Criminal Justice Act 1994: Motion

I move:

That Dáil Éireann approves the following Regulations in draft:

Criminal Justice Act 1994 (Section 44) Regulations 2016,

a copy of which was laid in draft before Dáil Éireann on 7 June 2016.”

All of us in this House have been shocked by the upsurge in gang-related violence in Dublin in recent months. I am determined that the outrageous and ruthless brutality we have seen on our streets will not go unanswered. Concern has been raised in particular about the activities of some gang members who are operating locally but working for bosses who live overseas. My officials and I met with the Garda Commissioner and other senior gardaí to examine what more could be done to tackle these gangsters. At the end of May, I secured the agreement of the Government to a package of measures to enhance our efforts to fight organised crime. That package includes the establishment of a special crime task force by An Garda Síochána, which is currently under way, in co-operation with the Revenue Commissioners and the Department of Social Protection. We are working to ensure that staff are being seconded from those Departments and that there is co-operation in that respect. The task force will focus relentlessly on persons involved in gangland activities. The package of measures I spoke about also includes the Proceeds of Crime (Amendment) Bill, which passed Second Stage in the Seanad last night - it got all-party support and I thank everybody for that support - and which will shortly be brought before this House. I am also bringing forward proposals to enhance and update the legislative framework for the lawful interception of communications and for covert electronic surveillance, in common with what other countries have, to combat the threats from serious and organised crime and terrorism. I have been clear that we would fund whatever measures were needed for An Garda Síochána to best tackle the critical and unprecedented challenges it currently faces. Unfortunately, we have seen examples of it in recent days as well. Government recently approved substantial additional funding, of which Deputies will be very aware, of some €55 million for An Garda Síochána, so that it can continue with Operation Thor and its other operations to deal with the security issues facing the country. An important element in that package of measures, and one which is particularly aimed at these gangsters, is the one we are debating here this evening. The motion seeks approval for the draft regulations under section 44 of the Criminal Justice Act 1994, which I have laid before the House. Regulations under section 44 set the prescribed sum for the purposes of section 38 of the Criminal Justice Act 1994. Section 38 allows for the search for, seizure and detention of cash gained from, or for use in, criminal conduct. Cash is defined to include notes and coins in any currency; postal orders; cheques of any kind, including travellers’ cheques; bank drafts; bearer bonds; and bearer shares. Powers under this section may be exercised by members of An Garda Síochána or an officer of the Revenue Commissioners where he or she has reasonable grounds - a well-used concept - for suspecting that the cash, directly or indirectly, represents the proceeds of crime or is intended by any person for use in any criminal conduct. The power of search under subsection (1) is only available where there are reasonable grounds for suspecting that the person is importing or exporting, or intends or is about to import or export the cash. This aspect of section 38 is more likely, therefore, to be availed of by customs officers at ports and airports. The power of seizure under subsection (1A) allows gardaí and Revenue officers to seize and detain cash, including cash found during a search under subsection (1), if it is not less than the prescribed sum, and the officer has reasonable grounds for suspecting that it directly or indirectly represents the proceeds of crime or is intended by any person for use in any criminal conduct. When cash is seized by a member of An Garda Síochána or an officer of the Revenue Commissioners under section 38, it may be detained for 48 hours. Detention beyond 48 hours may be authorised by a judge of the District Court if he or she is satisfied that there are reasonable grounds for the suspicion which led to the initial search and seizure. Section 39 of the Act allows for a judge of the Circuit Court to order the ultimate forfeiture of the cash if satisfied on the balance of probabilities that the cash directly or indirectly represents the proceeds of crime or is intended by any person for use in connection with any criminal conduct. The section currently sets the prescribed sum at €6,349. The draft regulations I have laid before the House will reduce this limit to €1,000. Provisional figures from the Revenue Commissioners, which I want to put before the House, indicate that over €8 million has been seized by them under section 38 and almost €7 million forfeited under section 39 since 2010. The annual report of the Director of Public Prosecutions for 2014 notes that almost 40 files were opened in relation to section 39 applications from both Revenue and An Garda Síochána. In terms of forfeiture orders made in 2014, there were eight on the Garda side, amounting to almost €390,000, and 24 on the Revenue side, amounting to almost €500,000. Reducing the prescribed sum to €1,000 will ensure that gardaí or Revenue officials will be able to seize amounts above that level from gang members. If we are to tackle organised crime, we must go after those at the top, but also the foot soldiers who make it possible for gangs to carry out their criminal operations. I commend the motion to the House.

I support the motion put before the House by the Tánaiste and the Fianna Fáil Party supports the change in the draft section 44 regulation that proposes to reduce the prescribed sum from the old sum of £5,000, or €6,349 as it is now, down to €1,000. It is very important that as criminality gets more sophisticated and diverse our legislation also shadows that and keeps in line with the changes in criminality that are taking place in our society. If our legislation and our regulations do not keep in line with what is happening on the ground, then we will lose the battle in respect of our contest against criminality.

It is important to look at how these provisions have developed since they were first introduced back in 1994, with the introduction of section 38 of the Criminal Justice Act 1994. That shows us how we can have effective legislation that can be used by the State in order to ensure that we can seize and capture assets that we believe are the proceeds of criminality. When section 38 was first introduced, back in 1994, it gave a power to a member of An Garda Síochána, or, indeed, a customs officer, to seize and detain cash they thought was being imported or exported from the State. At the time the regulation was introduced, it was set at a sum of IR£5,000, as it was then. It is also to be noted that at the time the measure was introduced, back in 1994, cash could only be seized if it was there was a reasonable suspicion that it was being used for drug trafficking.

Our law developed in 2005 when we amended section 38 with the passage of the Proceeds of Crime (Amendment) Act 2005, which extended the powers available to the Garda Síochána and customs officers. Instead of gardaí and customs officers just being permitted to seize and retain cash which they thought was being imported or exported for the use of drug trafficking, gardaí and customs officers were allowed to search any individual whom they suspected was importing or exporting cash to be used not just in connection with drug trafficking but with any criminal conduct. It was important to extend our criminal law provisions at that time to ensure they went beyond drug trafficking and applied in respect of any criminal conduct. The amendment in 2005 was not limited to the import and export of cash into or out of the country and was extended to cash used throughout the country if it was believed that the cash constituted the proceeds of crime or was intended for use by a person in any criminal conduct.

It is very serious for a member of An Garda Síochána, a customs official or a Revenue officer to have the power to seize money from an individual, so it is extremely important we have mechanisms in place to ensure this power is not abused. Essential in this is honest policing, but it is also essential to have proper supervision of the powers exercised by gardaí, the Revenue or customs officers. There is a requirement that money seized can only be held for a period of 48 hours, beyond which it is necessary to get an extension from a District Court judge.

Ultimately, the public is entitled to know what happens to the money which is seized. Under section 39, gardaí, Revenue or customs officers must go before the District Court in an application made by the Director of Public Prosecutions and must establish that the money that was seized was being used for the purpose of criminal conduct or drug trafficking. It is important that the Judiciary inspect this power in this way. It will be useful in the fight against criminality on the ground in certain parts of the city. The way to defeat ganglords is to ensure they do not get the support on the ground from footsoldiers. For this reason it will be useful for gardaí to seize cash of €1,000 or more if they have a reasonable suspicion it is the proceeds of criminal conduct or drug trafficking.

We will also support the motion. A couple of weeks ago the Minister announced a wide package of measures to bring before the Oireachtas. The Proceeds of Crime (Amendment) Bill has passed Second Stage in the Seanad and is now going to Committee Stage. Our party will be putting forward a number of amendments to it, not to change the substance of the Bill but in respect of what happens to the proceeds confiscated. In the region of €8 million has been seized so far and €7 million forfeited. This is a large amount of money and we believe it should be diverted back into communities which have been directly affected by these criminals, instead of going to the Exchequer as is currently the case.

We support the move to reduce the monetary limit to €1,000. There is a requirement to go before the District Court to hold money for longer than 48 hours and we also support that. We have always said we would support any measures brought forward by the Minister to give additional powers to gardaí to combat organised crime more effectively.

In recent weeks and months we have seen the brutality and barbarity of the trade in drugs and its consequences. I was around the corner last week when the murder allegedly took place on Bridgefoot Street as part of this type of conflict. So-called gangs are happy to murder openly people with whom they are in dispute, and may take the lives of their targets or others who are simply in the wrong place at the wrong time. This poses significant dangers and threats to ordinary working class communities and we have to find any way possible to stop that. The drugs trade is, in reality, a multimillion euro international business and so-called gang leaders are more akin to leaders of multinational enterprises, but dealing in crime and murder. We support measures that will make it more difficult for them to operate. This particular measure seeks the approval of the House to lower the threshold for the money that can be seized coming into and going out of the State when it is believed to be linked to drug trafficking.

In general, measures that will make a real difference in cutting across drug trafficking should be agreed to. We have a general hesitation when it comes to strengthening the power of the State because of how that can be used, and not just against people involved in criminality but against others, some examples of which we have seen. A wider solution to the drugs crisis needs to be addressed. Giving increased powers to the State will not provide employment and will not provide education or opportunities for young people and deprived communities. Increasing the powers of gardaí and Revenue will not resolve the problems that users of drugs have nor will it assist those who wish to end their use of drugs.

This is part of a wider debate but is in response to the murders that have taken place, as are the series of measures the Government is talking of introducing. I understand the Cabinet yesterday discussed powers of gardaí to undertake surveillance of those engaged in serious crimes and crimes which affect the security of the State. I understand we will be faced with a series of amendments to existing legislation which will extend surveillance to more modern forms of communication, such as social media, e-mail, WhatsApp, etc. Without having seen the details of such proposals I am very concerned about them and I do not think I am alone. Dr. T. J. McIntyre, the chair of Digital Rights Ireland, has said the measures may be premature and the existing scheme is flawed. He suggested we need to start remedying the problems we have before expanding our provisions further. The question is whether the increased power could be exploited, abused or used against not just criminals but protestors or others who do not threaten the interests of ordinary people in the State but are, nevertheless, perceived as a threat by a section within the State.

At the moment there is not sufficient ongoing independent oversight of garda surveillance. Surveillance can be authorised by the Minister on application by the Garda Commissioner or the Chief of Staff of the Defence Forces and there is an annual report from a High Court judge to the Taoiseach. We should have a discussion about it but the Government should take on board the views of Digital Rights Ireland. If we do not have measures to prevent abuse of an extension of the surveillance powers of the State and if we do not have ongoing judicial oversight, as opposed to retrospective oversight, we will be extremely concerned about it as it might present a threat to people's right to privacy as well as to their civil liberties.

On the face of it, the amendment to section 44 of the Criminal Justice Act 1994 seems fairly innocuous. I know that many people in the communities blighted by crime and drugs and frustrated by the activities that blight them get sickened at people flaunting their wealth in the local area, be it the youngster showing off to the other children and demonstrating in a negative way that crime can pay or whatever. I understand that, in some ways, this proposal is being put forward to try to deal with that and I know that the basis of support in many working class communities for a mini-CAB comes from that desire to make crime unattractive to our young people. However, I would have concerns about it. I have concerns about the approach being taken by Government, particularly when we see it in conjunction with the Misuse of Drugs (Amendment) Bill. It is difficult to escape the conclusion that what the Government is up to here will not help families or communities that are ravaged by drug addiction but will probably end up nabbing people at the bottom of the food chain, as it were, the easy pickings. It might make it look as if the problems are being dealt with without delivering the blow necessary to deal with these issues.

The idea of reducing the minimum amount of cash that gardaí and customs personnel can seize coming into or leaving the country from €6,500 to €1,000 will not stop drug dealing. It will not help the families in the communities involved because the big boys and those at the top will do what they always do. It will not affect them at all.

We know that major criminals launder their cash through legitimate businesses or decamp to other jurisdictions where they can hide their cash and assets from CAB. The middle income criminals are fairly adept at laundering and hiding their cash as well. Will lowering the threshold deal with those issues? No, it will not. Life will carry on much the same for those individuals.

If we really wanted a challenge in terms of going after those individuals, beefing up CAB, increasing the number of forensic accountants and the resources to tackle white collar crime, money laundering and that overlap between white collar crime and hard-nosed criminal activity would be far more effective than some of the measures being put forward in the motion. The communities on which these powers are being imposed are the communities that need to have investment in drug treatment facilities and in terms of opportunity to make crime unattractive. I am tired saying it but it comes back to the so-called war on drugs and, like all wars, the powerful become bigger while the weak are decimated.

As far as I am concerned, as long as drugs are illegal we will end up lurching from one policy disaster to another. We will make it more difficult for the people on the hard line as long as the real targets are untouched. In that sense, a criminal justice led approach will not work. We have to look at policies such as decriminalisation along with major investment in treatment and harm reduction, which has helped reduce drug use in other jurisdictions. We know from the work done in Portugal, for example, that the figures have been lowered among those aged 15 to 24 years. Problematic drug use was reduced, as was addiction. The numbers of people being sent to prison for drug-related charges was reduced. There was an increase in the number of people accessing drug treatment centres by more than 60%, and it massively cut the amount of debts from drug use. That seems to be a successful approach to combating these issues.

While I understand and appreciate the anger and frustration of people who are watching violent thugs swagger around their communities showing off the spoils of crime, I do not believe this motion will address the root causes of it. I believe it sets a worrying precedent in focusing on the low hanging fruit rather than those who are seriously profiting from this situation.

We will be supporting this legislation. One of the provisions is to reduce the threshold to €5,000.

One thousand euro.

That is one of the initiatives that is intended to tackle organised crime. We would all agree that the Criminal Assets Bureau, in the work it did, was a significant deterrent. Passing this law is an important development but it needs to have sufficient resources to ensure that it is effective.

I note that any garda or customs official will be empowered to seize and detain any cash intended to be used in drug trafficking where there is reasonable grounds to do so, but I also note from the explanatory memorandum that the Bill will not result in any additional direct costs to the Exchequer. However, if additional resources are required, costs may arise and those costs may be recouped in time by the successful application of the law. I would like to hear from the Minister how that is to be addressed if there are no costs involved because if the same resources are being stretched in terms of gardaí and customs personnel, one would have to ask whether the Minister is giving them the power intended.

We often see legislation giving enhanced powers but what is promised fails to meet the expectations because the institutional side has not got it right in terms of lack of resources, people with the right skills or basic equipment. In addition to this measure, it is essential that the causes of crime be tackled. There have been cutbacks in community initiatives, diversion programmes, youth and early education programmes and crisis intervention programmes, which are essential, as is the basic issue of inequality.

While the Social Democrats can understand that this measure represents an urgent response, and we are supportive of that by way of this measure, I would like to see the same attention paid to those who asset strip, tax evade and place their assets in countries like Panama. I often wonder about the systems that are available to transfer from an account what are often very large amounts of money when one considers the checks and balances that apply for the ordinary person. If a large amount of money was regularly moving out of an ordinary person's account, authorities would be notified.

I raise that in the context of this motion because this is the kind of money needed to make sure that the programmes in communities I spoke about remain in place. I do not see it as a separate issue, although it is not associated directly with this measure, but it is the means of preventing what we are seeing happening currently because the Minister has the resources to do that. I would like to see the same attention paid to the prevention of crime, the resources to deal with that, the causes of crime but also white collar crime and where that is impacting by virtue of the fact that there is not an income to which this country has an entitlement to allow us provide services for all our citizens.

I call the Tánaiste who has five minutes.

As I indicated in my opening remarks, substantial sums of cash have been seized and forfeited under this measure. I put the figures before the House for people to consider, and the point was made by a number of Deputies that they are substantial. Very large amounts have been seized already and that has contributed, in no small way, to tackling the ongoing fight against organised crime and targeting large amounts of cash which, as a number of Deputies said, is the lifeblood of any criminal organisation.

By its nature any threshold, whatever its level, will always mean that some cases will fall far below it.

However, the existing relatively high threshold of over €6,000 means that there have been cases where the Garda or Revenue officials have come across very substantial amounts of money in cash, sometimes several thousand euro, and they have reasonable grounds for suspecting that it is the proceeds of crime or is intended for use in criminal conduct, but they cannot use this power of seizure. I thank Deputies for their support in lowering the threshold to €1,000. It strikes the right balance between limiting the power of seizure to substantial amounts of cash while at the same time enabling the Garda and Revenue officials to take more effective action against organised crime.

I have spoken already of the safeguards that are in place and it is important that they are there. It is for a short period before one goes to a court. It is part of a package of measures. Almost every Deputy has made the point that the issue of dealing with organised crime, and especially the drugs issue, needs a broader based response. This is one element which is a security and criminal justice response. However, we clearly need to be tackling the drugs crisis and the issues around it on many different levels including a preventative level. There is much work to be done and it involves Departments other than my own. The approach requires a multifaceted response and we certainly need to prioritise it, given the consequences we have seen from drug dealing and drug addiction. We need to put more resources into our treatment facilities so that when people want to get treatment, it is available to them. It is very important.

With regard to the surveillance legislation and the concerns raised by Deputy Paul Murphy, it is important that safeguards are in place. The Cabinet agreed yesterday to proceed with the heads of a Bill in relation to that issue. That would bring Ireland into line with other European countries. We are currently in a position where there are requests for such warrants coming from other countries and Ireland is not in a position to fulfil the warrants as we do not have that very basic legislation. I acknowledge the points made by Deputies about adequate safeguards being built in which will need to be debated when we are considering the legislation, including what are the kinds of safeguards people think we need to have in place. It is part of the debate around privacy and fundamental human rights versus the security issues about which, in today's world, we must be concerned in Ireland as well as internationally.

With regard to resources, the allocation for the Criminal Assets Bureau in 2016 was just over €7 million. There are a number of vacancies which will be filled presently. There is also the possibility - it is happening now - of people being seconded from the Department of Social Protection and from the Revenue Commissioners to work with the bureau. There has also been extra funding for Garda recruitment. Some €55 million was allocated to the Garda just a couple of weeks ago. All of this forms part of the resources that are needed to make sure this measure is implemented correctly and that there are gardaí in place to do that.

Deputy Catherine Murphy referred to certain kinds of cash transactions and obviously that should be dealt with under money laundering legislation. There is an obligation on people to report those transfers of assets.

I thank everyone who has supported the legislation. It is one part of a package of measures we are introducing and the proceeds of crime legislation will be before the House next week.

Question put and agreed to.