Select Committee on Legislation and Security debate -
Wednesday, 19 Jan 1994

SECTION 16.

Question proposed: "That section 16 stand part of the Bill."

Mr. E. Walsh

I would like to ask the Minister a number of questions concerning two items about which I am concerned. What kind of assurance can she give on the question of property where there are tenants involved and when the tenants are affected by the realisation of the property by the court, how they will be treated or affected by the repossession of the property?

My second question is as follows: how are the employees of a company established as a result of proceeds from drug trafficking treated? These two groups would be affected if control of the property or company was taken by the courts and disposed of to realise the profits. Subsection (4) states that a receiver would be appointed. I presume the receiver would be the key factor in that area. I would ask the Minister to explore that area to see how those two groups, who are not in any way responsible for the problem, will be affected by this section.

Mr. G. Mitchell

My question relates to subsection (c). At the end of subsection (b) it is stated: "and the proceedings in which it was made have not been concluded . . ." We are talking about the realisation of property where the proceedings have not been included. It goes on: ". . . the High Court, may, on application by the DPP, exercise the powers conferred by subsections (2) to (6) of this section." Subsections (2) to (6) allow the court to appoint a receiver to take possession of the property subject to such conditions or exceptions as may be specified by the court. The court may order any person having possession or control of realisable property to give possession to the receiver. The court may empower the receiver to realise any realisable property in such manner as the court may direct and the court may order any person holding an interest in realisable property to make such payment to the receiver in respect of any beneficial interest held by the defendant, etc. All that can be done even though the proceedings have not been concluded. If a guilty verdict has not been handed down or no verdict has been handed down, is it constitutional to appoint a receiver who can then realise property even though a person may subsequently be found to be innocent? Is this leaving it open for proceedings to be brought against the State and for the Bill to be declared unconstitutional? It seems to be quite a departure from the normal practice under law that before a court order is handed down somebody's property can be confiscated, realised, etc.

I have doubts about section 16 (1) (c) in regard to the realisation of property where the proceedings have not been concluded. Perhaps the Minister will enlighten us as to her thinking behind this section. Is she satisfied that this section will stand up constitutionally?

Mrs. Geoghegan-Quinn

In relation to Deputy Walsh's point in regard to property, the rights of tenants and so on, under section 16 (2) the court may appoint a receiver. It will then be a matter for the receiver to assess the property or other resources and establish whether an individual or a company is involved. The receiver will go back to the court and make proposals in relation to realising the amount of the confiscation order. If, for example, he goes back to the court and says that a particular house owned by a certain individual is to be sold to realise the confiscation order, that sale will not affect the legal rights of the tenants. All that will happen is that the ownership of the property will change. The legal rights enjoyed by the tenants will not be affected.

In the case of a company, obviously the receiver may go back to court and say that the company is a going concern and the only way one can realise the amount of the confiscation order is by maintaining the company as a going concern, which would be done. The receiver would make that recommendation to the court in all such cases, and I think all of us would envisage the court accepting such a recommendation.

In relation to Deputy Mitchell's point, that is covered in section 3 (16) (f) which states very clearly that the proceedings will not be concluded until a confiscation order has been satisfied in full. It is to get over the exact point made by the Deputy in relation to constitutionality that subsection (16) (f) was included in section 3.

Mr. G. Mitchell

Presumably the court will have handed down a verdict but not actually concluded its proceedings.

Mrs. Geoghegan-Quinn

The court will have made a confiscation order.

Mr. G. Mitchell

But only after the defendant has been found guilty.

Mrs. Geoghegan-Quinn

Yes.

Mr. G. Mitchell

In other words, this is not an interim measure while the court is still considering its verdict.

Mrs. Geoghegan-Quinn

No. As I said yesterday, confiscation orders will be made only after the person has been convicted.

Ms O'Donnell

Yesterday I referred to the rights of parties in the matrimonial home under the Matrimonial Home Bill. Section 16 (6) will give the court wide powers to trample all over other people's existing rights. Section 16 (7) provides that a reasonable opportunity should be given for persons holding any interest in the property to make representations to the court. However, this does give sufficient protection to third parties. This is similar to the point made by another Deputy about the rights of workers. I would be more concerned about the rights of other third parties such as spouses. Has the Minister had an opportunity since yesterday to look at the general rights of spouses in this area?

Mr. E. Walsh

I welcome the Minister's assurance in regard to the rights of tenants. As we all know, much of the money acquired by people involved in drug trafficking is usually invested in property, which is a very worthwhile investment for people who want to maintain the value of their money. The issuing of confiscation orders will affect a number of tenants and therefore the Minister's assurance in regard to their rights will be welcomed by them. The position of workers in a company in which such money has been invested is somewhat more difficult in the sense that the company may be declared a going concern and there may be a difficulty in getting people to buy the company and retain the employees. Although tenants will welcome the Minister's reassurance, the position of employees is a little bit more precarious. There are no guarantees in that area and I presume we will have to wait and see what opportunities exist for such companies to be bought by other companies and whether as much employment as possible is maintained. As in the case of tenants, I presume that the existing rights of employees will also be secured.

Mrs. Geoghegan-Quinn

The answer to Deputy Walsh's question is yes. When the receiver has reported back to the court it will, of course, take into account whether a property was vacant or whether there were tenants in it. In relation to Deputy O'Donnell's question, which she also raised yesterday, my officials have looked at this and a number of other sections where questions in regard to the matrimonial home might well be relevant. We have, of course, to be mindful of the fact that the Matrimonial Home Bill is before the Supreme Court at present. I undertook yesterday to look at that question between now and Report Stage and if I think it is necessary to amend this section and the section we referred to yesterday then I will do so on Report Stage.

Question put and agreed to.

Section 17 agreed to.