Proceeds of Crime (Amendment) Bill 2016
2nd Stage - Seanad
5th July 2016
Opening Speech
Frances Fitzgerald TD, Tánaiste and Minister for Justice and Equality
A Chathaoirligh,
Introduction
20 years ago, when a fearless journalist stood up to tell the truth about vicious gangsters, and paid with her life, these Houses, the Government, and the agencies of the State responded swiftly, effectively and in a spirit of unity. Veronica Guerin's murder by ruthless men marked a very dark hour in the life of this country, an enduring loss for her family and friends, and an important turning point in the fight against crime. Six weeks after her murder the Proceeds of Crime Act 1996 was enacted. Two months after that the Criminal Assets Bureau Act was passed. In doing so, these Houses developed an innovative model for depriving evil gangsters and murderers of the proceeds of their crimes.
The Irish model is one that has been studied and copied by some countries, and envied by many who haven't. Over the intervening years CAB has retrieved hundreds of millions of euros in proceeds of crime, unpaid taxes and fraudulently obtained welfare payments. It has been so successful that it has driven some gang leaders overseas, leaving only their accomplices here to run their day to day drugs businesses.
Action Being Taken Now
Now we have reached another turning point. Those subordinates of the offshore drug barons have brought murder to our streets in an appalling way in recent months.
We must respond, and we are responding. We as State, as parliament, as Government, as law enforcement agencies and as communities will stand together to face down those who would put themselves above the law and above the lives of others. Their motivation is greed for wealth; we will do all we can to deprive them of their wealth.
I and my officials met with the Garda Commissioner, the Chief of the Criminal Assets Bureau and other senior Gardaí to examine what further measures could be taken to pressurise lower level gangsters. Five weeks ago, I secured the agreement of the Government to a package of measures to increase the pressure on organised criminals. That package includes the establishment of a special crime Task Force by the Garda Síochána, in cooperation the Revenue Commissioners and Department of Social Protection. The Task Force will be focused relentlessly on persons involved in gangland activities.
The Government has consistently made clear that we would fund whatever measures were needed for An Garda Síochána to best tackle the critical and unprecedented challenges they currently face. We have backed up these assurances with the recent approval of substantial additional funding of some €55 million for An Garda Síochána.
We also need to invest the Gardaí and CAB with the right legislative powers. There is already, a wide range of strong legislation to deal with gangland activities in place. These measures include: the Criminal Justice (Amendment) Act 2009, which brought in provisions to respond to the reality of intimidation by criminal gangs: the Criminal Justice (Surveillance) Act 2009 providing for covert surveillance; the Criminal Justice (Miscellaneous Provisions) Act 2009 addressing the use of weapons, the Criminal Justice (Mutual Assistance) Act 2008 to enhance international cooperation and the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010.
I am bringing forward proposals to enhance and update the legislative framework for the lawful interception of communications and for covert electronic surveillance, to combat the threats from serious and organised crime and terrorism.
In the shorter term the prescribed sum under section 38 of the Criminal Justice Act 1994 under which cash suspected of being the proceeds of crime may be seized by Gardaí or Revenue Officers will be reduced from €6,500 to €1,000 by way of section 44 regulations. The necessary motion of approval of the Dáil to those regulations will be debated tomorrow evening. The approval of this House will also be sought shortly.
The Need to Pass this Bill Without Delay
The other key immediate legislative change is this Bill. At that Government the drafting of this Bill was approved as a matter of urgency. It has been quickly, but carefully crafted to provide additional powers to CAB to target the proceeds of crime.
At present CAB have no power under the Proceeds of Crime Act to seize and detain the proceeds of crime without making an application to court. Section 2 of the Proceeds of Crime Act 1996 allows for CAB to make an ex parte application to the High Court for an interim order. An interim order can prohibit any person from disposing of or dealing with any property if the Court is satisfied that it constitutes the proceeds of crime. To seek such an order the CAB must have marshalled all the relevant evidence and be in position to establish that the property derives from criminal conduct. Given the level of scrutiny which is applied by the Court to such an application, particularly as it is an ex parte application (where only the applicant is heard by the court) this is a challenging task for CAB. The new power will now allow CAB officers to move quickly to seize property and have 21 days to prepare their court application.
The Bill will also allow for the lower order gang members to be targeted by reducing the threshold which applies under the Proceeds of Crime Act 1996 from €13,000 to €5,000. The Bill is being brought forward as an urgent measure so that these changes are available to CAB without delay. I know that Senators may have other proposals for reform, but I would ask that such proposals would not delay the rapid passage of this Bill, but would be considered as part of the wider review of the Proceeds of Crime legislation which can deliver further reforms in the medium term.
The Critical Balance of the Proceeds of Crime Act
The Proceeds of Crime Act 1996 operates as a piece of civil law. The applications made under it to the High Court rely on the civil standard of proof - the balance of probabilities. It operates, as the legal experts say, in rem, not in personam, to target property not persons. No finding is made as to the guilt of a person as happens in a criminal trial, rather a finding is made as to whether property is the proceeds of crime. Provision is made for the belief of a Garda Chief Superintendent to be admitted as evidence. The Act allows for an interlocutory order to be made where the court is satisfied on the evidence from CAB that property is the proceeds of crime and to an extent shifts the onus to the respondent to disprove the case. The Act contains no criminal offences and no penal sanctions.
Early on in its operation, the civil status of the Act was considered in litigation. In the Murphy v G. M., and Gilligan v CAB case [2001] IESC 82 then Chief Justice Keane noted that the legislation is "unquestionably draconian", and then addressed the key point of whether proceedings under the Act are civil or criminal in nature. Following an extensive review of the caselaw on the factors which differentiate criminal and civil actions, he found that the appellants failed to establish that the Act amounted to criminal proceedings. The special provisions of the Act are possible to maintain because they amount to civil proceedings. Any additions to the Act, therefore, must not tip the balance of the Act so that they become criminal proceedings.
It is for that reason that I want to emphasise the care which has been taken to ensure that this Bill is not only constitutionally sound, but that is also sustainable in the special civil context of the Proceeds of Crime Act. The Attorney General has not only reviewed its provisions herself, but has had external Senior Counsel consider it twice, first when the scheme was being developed, and then again when the final draft was prepared. The Chief Bureau Officer and the Bureau Legal Officer were also consulted on a number of occasions by my officials as the Bill was developed to ensure that their knowledge, experience and expertise were brought to bear. Even with all that care, I should mention some minor textual errors in the Bill will need to be corrected at Committee Stage.
That is the other key reason I would ask that any more extensive proposals for change be considered as part of the wider review of the Proceeds of Crime legislation which can deliver further reforms in the medium term. I would like all such proposals to undergo the same rigorous checking by my officials, the Attorney General's Office and for CAB to be consulted on them. The Proceeds of Crime Act has served us well for 20 years. It has been tested and tested again in the courts. We must be sure that any changes to this carefully honed legislative tool do not blunt or break it.
Provisions of the Bill
A Chathaoirligh,
let me turn to the details of the Bill. Its long title indicates that it is to amend the Proceeds of Crime Act 1996 and section 1 defines the "Principal Act" as the 1996 Act.
Section 2 adds two necessary definitions to the Principal Act.
Section 3 inserts new sections 1A, 1b, and 1C into the Proceeds of Crime Act 1996 providing for the administrative seizure and detention of property other than land by the Criminal Assets Bureau, applications to the Court and compensation.
The new section 1A allows a bureau officer who is in a public place or any other place he or she is permitted to be to seize any property he or she has reasonable grounds for suspecting to be the proceeds of crime. It is intended to provide for seizure of the suspected proceeds of crime, both where the property is discovered opportunistically as part of general CAB operations, or as part of a focused operation targeting particular suspected proceeds.
The bureau officer must have reasonable grounds for suspecting that the property in whole or in part, directly or indirectly, constitutes proceeds of crime, and is of a total value of not less than €5,000. Once these criteria are met, the Bureau Officer may seize and detain the property for up to 24 hours. This represents a serious interference with the property rights, and potentially other rights, of individuals, hence the need to limit the period of time in which it can have effect. Any further detention beyond 24 hours must meet the additional criteria set out in subsection (2).
Subsection (2) allows the Chief Bureau Officer or CBO to authorise the further detention of the property for up to 21 days if the criteria in paragraphs (a), (b), (c) and (d) are cumulatively met. The key purpose of the whole section is evident in paragraph (c). It is to allow CAB time to prepare for an interim or interlocutory application to the High Court.
Subsection (3) requires the CBO to give written notice to all affected persons unless satisfied that it is not reasonably possible to attain their whereabouts. The notice shall include the reasons for the authorisation and inform of the right to make an application under section 1B. Subsection (5) allows details, the disclosure of which might prejudice the investigation, to be withheld.
I will be bringing forward a committee stage amendment to subsection (5) to correct a small error. It currently refers to a "direction" given by the CBO, this should refer to an "authorisation".
New Section 1B provides protections for affected persons by allowing them to apply to the Court to vary or revoke an authorisation made by the CBO under section 1A. The court may vary or revoke the authorisation if satisfied that any one of the criteria in paragraphs (a), (b), (c), or (d) is not met. The word "not" will have to be inserted in Paragraph (b) before the words "less than €5,000". I will submit an appropriate Committee Stage amendment to that effect.
New Section 1C provides for an application for compensation for losses incurred by the owner of the property if CAB fails to apply for, or obtain, an interim order or interlocutory order from the Court. I will be bringing forward a minor amendment to section 1C (1) (a) to clarify that a compensation application can be made where an interim or interlocutory order is not sought before the expiration of the authorisation.
Sections 4, 5, and 6 amend the relevant provisions of the Principal Act to reduce the threshold value of property subject to the Act from €13,000 to €5,000.
Section 7 provides the short title and relevant collective citation, as well as a standard commencement provision.
Conclusion
"In concluding, I would like to reiterate that we will face down the current threat posed by criminal gangs and we will do whatever is necessary to ensure that nobody is above the law.
An Garda Síochána has done some really great work in dealing with the current situation and this legislation is aimed at helping this work. They have shown absolute determination and resolve in the face of unprecedented ruthlessness from these gangs.
I want to make it clear once again that there will be no let up in the pressure we will put on these criminal gangs. Their outrageous actions are in total contrast to the dignity of the local communities in the face of the threat they pose. Those communities have the right to live safely and securely."
Twenty years ago all sides of both Houses came together as one to reject the violence, greed, and indifference to human suffering of the leaders of drugs gangs. Let us do so again today.