I move amendment No. 4:
In page 3, before section 3, to insert the following new section:
3.—(1) Where, on application to it in that behalf by the applicant, it appears to the Court, on evidence tendered by the applicant, consisting of or including evidence admissible by virtue of section 8—
(a) that a person is in possession or control of—
(i) specified property and that the property constitutes, directly or indirectly, proceeds of crime, or
(ii) specified property that was acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes proceeds of crime,
(b) that the value of the property or, as the case may be, the total value of the property referred to in both subparagraphs (i) and (ii) of paragraph (a) is not less than £10,000,
the Court shall make an order (‘an interlocutory order') prohibiting the respondent or any other specified person or any other person having notice of the order from disposing of or otherwise dealing with the whole or, if appropriate, a specified part of the property or diminishing its value, unless, it is shown to the satisfaction of the Court, on evidence tendered by the respondent or any other person—
(I) that that particular property does not constitute, directly or indirectly, proceeds of crime and was not acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes proceeds of crime, or
(II) that the value of all the property to which the order would relate is less than £10,000:
Provided, however, that the Court shall not make the order if it is satisfied that there would be a serious risk of injustice.
(2) An interlocutory order—
(a) may contain such provisions, conditions and restrictions as the Court considers necessary or expedient, and
(b) shall provide for notice of it to be given, where reasonably possible, to the respondent and any other person affected by it.
(3) Where an interlocutory order is in force, the Court, on application to it in that behalf at any time by the respondent or any other person claiming ownership of, or of an interest in, any of the property concerned, may, if it is shown to the satisfaction of the Court that the property or a specified part of it is property to which paragraph (1) of subsection (1) applies, discharge or, as may be appropriate, vary the order.
(4) The Court shall, on application to it in that behalf at any time by the applicant, discharge an interlocutory order.
(5) Subject to subsections (3) and (4), an interlocutory order shall continue in force until—
(a) the determination of an application for a disposal order in relation to the property concerned,
(b) the expiration of the ordinary time for bringing an appeal from that determination,
(c) if such an appeal is brought, it or any further appeal is determined or abandoned or the ordinary time for bringing any further appeal has expired,
whichever is the latest, and shall then lapse.
(6) Notice of an application under this section shall be given—
(a) in case the application is under subsection (I) or (4), by the applicant to the respondent, unless the Court is satisfied that it is not reasonably possible to ascertain his or her whereabouts,
(b) in case the application is under subsection (3), by the respondent or other person making the application to the applicant, and, in either case, to any other person in relation to whom the Court directs that notice of the application be given to him or her.
(7) Where a forfeiture order, or a confiscation order, under the Criminal Justice Act, 1994, or a forfeiture order under the Misuse of Drugs Act, 1977, relates to any property that is the subject of an interim order, or an interlocutory order, that is in force, (‘the specified property'), the interim order or, as the case may be, the interlocutory order shall—
(a) if it relates only to the specified property, stand discharged, and
(b) if it relates also to other property, stand varied by the exclusion from it of the specified property.".
I thought Deputy O'Donoghue would be in good form this week after the performance in Pairc Uí Chaoimh last Sunday and that we could perhaps speed up the process here, but we will see how it goes.
The amendment provides for the making of interlocutory orders freezing property for up to seven years and corresponds to section 5 of the original Bill. Subsection (1) provides that where it appears to the court on the evidence of a chief superintendent or an authorised officer of the Revenue Commissioners that a person is in possession or control of property which is the proceeds of crime, then the courts will make an interlocutory order unless it is satisfied on the evidence of the respondent or another person that in fact the property is not the proceeds of crime or that it is worth less than £10,000.
In other words, once the chief superintendent or the Revenue official concerned makes out a case that property appears to be the proceeds of crime or to be worth more than £10,000 then the onus is on the person claiming to own the property to show that it is not the case. This is broadly in line with the corresponding provisions of the original Bill, although in section 5(7) of the Bill the mere existence of an interim order is sufficient, when an interlocutory order is applied for, to shift the onus to the respondent.
I propose that the Garda or Revenue Commissioners on applying for an interlocutory order must first make out a case before the onus can shift. This would be effective and, at the same time, more balanced than the provisions in the original Bill which would require the Garda or the Revenue Commissioners simply to point to the existence of an interim order, an order obtained without hearing from the respondent to shift the onus of proof to the respondent.
Subsection (2) provides for conditions or restrictions to be attached by the court to an interlocutory order. This will to give the court the flexibility it needs to deal with the complexities it will inevitably encounter in individual cases. Provision is also made for notice to be given to the respondent where reasonably possible or any other person affected by the order.
Subsection (3) provides for the discharge or variation of an interlocutory order on the application of the respondent or any person with an interest in the property concerned. The onus is on the applicant, however, to satisfy the courts that the property or part of it is not the proceeds of crime. Provision is not made for the discharge or variation of an interlocutory order purely on the grounds that the property is worth less than £10,000 because of the possible variation in property values over the lifetime of an interlocutory order. It would clearly be undesirable for a respondent to be entitled to the discharge of such an order solely on the grounds that the value of the property has depreciated to just under £10,000, while not having to make out any case that it is not the proceeds of crime. The result of this provision is that while property must be worth at least £10,000 to come within the scope of the interlocutory order, future variations in its value are not a factor in the continuance of the order. That provides for a change of Government or for when the economy is not so buoyant and property prices fall.
Subsection (4) provides for the discharge of an interlocutory order on the application of the Garda or the Revenue Commissioners. As with interim orders we clearly must allow for such applications, for example, where the Garda or the Revenue Commissioners come across information which materially alters the case they made to have the interlocutory order made in the first instance.
Subsection (5) sets out the details of how long an interlocutory order will remain in force. Essentially, it will remain in force until an application for a disposal order is made and that is intended to be seven years after the making of the interlocutory order but some variations have to be provided for. Paragraph (a) establishes the basic rule that the interlocutory order will last until an application for a disposal order is determined; (b) takes account of the time during which a disposal order might be appealed and (c) takes account of the time taken to actually decide an appeal or, should there be one, a further appeal.
Subsection (6) provides for notice to be given of applications for interlocutory orders. The Garda or Revenue Commissioners will have to give notice to the respondent of an application for an interlocutory order or for the discharge of such an order unless the court is satisfied that the respondent cannot reasonably be found. Similarly, the respondent or any other person who applies to have an interlocutory order varied or discharged will have to give notice of this to the Garda or Revenue Commissioners. In addition, the court may direct that notice be given to any other person. This could be someone who, while not the subject of an interlocutory order is, nevertheless, affected by it.
Subsection (7) provides for the discharge or variation of interlocutory orders where property covered by such an order is made the subject of forfeiture or confiscation under the Misuse of Drugs Act, 1977 or the Criminal Justice Act, 1994. In effect such 1977 or 1994 orders, being final orders arising out of criminal conviction, make an interlocutory order redundant.