Amendment No. 12. Amendment No. 31 is consequential. It is proposed to take amendments Nos. 12 and 31 together.
SECTION 18.
I move amendment No. 12:
In page 19, subsection (1), line 47, after "purpose" to insert "including a court audit".
I have not delayed the proceedings so far this morning but I want to spend some time on this amendment which is central to the effectiveness of the Bill. Under section 15 I raised the question of who will assess the wealth of the offender. At a time when cash can be transferred electronically it is without doubt relatively easy to transfer very substantial amounts of money to banks in other countries. I am proposing in amendment No. 12 to include in section 18 the words "including a court auditor" while in amendment No. 31 I set out the precise powers of such an auditor.
I want the Minister to be empowered to appoint an auditor of not less than seven years standing to be known as the court auditor. Such a person should have qualifications similar to those required under section 187 (1) of the Companies Act, 1990. I propose that "The Court auditor shall have and may exercise, on application to the High Court, full powers of discovery and, with the assistance of the Garda Síochán a full power of search." I further propose that "It shall be an offence punishable summarily by a fine not exceeding £5,000 and/or imprisonment for any term up to twelve months and on indictment to a fine not exceeding £10,000 and/or imprisonment for any term up to five years, to impede the court auditor in the exercise of his lawful duties". The reason I am proposing the appointment of a court auditor who is qualified under the Companies Act is that central to the effectiveness of this legislation is tracing and knowing precisely the assets of a criminal charged and found guilty under this legislation. It is not only possible for criminals to have money offshore on the Isle of Man or on Jersey but they can easily transfer it. For example, if a person is purchasing drugs in Rotterdam on a regular basis it is very unlikely that he will repatriate his money. The likelihood is that he will have a bank account there but all transfers of cash leave an audit trail. The best of auditors, even auditors of respected companies, cannot trace everything. In fact the traditional role of an auditor is one of watchdog rather than bloodhound but they are skilled and trained to look for movements of cash and to ask the relevant questions.
Lawyers, judges, the Director of Public Prosecutions or the Garda Síochána are not trained to deal with that and, furthermore, audit fees for such an auditor could be met from the assets confiscated or indeed a percentage as an inducement could be offered to an auditor to find all these assets. Unless we make provision for appointment of a qualified court auditor who will take his direction from the court and check all the records of that person, his bank accounts and assets and, if necessary, go to the various financial institutions to seek additional information in tracing assets the court will simply be guessing. The court may ask how much Mr. X has and he may say he has a house worth £100,000. How do we know what assets a criminal has? I made the point in general terms yesterday that there are people in prison who are quite capable of coming out, even on temporary release if they can arrange it, and throwing a party for their friends, going to night clubs and so on which costs the sort of money that most people who make a decent living by working hard every day simply could not think of spending. There are people in prison — I have no doubt — who have a nest-egg stashed for the day they come out. In fact a recent Garda magazine editorial criticising the bail laws pointed this out. They said that bail bandits, who know that all their offences will be taken into account, go on a crime spree, accumulate as many assets as they can and then go to prison knowing there will be a nest-egg waiting for them when they come out. A qualified person — and the only person qualified in this sort of role is an auditor — must be appointed by the courts to find out where the money is and ascertain the precise assets of these people. The legislation will fall down unless we are in a position to trace professionally the assets to be confiscated. Every auditor who is not only professionally qualified but who has spent some time working as an auditor has developed professional and technical skills which will allow him or her, in the most professional manner possible, to pursue criminals in the way I suggest. The Bill is seriously deficient without such a provision and I commend these amendments to the committee. This would be a powerful asset to the court, the Minister and the criminal justice system. It would be the key which would open this door, allow us to go through and pursue these criminals, in other words they would have no shield, nowhere to hide at least in so far as it is within our capacity to prevent them hiding. This would enable us to fully equip ourselves to pursue the criminals in an earnest way and I hope the Minister will find it possible to accept these amendments.
I support these amendments. Deputy Mitchell is correct in saying there is an essential weakness in the legislation in that having gone through the various processes, decided that a confiscation order is a good idea and that there is money to meet it, having gone through the next hoop and gained a confiscation order the court or the State will be trying to enforce that confiscation order just as an ordinary civil debt. There is a danger that the legislation will lack strength and vigour at that vital point.
One vital ingredient is missing in the Bill, whether it is to be a dedicated group for enforcement of the confiscation order or something that will pull the whole thing together and keep up the pressure because I know that enforcement of the legislation has been seen to be a problem in Britain and America. As I said yesterday, the enforcement of this legislation will be the proof of it and all the work that has gone into it from the Law Reform Commission to the intellectual investment by the Department of Justice. Everything else will be set at naught if the whole thing does not work in the end. The British Money Laundering Steering Group is in place in Britain to trace this audit trail and to give teeth to the legislation at a later stage. With such an auditor there would be a person or an office with accountability to see this thing through after all the other efforts made and that is why I support this amendment. Is the Minister satisfied that without this amendment there is sufficient accountability in the complicated procedure? Is she satisfied that just the normal process of trying to realise a debt in the usual civil way is sufficient, given all the effort that has gone in before?
I appreciate the thinking behind these amendments. I do not believe we should proceed with the appointment of court auditors as envisaged in Deputy Mitchell's amendments. First on technical grounds alone, there would be substantial difficulties with the amendments, in particular it is not easy to see how the new section 44 would fit in with the detailed arrangements and responsibilities set out in the other provisions of the Bill. However, I appreciate that in putting down the amendments Deputy Mitchell has given us an opportunity of looking very carefully at the provisions in the Bill in relation to this whole matter and I appreciate that his sole intention is to strengthen the Bill in an aspect in which he feels there is a weakness. Under the provisions of the Act it will be a matter for the Director of Public Prosecutions to initiate proceedings for confiscation. Those proceedings, although separate, follow from court proceedings in which the prosecution would have been taken in the name of the DPP. It seems that not only would the DPP be best placed to decide whether confiscation proceedings would be worthwhile but also that this decision should lie with an independent law officer.
The Director of Public Prosecutions, in relation to the assembling of evidence in connection with possible confiscation proceedings, will, of course, rely on the Garda Síochána to carry out the necessary inquiries. Under sections 50 and 51 of the Bill a member of the Garda Síochána can seek orders to make material available in connection with such inquiries and for the issue of search warrants. In relation to court proceedings under section 9, the court may order the defendant to provide the information, we discussed that earlier. In those circumstances it appears the only possible advantage which might be argued in favour of the appointment of auditors of the kind envisaged in the amendments is that they will bring a level of expertise, which is what is being argued by Deputy Mitchell and Deputy O'Donnell, to these matters, which would not otherwise be available. However, that matter can be dealt with administratively, a provision in the Bill is not needed to achieve it. For example, as part of the recent law enforcement package I announced a decision to recruit three professional accountants to the Garda Fraud Squad. Their expertise would assist members of the Garda, but there is no need for this to be placed on a statutory footing. Equally, professional accountants could be used where necessary to assist in relation to investigations arising from this Bill without impinging on the role and powers being given to the Director of Public Prosecutions and the Garda.
In relation specifically to the appointment of a person by the court to be called court auditor, or whatever term one wants to call this person, I think we should be careful also in the light of the levels of payments that were paid to individuals in a number of recent high profile cases. I am not making a judgment as to whether those payments are to be frowned upon by any of us. However, we should bear that in mind. For the same amount of money I think we could employ quite a few more professional accountants in Garda headquarters. In terms of actually realising the proceeds of the confiscation order I recognise, as Deputy Mitchell and Deputy O'Donnell have outlined, the particular requirements which arise and it is for that reason that section 15 allows for the appointment of a receiver to this end.
In all the circumstances I do not believe that the amendment is necessary or appropriate, but I think it offers a valuable opportunity for all of us to look clearly at what we are doing here, how we can ensure that the procedures we are putting in place and the powers we are giving in this Bill can be enforced and how the confiscation order can be enforced after the proceedings have come to an end. I think the recent decision to recruit three professional accountants to the Garda Fraud Squad is a very important and significant decision and certainly I see them being very active in relation to these type of cases that will come before the courts as soon as the Bill has been passed into law.
I would go a step further than the Minister; I think the level of fees which have been paid out in recent times is a matter of public scandal. As someone who very rarely criticises the courts, I think the courts have been very unrealistic in this regard; but that is a matter for debate another day. We should address this issue here because we are responsible for getting value for money for the taxpayer. I think it is all too cosy down in the Law Library; some judges seem to think that these fees are acceptable. It is a cause for scandal to the public. It is justifiably a public scandal. I think people are scandalised by some of the fees charged. I share the Minister's concern about this.
However, there is nothing in my amendment which does not allow the Minister to appoint a member of the Garda Síochána, a member of the DPP's staff or a civil servant as the court auditor, provided that that person is qualified under section 187 (1) of the Companies Act, 1990. What I am saying is — and I take the point the Minister makes, which is a reasonable one — that the DPP is the enforcement officer in this regard. I would be very happy, to change the wording to read "The DPP may appoint for the purposes of enforcing . . . . " I have no difficulty with that, but I believe some professionally qualified person should be appointed whose job it would be to establish an audit trail, to establish precisely the level, the source, and the locale of these assets.
The Bill in general reaches out in a very effective way to confiscate assets of drug pushers, but I think it falls down substantially in this area; in fact, I think the legislation is somewhat disabled if this sort of provision is not included in the Bill. It is central to the effectiveness of the Bill. The legislation will be made much more effective by the appointment of a court auditor, whose professional competence could be put to use in sourcing the assets of drug barons and other criminals. Let me repeat, it is drafted in such a way that it can be either a person brought in temporarily from outside the public service, or it can be a qualified person under section 187 (1) of the Companies Act, 1990, who is permanently employed in the public service. It would be a matter for the Minister or the DPP to designate that person. The important thing is that the person must be there and qualified.
I will have to press this amendment. It is central, in my view, to the effectiveness of the legislation. I hope the Minister will find it possible to reconsider this argument on Report Stage.
I take the point made by the Minister about the independence of the office of the Director of Public Prosecutions and so on, but I think the point raised by Deputy Mitchell is valid. He says that the person must be there, must be qualified and must be accountable. We have had problems in the past in relation to the office of the Director of Public Prosecutions in that it is difficult to put questions to any Minister about the Director of Public Prosecutions. In a way there is unaccountability there in relation to the office. That is the way it should be in relation to the processing of criminal trials, because there has to be a separation as between the State and the person who is bringing the criminal prosecutions. But this is a later stage; at this stage the conviction has been secured and a confiscation order has been made. I think at that point it would be appropriate to have a person who could be accountable to the Minister and through the Minister accountable to this House.
It would be unfortunate if, in our earnestness to have an independent officer dealing with the matter of criminal prosecutions, we would mistakenly extend the requirement for independence to the post-trial stage. At the post-trial stage we have the enforcement of a confiscation order. It would be more appropriate to have a person appointed in the office of the Director of Public Prosecutions, for example. The wording need not matter that much, but I think there has to be accountability to this House and to the Minister to make sure that the whole thing does not fudge in the office of the Director of Public Prosecutions so that nobody at any point can say that a confiscation order is not being processed. There have been difficulties with the accountability of the office of the Director of Public Prosecutions because it is such an independent office. As I have said, that distinction is fine in relation to the processing of criminal prosecutions but I do not think it is necessarily appropriate during this post-trial process of enforcing a confiscation order. I am interested in the Minister's reply but obviously I am supporting Deputy Mitchell's amendment.
I return to the points I made earlier. I do not think Deputy O'Donnell is arguing for the Director of Public Prosecutions to be answerable to me or to the House in relation to the parallel decisions that the Director of Public Prosecutions has to make under this Bill, a decision first of all to order the prosecution. I do not think the Deputy is making the point that he should be. I do not know whether it would be a good idea either to have the Director of Public Prosecutions accountable to me or to the Houses of the Oireachtas in relation to why he has made a decision to go for a confiscation order. I am saying that in relation to when the information is looked for in respect of a confiscation order and information is being compiled in relation to the assets for report to the Director of Public Prosecutions with a subsequent report to the court. I have said that we are now in the process of recruiting three professional accountants to the Garda. The Director of Public Prosecutions will be asking the Garda to get the information for him. There will be a team that will look for the information and will assess the case, and in putting their case to the Director of Public Prosecutions they will have to make sure they can stand over whatever case they present. As part of that team one of those professional accountants would be involved and I do not think it is necessary that we in this Bill put an auditor or accountant, or whatever you want to call the person, on a statutory footing. The legislation is strong enough at present. Therefore, I do not see the necessity to appoint one individual, a statutory officer, to deal with these cases under this legislation. If Deputy Mitchell wishes, I can look at the matter again before Report Stage but I have to be honest and say that I do not think my views will change substantially and I would not like to say that I will table an amendment at that stage. I think it is better to be up front about it.
I am not suggesting that a person should be appointed on a permanent basis, rather that an office should be created and a procedure put in place to allow an auditor to be appointed; the same auditor need not be appointed on each occasion. There are three accountants in the Fraud Squad at present. Six months ago there was one. In the intervening period there was none. Three months from now there may be none again; certainly three to five years from now there may be none because of people being promoted or leaving the Fraud Squad to avail of promotional opportunities elsewhere. That arrangement is too casual; we need a specific provision in the Bill which would allow the Minister or the Director of Public Prosecutions to appoint a court auditor. The person concerned could be appointed either on a contract or a permanent basis.
This legislation is like a two-legged stool, this amendment would give it a third and ensure that it will be effective. I cannot say the legislation will fail without it — it will have some effect — but if it is to be effective it will be necessary to pursue and measure all the assets of criminals found guilty under this Bill. Without this power the legislation will fail. Therefore I ask the Minister to reconsider the matter before Report Stage although she has not given us cause for much hope. If this amendment is defeated this morning I will reintroduce it on Report Stage. However, I am pressing it now as the matter is too important for us to deal with it any other way.
Amendment put.
The Select Committee divided: Tá, 11; Nil, 14.
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Tá |
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Allen, Bernard. Barrett. Seán. Carey, Donal. Clohessy, Peader. Connor, John. |
Deasy, Austin. Gilmore, Eamon. Harte, Paddy. Mitchell, Gay. O'Donnell, Liz Shatter, Alan. |
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Nil. |
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Briscoe, Ben. |
Mulvihill, John. |
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Callely, Ivor. |
O'Donoghue, John. |
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Fitzgerald, Liam. |
Power, Sean. |
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Foley, Denis. |
Ryan, Eoin. |
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Geoghegan-Quinn, Máire. |
Shortall, Róisin. |
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McDaid, Jim. |
Wallace, Dan. |
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McDowell, Derek. |
Walsh, Eamon. |
Amendment declared lost.
Amendments Nos. 13 and 14 not moved.
Section 18 agreed to.
Section 19 agreed to.