Supplementary Estimates, 1994. - Criminal Justice (No. 3) Bill, 1993: Report and Final Stages.

Amendments Nos. 1 and 8 form a composite proposal and amendment No. 9. is an alternative. I suggest, therefore, that we discuss amendments Nos. 1, 8 and 9 together. Is that agreed? Agreed.

I move amendment No. 1:

In page 5, between lines 27 and 28, to insert the following:

"‘Combat Drugs Fund' means a fund established under the terms of this Act for the allocation of certain moneys raised under the Act to organisations or groups working to combat the medical or social effects of drug abuse;".

We debated this matter on Committee Stage. What is at issue here is the desirability to use the money raised through the confiscation of the proceeds of crime, in particular the proceeds of drug trafficking, in the fight against drug abuse and the sale, distribution, trafficking and pushing of drugs. Similar legislation was introduced in the United Kingdom some time ago and as a result considerable sums of money were raised from the confiscation of the proceeds of drug trafficking. Between 1986 and the last date for which figures are available, it has been established that £20 million had been confiscated from the proceeds of drug trafficking. As a result a debate took place in the United Kingdom as to what use the money should be put. In the Bill it is proposed that the proceeds should be used in the administration of the systems which will be established to deal with the problem, but it is likely that even allowing for that, money will be available to the Exchequer.

The money confiscated should be used in the fight against drug abuse, to assist the Garda in its fight against drug pushing and trafficking and to undo some of the damage done to unfortunate victims who are hooked on drugs. For example, many parts of the country and this city do not have drug treatment centres. As a result people must leave their immediate communities and travel to centres in the city centre to avail of treatment which means those people are going back into an environment, company and climate where they will be exposed once again to drug abuse. Many parents have told me that the absence of a drug treatment centre in Dún Laoghaire means that people with a drug addiction must travel to the centre of the city where they are exposed to the availability of drugs and the associated climate and culture. Those who work in the area have called for more resources to be made available for drug treatment and the rehabilitation of drug addicts. Therefore, it is reasonable to suggest that the moneys raised from the confiscation of the proceeds of drug crimes should be ploughed back into drug treatment and that is what this amendment proposes.

On Committee Stage the Minister drew attention to two matters. In regard to my suggestion that the money collected should be directed to the Department of Health, she stated that would not be a good idea. On reflection, I am not sure it is a good idea and I am happy to concede on that matter. I assure the Minister that I do not have a particular preference for the Minister for Health over and above the Minister for Justice in that regard. I am simply making the point that the money should be allocated for the treatment of people with drug abuse problems.

In response to the Committee Stage debate the Minister pointed out that this could be approached in an inter-departmental manner and I am happy to go along with her suggestion. She said she would consult with her colleagues before Report Stage with a view to introducing an amendment. I did not notice an amendment tabled by the Minister for Justice addressing this point on the supplementary amendments circulated, that is why I asked about the nature of the amendments. On Committee Stage I understood the Minister was receptive to the idea that moneys raised in this way would be used for the purposes of treating drug abusers. I propose a special fund should be established to be used in a variety of ways to provide additional resources for the treatment of drug abuse. Has the Minister had further thoughts on this issue since Committee Stage? The principle of what we were attempting to do was agreed and established on Committee Stage and we debated the mechanism by which this measure should proceed. There is support for the legislation across the House. It is important that legislation is in place to effectively deal with the position whereby people can make a great deal of money through drug trafficking, its accompanying human misery and the laundering of such moneys through a variety of means.

People can establish themselves in respectable businesses and enterprises and continue to inflict misery on the unfortunate people hooked on drugs or victims of criminal activity. There is support for legislation which will provide for seizing ill-gotten gains. We need to address not just the necessity to seize those gains but to use the proceeds of crime in a way that benefit the community.

There is a valid case for allowing part of the proceeds confiscated from criminals involved in drug pushing to be applied in the treatment of victims of drug pushers. The Minister for Health should be empowered to direct that moneys recovered in respect of a confiscation order be applied to meet the expenses of drug rehabilitation institutes or bodies as he or she may specify. In terms of GNP some countries are exporting more in illegal drugs than by way of legitimate export products. That may seem an extraordinary claim but it is supported by documentation presented at a Christian Democratic Conference held in Santiago, Chile, last year. When countries are distorted by the production of such a level of illegal drugs, which are stored in warehouses and distributed throughout the world it is inevitable that countries such as Ireland, will become awash with drugs, which is the case at present. People are making substantial money from this process. Honest, hard working politicians, judges and policeman living in the source countries of those drugs, such as Columbia, are being assassinated and members of their families have been murdered and intimidated because they dare to stand up to those people. In this and other countries on the receiving end of those drugs, drug barons are reaping the benefits, not just of the terrible tragedies in the source country, but also of victims here. The drugs cycle is a tragedy involving vulnerable and innocent victims. There is little we can do in the area of confiscation to assist victims in source countries; that is a matter for their national Governments. However, it would be justice here, where we are on the receiving end of those drugs, to allow the courts not just to confiscate those moneys but for the Minister for Health to allocate them to the treatment of victims of drugs.

There are some appalling cases. I have met families in my constituency where two and three members have had the HIV virus and two have died. Those deaths were drug induced and people profited financially. It would be wrong to confiscate the proceeds of drug trafficking and put it into the Exchequer for day to day purposes. Some of it should be earmarked by the Minister for Health for the service of the victims of drug pushers, the rehabilitation of drug dealers and to assist institutions, bodies and societies who voluntarily, some statutorily, work to assist those people with this terrible affliction.

I hope the Minister will accept the amendment. I tried to persuade her of its advantages on Committee Stage and she has had an opportunity since then to consider it. Bearing in mind that this House decides what happens with the confiscated proceeds of drug trafficking, I ask her to ensure that the spirit of this amendment is taken on board. It would be an act of justice to accept the proposal in the amendment and I commend it to the House.

I supported these amendments on Committee Stage and I do so now. Since then has the Minister considered the proposals put forward by Opposition Deputies in relation to the good use to which such moneys it is proposed will be seized under the legislation will be put? This legislation is our first opportunity to discuss such measures as seizing criminal assets. It begs the question as to what is the best use to which the proceeds of crime can be put. It has been proposed to allocate such moneys to services related to the rehabilitation and treatment of victims of drug abuse. There are many educational needs at secondary level which must be addressed here in relation to the abuse of solvents, drink and hard drugs. The Minister for Education is currently reviewing a series of proposals relating to improving education for life in secondary schools. With the increase in the use of drugs by our adolescents it is time that money and resources are ploughed into educational services by way of seized proceeds of crime to allow targeted and sophisticated programmes to be taught in secondary and vocational schools.

Recently local councillors in the inner city brought to the attention of Dublin Corporation the fact that the drugs problem is exacerbated by the policies of the corporation in relation to tenancies. Residents of flats complexes have pointed out that in many cases they are powerless to evict drug pushers because of the stringent laws in this regard. The people who live in these flats have become politicised in the face of such intransigence by Dublin Corporation in dealing with this problem. Councillors have been told that 40 drug pushers are operating in Meath Street on a daily basis. These are shocking figures and it is understandable that residents have taken to the streets to try to have something done about the matter. About 250 residents of the combined St. Catherine's community marched to City Hall in November protesting at their perceived lack of power in dealing with drug pushers in the flats in their area.

There are some excellent centres in the city dealing with this problem, such as the Rutland centre, the Coolmine centre and the Merchant's Quay project, but much of their energies are spent trying to raise money to improve their facilities to cater for IV users and heroine addicts, many of whom are young women with children. There are very few residential places that will treat these people without separating them from their children. We have spoken in this House about the fact that the majority of the female population in prisons are IV users and these women are also separated from their children while in jail. One wonders whether prison is the appropriate place to treat such people, who are usually there as a result of recurring shoplifting offences carried out to feed their drugs habit. This whole question must be considered.

In section 18 it is proposed that moneys confiscated from drug pushers will be used to meet the expenses incurred in exercising the powers under the Bill. If we are successful in implementing this legislation the money collected in this way will be sizeable. However, the money should not simply flow into the Department of Finance to be disbursed willy nilly. A plan should be devised for the use of this money, as in the case of the tax amnesty money which was targeted in a once-off measure to pay the debts of health boards. Such a once-off measure would be an appropriate use of ill-gotten gains rather than simply constituting an extra resource for the Department of Finance. It would not be acceptable to leave this money sitting in bank accounts, as happened in the past in relation to funds, allegedly related to terrorist activities, which were deposited in a bank account in Navan. I would be interested to hear what specific plans the Minister has in this regard.

(Carlow-Kilkenny): I support this amendment. I welcome the proposal to confiscate the assets of drug pushers, people who represent the lowest form of human life. It may be unfair to describe some of them as human because they destroy many lives, particularly of young people, and wreck many families. The money confiscated should be used to help drug addicts to kick the habit and to assist organisations who work with addicts. As a result there would be less demand for drugs. There would be certain constraints on the Minister in this regard but I would like to see him helping to put an end to drug abuse by ensuring that it is not worthwhile for people to sell drugs. I wholeheartedly recommend this amendment and hope the Minister will accept it.

I too support this amendment which proposes that a combat drugs fund be established. I supported this idea when the matter was discussed in committee and I will briefly summarise my reasons. Many Members have expressed optimism in that they expect a great deal of money will become available as a result of confiscating the assets of drug dealers. However, I am not quite as optimistic in view of the record of convictions of major drug dealers in Dublin. If that poor record continues we will not have to worry about how such a drugs fund should be spent.

Given that the Minister is showing great interest in this matter and that many Members wish to find a solution to the drugs problem, perhaps we will begin to put behind bars drug dealers who are operating relatively freely at present. If we are successful in taking possession of the assets of drug dealers, it is essential that the money realised in this way is spent on their victims. It is a great shame that in my area of the north inner city of Dublin, one of the areas hardest hit by drug dealers, due to a lack of resources there are as many people on the waiting list for the Eastern Health Board treatment centre in Amiens Street as there are people being treated in the centre.

There are other areas in the city with no treatment facilities whatever. If money becomes available as a result of confiscation of assets of drug dealers, that money should go towards providing new treatment centres where needed and enhancing existing centres with a view to reducing the long waiting lists of people looking for treatment and ensuring that staff is available to provide treatment on demand.

There are community groups in my area dealing with this problem, one of which is the Inner City Organisations Network, a network of community organisations who set up a sub-committee to work with the Garda, health boards and Dublin Corporation. They had hoped to work also with the Department of Justice, but regrettably the Department does not see fit to allow a representative to participate in the working group on the basis that it is some kind of lobby group. That is not the case; this is a study group set up to monitor the drugs problem in the north inner city. I hope the Minister will reconsider her decision in this regard. Like the Eastern Health Board and Dublin Corporation, perhaps she will consider sending a representative from her Department to work with that working group which is concentrating on some of the hardest hit communities and flats complexes in the north inner city where 10 per cent or more of young people are using heroin. This working group is trying to devise some strategy which will take those young people off the drug and prevent others following in their footsteps.

On Committee Stage I said I believed the heroin scene in Dublin was worse now than it had ever been and that parts of the inner city were "swamped with heroin". That may not have come across as a realistic assessment of what is happening but within a short time of that statement the Garda seized a quantity of heroin in Dublin which had come into Ireland from Britain via Dún Laoghaire. The value of that seizure was estimated at between £500,000 and £1 million, one of the largest quantities of drugs ever confiscated in Dublin city. That heroin was on its way to a relatively young and relatively small time drug dealer on the north side of Dublin who does not himself use heroin and who has bought from the proceeds of his drug dealing a private house in the north city centre area. Until recently he lived in a corporation flat.

I hesitate to interrupt the Deputy but I must dissuade him from making what might be regarded as a Second Reading speech on Report Stage. I would prefer him to stick more closely to the amendments before us.

Thank you, a Cheann Comhairle, but I think I am speaking directly to the amendment.

The Deputy's point is wide ranging.

I do not have a great deal more to say on this issue. I am simply trying to emphasise that people are making huge amounts of money from drug dealing. This is very specifically related to the amendments we are discussing.

I do not intend to say much more about this individual as I do not want to dignify him by referring to him in the House. He does not use heroin or any other type of drug and is involved in sporting activities with young people. Most of the people who know this individual are not aware of his involvement with hard drugs. Yet, without any visible means of support, he has been able to buy a private house and fit it out, as one person recently said to me, like something one would see on "Dallas". I hope that this legislation will deal speedily with the type of activity in which this individual is engaged, but he must first be caught and convicted. The record of convictions of heroin dealers of that type in Dublin is very poor.

I would prefer to get away from personalities and to deal with the detail of the subject matter of the Bill. The Deputy is dealing quite a lot in personalities who may well be identifiable.

With any luck, a Cheann Comhairle.

There are procedures——

These individuals are certainly identifiable to the Garda. I think I have been very careful in the way I have described this individual——

Can the Deputy give us the address of his house?

——so that he cannot use what I have said in his defence at some future date. That is the last thing I would like to see happen.

I am merely giving this as an example of the type of people who, as Deputy Mitchell said, are living off people who are dying from AIDS and young people who are destroying their lives with heroin. My only reason for making this point is to impress on the Minister the need to get these people out of circulation, put them behind bars, confiscate whatever assets they have accrued from their activities and use those assets in the manner proposed by this amendment, that is, for drug treatment facilities for the victims of drug dealers.

With regard to Deputy Mitchell's amendment No. 9, when these issues were discussed on Committee Stage I stated that they raised a very specific point in regard to actions for compensation. The rest of that amendment and Deputy Gilmore's amendments Nos. 1 and 8 essentially relate to what should be done with the proceeds of confiscation orders. Whatever about differences in wording, I do not think there is very much difference between the thinking behind the amendments.

On Committee Stage I referred to some difficulties which I thought might arise in regard to the proposals put forward by Deputies Gilmore and Mitchell for the disposal of the funds which might be realised under a confiscation order provision of the Bill. Given that our health and criminal justice services are funded directly from the Exchequer I did not think there would be much wrong with the idea of returning the proceeds of confiscation orders to that fund, as provided for in section 18 of the Bill. In addition, I drew attention to the problems which could arise because there could be no certainty about the level of funding which would be available from the proceeds of drug trafficking and other offences. I agree with Deputy Gregory that it remains to be seen whether the huge largesse predicted by people in this House and elsewhere will be realised, as we all hope it will.

I also indicated, as Deputy Gilmore reminded me earlier, that I did not have an entirely closed mind on the subject — I was receptive to the proposal in the amendments — and I asked for time to consider the matter and, in particular, to consult with my Government colleagues. I have raised with the Minister for Finance the question of applying the proceeds of confiscation orders directly for drug-related projects or other specific projects. He has informed me that he would be opposed to any such proposal. His reasons for adopting that view are not related to the merits of what the Deputies have proposed or the worth of that type of expenditure. He said that as a matter of general policy any proposal to create a fund or other mechanism whereby money which accrues to the State could be expended in any way other than by way of the Estimates which are approved by Dáil Éireann could not be supported by him. He also pointed out that any departure from the normal Estimates procedures would create difficulties from the point of view of accountability and would undoubtedly be of concern to the Comptroller and Auditor General. While I have a certain sympathy for the Deputy's amendments, in the light of the views which have been expressed by the Minister for Finance I do not think I could accept them.

One part of Deputy Mitchell's amendment No. 9 raises a separate issue in regard to a court directing that money paid under a confiscation order should be paid into court in connection with legal proceedings which a victim may have initiated and the use of such moneys to satisfy such judgment or orders as the victim may obtain. I appreciate what the Deputy is trying to achieve but I believe the matter is already covered in so far as it would be practicable to do so under the existing provisions of the Bill. I should make the distinction between a civil suit for compensation, where victims on their own initiative take separate proceedings for compensation, and compensation payable under the Criminal Justice Act, 1993. Under the 1993 Act a court, on conviction of any person of an offence, may make an order requiring that person to pay compensation to any person who has suffered such injury or loss as a result of the particular offence. One of the purposes of making such provisions in the 1993 Act was to remove the need for victims of crime to have to take civil proceedings in order to secure compensation from an offender.

A compensation order under the Criminal Justice Act, 1993, would normally be made at the time of sentencing. Confiscation proceedings arise after sentencing and, therefore, are separate proceedings. Section 10 (3) (b) of the Bill provides that before a court makes a confiscation order it must take account of any order, including a court order, involving any payment by the defendant. This would mean that in assessing the amount of realisable property of a defendant a deduction would be made in respect of a compensation order which had been made under the 1993 Act.

On pending civil actions for compensation, section 10 (1) provides that when considering whether to make a confiscation order, the court may take into account any information placed before it showing that a victim of an offence to which the proceedings relate has instituted or intends to institute civil proceedings against the defendant in respect of loss, injury or damages sustained in connection with the offence. That provision will ensure that the interests of parties who initiate civil proceedings against offenders are safeguarded.

In his amendment Deputy Mitchell has proposed that we should allow the proceeds of confiscation orders to be available for the satisfaction of civil judgments obtained at any stage by victims. This, in effect, would mean that confiscated proceeds could be tied up indefinitely because of the possibility that a claim might be made against them in relation to a civil action taken against the offender. In my view this would not be a realistic course to follow and I could not accept it.

As I indicated, section 10 provides substantial protection from the effects of a confiscation order for compensation payments which may be due to the victims of crime whether they arise under compensation orders made under the Criminal Justice Act, 1993 or out of civil proceedings initiated by a victim. I consider the provision we have made in this part of the Bill goes as far as would be practicable and, accordingly, I would not be prepared to adopt the Deputy's proposals.

I have done what I promised on Committee Stage, which was to consult Government colleagues and obviously the primary and most important Government colleague to consult with was the Minister for Finance. In the event he has decided that he could not go along with the proposal for the valid reasons he put forward. I am prepared to consult with him again and put the views expressed this morning which were similar to those articulated on Committee Stage. However, I would not hold out much hope that there would be a possibility of him changing his mind because I made the case to him quite strongly as did my officials to his officials.

The Minister for Finance appreciated the merits of the case put by the Deputies but for the very good reasons he set out he was not prepared to accept the Deputies proposals. In the light of that there was little point consulting with any other Government colleague because as we all know in relation to moneys and financing Government Departments, any changes that might be contemplated in the financing of Departments is purely a matter between the Minister of the Department and the Minister for Finance. I regret I am not in a position to accept the three amendments.

I now call on Deputy Gilmore to reply to the debate on his amendment No. 1. I advise the Deputy that if his amendment No. 1 which is now under discussion is negatived, his amendment No. 8 cannot then be moved.

I am extremely disappointed at the Minister's response. While I accept that she did, as she undertook on Committee Stage, consult with her colleagues and made the case to the Minister for Finance, I am disappointed that the net effect of her response is to oppose the amendments. I am particularly disappointed because it would appear that is being done by proxy by the Minister for Finance. I do not accept the arguments made by the Minister for Finance in this case.

On Committee Stage also we pointed out to the Minister for Justice that a criminal injuries compensation facility existed up to 1986, when it was abolished. In response the Minister made the point that she had consulted with the Minister for Finance to seek to have that facility, or one similar to it, re-established and that that was turned down. The Minister for Finance is now taking the view that the moneys raised from the proceeds of crime under this legislation must go back into the great maw of the Exchequer and cannot be used specifically to address drug abuse problems.

I do not accept that there cannot be special funds; special funds exist right across the public service. In our taxation system we have a health levy, a levy for youth employment and various special levies introduced from time to time, a form of central taxation. Of course, a variety of special levies have been introduced at local level, for example, by local authorities. Hospital charges are a taxation on illness which is used for a specific purpose, namely, the provision of health services. The principle that the polluter pays is a well-established principle in environmental legislation. We are dealing here with a form of social pollution and the people who are engaged in drug pushing are social polluters. The same principle should apply; the pollution they cause in communities and the moneys made from that should be used to deal with the problem. I do not accept the argument being made now by proxy by the Minister for Finance that a fund of this kind cannot be established.

I am concerned about the degree of scepticism in this regard. Deputy Gregory mentioned his concerns that the high expectations for the amounts of money that might be raised by this legislation may not be realised. I am concerned that the Minister would now appear to be sharing that degree of scepticism and if that is the case, this legislation will not address the problem. It is an established fact that large sums of money are being made by drug barons who are importing drugs into this country and who are arranging for their distribution both within the State and, indeed, for passing them on to the wider European community. If moneys are not raised through this legislation, this legislation will not work and I am concerned about the degree of scepticism that exists.

There is a great deal of frustration among the public about what is perceived to be the growth in the drugs abuse problem and the apparent failure to deal with it effectively. A number of colleagues referred to the extent to which the drugs problem is growing again. The Garda Síochána report on crime of 1992, for example, indicated that drug abuse offences increase by 13 per cent on the previous year and drug seizures increased by 20 per cent. The National Drug Treatment Centre reports that it is treating as many patients now as it was in the early 1980s when the centre was the only such centre in the country. A number of other centres have been established but the national centre is still treating the same number of people and the number requiring treatment from the centre is on the increase.

There is much frustration among the public, particularly in deprived communities, where drugs are available on the streets and the drug pushers are known to the local community. The local community brings that to the attention of the Garda, the local authorities and anyone who will listen and identify where the problem exists. There is great frustration also that the many problems associated with drugs abuse, including the lack of treatment facilities and the adequate resources, are not being addressed. It is easy for Members of the House, particularly those of us in Opposition, to come in here from time to time and propose that additional resources be provided for this, that and the other.

This is a specific case of a Bill which proposes the seizure of assets and gains made by people engaged in drug trafficking. What is being proposed is not that the State should incur any additional expenditure — but that the money raised from these seizures be used to tackle the drugs problem. Certainly there is agreement about the Bill before us. We all hope that its provisions will contribute to the curbing of drug trafficking but we also have an obligation to ensure that the public, who are experiencing this problem actually see some results.

I intend to press my amendment because it enshrines an important principle. I had hoped for a more positive response from the Minister. It is a pity that the Minister for Finance has not given her the kind of support and clearance she needs. It is unsatisfactory that we should spend a lot of time in Select Committee and on Report Stage dealing with issues only to find that a principle such as this, which is acceptable to everybody involved in the debate, is blocked by another Minister.

Amendment put.
The Dáil divided: Tá, 46; Níl, 76.

  • Ahearn, Theresa.
  • Allen, Bernard.
  • Barrett, Seán.
  • Barry, Peter.
  • Bradford, Paul.
  • Browne, John (Carlow-Kilkenny).
  • Bruton, John.
  • Bruton, Richard.
  • Carey, Donal.
  • Clohessy, Peadar.
  • Connaughton, Paul.
  • Connor, John.
  • Crawfird, Seymour.
  • Crowley, Frank.
  • Deasy, Austin.
  • Deenihan, Jimmy.
  • De Rossa, Proinsias.
  • Dukes, Alan M.
  • Finucane, Michael.
  • Fitzgerald, Frances.
  • Gilmore, Eamon.
  • Gregory, Tony.
  • Harney, Mary.
  • Harte, Paddy.
  • Higgins, Jim.
  • Hogan, Philip.
  • Kenny, Enda.
  • Keogh, Helen.
  • Lowry, Michael.
  • McCormack, Pádraic.
  • McGahon, Brendan.
  • McGinley, Dinny.
  • McGrath, Paul.
  • McManus, Liz.
  • Mitchell, Gay.
  • Mitchell, Jim.
  • Nealon, Ted.
  • Noonan, Michael. (Limerick East).
  • O'Donnell, Liz.
  • O'Keeffe, Jim.
  • O'Malley, Desmond J.
  • Owen, Nora.
  • Quill, Máirín.
  • Rabbitte, Pat.
  • Sheehan, P. J.
  • Yates, Ivan.

Níl

  • Ahern, Bertie.
  • Ahern, Dermot.
  • Ahern, Noel.
  • Aylward, Liam.
  • Bell, Michael.
  • Bhamjee, Moosajee.
  • Bhreathnach, Niamh.
  • Bree, Declan.
  • Fitzgerald, Brian.
  • Fitzgerald, Liam.
  • Flood, Chris.
  • Foley, Denis.
  • Gallagher, Pat the Cope.
  • Gallagher, Pat.
  • Geoghegan-Quinn, Máire.
  • Haughey, Seán.
  • Higgins, Michael D.
  • Howlin, Brendan.
  • Hughes, Séamus.
  • Hyland, Liam.
  • Jacob, Joe.
  • Kavanagh, Liam.
  • Kemmy, Jim.
  • Kenneally, Brendan.
  • Kenny, Seán.
  • Killeen, Tony.
  • Kirk, Séamus.
  • Kitt, Michael P.
  • Lawlor, Liam.
  • Leonard, Jimmy.
  • Martin, Micheál.
  • McCreevy, Charlie.
  • McDowell, Derek.
  • Moffatt, Tom.
  • Morley, P.J.
  • Moynihan-Cronin, Breeda.
  • Mulvihill, John.
  • Brennan, Matt.
  • Briscoe, Ben.
  • Broughan, Tommy.
  • Costello, Joe.
  • Cowen, Brian.
  • Dempsey, Noel.
  • de Valera, Síle.
  • Doherty, Seán.
  • Ferris, Michael.
  • Nolan, M. J.
  • Ó Cuív, Éamon.
  • O'Dea, Willie.
  • O'Donoghue, John.
  • O'Hanlon, Rory.
  • O'Keeffe, Batt.
  • O'Keeffe, Ned.
  • O'Leary, John.
  • O'Rourke, Mary.
  • O'Shea, Brian.
  • O'Sullivan, Toddy.
  • Penrose, William.
  • Power, Seán.
  • Quinn, Ruairí.
  • Reynolds, Albert.
  • Ryan, Eoin.
  • Ryan, John.
  • Ryan, Seán.
  • Shortall, Róisín.
  • Smith, Brendan.
  • Smith, Michael.
  • Spring, Dick.
  • Stagg, Emmet.
  • Taylor, Mervyn.
  • Upton, Pat.
  • Wallace, Dan.
  • Wallace, Mary.
  • Walsh, Eamon.
  • Walsh, Joe.
  • Woods, Michael.
Tellers: Tá, Deputies Rabbitte and Kenny; Níl, Deputies Dempsey and Ferris.
Amendment declared lost.

I move amendment No. 2:

In page 12, line 15, after "shall," to insert "subject to the provisions of section 4 (6),".

This is a technical amendment. Section 4 (6) of the Bill introduced the question of the balance of probabilities. I suggest, subject to the provisions of section 4 (6) that these words should be inserted in section 5 on the assessing of the proceeds of drug trafficking.

Section 4 (6) states:

(6) The standard of proof required to determine any question arising under this Act as to—

(a) whether a person has benefited from drug trafficking, or

(b) the amount to be recovered in his case by virtue of this section, shall be that applicable in civil proceedings.

What is applicable in civil proceedings is the balance of probabilities. I suggest that the same requirement should be inserted in section 5 (2) so that "the court shall, subject to the balance of probabilities, for the purpose of determining whether the defendant has benefited from drug trafficking" etc. would be the wording of this section. It is a technical amendment and I hope the Minister will accept it.

The Minister undertook to have this amendment, which the Deputy also put down on Committee Stage, further discussed with the draftsman. The position remains that section 4 (6) to which the amendment refers sets out the standard of proof required to determine any question arising under the Act as to, among other things, the amount to be recovered by virtue of that section. That standard is the one used in civil proceedings which as Deputy Mitchell said, is the balance of probabilities.

Section 5 which is sought to be amended deals with assessing the proceeds of drug trafficking in the context of making a confiscation order under section 4 and, accordingly, it is clear that section 4 (6) already applies to it. Deputy Mitchell's amendment, strictly speaking, is unnecessary.

In addition, I am advised that there would be difficulties in accepting the amendment in that by including the specific reference contained in the amendment in the section there could be doubt as to whether the provisions of section 4 (6) applied to other sections of the Bill. Section 4 (6) sets out the standard generally. That standard will apply to the situation adverted to by Deputy Mitchell. There is no need to write it specifically in the Bill as it could give rise to doubts as to whether it applies only to that situation.

The legal advice to me differs from the advice to the Minister. It is a technical amendment and I do not intend to press the matter.

Amendment, by leave, withdrawn.

I move amendment No. 3:

In page 13, line 19, to delete "on indictment".

I seek to delete the words "on indictment" from section 7 of the Bill. This section deals with confiscation orders: offences other than drug trafficking. However, summary offences should be covered by this section. In any of the circumstances where cases are brought before the District Court the same provisions, as in section 7 for non-drug offences, should apply. I do not see why the section is restricted to persons convicted on indictment only. I pressed the matter on Committee Stage and the Minister undertook to again examine it. I will not be repetitious because I want to deal with other sections of the Bill but I ask the Minister to accept this amendment, or, if not, to explain the difficulty in applying the provisions of this section to summary offences as well as to those where there is a conviction on indictment.

As the Minister explained on Committee Stage, the intention of the Bill is to ensure there is a mechanism available whereby people who have been convicted of serious crimes can be deprived of any material benefit accruing to them as a result. Very elaborate procedures are proposed to try to achieve this situation.

The District Court is a court of summary jurisdiction and, by definition, the offences with which it deals are less serious in nature. It has a wide variety of options to ensure that a person does not benefit from an offence. In particular, this can be reflected in the level of fine which the court may impose. Moreover, under the terms of the Criminal Justice Act, 1993, it is open to the District Court on conviction of any person of an offence to require that person to pay compensation in respect of any loss arising from the offence. For example, if a person is convicted of larceny of, say, £100 from an individual, then the court can order payment of that amount to the victim by way of compensation.

The key question which must be addressed in relation to Deputy Mitchell's amendment — the Minister and I very much appreciate the thinking behind it — is whether the balance of advantage lies with providing a confiscation facility for the District Court in addition to the range of options already available to it. There are, of course, clear advantages with a court of summary jurisdiction, it enables relatively minor offences to be dealt with expeditiously. There must be doubts, however, about whether the use of the confiscation procedure would be appropriate in such courts particularly given the danger that because of the nature of the procedure it might contribute to clogging them up. In addition, the detailed investigation of an offender's means and so on, which would usually be required for a confiscation order to be made, could be greatly disproportionate to any benefit that might be gained in the case of minor offences.

Serious offences are generally dealt with by the Circuit Court and the confiscation procedure will, of course, be available there. The District Court has already available to it the options which I outlined and in deciding whether to proceed by way of summary trial or by way of summary trial on indictment, the Director of Public Prosecutions, in exercising his discretion in these matters, could take into account whether there would be an advantage in proceeding by way of indictment in terms of a subsequent application for a confiscation order.

In all the circumstances the Minister believes that our key concern to ensure that people do not benefit from the proceeds of crime can be met without accepting the terms of the amendment. As a general point, I would prefer to deal with the provision of any further options being made available to the District Court in the context of the forthcoming Law Reform Commission report on sentencing generally.

Amendment, by leave withdrawn.

We come to amendment No. 4 in the name of the Minister. Amendment No. 5 is related. Is it agreed that amendments Nos. 4 and 5 be discussed together? Agreed.

I move amendment No. 4:

In page 16, lines 47 and 48, to delete "save where it appears to the High Court that it would be reasonable in the circumstances".

These amendments are essentially a tidying up exercise. On Committee Stage an amendment added the words "save where it appears to the High Court that it would be reasonable in the circumstances" in section 11 (5). That section provided, in effect, that confiscation proceedings in relation to somebody who had absconded would not arise until two years after the date on which he had absconded.

As I understood it, the purpose of the amendment on Committee Stage was to allow the court discretion to allow confiscation proceedings at an earlier stage where it considered it reasonable to do so. There was general agreement on the desirability of that approach. However, it appeared on re-examination that placing of the additional words may have led to ambiguity and that the purpose of the original amendment would be clearer by moving the words in question to the end of the sentence. We accept the principle of the amendment proposed by Deputy Mitchell, we are merely moving the words to the end of the subsection. It is merely a tidying up exercise.

Amendment agreed to.

I move amendment No. 5:

In page 16, line 49, after "absconded" to insert "save where it appears to the High Court that it would be reasonable in the circumstances".

Amendment agreed to.

I move amendment No. 6:

In page 18, lines 34 and 35, to delete "in reply".

Section 15 (3) which is sought to be amended arises where, under section 15 (2), the Director of Public Prosecution reports to the High Court that any or all of a confiscation order remains unpaid and the court is considering whether to make an order for imprisonment. Section 15 (3) allows an opportunity for the defendant to make representations as to why he or she should not be imprisoned. The court is obliged to consider those representations as well as any by the Director of Public Prosecutions in reply. The Minister has consulted the draftsman further about this matter and the position remains that the use of the words "in reply" is necessary to ensure that the DPP will be given an opportunity to comment on the representations by the defendant as to why imprisonment should not be imposed in addition to whatever comments the DPP made in reporting the matter to the High Court in the first place. It is reasonable that the DPP should have this opportunity, and accordingly I am disposed to let the words stand.

I understand fully the effect of Deputy Mitchell's amendment which is that the DPP can make his representations and that the accused person can make counter representations. We are allowing the DPP to answer the counter representations. Deputy Mitchell thinks it should be a matter for the DPP to make the initial representations and for the person, who is the subject of a confiscation order, to reply. The decision is to let the procedure, as originally proposed, stand.

I made a case on Committee Stage and the Minister said she would examine it and come back on Report Stage. It is purely a technical proposal and I will not press the amendment.

Amendment, by leave, withdrawn.

Acting Chairman

We come to amendment No. 7 which is consequential on amendment No. 19. Is it agreed that amendment Nos. 7 and 19 be discussed together? Agreed.

I move amendment No. 7:

In page 19, line 47, after "purpose" to insert "including a court audit".

This is the section to which I wish to devote time. I am proposing that under the legislation the court should have the power to appoint an auditor of seven years standing qualified under the Companies Acts to act as a court auditor. So-called drug barons have become very wealthy, some being millionaires, and often they are caught for one or two offences and can afford to serve their sentences or to have some of their assets confiscated. The assets of such people are very difficult for the Garda to trace as we are living in an era of electronic funds transfer. People can take funds to Amsterdam to buy drugs and funds can then be electronically transferred to Switzerland. How can a court determine where the assets to be confiscated are? We need somebody to find that out on behalf of the court and the person best qualified to do so is a trained auditor.

The court should have the power to appoint such a person to audit the finances of a convicted drug pusher to find out the extent of the assets. Auditors are skilled in pursuing audit trails. They know were to look — bank accounts, bonds, diamonds or property. It will be difficult to find all the assets of a drug pusher even if this section is incorporated but if this new section is not incorporated it will not be difficult for mega-wealthy drug pushers to fool the courts so that only small amounts of their assets are confiscated. The courts will not be able to identify the full extent of accumulated wealth. Wealthy drug pushers can afford to ditch a shipment of marijuana off the Cork coast and they would be sufficiently well equipped to go back later and recover it from the seabed. This is big business and megabucks are involved. In many cases there is good reason to suspect — and this is the trend all over the world — that money derived from drug pushing is laundered and is used to compete with legitimate taxpaying business men. There is a double offence here in that drug pushing is also contributing to a distortion in competitive procedures. Only a trained auditor can trace the money from its subterranean sources into the legitimate bank accounts where drug barons transfer money. Neither judges, the Director of Public Prosecutions nor the Garda can do that.

The Minister might say that we already have two or three accountants in the fraud squad, that it would cost money to hire people from the private sector and point to the complaints about the Beef Tribunal. In my amendment I do not say that the auditor should be a permanent member of the public service or should be hired from the private sector. That is left with the Minister. If the Minister believes that it is cost effective to employ ten accountants in the fraud squad or five in the Office of the Director of Public Prosecutions or if she feels it is better to hire someone from the private sector, I will be happy with that. We should not get hung up on our experiences with the Beef Tribunal and other cases. The cost of paying the court auditor could be recouped from the confiscated assets of the criminal.

Only an auditor is qualified to audit the wealth of the drug barons. I see this gap as a major omission in the Bill. How can a court become aware where the assets of a criminal lie? The criminal will not tell the court, the gardai cannot deal with existing fraud problems and nobody in the Office of the Director of Public Prosecutions can do this job. I urge the Minister to accept this amendment. The principle of this amendment is central to the efficient working of this Bill.

I support the amendment in principle, if not in detail. There is a weakness which we identified on Committee Stage. After all the intellectual investigations and work put into this Bill by the Law Reform Commission initially, and the report on confiscation on the proceeds of crime, and work by officials in the Department of Justice on this complicated legislation, the end result may be marred by not appointing a sufficiently focused and accountable person to bring the matter to fruition. The Minister referred to the Director of Public Prosecutions as the person to make inquiries in relation to confiscation orders but I am worried because the Office of the Director of Public Prosecutions is not accountable to this House. That independence is essential at the pretrial stage but these procedures relate to confiscation order after a guilty verdict has been given in other proceedings. The necessity for independence from the Minister is not so strong in this case. The problem with the legislation in England has been found principally in its enforcement.

It is right to put all these complicated procedures in place for confiscation orders and the seizure of the proceeds of crime, including drug trafficking, but if at the final hurdle an appropriate person to see the matter through is not appointed this legislation will lack the necessary vigour. I supported this amendment on Committee Stage and I do so on Report Stage.

The Minister said the appointed three new members to the Garda fraud squad who will be available to the DPP to investigate and carry out an audit trail as required. With the greatest respect, I do not think the three members appointed to the fraud squad will be sufficiently resourced or independent to enter into the quagmire of moneylaundering activity. It is a sophisticated international operation and, because of the technology involved in the transfer of funds, a different expertise is needed from investigative skills. It would require a highly skilled person to pull the skills of all the others together. Has the Minister considered this amendment further since Committee Stage?

I indicated on Committee Stage that while I appreciated the thinking behind the amendment I did not believe we should proceed with the appointment of court auditors as envisaged in Deputy Mitchell's amendment. I continue to hold that view and sufficient powers for appropriate persons are in the Bill.

Under the Bill, it will be a matter for the DPP to initiate proceedings for confiscation and those proceedings, although separate, follow on from court proceedings the prosecution would have taken in the name of the DPP. It seems that not only would the DPP be best placed to decide on whether confiscation proceedings would be worth while but also that this decision is one that should very definitely lie with the independent law officer. In relation to the assembling of evidence in connection with possible confiscation proceedings, the DPP will of course, rely on the Garda Síochána to carry out all the necessary inquiries.

Under section 50 and 51 a member of the Garda Síochána can seek orders to make material available in connection with such inquiries and also for the issue of search warrants. Under section 9 the court may order the defendant to provide information. In these circumstances it would appear that the only possible advantage that might be argued in favour of the appointment of auditors of the type envisaged in the amendment is that they would bring a level of expertise to these matters which might not otherwise be available.

As I explained on Committee Stage, in reality the matter can be dealt with administratively and I do not belive any provision is needed in the Bill to achieve this. As Deputy O'Donnell said, as part of the recent law enforcement package the Minister announced a decision to recruit three professional accountants to the Garda fraud squad. Their expertise will, of course, assist other members of the force 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 investigations arising from the Bill without impinging on the role and powers being given to the Garda and the DPP. For example, if it were to be decided to set up a special unit in the Garda Síochána to deal with confiscation proceedings all relevant expertise could also be made available, including the appointment of accountants. The fact that it would be a matter for the Garda Síochána or the DPP to go into court would have no implications for the effectiveness of such accountants.

I appreciate very much that this is a matter on which Deputy Mitchell, in particular, has very strong views but for the reasons I outlined today and on Committee Stage, and in view of the fact that I have had an opportunity to talk to my officials and to the Garda Síochána on this matter, on balance the amendment will not add anything of value to the Bill. Indeed, the designation of powers and functions in the Bill is much more appropriate.

I wish to comment on the appointment of three accountants to the fraud squad. If these accountants are to be promoted, they will have to leave the fraud squad at some stage simply because there are not sufficient promotional outlets in that squad for people of that calibre. The fact that these three appointments are being made does not mean that we will have three permanently and it is obvious that will cause problems.

I am not talking about an administrative facility. In my amendment I propose that we employ people who will be directly available to the court before it passes sentence. That is not a matter for the Executive — the administrative arm of Government but for the courts. The judge who convicts a person of the serious crime of drug pushing will be able to find out before passing sentence the precise extent of the ill-gotten gains of the guilty person. At present judges are not in a position to pursue that line or to find out the position. The judge may go back to the Garda Commissioner who in turn may ask the Minister for permission to hire auditors to do this job but the Minister may well say that it is not provided for in the budget which is an interference with the independence of the courts.

If we are empowering the courts to pass sentence and to confiscate assets, the court should be empowered to find out the precise extent of those assets. It should have that power independent of the Executive. The only way to do that is to allow the court to appoint auditors. Under the Companies (Amendment) Act, 1990, the court has the power to appoint inspectors without reference to anybody and why should it not under this Bill be empowered independently to appoint auditors? This is the only way to hit hard these mega millionaire drug barons so that when the law goes after them it is tough and through. Should the court find that these barons have £10 million it should be empowered to confiscate that amount and not a contribution of £50,000 or some similar amount of money, which would be perceived as a contribution to be thrown into the poor box.

This provision could well pay for itself and would mean from the outset that when somebody is convicted of drug pushing the court, if it deemed fit can appoint a qualified auditor of good standing to establish the audit trail and, as far as possible, establish the full wealth which would be confiscated on passing sentence. That is a function of the independent judicial arm of Government.

The effectiveness of the Bill is greatly undermined by the absence of such a provision and, therefore, I will be pressing my amendment.

Amendment put.
The Dáil divided: Tá, 42; Níl, 77.

  • Ahearn, Theresa.
  • Allen, Bernard.
  • Boylan, Andrew.
  • Bradford, Paul.
  • Browne, John (Carlow-Kilkenny).
  • Bruton, John.
  • Bruton, Richard.
  • Clohessy, Peadar.
  • Connaughton, Paul.
  • Connor, John.
  • Crawford, Seymour.
  • Creed, Michael.
  • Crowley, Frank.
  • Deasy, Austin.
  • Deenihan, Jimmy.
  • Dukes, Alan M.
  • Finucane, Michael.
  • Fitzgerald, Frances.
  • Fianagan, Charles.
  • Gregory, Tony.
  • Harney, Mary.
  • Higgins, Jim.
  • Hogan, Philip.
  • Kenny, Enda.
  • Keogh, Helen.
  • Lowry, Michael.
  • McCormack, Pádraic.
  • McGahon, Brendan.
  • McGinley, Dinny.
  • McGrath, Paul.
  • Mitchell, Gay.
  • Mitchell, Jim.
  • Nealon, Ted.
  • Noonan, Michael. (Limerick East).
  • O'Donnell, Liz.
  • O'Keeffe, Jim.
  • O'Malley, Desmond J.
  • Owen, Nora.
  • Quill, Máirín.
  • Rabbitte, Pat.
  • Sheehan, P.J.
  • Yates, Ivan.

Níl

  • Ahern, Bartie.
  • Ahern, Dermot.
  • Ahern, Noel.
  • Aylward, Liam.
  • Bell, Michael.
  • Bhamjee, Moosaji.
  • Bhreathnach, Niamh.
  • Bree, Declan.
  • Brennan, Matt.
  • Briscoe, Ben.
  • Broughan, Tommy.
  • Costello, Joe.
  • Coughlan, Marry.
  • Cowen, Brian.
  • Dempsey, Noel.
  • Doherty, Seán.
  • Ferris, Michael.
  • Fitzgerald, Brian.
  • Fitzgerald, Liam.
  • Flood, Chris.
  • Foley, Denis.
  • Gallagher, Pat the Cope.
  • Nolan, M.J.
  • Ó Cuív, Éamon.
  • O'Dea, Willie.
  • O'Donoghue, John.
  • O'Hanlon, Rory.
  • O'Keeffe, Batt.
  • O'Keeffe, Ned.
  • O'Leary, John.
  • O'Rourke, Mary.
  • O'Shela, Brian.
  • O'Sullivan, Toddy.
  • Pattison, Séamus.
  • Penrose, William.
  • Power, Seán.
  • Quinn, Ruairí.
  • Reynolds, Albert.
  • Gallagher, Pat.
  • Geoghegan-Quinn, Máire.
  • Haughey, Seán.
  • Higgins, Michael D.
  • Howlin, Brendan.
  • Hughes, Séamus.
  • Hyland, Liam.
  • Jacob, Joe.
  • Kavanagh, Liam.
  • Kemmy, Jim.
  • Kenneally, Brendan.
  • Kenny, Seán.
  • Killeen, Tony.
  • Kirk, Séamus.
  • Kitt, Michael P.
  • Lawlor, Liam.
  • Leonard, Jimmy.
  • Martin, Micheál.
  • McDowell, Derek.
  • Moffatt, Tom.
  • Morley, P.J.
  • Moynihan-Cronin, Breeda.
  • Mulvihill, John.
  • Ryan, Eoin.
  • Ryan, John.
  • Ryan, Seán.
  • Shortall, Róisín.
  • Smith, Brendan.
  • Smith, Michael.
  • Spring, Dick.
  • Stagg, Emmet.
  • Taylor, Mervyn.
  • Treacy, Noel.
  • Upton, Pat.
  • Wallace, Dan.
  • Wallace, Mary.
  • Walsh, Eamon.
  • Walsh, Joe.
  • Woods, Michael.
Tellers: Tá, Deputies E. Kenny and Boylan; Níl, Deputies Dempsey and Ferris.
Amendment declared lost.
Amendment Nos. 8 and 9 not moved.

I move amendment No. 10:

In page 22, between lines 34 and 35, to insert the following:

"(7) Where a restraint order is made, the registrar of the High Court shall, in the case of a company, furnish the Registrar of Companies with notice of the order.".

This is a technical amendment which I put down on Committee Stage. The Minister said she would look at it again with a view to Report Stage.

On Committee Stage I undertook to look at this amendment to see if there would be advantages in having restraint orders notified to the Registrar of Companies. I also indicated at that time that because it involved the Registrar of Companies it would be necessary for me to talk with him. Since the Committee Stage debate, officials of my Department have spoken to the registrar and he has raised a number of problems in relation to this. However, I support what Deputy Mitchell is proposing and I would like time between now and Committee Stage in the Seanad to again consult the registrar and come up with a formula to meet Deputy Mitchell's requirements.

Thank you, Minister.

Amendment, by leave, withdrawn.

We now come to amendment No. 11. I observe that amendment Nos. 12, 14 and 15 are related. I suggest that we debate amendments Nos. 11, 12, 14 and 15 together.

I move amendment No. 11:

In page 26, line 28, to delete "£1,000" and substitute "£5,000".

I want to see penalties on summary conviction greatly increased from £1,000 to £5,000 and from 12 months imprisonment to two years. That is the objective of these amendments. A fine of £1,000 on summary conviction is a joke when compared with the sort of money these drug pushers are making. We discussed this on Committee Stage and the Minister said there was a Supreme Court ruling which she subsequently circulated to members of the Committee. Has the Minister had an opportunity to consult the Attorney General and is it open to us to insert these penalties?

The penalty should be at least £5,000 and two years imprisonment to show that we consider this form of crime an outrageous and separate offence from any of the other crimes dealt with at District Court level, that it is one of the most heinous crimes that can be dealt with at that level. I hope the Minister has had the opportunity to consult with the Attorney General and that she will accept these amendments.

I support Deputy Mitchell. It is important that an unequivocal message should go out from this Chamber that we mean business in setting the penalties for such crime. There may be some difficulty which the Minister sees, but if those difficulties do not exist I urge her strongly to agree to these amendments because a fine of £1,000 is a very light penalty. The strongest penalties possible must be imposed for such crimes. I earnestly appeal to the Minister to look carefully at what Deputy Mitchell has said on these amendments. They are deserving of support.

(Carlow-Kilkenny): I support these levels of fines. Nothing could be too hard on these criminals. Their profits are such that £1,000 means nothing to them and a short term in jail simply means they have the luxury of a holiday in the sun afterwards. The Minister should increase every possible fine.

There are a number of court decisions dealing with the penalties that can be imposed by a court of summary jurisdiction. I circulated copies of these judgments to members of the select committee after our last meeting. In the meantime I have had the opportunity of talking to the Attorney General and my officials have spoken to officials in his office. I am advised quite strongly that the net effect of the judgments I have referred to is that increases of the kind proposed by Deputy Mitchell would be unlikely to withstand constitutional challenge in the context of their appropriateness for courts of summary jurisdiction. Because of that strong advice which I have from the Attorney General's office I am not in a position to accept these amendments.

In practice if a judge of the District Court feels that an offence is so serious that the sanctions available in the District Court are insufficient, the judge has the power to refer the case to a higher court where the penalties could be increased. I share the views expressed by Deputies Browne, Mitchell and Fitzgerald that we must send a strong message to people involved in this despicable type of crime. On the other hand, I must take account of the Attorney General's advice that insertion of such provision in the Bill would not withstand a constitutional challenge. For that reason I am not in a position to accept the amendment.

This raises a very important point. We are the legislators, the people whose job it is to make the laws of the country and we are bowing to what the Supreme Court interprets as its right to interpret the Constitution. This is undemocratic and a departure from the essential principle that it is our right to decide what penalties are reasonable, not the right of five judges of the Supreme Court. In this case a penalty of £5,000 is relatively small given the amount of money drug pushers make.

The Minister stated that the matter can be dealt with by the District Court — if it cannot impose sufficient penalties — referring it to a higher court. It is very rare that a court, having heard a case and found a person guilty, will send the person to another court for sentencing. Will a judge have to decide before he or she hears a case that the person is guilty and should be sent to a higher court for sentencing? That will not happen in practice and a penalty of £1,000 on summary conviction is inadequate in this case.

There is an important principle involved and I hope Supreme Court Justices and the Attorney General read the record of this debate. This is an infringement on our rights and they are overstepping the mark by making judgments which state we cannot decide the penalties that should be imposed by District Courts. Every Member who knows the reality of the crime problem and the true value of the money made by drug pushers will agree that the District Court should be able to impose a fine of up to £5,000 and/or two years' imprisonment on drug offenders. That is a reasonable proposal. The cosy arrangement between members of the legal profession whereby they believe they can make the laws is unacceptable. We make the laws and I want to put down a marker that it is time the House examined that area. The Supreme Court should keep its nose out of the business of the Legislature. We should stand up and be counted in regard to that principle. I am sure every Member agrees. Deputy Fitzgerald, on a cross party basis, very eloquently supported that view and I suspect the Minister would also support it if the Supreme Court ruling did not apply. If the courts interfere with the Legislature, the Legislature will have to do what is done in the United States and vet judges before they are appointed. Judges are overstepping their mark in this regard. It is our constitutional, legal and, above all, democratic right to make these decisions. It is unacceptable that cases should be sent to the Circuit Court and High Court and requests made for the appointment of more judges because of the increased workload. We cannot continue to freely appoint judges. These matters should be dealt with in the District Court.

In view of the Minister's advice from the Attorney General and the Supreme Court ruling, I will not pursue these matters. However, I intend to pursue the principle further. It is time legislators, particularly members of the Select Committee on Legislation and Security, stood up for ourselves and told Supreme Court judges where to get off and to be more realistic about the problem people face. This matter should be dealt with by the District Court. In the circumstances, I will not press my amendment.

Amendment, by leave, withdrawn.
Amendment No. 12 not moved.

I move amendment No. 13:

In page 26, line 45, after "or" to insert "authorised to carry on such business".

This amendment is designed to take account of certain banking arrangements following the adoption and implementation of the second EC banking directive. It is on the lines of amendments put down by Deputies O'Donnell and Mitchell on Committee Stage, which they agreed to withdraw on the basis that I would examine the matter further. Given that it was related to technical banking matters, I indicated I wished to consult the Minister for Finance. I am satisfied that such an amendment is warranted and, accordingly, tabled an amendment to deal with the matter.

I support the amendment and thank the Minister for taking our concerns into account.

Amendment agreed to.
Amendment Nos. 14 and 15. not moved.
Amendment No. 15 not moved.

Amendments Nos. 16, 17 and 18 are related and may be taken together.

I move amendment No. 16:

In page 34, lines 42 and 43, to delete "Garda Commissioner of the district in which that person appears to be" and substitute "Commissioner of the Garda Síochána".

These are essentially tidying up amendments. On Committee Stage Deputy Mitchell expressed the view that this matter would be more appropriately dealt with in section 37, which deals with the service here of a process issued outside State. It provides for a reference to the Garda Commissioner rather than the superintendent of the district in which the person who is the subject of that process lives. I accepted the point and agreed with Deputy Mitchell's amendment. There is a need for a consequential amendment to section 37 (7) and I am also taking the opportunity to use the usual legislative designation of the commissioner as Commissioner of the Garda Síochána throughout the section. These amendments do not affect the substance of Deputy Mitchell's earlier amendment.

Again, I am grateful to the Minister for accepting the principle of my amendment on Committee Stage and I support the amendments.

Amendment agreed to.

I move amendment No. 17:

In page 35, line 39, to delete "Garda Commissioner" and substitute "Commissioner of the Garda Síochána".

Amendment agreed to.

I move amendment No. 18:

In page 35, line 43, to delete "superintendent" and substitute "Commissioner of the Garda Síochána".

Amendment agreed to.

I move amendment No. 19:

In page 42, between lines 46 and 47, to insert the following:

"44.—(1) The Minister may appoint for the pruposes of enforcing and administering the provisions of Parts II, III and IV of this Act an auditor, of not less than 7 years standing to be known as a ‘court auditor' such person to hold similar qualifications for appointment as auditor as those requried under S. 187 (1) of the Companies Act, 1990.

(2) 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 Síochána, full power of search.

(3) 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 exercise of his lawful duties.".

Amendment put and declared lost.

Acting Chairman

Amendments Nos. 20, 21, 22 and 23 are related and may be discussed together. Is that agreed? Agreed.

I move amendment No. 20:

In page 42, between lines 46 and 47, to insert the following:

"44.—(1) Nothing in this Act shall make any failure by a professional legal adviser to disclose any information or other matter which has come to him in privileged circumstances an offence.

(2) No person shall, by virtue of any disclosure made pursuant to the provisions of this Act incur any civil liability in respect thereof, save only where the matter purported to be disclosed by such a person was to that person's knowledge false."

We discussed a similar amendment on Committee Stage and the Minister expressed some understanding in respect of the issues I raised. There are two aspects to my amendment, the first of which relates to clarification of the aspect of legal privilege. Traditionally, under common law there is an absolute privilege attached to any correspondence, information, communication or document between solicitor and client in regard to legal proceedings. The section with which we are dealing relates to the obligation of disclosure. It should be clarified that matters which are the subject of legal privilege will not be damaged by the obligation in section 44 to disclose information.

The principle of legal privilege is accepted and recognised in various sections of the Bill. Sections 43, 50 and 51 acknowledge the absolute privilege attached to legal documents. The Minister accepted that the amendment I tabled may be too broad. Documents and communications may commence with the benefit of absolute privilege but may subsequently be used, for example, where a solicitor is involved in or complicit in a crime being investigated. Has the Minister discussed this matter with her officials and will she clarify to the House the matter of legal privilege?

The second part of my amendment is of more general interest. It relates to the exposed position in which bank officials and those working in the financial services sector may find themselves having regard to the onerous obligations to disclose information which they consider indicative of suspicious transactions. The penalties are quite severe. A penalty of up to 14 years imprisonment may be imposed in respect of people involved in illegal transactions or who had knowledge that transactions were of a criminal nature. Further down the line, young bank officials who believe there is cause for suspicion and understand they have an obligation to disclose information, may be afraid to carry out their civic responsibility and disclose such information to their superior because if they are wrong and there are no grounds for suspicion, they may be subject to slander or libel proceedings. I tabled this amendment to protect bank officials and to have their position clarified.

We have the benefit of dealing with this Bill at a time when other jurisdictions have passed similar legislation in line with Article 9 of the EC Money Laundering Directive. This section represents a major change in the culture of our banking system and financial organisations. An established system and culture of confidentiality exists between banks and their clients. In pure banking terms, this legislation highlights issues which will require intensive training of bank officials and, a changing of the internal reporting system in banks. Having started my career in a bank I am aware of the need for intensive in-house training of officials as to how they might report suspicious transactions. There should be a central reporting system. It would not be appropriate for junior bank officials to ring the local Garda station in regard to suspicious transaction. A sophisticated reporting system is needed which will ensure that a bank official will not be subject to legal proceedings as a result of a report made in good faith. I note the Minister has tabled amendments which include this provision. It is important to clarify that point. If young bank officials are placed in an exposed position with the threat that if they do not disclose information regarding suspicious transactions they will be liable to a term of imprisonment of five years, there should be a corollary guaranteeing that they will not be exposed to civil litigation by bank clients. That point highlights the intent of my amendment.

I am pleased the Minister has accepted part of my amendment. I look forward to hearing her response regarding legal privilege.

(Carlow-Kilkenny): Some of my best friends are solicitors in case what I say later be taken to mean otherwise.

Where do they solicit?

(Carlow-Kilkenny): The debate on the amendment is similar to that on Committee Stage. The position is that of a paradox or oxymoron. People who have no information are not guilty. On Committee Stage I made a case for the innocent bank official who did not suspect that a lodgment originated from illicit dealings. I was told that a bank official who accepted a lodgment of £60,000 which was subsequently found to be part of an illicit £250,000 deal would be guilty under section 44. I argued that a bank official who did not realise the money being lodged was obtained illegally should simply be told that he or she was inefficient. However, a solicitor who is told that money is the proceeds of an illegal drug deal will be protected. I have no interest in punishing solicitors but that section highlights a contradiction. A person who knows that a serious crime has been committed and who does not give evidence to this effect will be protected, while an innocent bank official who does not realise, but should realise, that the money lodged was obtained illegally, from the sale of drugs of another transaction is not protected by the Bill. That highlights a contradiction. The Minister might clarify whether it is a paradox or an oxymoron, but there is something wrong with that type of justice.

Deputies will be aware from the debate on Committee Stage that Deputy O'Donnell's amendment raises two distinct issues. The first relates to the protection of material which is legally privileged and the second, which covers the same ground as official amendment Nos. 21, 22 and 23, is concerned with the implementation of Article 9 of the EC Money Laundering Directive. On Committee Stage I indicated that I was well disposed towards the idea of a specific exemption for items subject to legal privilege which might be caught by section 44. I also pointed out that there could be difficulties with the wording the Deputy proposed because it could protect from disclosure material which originally came into the hands of a solicitor under the conditions of privilege and was subsequently retained by the solicitor for the furtherance of a criminal purpose. In the circumstances, I undertook to consult the draftsman in order to prepare an appropriate amendment for Report Stage along the lines suggested by the Deputy. In fulfilment of the undertaking I gave on Committee Stage, I have raised this matter with the draftsman. Despite detailed consultation which involved the draftsman, the Office of the Attorney General and my Department, we have not as yet been able to agree on wording which would achieve what the Deputy has sought without leaving possible loopholes which might be used to get around the provisions of section 44. I am prepared to continue with this task and if suitable wording can be found I will be happy to incorporate it in the Bill on either Committee or Report Stage in the Seanad.

The second part of Deputy O'Donnell's amendment is an alternative to the official amendment in my name. While I have no difficulty with what the Deputy has proposed in this regard, I believe the official approach is more appropriate, given that the effect of my amendments will be to reproduce into section 44 the exact wording used to deal with this area of exemption from liability in the EC Money Laundering Directive. In the light of what I have said in relation to amendment No. 20, I hope Deputy O'Donnell will agree to its withdrawal and I hope the House will accept my amendments.

I thank the Minister for her response and am glad she has accepted the first part of my amendment. I accept there is a danger that a solicitor may be involved in a crime and have criminal intent. It is important to fully address this matter when enshrining a protection of privilege in the legislation so that we do not provide a loophole for solicitors who engage in criminal activities. There has been a number of such cases.

I thank the Minister for taking on board the substance of the second part of my amendment relating to the onus of disclosure on bank officials and others involved in this area.

Amendment, by leave, withdrawn.

I move amendment No. 21:

In page 43, line 15, after "discloses" to insert "in good faith".

Amendment agreed to.

I move amendment No. 22:

In page 43, line 17, after "discloses" to insert "in good faith".

Amendment agreed to.

I move amendment No. 23:

In page 43, line 27, after "otherwise" to insert "and shall not involve the person or body making the disclosure (including their directors, employees and officers) in liability of any kind".

Amendment agreed to.
Question proposed: "That the Bill do now pass."

This is one of the most important Bills in this area to come before the House in many years. Its scope is very comprehensive by virtue of the fact that as a result of its passing Ireland will be able to ratify three international conventions and to comply with the EU directives on money laundering. It will prove a very valuable weapon in the fight against crime. As a result of the discussions in this House and in the select committee it is a better and stronger Bill. I express my sincere appreciation to all Members who participated in the debate, particularly Deputies Mitchell, Browne and O'Donnell, and my two faithful colleagues who have been present at all stages, Deputies Wallace and Fitzgerald.

I am happy to see this legislation pass through the House. I hope the Minister will take into account in the Seanad the amendments which she said she would consider and that it will not be delayed there. I ask her to consider also the central weakness in the Bill, the lack of a court auditor. I congratulate the Minister on bringing forward the Bill and on accepting Opposition amendments.

Given the amount of legislation that has to be dealt with in the justice area— an Extradition Bill and a solicitors Bill will be introduced shortly—perhaps some expertise could be made available to the Opposition in dealing with these Bills, some of which are long and technical. Some Deputies spend a great deal of time reading technical Bills and this diverts us from important tasks, such as defending our party leader. Technical advice and resources should be available, particularly to the main Opposition spokespersons, to assist us in this regard.

I am very happy to support the passing of the Bill. I hope it achieves what is intended and brings to justice people who have been making a good life from drug addicts.

The Progressive Democrats Party is very supportive of this legislation. Various reports on the criminal justice system, particularly the Whitaker committee of inquiry into the penal system, focused on the fact that we should look to alternative sanctions for people who commit crime rather than relying heavily on prison sentences. The seizure of assets obtained through criminal activities should be a sanction in itself. Perhaps we can move away from relying solely on prison terms, particularly in relation to white collar crime. The seizure of assets would be much more threatening to many people than imprisonment. Our party has always supported this type of legislation. I congratulate the Minister on bringing this Bill so quickly before the House and on being so accommodating in accepting Opposition amendments.

Question put and agreed to.