Aodhán Ó Ríordáin (Dublin North Central, Labour) | Oireachtas source

On behalf of the Minister for Justice and Equality, I welcome the opportunity to respond to the Proceeds of Crime (Amendment) Bill 2014, introduced by my colleague, Deputy Eamonn Maloney, and commend him on the work he has put into this measure. Unfortunately, the Minster for Justice and Equality cannot be here today to address the House due to a prior engagement elsewhere. As Deputy Maloney has said, I am delighted to make a contribution because of my recent appointment as Minister of State with responsibility for the national drugs strategy, which has a great connection with this area.

It is right to acknowledge the work of the Criminal Assets Bureau, as has already been mentioned. The bureau has been at the forefront of the fight against organised crime in this jurisdiction since its inception in 1996. The significant successes that the bureau achieves through its operations demonstrate the effectiveness of the approach we have taken to pursuing illegally gotten gains, and the bureau has served us well.

The Bill before us, while short and succinct, proposes a very significant change to what is a core feature of the non-conviction-based model for confiscation of the proceeds of crime, as set out in the Proceeds of Crime Acts 1996 and 2005. The principle of what the Deputy proposes - that is, a reduction in the statutory freezing period contained in that legislation - is a matter that is currently under review. This work is being undertaken in the context of a broader body of work which is reviewing proceeds of crime legislation in view of a number of matters, including the experience of the Criminal Assets Bureau, relevant court judgments and developments at national and international level in the law pertaining to the proceeds of crime and related matters.

As the general thrust of Deputy Maloney's proposal is under consideration, the Government will not be opposing the Bill's reading on Second Stage. However, the House will appreciate that while the focus of this Bill is very narrow, the affected provisions are key to the confiscation model contained in the legislation and are of significant import. It is therefore considered wise not to deal with the Deputy's proposal in isolation from the broader review which is under way and which will examine the legislative scheme in its totality. I will return to this. A court, in assessing the validity of our proceeds of crime provisions, could be expected to look at those provisions in their totality, so clearly the proposal represented by this Bill cannot be looked at in isolation.

I will now turn to the main provisions of the Bill. It proposes to substitute a statutory timeframe of two years for the current seven-year statutory timeframe contained in section 4 of the Proceeds of Crime Act and referenced in section 4(a) of that Act. Under the Proceeds of Crime Act 1996, where a court is satisfied that a property represents the proceeds of crime, it may make an interim order ex parte, followed by an interlocutory order on notice, freezing the property identified as proceeds of crime. If the respondent, who is the person in possession or control of the property, or any other person claiming ownership, is able to prove that the property does not represent proceeds of crime, then the interlocutory order may be varied or discharged as appropriate. If, at the end of the period of seven years, the respondent has not been able to prove to the satisfaction of the court that the property does not represent proceeds of crime, then a disposal order under section 4 may be made and the title to the property passes to the State. The Proceeds of Crime (Amendment) Act 2005 subsequently introduced a new section 4(a), which provides for a consent disposal order. Section 4(a) allows for the seven-year period to be reduced with the consent of all parties involved.

The Minister welcomes the debate today while having due regard to the overall context and background to the proceeds of crime legislation. The House will appreciate that traditionally our approach to tackling criminal behaviour is to bring the perpetrators of crime to justice under our criminal law and to allow for the imposition of criminal sanctions and penalties on those convicted of crime. A more recent feature of our approach has been the establishment of well-developed systems for confiscation of the proceeds of crime. It is through divesting those involved in criminal conduct of their illicit gains that we seek to disrupt and dismantle criminal enterprises and prevent the possible future reuse of illicit funds for criminal purposes.

The non-conviction-based model for confiscation of the proceeds of crime, which is the model affected by the proposed Bill, was introduced into the Irish legal system through the provisions of the Proceeds of Crime Act 1996. The proceeds of crime legislation was introduced by the State as a proportional and legitimate response, in the interests of the common good, to the serious organised crime situation that had developed at that time, particularly the growth of organised crime gangs and the emergence of gang leaders and associates who ensured that they remained at a distance from the actual commission of offences, but who had most to gain from those activities.

The Minister for Justice and Equality is of the view that it is important to emphasise in this regard that the primary purpose of the proceeds of crime legislation is not to enrich the Exchequer with expropriated property but to freeze proceeds of crime to deprive those concerned of the benefits of criminal proceeds. The provisions of the 1996 Act were considered very novel at the time of their introduction; therefore, particular attention was paid to ensuring that the provisions met with the rigorous standards of the Constitution. It is worth recalling a number of the key concepts and features of the model. While traditional conviction-based models act in personam against a convicted person, the Irish non-conviction based model acts in rem on the property that constitutes the proceeds of crime. It applies civil law rather than criminal law concepts. Therefore, with regard to matters of evidence, it is the civil law standard that applies - that is, on the balance of probabilities, rather than the criminal standard of beyond reasonable doubt. The regime provided by the proceeds of crime legislation is not considered punitive or criminal in nature. The respondent is not necessarily suspected of the crime from which the proceeds have derived, and the State does not need to show a link between the person in whose possession the assets are seized and the crime. The effect of the order is solely to deprive the holder of the beneficial enjoyment of the property in question.

In considering the legislative model, it is important to note that the legislation provides for a number of very important safeguards such as notice provisions, the opportunity for a respondent to seek to vary an order, the opportunity for any persons claiming ownership to be heard, provision for legal aid, provision for compensation, etc. These safeguards are vital in ensuring that the system is fair and that the model is not unduly oppressive in effect. It is also worth recalling that since its introduction, the proceeds of crime legislation has been the subject of a number of challenges with regard to the question of whether it meets the standards of fundamental rights and protections enshrined in the Constitution of Ireland and the European Convention on Human Rights.

There has been good reason for approaching with caution the seven year timeframe other than on the basis of consent to disposal. Principal concerns in this regard relate to the potential for any reduction in the statutory timeframe to give succour to an argument that the legislative scheme set out in the Proceeds of Crime Acts is penal or criminal in nature and-or that the scheme does not take due account of potential third party interests.

The most constant criticism of the legislation since its introduction has been that it penalises individuals without the individual affected being convicted of an offence or that it is penal in nature. A reduction of the period between the interlocutory order and the disposal order might render the legislation more open to challenge on the grounds that it is a penal confiscation without due process. The shorter the period before the forfeiture stage, the greater the chance that the forfeiture might be deemed penal. Also, while a period of seven years does not overcome all the relevant periods under the Statute of Limitations, it addresses the majority of them.

The period of seven years was therefore carefully selected at the time as a desirable time span during which contractual claims could be defeated. It is also significant that the current seven year statutory period fits within a scheme of protections for the person from whom assets are taken, and for third parties. Therefore it is important that consideration of any amending proposal take place within the context of a comprehensive review which would take into account whether, for example, these protections need to be adjusted. It is important that any changes to the statutory timeframe of seven years are not made in isolation which may have the effect of upsetting the overall legislative framework.

Following consultation with the Office of the Attorney General, the Minister, while sympathetic to the thinking behind Deputy Maloney's proposal, fears it is incomplete in that it only deals with the narrow issue of the statutory timeframe, outside of a comprehensive review of the legislation which would have regard to the totality of the legislative scheme.

An expert group established under the auspices of the Department of Justice and Equality has been engaged in a comprehensive review of the proceeds of crime legislation with a view to identifying possible improvements which would serve to strengthen the operation of the Criminal Assets Bureau. A number of matters are being reviewed by the group, including decreasing the amount of time which must elapse before criminal assets which have been frozen become the property of the State. When the work of the expert group concludes proposals will in due course be brought forward for inclusion in the proceeds of crime (amendment) Bill which is included in the Government's legislative programme.

The Minister has asked me to assure the House that Deputy Maloney's proposal will be considered in the context of the overall review of the proceeds of crime legislation which is under way and any emerging proposals will be contained in the proposed proceeds of crime (amendment) Bill.

I thank Deputy Maloney again for introducing the Bill. While there is agreement that the matter raised merits consideration it would be wise for such consideration to take place within a broader review of the legislation.

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