own jurisdiction? The temptation would seem to be considerable in those cases. The Minister should go back to the drawing board, as Deputy O'Keeffe said, reflect on it and examine whether there is a mechanism to deal this. It seems that if the period specified in the warrant is one week and that is to be the norm, any extension of a period should be less than a week. In other words, it should not exceed two weeks. Otherwise it would become a trawling, indefinite and open-ended exercise.

The position is as I outlined. We discussed this with the Criminal Assets Bureau and have worked on the basis of its experience in trying to operate the legislation. The committee will be interested to hear that the Criminal Assets Bureau wanted the period specified to be a month because there is a precedent for that in section 5 of the Prevention of Corruption (Amendment) Act 2001. We did not give it that time because we considered it was too long, but as a compromise we introduced this little element of flexibility. The Judiciary is aware of the danger of open-ended warrants. An applicant would need to have substantial grounds to convince a judge that the normal period should be departed from in a particular case. It was to facilitate the Criminal Assets Bureau, which we would all agree is doing a tremendous job implementing this difficult legislation, that we moved this amendment and made this change. We have not gone fully down the road of the making the change the Criminal Assets Bureau sought because we felt it was a bit too balanced in favour of the prosecution, the Garda Síochána or the authorities. I understand the points that have been made. I do not believe there is any real danger in this context. I will certainly convey what has been said to the Minister who will take Report Stage.

My concern is that as of now such warrants are open-ended. If a period were specified, I would be happier. I would favour words to the effect that in exceptional circumstances a warrant can be granted for a period of up to so many days and not exceeding so many days. The manner in which the legislation is currently drafted means this provision is quite open-ended. I am not sure how constitutionally sound it is to have such an open-ended provision.

Especially since gardaí have no problem getting a search warrant. There is not a major obstacle to them getting warrants.

Will the Minister of State consider inserting some reasonable time limit, perhaps even 28 days?

I understand from Deputy O'Keeffe that he is happy enough with the proposal but wants an upper time limit inserted.

Some upper time limit.

I will have a look at that.

On the same point, if a warrant were to lapse and if, as Deputy Costello said, all that is involved is a Garda superintendent applying for a new warrant and if 99%——

——of such warrants are granted, I do not see why the warrant should be open-ended. I agree with Deputy Jim O'Keeffe regarding the upper time limit, given that such a provision is provided in the Act referred to. The Minister stated a month would be too long but that will be examined again on Report Stage.

I refer to the definitions of "criminal conduct". Amendment No. 4 states "criminal conduct" means "any conduct which constitutes an offence or more than one offence, or which occurs outside the State and which would constitute an offence or more than one offence if it occurred within the State and if it constituted an offence under the law of the state or territory concerned" while amendment No. 29 states "criminal conduct" means "any conduct which constitutes an offence or more than one offence, or where the conduct occurs outside the State, constitutes an offence under the law of the state or territory concerned and would constitute an offence or more than one offence if it occurred within the State". If the crime took place abroad, therefore, it would have to be an offence in Ireland to be considered criminal conduct whereas amendment No. 4 suggests if the crime is an offence in another county, it is accepted as criminal conduct here, even though the same laws might not govern it. It is slightly contradictory.

The definitions of "criminal conduct" clarify that it can be one offence or more than one offence or conduct in a foreign state, which would be one or more than one offence if it occurred here, is an offence under the law of the foreign state and, at the time that the application for the interim or interlocutory order is made, the property obtained as a result of the proceeds of crime is situated in this State. The new definition will ensure it will not be necessary for the Criminal Assets Bureau to show that the conduct was a particular type of criminality, if it is shown the property was obtained through conduct of one of a number of kinds, each of which would be an offence.

In addition, the extraterritorial elements in the definition of "property" clarify that service outside the jurisdiction may be effected on an individual. Service outside the jurisdiction has been adjudicated on by the High Court on a number of occasions in favour of the CAB and the amendment gives a statutory basis to such service. The effect of the combined changes relating to the definitions of "proceeds of crime", "property", "criminal conduct" and "respondent" is to ensure the proceeds of crime legislation covers five specific scenarios in regard to jurisdiction.

They are where the respondent and the property are in the State and the criminal conduct occurs within the State; where the respondent is situated outside the State but the property is located and the criminal conduct occurs within the State; where the criminal conduct occurred outside the State but the respondent and the property are situated within the State; where the respondent is within the State and the criminal conduct occurred within the State but the property is located outside the State; and where the property is located within the State, the respondent is situated outside the State and the criminal conduct occurred outside the State.

I refer to a technical amendment. Amendment No. 23 refers to section 14(a) of the 1996 Act, which deals with search warrants. “Criminal conduct” is referred to in subsections (1), (2) and (4) but the reference to subsection (1) was omitted in the final stamped copy of the amendments and this was only noticed yesterday. Accordingly, I will move an amendment on Report Stage to include this reference.

Amendment to amendment, by leave, withdrawn.
Amendment agreed to.

Amendments Nos. 5, 15 and 16 are related and may be taken together by agreement.

I move amendment No. 5:

In page 3, between lines 18 and 19, to insert the following:

"(b) in subsection (1) by inserting after the definition of ‘disposal order’ 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;',".

We discussed drug-related initiatives and the use of funding for that purpose earlier. This amendment should have been grouped with amendment No. 3, through which we were seeking to ring fence for drug-related initiatives.

The Minister is hotfooting it to Merrion Street.

He is in consultation with the Minister for Finance currently on that issue. We await the outcome of that confrontation with bated breath.

Amendment, by leave, withdrawn.

I move amendment No. 6:

In page 4, between lines 5 and 6, to insert the following:

"(iii) is adversely possessed by a third party, or is subject to a letting agreement or is the subject of a trust or is otherwise occupied or inaccessible with or without leave of the person,".

This is a technical amendment. There may be circumstances in which the owner may not have full access to or control over his property while still being the legal owner. That can arise in a variety of circumstances. The legislation covers scenarios where the property would be subject to an injunction. However, this provision needs to be widened to cover scenarios where the property is in the possession of other people while still in the ownership of the person against whom the CAB is obtaining an injunction. The owner could deliberately drive a coach and four through the legislation by creating an adverse possession scenario through a long lease or otherwise to evade the attentions of the CAB. This could improve the legislation.

I agree with the Deputy that it would improve the legislation. It is an oversight. We have not had long to examine the wording of the amendment but I will undertake to come back on Report Stage with an amendment similar to the Deputy's. I thank the Deputy.

I am happy with that.

Amendment, by leave, withdrawn.
Section 2, as amended, agreed to.
SECTION 3.

Amendments Nos. 7 and 11 are related and may be taken together by agreement.

I move amendment No. 7:

In page 4, paragraph (b), line 18, to delete “section 6” and substitute “sections 3(7) and 6”.

The amendment removes the previous without prejudice reference to section 6 in the new section 3(a) of the Bill with a without prejudice reference to section 3(7) and section 6. In other words, the amendment adds a reference to section 3(7) in addition to the reference to section 6. The consequence is to ensure the effect on any extant section 2 interim order made under the Proceeds of Crime Act 1996 or the making of a forfeiture or confiscation order under the Criminal Justice Acts or a forfeiture order under the Misuse of Drugs Act 1977 will not result in a defendant being the subject of double recovery from the State.

Amendment agreed to.

Amendment No. 8 is consequential on amendment No. 9. Amendment Nos. 13 and 14 are related while amendment No. 12 is consequential on amendment No. 13. Amendments Nos. 8, 9, 12, 13 and 14 may be taken together.

SECTION 4.

I move amendment No. 8.

In page 4, to delete line 34.

The amendment deals with disposal orders obtained by originating summons and is intended to ensure a special summons procedures applies to section 4 disposal orders similar to the amendments to section 2 interim orders and section 3 interlocutory orders. All three can be obtained by originating summons. As with the other amendments, the intention of the amendment is to ensure the matter will be listed at the earliest opportunity with the full case of both parties set out in a formal manner. In other words, the amendment will ensure a special summons procedure and, as a result, defendants will be obliged to respond to proceedings on affidavit and so avoid the need for particulars and discovery at an early stage in the process.

Currently, there is no specification as to how the application for the order should be made. Under the current system, the practice of the Criminal Assets Bureau has been to have an initiating motion in parallel with the plenary proceedings with a statement of claim, although it would be possible for the bureau to start proceedings on a writ only, which would not be fair to the defendant. Equally, the current position means that the defendants are under no obligation to specify at an early stage the case they will be making. Along with this, the current circumstances which allow for the duplication of the motion process with the plenary proceedings causes a multiplicity of hearings with unnecessary costs.

Regarding Deputy Costello's amendments, does he wish to comment on them before I respond?

Deputy Costello has tabled three amendments to amendments.

It is a reasonably important amendment because the Minister has just outlined that the originating motion will be a special summons type procedure with no specifics or details. That would appear to ignore due process and a question would arise as to how it would stand up under the European Convention on Human Rights. Why can the CAB not proceed in the normal way with a detailed pleading and with specifics, where the case would be set out and there would be an opportunity for the defence to respond? In the recent Supreme Court case we discussed earlier — I am not sure of the reference — normal due process was upheld but the Minister appears to be trying to reverse that position. I do not understand the reason we cannot proceed in the normal fashion. Indeed, in the Civil Liability and Courts Bill, which the committee will debate later, there is specific emphasis on having detailed pleadings so that both sides can be fully aware of the case. This is beneficial in resolving the matter speedily and I do not understand why the Minister should decide to go along the process of a special summons without the details of the case being put. It will only delay matters and be more costly in terms of taxpayers' money. There is also the question of the normal due process under which the courts operate.

I have already outlined the thinking behind this. We are proceeding on the experience of the Criminal Assets Bureau, in practice. We take everything Deputy Costello says seriously and we referred his amendment to the CAB. Its initial response is that it is not favourably disposed to the amendment but it has asked for further time to consider its implications. We will discuss it again on Report Stage.

That is good enough for me.

Amendment agreed to.

I move amendment No. 9:

In page 4, paragraph (c), line 41, to delete "whereabouts,"." and substitute the following:

"whereabouts,',

and

(d) by the addition of the following subsection:

‘(7) An application under subsection (1) may be made by originating motion.'.".

Amendment No. 1 to amendment No. 9 not moved.
Amendment No. 9 agreed to.
Section 3, as amended, agreed to.
SECTION 4.

I move amendment No. 10:

In page 4, lines 43 and 44 and in page 5, lines 1 to 5, to delete paragraph (a) and substitute the following:

"(a) in subsection (1)—

(i) by the substitution, for the opening words up to and including ‘section 8', of the following:

‘Where, on application to it in that behalf by a member, an authorised officer or the Criminal Assets Bureau, it appears to the Court on evidence tendered by the applicant, which may consist of or include evidence admissible by virtue of section 8,

and

(ii) by the substitution, for ‘the Court shall make', of ‘the Court shall, subject to subsection (1A), make',

(b) by the insertion of the following subsection after subsection (1):

‘(1A) On such an application the Court, with the consent of all the parties concerned, may make a consent disposal order, and section 4A shall apply and have effect accordingly.',".

This amendment repeats section 4A, as set out in the Bill, as a new sub-paragraph (i) and adds an additional sub-paragraph, (ii), which allows the court to make the interlocutory order subject to the provisions of the new consent disposal order contained in the new paragraph (1A). The inclusion of the new paragraph (1A) is to allow for a situation where a consent disposal order is to be taken contemporaneously with a section 3 interlocutory order if all the parties are in agreement.

Amendment agreed to.

I move amendment No. 11:

In page 5, paragraph (b), line 7, after “to” to insert “subsection (7) and”.

Amendment agreed to.

I move amendment No. 12:

In page 5, to delete line 24.

Amendment agreed to.

I move amendment No. 13:

In page 5, paragraph (c), line 31, to delete “whereabouts,”.” and substitute the following:

"whereabouts,',

and

(d) by the addition of the following subsection:

‘(8) An application under subsection (1) may be made by originating motion.'.".

Amendment No. 1 to amendment No. 13 not moved.
Amendment No. 13 agreed to.
Section 4, as amended, agreed to.
NEW SECTIONS.

I move amendment No. 14:

In page 5, before section 5, to insert the following new section:

"5.—Section 4 of the Principal Act is hereby amended by the addition of the following subsection:

‘(9) An application under subsection (1) may be made by originating motion.'.".

Amendment No. 1 to amendment No. 14 not moved.
Amendment No. 14 agreed to.

I move amendment No. 15:

In page 5, before section 5, to insert the following new section:

"6.—The Principal Act is hereby amended by the insertion of the following section after section 4:

‘4A.—(1) Where in relation to any property—

(a) an interlocutory order has been in force for a period of less than 7 years, and

(b) an application is made to the Court with the consent of all the parties concerned,

the Court may make an order (a "consent disposal order") directing that the whole or a specified part of the property be transferred to the Minister or to such other person as the Court may determine, subject to such terms and conditions as it may specify.

(2) A consent disposal order operates to deprive the respondent of his or her rights (if any) in or to the property to which the order relates and, on its being made, the property stands transferred to the Minister or that other person.

(3) The Minister—

(a) may sell or otherwise dispose of any property transferred to him or her under this section, and

(b) shall pay into or dispose of for the benefit of the Exchequer the proceeds of any such disposition as well as any moneys so transferred.

(4) Before deciding whether to make a consent disposal order, the Court shall give to any person claiming ownership of any of the property concerned an opportunity to show cause why such an order should not be made.

(5) The Court shall not make a consent disposal order if it is satisfied that there would be a serious risk of injustice if it did so.

(6) Sections 3(7) and 16 apply, with any necessary modifications, in relation to a consent disposal order as they apply in relation to an interlocutory order.

(7) This section is without prejudice to section 3(1A).'.".

Amendment No. 1 to amendment No. 15 is in the name of Deputy O'Keeffe. Is the Deputy withdrawing the amendment on the basis of the earlier discussion?

I move amendment No. 1 to amendment No. 15:

In the proposed section 4A(1)(a) of the Principal Act, on the third line before “less” to insert “not”.

We did not fully discuss the issue of the number of years during which the goods would have to be held by the CAB. It is a period of seven years — six years for the Statute of Limitations plus one year — to give others who might have an entitlement to the goods an opportunity of making a claim. The next Bill to go before the House concerns civil liability and provides that where, for example, somebody is knocked down and suffers crushing leg injuries, their entitlement to damages will be reduced. The Government's idea was to reduce the claim period to one year, although the Fine Gael amendment proposing two years has been accepted.

This Bill deals with a seven year period, and considerable amounts of money are involved. The figures mentioned this morning are in the region of €50 million on interim orders. Why do we need to have such a long waiting period? If it is to protect the circumstances of an innocent party, why do we not provide for that? A strong case could be made for reducing the waiting period from seven years to perhaps three years. I do not agree with tying everything up for seven years.

We did not consider amendment No. 15 in detail in the earlier discussion. The others were to do with the other aspect under consideration. I presume paragraphs (5) and (6) of section 4A of the principal Act mean that the court gives the consent disposal order but if somebody had an appeal outstanding, the court could not give such a consent disposal order because paragraph (5) refers to "a serious risk of injustice". Would such a case be covered under that?

I do not follow the Deputy.

Paragraph (5) of amendment No. 15 states: "The Court shall not make a consent disposal order if it is satisfied that there would be a serious risk of injustice if it did so". That covers this aspect.

There are two reasons for the seven year period. First, as Deputy O'Keeffe has rightly identified, there is the question of rights a third party may have to some of the property but there is also a constitutional problem, or so we are advised by the Attorney General's office. One of the primary purposes of the proceeds of crime legislation is not to enrich the Exchequer with expropriated property but rather a desire to freeze proceeds of crime in order to deprive those concerned of the benefits of criminal proceeds. The most constant criticism of the legislation from civil rights groups etc., has been that it penalises 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 a penal confiscation without due process. The shorter the period before the forfeiture stage, the greater the chance that the forfeiture may be considered penal.

While a period of seven years does not overcome all the relevant periods under the Statute of Limitations, it addresses some of the issues. At the end of seven years, any contractual claims against real property will have been defeated, albeit claims by mortgagees and other claims against real property will not have been defeated in that time. Accordingly, the period of seven years is a desirable timespan during which contractual claims could be defeated. The new provision which we are introducing for a consent disposal order allows for that seven year period to be reduced to a mediacy, provided all the parties concur.

With consent?

I will not press the issue at this stage. On the face of it, my amendment makes sense but I note the response of the Minister of State. We will consider the matter further on Report Stage.

Amendment to amendment, by leave, withdrawn.

I move amendment No. 2 to amendment No. 15:

In the proposed section 4A(1)(a) of the Principal Act, on the third line, to delete “7” and substitute “3”.

Amendment to amendment, by leave, withdrawn.

I move amendment No. 3 to amendment No. 15:

In the proposed section 4A(3)(b) of the Principal Act, on the second line, to delete “the Exchequer” and substitute “drug related initiatives”.

Amendment to amendment, by leave, withdrawn.
Amendment No. 15 agreed to.

I move amendment No. 16:

"5.—(1) Section 4(1) of the Principal Act is amended by the substitution of ‘3 years' for ‘7 years'.

(2) Section 4(5) of the Principal Act is amended by the substitution of ‘drug related initiatives identified by the Minister for Justice, Equality and Law Reform.' for ‘ the Exchequer and the Minister.'.".

Amendment, by leave, withdrawn.
Section 5 agreed to.
SECTION 6.

I move amendment No. 17:

In page 6, paragraph (b), line 2, to delete “proceedings,” and substitute “proceedings under this Act”.

This is a technical amendment. It makes provision to ensure that in regard to the reference to proceedings which are referred to in the new subsection (6) it is clear that it is proceedings under the Proceeds of Crime Act 1996 to which reference is made.

Amendment agreed to.
Section 6, as amended, agreed to.
NEW SECTIONS.

I move amendment No. 18:

In page 6, before section 7, to insert the following new section:

"7.—For the avoidance of doubt, it is hereby declared that section 11(7) of the Statute of Limitations 1957 does not apply in relation to proceedings under the Principal Act.".

This amendment is included to clarify that section 11(7) of the Statute of Limitations 1957, which applies a two year limitation period to certain actions for forfeiture, does not apply to any proceedings under the Proceeds of Crime Act 1996. Confusion has arisen where proceeds of crime applications for interlocutory orders pursuant to section 3 of the Proceeds of Crime Act 1996 were challenged because it had been assumed, incorrectly, that they are actions for forfeiture so as to benefit from the two year limitation period provided by section 11(7) of the Statute of Limitations 1957. In two High Court cases Mr. Justice Finnegan held that this was not so. The issue was more recently considered by the Supreme Court on 17 May 2004 in McK. v D. The court followed the earlier decisions of the High Court. The amendment confirms that decision of the Supreme Court and is included on an avoidance of doubt basis to show that section 11(7) of the Statute of Limitations 1957 did not apply at any stage to proceedings under the Act.

Amendment agreed to.

I move amendment No. 19:

In page 6, before section 7, to insert the following new section:

"8.—Section 9 of the Principal Act is amended by renumbering it as subsection (1) and inserting the following subsection:

‘(2) Such an affidavit is not admissible in evidence in any criminal proceedings against that person or his or her spouse, except any such proceedings for perjury arising from statements in the affidavit.'.".

Section 9 of the Proceeds of Crime Act 1996 is a provision relating to affidavits specifying property and income of defendants. Section 7 of the Bill added an additional subsection (2) into section 9 of the Proceeds of Crime Act 1996 and was intended to prevent the use of information supplied by the respondent or the respondent's spouse under section 9(1) of the principal Act in any criminal proceedings, with the exception of proceedings for perjury, in relation to the information supplied.

However, during discussions with the Office of the Attorney General and the Director of Public Prosecutions concerns were expressed about the use of the phrase, "any information", in section 7 as being too wide. It was felt that such wording could allow a defendant to swear a wide ranging affidavit referring to many offences, some of which might be currently under investigation or could be before the courts as a prosecution. By swearing such an affidavit as could have been comprehended in the original wording, there was a likelihood that further prosecution might be avoided. Accordingly, this new formula of words is being used.

Amendment agreed to.
Section 7 deleted.
NEW SECTIONS.

I move amendment No. 20:

In page 6, before section 8, to insert the following new section:

"PART 3

Amendments to Act of 1996

8.—Section 1(1) of the Act of 1996 is hereby amended by the addition of the following definitions:

‘"criminal conduct" means any conduct which—

(a) constitutes an offence or more than one offence, or

(b) where the conduct occurs outside the State, constitutes an offence under the law of the state or territory concerned and would constitute an offence or more than one offence if it occurred within the State;

"place" includes a dwelling;'."

I move amendment No. 1 to amendment No. 20:

In section 8, on the third line, in the definition of "criminal conduct" after "conduct" where it secondly occurs to insert ", whether or not that conduct has resulted in a criminal conviction,".

Amendment to amendment, by leave, withdrawn.
Amendment No. 20 agreed to.

I move amendment No. 21:

In page 6, before section 8, to insert the following new section:

"9.—Section 4 of the Act of 1996 is hereby amended by the substitution of references to ‘criminal conduct' for the references to ‘criminal activity'.".

Amendment agreed to.

I move amendment No. 22:

In page 6, before section 8, to insert the following new section:

"10.—Section 5(1) of the Act of 1996 is hereby amended—

(a) by the substitution of references to ‘criminal conduct’ for the references to ‘criminal activity’, and

(b) by the insertion of ‘an authority with functions related to the recovery of proceeds of crime,’ after ‘being’.”.

Amendment agreed to.

I move amendment No. 23:

In page 6, before section 8, to insert the following new section:

"11.—Section 14 of the Act of 1996 is hereby amended—

(a) in subsections (2) and (4), by the substitution of references to ‘criminal conduct’ for the references in those subsections to ‘criminal activities’,

(b) in subsection (4)—

(i) by the deletion of ‘within one week of the date of issuing of the warrant' and the insertion of ‘within a period to be specified in the warrant', and

(ii) by the deletion of ‘any material found at that place, or any material' and the insertion of ‘any material (other than material subject to legal privilege) found at that place, or any such material',

(c) by the insertion of the following subsection after subsection (4):

‘(4A) The period to be specified in the warrant shall be one week, unless it appears to the judge that another period would be appropriate in the particular circumstances of the case.',

(d) in subsection (5), by substituting ‘subsection (2)’ for ‘subsection (3)’,

(e) by the insertion of the following subsection after subsection (5):

‘(5A) The authority conferred by subsection (4) to seize and retain any material includes, in the case of a document or record, authority—

(a) to make and retain a copy of the document or record, and

(b) where necessary, to seize and retain any computer or other storage medium in which any record is kept.’,

(f) by the insertion of the following subsection after subsection (6):

‘(6A) A bureau officer who is a member of the Garda Síochána acting under the authority of a warrant under this section may—

(a) operate any computer at the place which is being searched or cause it to be operated by a person accompanying the member for that purpose, and

(b) require any person at that place who appears to the member to have lawful access to the information in the computer—

(i) to give to the member any password necessary to operate it,

(ii) otherwise to enable the member to examine the information accessible by the computer in a form in which it is visible and legible, or

(iii) to produce the information to the member in a form in which it can be removed and in which it is, or can be made, visible and legible,',

and

(g) by the substitution of the following subsection for subsection (9):

‘(9) In this section—

"computer at the place which is being searched" includes any other computer, whether at that place or at any other place, which is lawfully accessible by means of that computer, and

"material" includes a copy of the material and a document or record.'.".

I move amendment No. 1, to amendment No. 23:

In section 11(c), in the proposed subsection (4A), on the fourth line, after “case” to insert “in any event, not exceeding 14 days”.

Amendment to amendment, by leave, withdrawn.
Amendment No. 23 agreed to.

I move amendment No. 24:

In page 6, before section 8, to insert the following new section:

"12.—Sections 11(2)(a), 12(2)(a), 13(2)(a), 14(7), 15(2)(a) and 16(2) of the Act of 1996 are hereby amended by the substitution of ‘€3,000’ for ‘£1,500’ in each case.”.

The Criminal Assets Bureau Act 1996 provides for a fine of £1,500 on summary conviction for offences under the provisions included in the sections listed above. In line with the euro changeover legislation this amount was converted on a direct exchange rate basis from £1,500 to €1,904.60. This amendment proposes to increase that amount to €3,000 so as to bring the amounts into line with the fines being set in the proposed amendments to the Act contained in the new sections 14A, 14B and 14C. The proposed amount of €3,000 is the current maximum fine on summary conviction in the District Court. This makes for consistency in the level of fines applying to the offences.

Amendment agreed to.

I move amendment No. 25:

In page 6, before section 8, to insert the following new section:

"13.—The Act of 1996 is hereby amended by the insertion of the following sections after section 14:

‘14A.—(1) For the purposes of an investigation into whether a person has benefited from assets or proceeds deriving from criminal conduct or is in receipt of or controls such assets or proceeds a bureau officer who is a member of the Garda Síochána may apply to a judge of the District Court for an order under this section in relation to making available any particular material or material of a particular description.

(2) On such an application the judge, if satisfied—

(a) that there are reasonable grounds for suspecting that the person has benefited from such assets or proceeds or is in receipt of or controls such assets or proceeds, and

(b) that the material concerned is required for the purposes of such an investigation, may order that any person who appears to him or her to be in possession of the material shall—

(i) produce the material to the member so that he or she may take it away, or

(ii) give the member access to it within a period to be specified in the order.

(3) The period to be so specified shall be one week, unless it appears to the judge that another period would be appropriate in the particular circumstances of the case.

(4) (a) An order under this section in relation to material in any place may, on the application of the member concerned, require any person who appears to the judge to be entitled to grant entry to the place to allow the member to enter it to obtain access to the material.

(b) Where a person required under paragraph (a) to allow the member to enter a place does not allow him or her to do so, section 14 shall have effect, with any necessary modifications, as if a warrant had been issued under that section authorising him or her to search the place and any person found there.

(5) Where such material consists of information contained in a computer, the order shall have effect as an order to produce the material, or to give access to it, in a form in which it is visible and legible and in which it can be taken away.

(6) The order—

(a) in so far as it may empower a member of the Garda Síochána to take away a document or to be given access to it, shall authorise him or her to make a copy of it and to take the copy away,

(b) shall not confer any right to production of, or access to, any material subject to legal privilege, and

(c) shall have effect notwithstanding any other obligation as to secrecy or other restriction on disclosure of information imposed by statute or otherwise.

(7) Any material taken away by a member of the Garda Síochána under this section may be retained by him or her for use as evidence in any proceedings.

(8) A judge of the District Court may vary or discharge an order under this section on the application of any person to whom an order under this section relates or a member of the Garda Síochána.

(9) A person who without reasonable excuse fails or refuses to comply with any requirement of an order under this section is guilty of an offence and liable—

(a) on summary conviction, to a fine not exceeding €3,000 or to imprisonment for a term not exceeding 12 months or to both, or

(b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding 5 years or to both.

14B.—(1) A person who, knowing or suspecting that an application is to be made, or has been made, under section 14A for an order in relation to making available any particular material or material of a particular description, makes any disclosure which is likely to prejudice the making available of the material in accordance with the order is guilty of an offence.

(2) In proceedings against a person for an offence under this section it is a defence to prove that the person—

(a) did not know or suspect that the disclosure to which the proceedings relate was likely to prejudice the making available of the material concerned, or

(b) had lawful authority or reasonable excuse for making the disclosure.

(3) A person guilty of an offence under this section is liable—

(a) on summary conviction, to a fine not exceeding €3,000 or to imprisonment for a term not exceeding 12 months or to both, or

(b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding 5 years or to both.

14C.—(1) For the purposes of an investigation into whether a person has benefited from assets or proceeds deriving from criminal conduct or is in receipt of or controls such assets or proceeds the Chief Bureau Officer or an authorised officer may apply to a judge of the High Court for an order under this section in relation to obtaining information regarding any trust in which the person may have an interest or with which he or she may be otherwise connected.

(2) On such an application the judge, if satisfied—

(a) that there are reasonable grounds for suspecting that a person—

(i) has benefited from assets or proceeds deriving from criminal conduct or is in receipt of or controls such assets or proceeds, and

(ii) has some interest in or other connection with the trust,

(b) that the information concerned is required for the purposes of such an investigation, and

(c) that there are reasonable grounds for believing that it is in the public interest that the information should be disclosed for the purposes of the investigation, having regard to the benefit likely to accrue to the investigation and any other relevant circumstances,

may order the trustees of the trust and any other persons (including the suspected person) to disclose to the Chief Bureau Officer or an authorised officer such information as he or she may require in relation to the trust, including the identity of the settlor and any or all of the trustees and beneficiaries.

(3) An order under this section—

(a) shall not confer any right to production of, or access to, any information subject to legal privilege, and

(b) shall have effect notwithstanding any other obligation as to secrecy or other restriction on disclosure of information imposed by statute or otherwise.

(4) A judge of the High Court may vary or discharge an order under this section on the application of any person to whom it relates or a member of the Garda Síochána.

(5) A trustee or other person who without reasonable excuse fails or refuses to comply with an order under this section or gives information which is false or misleading is guilty of an offence and liable—

(a) on summary conviction, to a fine not exceeding €3,000 or to imprisonment for a term not exceeding 12 months or to both, or

(b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding 5 years or to both.

(6) Any information given by a person in compliance with an order under this section is not admissible in evidence in any criminal proceedings against the person or his or her spouse, except in any proceedings for an offence under subsection (5).

(7) In this section "information" includes—

(a) a document or record, and

(b) information in non-legible form.’.”.

I move amendment No. 1 to amendment No. 25:

In the proposed section 14A(3) of the Act of 1996, on the fourth line, after "case" to insert "in any event not exceeding 14 days".

Amendment to amendment, by leave, withdrawn.
Amendment No. 25 agreed to.

I move amendment No. 26:

In page 6, before section 8, to insert the following new section:

"PART 4

Amendments to Act of 1994

"14.—The Title to Part Vl of the Act of 1994 is hereby amended by the substitution of ‘SEARCH FOR, SEIZURE AND DISPOSAL OF MONEY GAINED FROM, OR USE IN, CRIMINAL CONDUCT' for ‘DRUG TRAFFICKING MONEY IMPORTED OR EXPORTED IN CASH'.".

This amendment takes account of the later amendments relating to sections 38, 39 and 43 of the Criminal Justice Act 1994. Those amendments would have the effect of broadening those provisions and the title of PART 4 is being changed to reflect those changes.

Amendment agreed to.

I move amendment No. 27:

In page 6, before section 8, to insert the following new section:

Section 38 of the Act of 1994 is hereby amended—

"(a) by the substitution of the following subsections for subsection (1):

‘(1) A member of the Garda Síochána or an officer of customs and excise may search a person if the member or officer has reasonable grounds for suspecting that—

(a) the person is importing or exporting, or intends or is about to import or export, an amount of cash which is not less that the prescribed sum, and

(b) the cash directly or indirectly represents the proceeds of crime or is intended by any person for use in connection with any criminal conduct.

‘(1A) A member of the Garda Síochána or an officer of the Revenue Commissioners may seize and in accordance with this section detain any cash (including cash found during a search under subsection (1)) if—

(a) its amount is not less than the prescribed sum, and

(b) he or she has reasonable grounds for suspecting that it directly or indirectly represents the proceeds of crime or is intended by any person for use in any criminal conduct.’,

and

(b) by the insertion of the following subsection after subsection (3):

‘(3A) Where an application is made under section 39(1) for an order for the forfeiture of cash detained under this section, the cash shall, notwithstanding subsection (3), continue to be so detained until the application is finally determined.'.".

This provision amends section 38 of the Criminal Justice Act 1994 in a number of ways. It allows for seizure and detention of cash which is suspected to directly or indirectly represent proceeds of any criminal conduct and not, as previously, just drug trafficking. We can go through the provisions of the amendment if the committee wishes.

Amendment agreed to.

I move amendment No. 28:

In page 6, before section 8, to insert the following new section:

"16.—Section 39(1) of Act 1994 is hereby amended by the substitution of ‘the proceeds of crime or is intended by any person for use in connection with any criminal conduct' for ‘any person's proceeds of, or is intended by any person for use in, drug trafficking',".

This is a consequential amendment which extends section 39, which deals with forfeiture of seized cash, of the Criminal Justice Act 1994 to take account of the fact that section 38 has been amended to refer to cash which is suspected to directly or indirectly represent proceeds of any criminal conduct and not, as previously, only to proceeds of drug trafficking.

Amendment agreed to.

I move amendment No. 29:

In page 6, before section 8 to insert the following new section:

"17.—Section 43 of the Act of 1994 is hereby amended by the substitution of the following subsection for subsection (1):

‘(1) In this Part of the Act—

"cash" includes notes and coins in any currency, postal orders, cheques of any kind (including travellers' cheques), bank drafts, bearer bonds and bearer shares;

"criminal conduct" means any conduct which—

(a) constitutes an offence or more than one offence, or

(b) where the conduct occurs outside the State, constitutes an offence under the law of the state or territory concerned and would constitute an offence or more than one offence if it occurred within the State;

"proceeds of crime" has the meaning given to that expression by section 1(1) (as amended by section 2 of theProceeds of Crime (Amendment) Act 2004) of the Proceeds of Crime Act 1996.’.”.

I move amendment No. 1 to amendment No. 29:

In section 17, in the proposed subsection (1) of the Act of 1994, in the definition of "criminal conduct" after "conduct" where it secondly occurs to insert ", whether or not that conduct has resulted in a criminal conviction,".

Amendment to amendment, by leave, withdrawn.
Amendment No. 29 agreed to.

I move amendment No. 30:

In page 6, before section 8, to insert the following new section:

"PART 5

Amendments to Act of 2001

18—The Act of 2001 is hereby amended by the insertion of the following sections after section 2:

‘2A.—(1) A member of the Garda Síochána may seize any gift or consideration which the member suspects to be a gift or consideration within the meaning of section 1 of the Prevention of Corruption Act 1906, as amended by section 2 of this Act.

(2) The seized property may not be detained for more than 48 hours unless its detention for a further period is authorised by order of a judge of the Circuit Court.

(3) Such an order—

(a) shall not be made unless the judge is satisfied——

(i) that there are reasonable grounds for suspecting that the seized property is a gift or consideration within the meaning of the said section 1,

(ii) that either its origin or derivation is being further investigated or consideration is being given to instituting proceedings, whether in the State or elsewhere, against a person for an offence with which the gift or consideration is connected, and

(iii) that it is accordingly necessary that the property be detained for a further period,

and

(b) shall authorise the detention of the seized property for a further specified period or periods, not exceeding 3 months in any case or 2 years in aggregate.

(4) An application for an order under subsection (3) of this section may be made by a member of the Garda Síochána.

(5) Property detained under this section shall continue to be so detained until the final determination of—

(a) any proceedings, whether in the State or elsewhere, against any person for an offence with which the property is connected, or

(b) any application under section 2B for its forfeiture,

whichever later occurs.

(6) Subject to subsection (5), a judge of the Circuit Court may cancel an order under subsection (3) of this section if satisfied, on application by the person from whom the property was seized or any other person, that its further detention is no longer justified.

2B.—(1) A judge of the Circuit Court may order any gift or consideration which is detained under section 2A of this Act to be forfeited if satisfied, on application made by or on behalf of the Director of Public Prosecutions, that it is a gift or consideration referred to in section 1 of the Prevention of Corruption Act 1906, as amended by section 2 of this Act.

(2) An order may be made under this section whether or not proceedings are brought against any person for an offence with which the gift or consideration in question is connected.

(3) The standard of proof in proceedings under this section is that applicable in civil proceedings.

2C.—Sections 40 (appeal against forfeiture order), 41 (interest on cash detained), 42 (procedure) and 45 (disposal of forfeited cash) of the Act of 1994 shall apply in relation to cash and, as appropriate, to any other gift or consideration detained under section 2A, or forfeited under section 2B, of this Act as they apply in relation to cash detained or forfeited under section 38 or 39 of that Act.'.".

This new section providing for seizure of a bribe is modelled on section 38 of the Criminal Justice Act 1994. A bribe, as an instrumentality of an offence, is not automatically forfeit at present. The term "proceeds of crime" covers not only the proceeds of an offence but also the instrumentalities of the offence, as it means property obtained or received in connection with the commission of an offence as well as a result of the offence. It follows, then, that a bribe can be the subject of a proceeds of crime order. However, in the criminal law area there is no specific provision rendering forfeit a bribe. This provision will provide in criminal legislation that a bribe, as an instrumentality of crime, should be automatically forfeit in much the same way as an illicitly held firearm or a pirated video is forfeited.

Amendment agreed to.
Section 8 deleted.
TITLE.

I move amendment No. 31:

In page 3, line 5, to delete "AMEND THE PROCEEDS OF CRIME ACT, 1996" and substitute the following:

"MAKE FURTHER PROVISION IN RELATION TO THE RECOVERY AND DISPOSAL OF PROCEEDS OF CRIME AND FOR THAT PURPOSE TO AMEND THE PROCEEDS OF CRIME ACT 1996, THE CRIMINAL ASSETS BUREAU ACT 1996, THE CRIMINAL JUSTICE ACT 1994 AND THE PREVENTION OF CORRUPTION (AMENDMENT) ACT 2001".

Amendment agreed to.
Title, as amended, agreed to.