Brian Lenihan Jnr (Dublin West, Fianna Fail)

This is an important amendment that was referred to on Second Stage last week, when notice was given of inclusion of two additional provisions relating to hearsay evidence in the context of admissibility documents and a corrupt enrichment provision. The hearsay provision is contained in the new section 16A of the principal Act. As outlined on Second Stage, the need for the provision on hearsay evidence has arisen following a decision of the Supreme Court in the Criminal Assets Bureau v. Hunt case, delivered on 28 February 2003. In that case the court took the view that the reference at the end of section 8(5) of the 1996 Act to information, documents or other material obtained by bureau officers being admissible in future proceedings did not bypass the rules of evidence but merely allowed such documents to be admitted in accordance with the usual rules, notwithstanding their origin.

The decision obliges the Criminal Assets Bureau to prove bank records by means of the bankers' books evidence legislation, business and administrative records and transactions in land and other property by means of oral evidence, thereby adding a considerable administrative burden to its workload in preparing cases for court. The bureau has expressed concerns about the added administrative burden in proving large volumes of business and administrative records and transactions in land and other property arising from that decision.

The proposed amendment will be restricted only to proceeds of crime cases under the remit of the bureau. Due to the manner in which the provision is worded to refer to documents that are admissible, the measures available to both applicant and respondent or a third party who might make an application under the Act.

Subsection (1) sets out that certain documents are to be admissible in any proceedings where evidence of any fact of which direct oral evidence would be admissible without further proof. The documents concerned are a document which consists of a 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 designated document or documents constitute the record, or part of the record, 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 such matters, provided that in both those instances the person has knowledge of those matters.

Subsection (2) contains an important safeguard that 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 to be admitted. Subsection (3) provides that the section is without prejudice to any other enactments and rules of law which authorise documentary evidence. Subsection (4) sets out certain necessary definitions of the expressions "business", "deed", "document", "public authority" and "records".

The amendment should facilitate the admissibility in evidence of large volumes of records which are generally of a routine nature and which are not in dispute between the parties. Provisions allowing for the relaxation of the ban on hearsay on documentary records are common in legislation and often essential to make the documents admissible before the court in the absence of their makers or persons who kept them. It is onerous to require for every document that the person who either made or kept the document to prove the continuity of possession of a document in a case involving a multiplicity of documents. The essential safeguard is inserted that the court has the important residual discretion not to admit a document where the interests of justice so require. Where any question arises, the court can refuse to admit the document without better proof of who made it, in the course of what duty and who has kept it since.

The other new section 16B contains a corrupt enrichment order provision. This provision deals with the position where someone by means of a corrupt act is able to benefit from the enhancement of value of property acquired arising from the corrupt act. On Second Stage the example was given of a person who bribes a council official to allow him or her to build 60 rather than 50 houses in a development. This amendment will provide for a procedure to go after the additional profit generated by the bribe by obtaining a corrupt enrichment order against the individual concerned.

Subsection (1) defines the concept of unjust enrichment as meaning that a person who derives 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 Act, the Official Secrets Act and the Ethics in Public Office Act. A definition of property is included.

Subsection (2) provides that where it appears to the court on hearing evidence that a person has been corruptly enriched, the court can make a corrupt enrichment order directing that person 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: that the defendant is in a position to benefit others in exercising his or her official functions, some other person has benefited and the defendant does not account satisfactorily for his or her property or the resources or income from which it is 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 belief that the defendant has derived a specified pecuniary or other advantage or benefit as a result of the corrupt conduct, is in possession or control of property acquired directly or indirectly as a result of or in connection with the corrupt conduct and 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 referred.

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 an 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 trust to this provision of corrupt enrichment. The civil standard of proof is applied to these proceedings and the rules of court applicable to civic proceedings are applied to proceedings under this section. The Minister has a considerable interest in the introduction of a principle of this kind into Irish law and Senators will welcome the provision that puts this matter beyond legal doubt and spells it out in the Statute Book.