Amendment No. 1 is consequential on amendment No. 2 and they are to be taken together by agreement.
Seanad amendment No. 1:
Section 1: In page 7, subsection (2), line 21, "This Act" deleted and "Subject to subsection (3), this Act” substituted.
Criminal Justice (Theft and Fraud Offences) Bill, 2000: From the Seanad.
The Dáil went into Committee to consider amendments from the Seanad.
The effect of these amendments is that certain sections of the Bill will come into operation upon enactment. At present section 1(2) provides that the Bill's provisions will be brought into operation by orders to be made by the Minister. The reason for these amendments is the necessity to ensure that certain provisions of the Bill are in force before 1 January 2002. The particular provisions are those which implement commitments at EU level in relation to the protection of the euro against counterfeiting and measures to combat money laundering more effectively. Because of this tight timeframe it is necessary to provide for the commencement of the appropriate provisions immediately upon enactment.
However, the operation of these particulate provisions requires that a number of other sections in the Bill also be in operation. Accordingly it is necessary to provide for the simultaneous commencement of those other sections, and these amendments will do that. In brief, the provisions which will come into operation upon enactment of the Bill are section 23, dealing with reporting certain financial transactions for the purpose of preventing money laundering, Part V, dealing with currency counterfeiting, Part VII, which deals with the investigation of offences, section 53, which permits offences to be dealt with summarily, section 58, concerning the liability of bodies corporate, and section 60(1), concerning the use of documentary evidence in certain circumstances.
We are happy to support any measure that assists in preventing money laundering, counterfeiting and so on. We agree to the amendment.
This seems to be a practical measure ensuring that certain sections of the Bill are brought into force as soon as possible. What about the other sections in the Bill which are not included in this amendment? Will they also come into force fairly soon?
It is certainly intended to bring them into circulation at the earliest possible opportunity. I anticipate that the other provisions of the Bill will be in operation within a couple of months.
Seanad amendment agreed to.
Seanad amendment No. 2:
Section 1: In page 7, between lines 25 and 26, the following new subsection inserted:
"(3)Parts 5 and 7 and sections 23, 53, 58 and 60(1) shall come into operation on the passing of this Act.”.
Seanad amendment agreed to.
Seanad amendment No. 3:
Section 21: In page 20, line 32, after "probably"", or probably" inserted.
This amendment corrects an error which resulted in a number of words being omitted from subsection (7) paragraph (4) of the new section 31 of the Criminal Justice Act, 1994. Subsection (7) clarifies in part a number of concepts contained in the new section 31. Paragraph 4 provides that reference to believing that property is or represents criminal proceeds should be taken as including reference to thinking that the property "was probably, or probably represented" criminal proceeds. The omission of the words "or probably" arose due to the fact that the word "probably" appears twice in close proximity in the paragraph.
We agree to the amendment.
Seanad amendment agreed to.
Seanad amendment No. 4:
Section 21: In page 21, line 13, "shown." deleted and
"shown.
(8) Where–
(a) a report is made by a person or body to the Garda Síochána under section 57 of this Act in relation to property referred to in this section, or
(b) a person or body (other than a person or body suspected of committing an offence under this section) is informed by the Garda Síochána that property in the possession of the person or body is properly referred to in this section,
the person or body shall not commit an offence under this section or section 58 of this Act if and for as long as the person or body complies with the directions of the Garda Síochána in relation to the property.' ", substituted.
Section 21 of the Bill substitutes a new section for section 31 of the Criminal Justice Act, 1994. The new section 31 criminalises various actions which amount to money laundering. These actions include laundering by a person of his or her own criminal proceeds as well as laundering by a third party of another's criminal proceeds. The section penalises various actions where a person knows or believes, or is reckless about whether property is or represents criminal proceeds. These actions include converting, transferring or handling the property for the purpose of concealing its true nature etc., assisting another person to avoid prosecution for the criminal conduct concerned or to avoid a confiscation order being made. The person will also commit an offence where the action amounts to concealing the property's true nature etc., or where the person acquires, possesses or uses it.
Clearly financial institutions and other persons providing financial services are prime targets for those trying to launder dirty money. The 1994 Act therefore places certain obligations on these institutions to have in place measures to detect and report suspicions of money laundering. For example, section 32 requires these institutions to "know their customers" and section 57 requires them to report to the Garda suspicions of money laundering. There is also a provision, in section 58, which penalises anyone who prejudices any investigation into suspected money laundering by, for example, revealing that an investigation is under way or by tipping off an account holder.
In view of the fact that under the new section 31 money laundering may consist of acquiring, possessing or using criminal proceeds, concern was expressed that an institution will have to, in addition to reporting any suspicion of laundering, divest itself of any account which it suspects is being used for money laundering or risk prosecution under the Act. In doing this, however, there was concern that it may be contravening the provision against revealing that the account is being investigated by the gardaí.
This amendment addresses this dilemma. It provides that where the institution has reported to the gardaí its suspicions, or where the gardaí have informed the institution that it is suspected of being used for money laundering, the institution will not be guilty of laundering or of tipping off a person if, and for so long as, it is complying with Garda directions in the matter. It is entirely appropriate that the section should provide for such an eventuality and this amendment does so.
It is proper that the 1994 Act puts an onus on financial institutions to bring any suspicions they have to the authorities about money laundering. We have seen financial institutions complicit, through offshore non-resident accounts, with tax cheating, though money laundering was not involved. Many of those participating were not really aware of the implications of the accounts they were operating. This new Act could have put the banks and financial institutions in a difficult position and this amendment, as the Minister points out, gives them protection. We support the amendment.
This addresses the concern that reporting bodies would have some kind of protection. This amendment will improve the legislation and I have no negative opinions on it.
Seanad amendment agreed to.
Seanad amendments reported.