Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

I move: "That the Bill be now read a Second Time."

The Criminal Assets Bureau, CAB, 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.  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.  The CAB has retrieved hundreds of millions of euro 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.

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, the Government and Parliament 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, civilisation, 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.

This Bill 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's north inner city in recent weeks to hear their concerns about the broader socioeconomic issues affecting the area.  The community representatives were very appreciative of the visible Garda presence in the area and sought reassurance about continuing resources for local policing, particularly community policing in the longer term. Other concerns raised related to tackling the scourge of drugs, including the 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 socioeconomic and community development issues in the north inner city. The outcome of those meetings helped inform the preparatory work on the proposed task force and we are determined to make progress on this in the near future. Of course, there are lessons for other areas as well in terms of dealing with similar issues.

Five weeks ago I secured the agreement of the Government to a package of measures to increase the pressure on organised criminals. The package includes the establishment of a special crime task force by An Garda Síochána which will have an ongoing and relentless focus on persons involved in gangland activities. The Government is committed to funding whatever measures are needed for An Garda Síochána to best tackle the critical and unprecedented challenges it faces and has recently approved additional funding of some €55 million for An Garda Síochána.

There is already a wide range of strong legislation in place to deal with gangland activities. Deputies will be familiar with the Criminal Justice (Amendment) Act 2009 which brought forward provisions to respond to the reality of intimidation by criminal gangs; the Criminal Justice (Surveillance) Act 2009 which provided for covert surveillance; the Criminal Justice (Miscellaneous Provisions) Act 2009 which addressed the use of weapons; the Criminal Justice (Mutual Assistance) Act 2008 which was brought forward to enhance international co-operation; and the very important Criminal Justice (Money Laundering and Terrorist Financing) Act 2010. We now need new legislation focused, in particular, on the criminal proceeds held by gang members locally. Last week the House approved the reduction from €6,500 to €1,000 of the prescribed sum under section 38, under which cash suspected of being the proceeds of crime may be seized by gardaí or Revenue officers. The Bill which has been developed following consultation with the Garda Commissioner and the Chief Bureau Officer will help to improve the legislative powers we have available and gardaí on the front line. The Government approved the drafting of the Bill as a matter of urgency and I thank Members across the House and in the Seanad for their support for it.

The Bill has been quickly but carefully crafted to provide additional powers for the Criminal Assets Bureau, CAB, to target the proceeds of crime. The CAB has no power under the Proceeds of Crime Act to seize and detain the proceeds of crime without making an application to court. When we met members of the CAB and the Garda, they made this point and said they needed something stronger to deal with the issue. Section 2 of the Proceeds of Crime Act 1996 allows for the CAB to make an ex parteapplication to the High Court for an interim order which can prohibit any person from disposing of or dealing with any property if the court is satisfied it constitutes the proceeds of crime. To seek such an order, the CAB must have marshalled all of the relevant evidence and be in position to establish that the property derives from criminal conduct. Given the level of scrutiny applied by the court to such an application, particularly as it is an ex parteapplication where only the applicant is heard by the court, this is a challenging task for the CAB. The new power will allow CAB officers to move quickly to seize property and they will 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 in order that these changes will be available to the CAB without delay. While Deputies may have other proposals for reform, I ask that such proposals not delay the rapid passage of the Bill but be considered as part of the wider review of the proceeds of crime legislation which can deliver further reforms in the medium term.

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, that is, the balance of probabilities. As the lawyers say, it operates in rem, not in personam, to target property, not persons. No finding is made on the guilt of a person, as happens in a criminal trial. Instead, a finding is made on 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 the 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 Murphy v. G. M. and Gilligan v. CAB the then Chief Justice, Mr. Justice Keane, noted that the legislation was "unquestionably draconian" and then addressed the key point of whether proceedings under the Act were civil or criminal in nature. Following an extensive review of the case law on the factors which differentiated criminal and civil actions, he found that the appellants had failed to establish that the Act amounted to criminal proceedings. It is possible to maintain the special provisions of the Act because they amount to civil proceedings. Any addition to the Act, therefore, must not tip the balance of the Act in order that they become criminal proceedings. It is for that reason that I emphasise the care which has been taken to ensure the Bill is not only constitutionally sound but 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 also had external senior counsel consider it twice, first when the scheme was being developed and then when the final draft was being prepared. The Chief Bureau Officer and the bureau legal officer were also consulted on a number of occasions by my officials. I thank them for the urgent work they have done on the Bill. We consulted them to ensure their knowledge, experience and expertise would be brought to bear.

This is the other key reason I ask that more extensive proposals for change be considered as part of the wider review of 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 the CAB to be consulted on them. The Proceeds of Crime Act has served us well for 20 years and been tested time and again in the courts. We want to be sure changes to what is carefully honed legislation do not blunt or break it in any way.

Let me turn to the provisions of the Bill. The first sections deal with various definitions. Section 3 inserts new sections which provide for the administrative seizure and detention of property.

The new section 1A allows for the fact that, if a bureau officer is in a public or any other place, he or she is permitted to seize any property he or she has reasonable grounds for suspecting is the proceeds of crime. It is intended to provide for the seizure of the suspected proceeds of crime, both where the property is discovered opportunistically as part of general CAB operations and 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 the 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 in which it can have effect. Any further detention beyond 24 hours must meet the additional criteria set out in subsection (2) which allows the Chief Bureau Officer to authorise the further detention of the property for up to 21 days if the criteria outlined in paragraphs (a), (b), (c) and (d) are cumulatively met. The key purpose of the entire section is evident in paragraph (c) which is to allow the CAB time to prepare an interim or interlocutory application to the High Court. Subsection (3) requires the Chief Bureau Officer to give written notice to all affected persons unless he or she is satisfied that it is not reasonably possible to attain their whereabouts. The notice has to include the reasons for the authorisation and inform the person 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.

The new section 1B outlines the protections for affected persons by allowing them to apply to the courts to vary or revoke an authorisation. The new section 1C provides for an application for compensation for losses incurred by the owner of a property if the CAB fails to apply for or obtain an interim order from the court. The Bill then outlines the relevant provisions which reduce the value of the property involved from €13,000 to €5,000.

The 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 sent from these Houses 20 years ago. The Criminal Assets Bureau carries that message in a practical way to those involved in organised crime by taking their illgotten property from them. I hope that today we can further equip the CAB for the new challenges it faces every day. I commend the Bill to the House.

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