Dáil debates

Thursday, 16 December 2021

Proceeds of Crime (Gross Human Rights Abuses) Bill 2020: Second Stage [Private Members]


4:45 pm

Photo of James BrowneJames Browne (Wexford, Fianna Fail) | Oireachtas source

As this is the last debate of the term, I thank the Ceann Comhairle and wish him a happy Christmas. I also wish the staff of the Houses a happy Christmas. We recognise the hard work a lot of people have done during the Covid period but we must recognise the contribution of the staff in the Houses to keeping both the Dáil and the Seanad going through that entire time. I also want to wish a happy Christmas to our front-line staff. In particular, I want to mention the staff under my own Department including An Garda Síochána, the Irish Prison Service, the Probation Service, the youth justice workers, the board of management unit and immigration staff who all kept going during Covid, who are continuing to work and will do so over the Christmas period. I also want to recognise the NGOs that have done a huge amount of work during Covid and will also continue to work over the Christmas period.

I thank Deputy Howlin for introducing this Bill. He and Deputy Bacik have raised this issue on a number of occasions in both Houses. I acknowledge that Deputy Howlin, throughout his entire career, has raised and championed human rights, progressive legislation and policies. I was reminded earlier that today is the anniversary of Deputy Howlin entering electoral politics. I will not say which anniversary but he has a very proud record in that period of time in this House and in County Wexford.

The Bill proposes that conduct which occurs outside the State and which is both a gross human rights abuse and an offence under Irish law will be considered criminal conduct for the purposes of the Proceeds of Crime Act, regardless of whether it is an offence in the other state. There are clearly complex legal and practical issues underpinning the debate; and the limits of extra­territorial jurisdiction and the need for a dual criminality test are particularly technical. Perhaps more significantly for this debate, important developments in relation to sanctions at an EU level occurred after the Deputy published his Bill. While these sanctions are primarily a matter for my colleague, the Minister for Foreign Affairs, Deputy Coveney, I will speak briefly on them as they are relevant to the current proposal.

The complexity of the area should not take away from the principle that Ireland must not be a safe haven for illicit gains. That principle applies as much to the proceeds of corruption and abuses of power as it does to other forms of organised criminal activity. We have a particular responsibility as an international financial centre and we cannot allow weaknesses in the legal protection of human rights in other states to enable the shielding of property in this jurisdiction when it is, by any reasonable standard, the proceeds of crime. While I will mention issues that need to be addressed, I acknowledge the shared goals and principles motivating the Bill and the Government will not be opposing it at Second Stage.

The Deputy rightly referred to Sergei Magnitsky, a Russian tax adviser who alleged fraud involving corrupt officials. He was imprisoned and died in prison in 2009 after being severely beaten and denied access to medical treatment. In response, the US introduced the original Magnitsky laws in 2012 to target those responsible. It extended these significantly in the Global Magnitsky Human Rights Accountability Act of 2016, which allowed sanctions to be imposed on government officials implicated in human rights abuses globally. These measures sent an important signal that perpetrators of gross human rights violations will face real, immediate and personal consequences.

Other countries have followed suit and critically, after extensive negotiations, the EU agreed a global human rights sanctions regime in December 2020. This new regime marked an important extension of the existing country by-country measures, shifting towards thematic sanctions on both state and non-state actors. They provide for freezing of the assets of individuals and corporate entities and for a travel ban applying to individuals. These measures may be imposed on those responsible for, involved in or associated with, serious human rights violations and abuses worldwide no matter where they occur. These sanctions apply to acts such as genocide, crimes against humanity and other serious human rights violations or abuses including torture, slavery, extrajudicial killings, arbitrary arrests or detentions. Other human rights violations or abuses can also fall under the scope of the regime where those violations or abuses are widespread, systematic or are otherwise of serious concern as regards the objectives of the EU common foreign and security policy.

The regime is implemented through directly applicable EU instruments and does not require state-by­state actions each time sanctions are imposed. All natural and legal persons across the EU are required to comply with them, as with all EU sanctions. The Departments of Foreign Affairs and Enterprise, Trade and Employment provide further information and are the national competent authorities. For financial services institutions, the Central Bank provides regular updates to providers on sanctions development and their obligations thereunder and may take enforcement action where necessary. The Deputy's proposal approaches these issues from a different direction and would amend the Proceeds of Crime Act 1996, following similar lines to the UK in its 2017 Criminal Finances Act.

The confiscation of the proceeds or instrumentalities of crime on the basis of a conviction is well established both in this State and internationally. Following a conviction by a court, there are extensive confiscation powers under the Criminal Justice Act 1994 and further specific powers under drug trafficking and terrorist offences legislation.

The important innovation under the 1996 Act was that it applied to the civil non-conviction based model. Confiscation under the Act is based on the property being the proceeds of crime rather than being an action against the person from whom the property is confiscated on the basis of an offence. The person in possession of criminal proceeds is not necessarily a suspect in relation to the crime from which the proceeds have derived and the State does not need to show a link between the person holding the assets and the crime.

The most important body in relation to the Act is the Criminal Assets Bureau, CAB. CAB’s remit is to target a person's assets, wherever situated, that derive or are suspected to derive directly or indirectly from criminal conduct. The bureau is widely regarded as a best practice model in the context of combating organized crime and a world leader in asset investigations, tracing and forfeiture. It works closely with law enforcement bodies at national and international level to pursue the illicit proceeds of organised crime activity. I would caution that CAB, or indeed any agency, would face practical challenges pursuing assets in the situations the Bill envisages. Critical evidence is likely to be in the other tate, and the co-operation of the law enforcement authorities in that State may not be forthcoming. CAB quite correctly prioritises its resources towards organised crime within the State, and any change in that prioritisation would require further consideration.

The proceeds of crime legislation, as first enacted, did not directly provide for extraterritoriality. However, from the outset, courts have adopted a view that proceeds of crimes committed abroad may be in scope, and in 2005, the Act was amended explicitly to address these situations. This also clarified the double criminality requirement the Bill proposes to amend.

However, these questions are challenging in the context of civil, non-confiscation based seizure. While conviction-based confiscation is widespread and uncontroversial internationally, non-conviction based models are not yet as commonly adopted, albeit this is changing and more and more countries are seeing the benefits of such systems.

More broadly, I would argue that targeting gross human rights abuses demands a cohesive and consistent international approach and that the sanctions measures adopted by the EU should be considered a primary tool. They operate automatically against those identified, and have greater immediacy, reach and effect than changes to the proceeds of crime legislation.

However, I recognise that the approach to extraterritoriality in the 1996 Act should be examined further in light of legal developments, and that the Deputy's Bill is a valuable contribution to that process and will be explored further. My Department has been giving extensive consideration to the Proceeds of Crime Act and the powers of the Criminal Assets Bureau. Based this work, I expect a general scheme proposing amendments to the Act will be brought to the Government next year. The Department would be very happy to engage with the Deputy further as it progresses. The key thing here is to get what the Deputy envisages enacted in one form or another.


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