Brian Lenihan Jnr (Dublin West, Fianna Fail)

This amendment was introduced in the Seanad on Committee Stage and inserts two new sections into the Proceeds of Crime Act 1996. The new section 16A relates to hearsay evidence in the context of admissibility of documents and the new section 16B is a corrupt enrichment order.

I will deal first with the hearsay provision. The need for the provision on hearsay evidence arises following the decision of the Supreme Court in the Hunt case, that is, the decision of the Criminal Assets Bureau against Hunt delivered on 28 February 2003. In that decision, the court took the view that the reference at the end of section 8(5) of the Criminal Assets Bureau Act 1996 to information, documents or other material obtained by bureau officers being admissible in future proceedings did not by-pass the rules of evidence but merely allowed such documents to be admitted, in accordance with the usual rules, notwithstanding their origin.

The effect of the decision is to oblige the Criminal Assets Bureau to prove bank records by means of the Bankers' Books Evidence Acts 1879 to 1959 and business and administrative records and transactions in relation to land and other property by means of oral evidence, thereby adding a considerable administrative burden to the workload of the bureau in preparing cases for court. The bureau has expressed concern about the added administrative burden in proving large volumes of business and administrative records and transactions in relation to land and other property arising from that decision.

The proposed amendment, which is restricted to proceeds of crime cases under the remit of the bureau, seeks to minimise the administrative burden in cases where there could be large volumes of routine documentary records to be admitted in evidence. It should be noted that the measure is available to both the applicant and the respondent or, indeed, a third party who might make an application under the Act.

I wish to clarify the detail of the provision. Subsection (1) sets out that certain documents are to be admissible in any proceedings as evidence of any fact of which direct oral evidence would be admissible without further proof. The documents concerned include a document which consists of part of a record of a business or a copy of that document, a deed and a document which purports to be signed by a person on behalf of the business and which states that either a designated document or documents constitute the record or part of the records of the business or is a copy or copies of such records or documents, or there is no entry or other reference in the records to the relevant matters, provided that, in both of those instances, the person has knowledge of those matters.

Subsection (2) contains a safeguard provision which sets out that a document is not admissible under subsection (1) if the court is of the opinion that in the interests of justice it ought not be admitted. Subsection (3) provides that the section is without prejudice to any other enactments or rule of law which authorises documentary evidence. Subsection (4) sets out definitions for the terms "business", "deed", "document", "public authority" and "records" which are used in the new section. The overall effect of this amendment is to facilitate the admissibility in evidence of large volumes of records which are generally of a routine nature and are not in dispute between the parties.

The new section 16B contains the new corrupt enrichment order provision which was flagged by the Minister on Committee Stage in this House. The purpose of this provision is to deal with the situation where someone, by means of some corrupt act, is able to benefit from the enhancement of value of property otherwise legally acquired. This amendment will provide for a procedure to go after the additional profit or enrichment generated by a corrupt act by obtaining what is termed a "corrupt enrichment order" against the individual concerned.

Subsection (1) of the provision defines the concept of unjust enrichment as meaning that a person derives a pecuniary or other advantage or benefit as a result of or in connection with "corrupt conduct". "Corrupt conduct" is then defined by reference to the Prevention of Corruption Acts, the Official Secrets Act and the Ethics in Public Office Act. "Property" is defined as money and all other property, real or personal, heritable or moveable, choses in action and other intangible or incorporeal property and includes property outside the State.

Subsection (2) provides that where it appears to the court on hearing evidence that a person has been corruptly enriched, the court may make what is termed a "corrupt enrichment order" which directs the defendant to pay to the Minister for Finance or other person specified by the court an amount equivalent to the amount by which the court determines the person has been enriched.

Subsection (3) provides, until the contrary is shown, for a presumption of corrupt conduct on the part of a defendant when three conditions are fulfilled. These are that the defendant is in a position to benefit others in exercising his or her official functions, that some other person has benefited and that the defendant does not account satisfactorily for his or her property or the resources or income from which it derived. Subsection (4) provides that the court has power to prohibit disposal of or dealing with the property concerned or prevent diminution of its value.

Subsection (5) sets out that the evidence to be furnished to the court by the Criminal Assets Bureau is a statement of its belief that the defendant has derived a specified pecuniary or other advantage or benefit as a result of corrupt conduct, is in possession or control of property acquired directly or indirectly as a result of or in connection with corrupt conduct, or is in possession or control of specified property and that the property was acquired directly or indirectly as a result of or in connection with the property already identified as having been acquired through corrupt conduct. The court must be satisfied there are reasonable grounds for the belief before the statement becomes evidence.

Subsection (6) provides for the court to make an order which directs the defendant to file an affidavit specifying his or her property or income or both and contains a safeguard that such affidavit is not admissible in criminal proceedings against the defendant or his or her spouse, except in perjury proceedings.

Subsection (7) applies the provisions of the new sections 14 to 14C relating to search warrants, orders to make material available, prejudicial disclosure and trusts to this provision of corrupt enrichment. Subsection (8) applies the civil standard of proof to the proceedings and subsection (9) applies the rules of court applicable to civil proceedings to proceedings under the section.

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