Ms Kate Egan:

Good afternoon. I thank the Cathaoirleach and members of the committee for giving us the opportunity to make observations of the heads under the draft general scheme. As Mr. Guerin said, we have already filed written submissions in more detail but we propose to address the committee in respect of two particular issues on the subject of judicial authorisation.

First, with respect to head 3 of the general draft scheme, this provision, as the committee will know, enables the bureau to obtain a short-term detention order in the District Court of a property seized during a search. The freezing order can be extended for another short-term period to enable the bureau to continue any investigation into whether the property is the proceeds of crime and whether it intends to make an application pursuant to section 2 or section 3 of the existing 1996 Act. The committee will be aware that they are the procedures under which an application is made to court for an interim or interlocutory order. The entire period of the proposed freezing order must not exceed 90 days and the court order provided for is by way of extension to a detention order which would have been previously made by the chief bureau officer, pursuant to section 1(2)(a) of the Proceeds of Crime Act 1996, for a period not exceeding 21 days, following, of course, an initial order for no more than 24 hours made by the individual bureau officer.

The Bar of Ireland is of the view that some thought might be given as to whether the invocation of the jurisdiction of the court should in fact occur earlier than the 22 days after the seizure of the property. Orders of this nature constitute an interference of property rights and should in principle therefore be judicially authorised. It is acknowledged that there may be a necessity for urgent orders of this nature to be made before judicial authorisation can be reasonably be obtained.

The duration of such an order is a different matter, however. There is an argument to be made in principle that the proper duration of the non-judicial orders ought not to exceed the period of time necessary to obtain judicial authorisation. Section 17 of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 and the proposed head 4 of the general scheme, which bears some similarity of purpose with this head, both provide for a Garda power amounting to an interference of property rights not exceeding seven days. Subject to my observations in respect of head 4, it is not apparent that jurisdiction exists for there to be a significantly longer period provided for in head 3.

Head 4 deals with the subject of restraint orders. It provides for a power to enable a bureau officer who is a member of an Garda Síochána of at least superintendent rank to issue an order and the court to extend such an order restraining service or transactions relating to properties suspected on reasonable grounds to be the proceeds of crime. It is obviously modelled on section 17 of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010, which provides for a similar power in respect of services or transactions suspected of comprising or assisting in money laundering or terrorist financing. Again, the necessity for a period of restraint is obvious, as is a possible necessity for an order in advance of a court application, but it is not obvious that a seven-day period of restraint without an application to court is either necessary or appropriate. Since subheads 12 and 13 clearly contemplate the possibility of an application to court by a person affected, there may in principle be good reason why a positive application should not be made by the bureau. Orders of this nature represent an interference with the employment of property rights and therefore should always be subject to judicial authorisation, save for cases of real urgency.

As stated at the outset, our submission also makes observations on matters related to the amendment of section 4, the appointment of a receiver and the sharing of information. We will be happy to address any questions members of the committee may have arising from all aspects of our submission in due course.