A Cheann Comhairle,
Introduction
The Criminal Assets Bureau and the Proceeds of Crime Act 1996 were developed in response to a deep crisis 20 years ago. If Veronica Guerin's murder marked the low point in the depravity of Irish criminals, the coming together of politicians on all sides to create the CAB and pass the Proceeds of Crime Act was a high point in the political life of the country. Despite differences between parties on so many issues, we were, as one, horrified by the viciousness of organised criminals, but quickly moved beyond rhetoric to a swift, effective, and unified response. I know it must be hard for her family and friends to be constantly reminded of their loss at times like this, but they can remember her with great pride as a journalist who took a stand against malevolent forces and who inspired the entire political class to concerted action. 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, the Oireachtas created an innovative model for depriving murderers and drug pedlars of the proceeds of their crimes.
Since 1996 our model for depriving criminals of the proceeds of their crime has been envied by many countries and has even been copied by some. CAB has retrieved hundreds of millions of euros in proceeds of crime, unpaid taxes and fraudulently obtained welfare payments. It has been an undeniable success, even to the point of driving some gang leaders overseas, leaving other gang members here to run their criminal operations.
Action Being Taken Now
Recent months have seen those subordinates of the offshore drug barons bring murder to our streets in an unprecedented way. Our response today must be as swift, effective and united as it was in 1996. Working with local communities, the Criminal Assets Bureau, and all law enforcement agencies - as Government and as parliament - we must again say no to the men of crime. We must comprehensively reject: their message of greed and misery; their subjugation of people with addictions; their attempts to terrorise localities; their nihilistic rejection of community, of civilisation, of order and the rule of law; and their violence. Our message must be one that rejects all their wrongdoing, and all that flows from it, but one which is a part of a positive and comprehensive message of hope and real practical support for the communities affected.
The Broader Socio Economic Perspective
The Bill we are debating here today is part of the law enforcement element of that response, but we must go beyond law enforcement. The Taoiseach and I, and other Government colleagues held various meetings with community representatives from Dublin North Inner City in recent weeks to hear their concerns about the broader socio-economic issues affecting the area. The community representatives were very appreciative of the visible Garda presence in the area and sought re-assurance about continuing resources for local policing. Other concerns raised related to tackling the scourge of drugs, including illicit sale of prescription drugs, as well as early intervention programmes for children, educational disadvantage, job creation and apprenticeships in the area, improving the physical environment, social housing provision, and community development including family, youth and recreation activity. The Taoiseach intends to establish a broader Task Force to address socio-economic and community development issues in the North Inner City. The outcome of those meetings helped inform the preparatory work in relation to the proposed Task Force for Dublin North Inner City. We are determined to make progress on this in the near future.
The Law Enforcement Response
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 which will have a dogged focus on persons involved in gangland activities.
Government is committed to funding whatever measures are needed for An Garda Síochána to best tackle the critical and unprecedented challenges they currently face, and has recently approved additional funding of some €55 million for An Garda Síochána.
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.
We need to some new legislation focused, in particular, on the criminal proceeds held by mid level gang members. This House last week approved the reduction of 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 from €6,500 to €1,000. This Bill, which has been developed following consultation with the Garda Commissioner and the Chief Bureau Officer, will add further to that suite of legislative powers.
The Need to Pass this Bill Without Delay
Government approved the drafting of this Bill 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 mid level proceeds held by 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 Deputies 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 lawyers 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. Instead, 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.
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 and 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 Cheann Comhairle,
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.
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.
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.
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
This Bill received the strong support of the Seanad. That support is a sign of the unity of purpose we share in seeking to defeat crime and support the communities affected by it. It is an echo of the message which went out from these Houses twenty years ago. The Criminal Assets Bureau carries that message in very practical way to those involved in organised crime by taking their ill-gotten property from them. Let us equip CAB for the new challenges they face. I commend the Bill to the House.