Ms Rachel Woods:

I thank the Chair and the committee for the invitation today. As members are aware, the Minister for Justice, Deputy Helen McEntee, has recognised the very important principles behind this Bill and has made absolutely clear that Ireland must not be a safe haven for illicit gains. The Department recognises the vital importance, particularly in light of the situation in Ukraine, of ensuring public officials can be held accountable to the greatest possible extent for human rights abuses they commit. A detailed submission has been provided to the committee and my colleagues and I are happy to address specific areas in more detail where that would be useful. I will refer to some central points at this stage.

The first is the distinction between the political and judicial approaches to targeting assets. The critical feature of the US Magnitsky Act, and indeed that of the more recent EU global human rights sanctions regime, is that a determination may be made at political level to freeze the assets of a person linked to human rights abuses. Freezing does not require proof of a legal standard that the person has committed a specific abuse or that the assets in question result from such abuses. On the contrary, the measures act against the person concerned, and any assets held by or for the benefit of that person. Measures can be taken quickly and can target both those committing abuses along with those directing them.

This political approach is distinct from the judicial one taken in this Bill which hopes to use proceeds of crime legislation. Seizures would be based on a court finding on a legal standard that an asset results from conduct which is both criminal in Ireland and a gross human rights abuse within the definition provided. There is no difficulty in treating gross human rights abuses committed by public officials as criminal conduct and this, of course, applies even where an official might be somehow protected under their domestic law. However, in most cases, gross violations of human rights will already be serious crimes under the law of the state concerned.

The question that arises is whether a person has done the conduct rather than whether the conduct constitutes a crime. The major practical challenge is providing sufficient evidence to meet that legal standard. However, the more fundamental difficulty is that human rights abuses do not usually create profits in and of themselves. They may be committed by a person who is also committing other crimes that generate profits, such as corruption or fraud, or they may be committed to cover up such crimes. However, the asset will still flow from the profit-generating crimes rather than from the human rights abuses. Ultimately, it will be the link to the profit-generating crime that will need to be proven to support a proceeds of crime action.

In our initial assessment of the Bill, the Department identified four conditions that would need to apply in any given scenario for the Bill to yield a practical benefit: first, when conduct is an offence under Irish law but not in the other state; second, when the relevant asset is the proceeds of a human rights abuse rather than another form of crime; third, that sufficient evidence would be available to support a court finding; and fourth, that no other means of recovery is available. The challenge we have faced is identifying situations where these conditions all apply.

We look forward to hearing from other witnesses and from members on this issue in particular. If there is something that can genuinely be done to help target assets and counter abuses, then the Minister has been very clear that she will progress that. In passing, I note that amending legislation to the Proceeds of Crime Act is under development and there is certainly further work to be done in this area.