Brian Lenihan Jnr (Dublin West, Fianna Fail)

The amendments suggest adding to the definition of criminal conduct a provision to construe criminal conduct as involving conduct irrespective of whether that conduct has resulted in a criminal conviction under both the Criminal Assets Bureau Act 1996 and the Proceeds of Crime Act 1996. Essentially, the Senator is moving these amendments on the basis of putting a matter beyond doubt or for the avoidance of doubt. The Senator's intention is clear enough and has some merit but the basis upon which the 1996 legislation — with which we are dealing here — was founded is well established. As I mentioned earlier, it is not penal or criminal legislation, it is civil legislation. It is a civil forfeiture procedure which seeks to sequester the proceeds of a person's crimes, rather than seeking to obtain a conviction against that person.

In dealing with this Bill it is important to realise that it does not constitute legislation which is part of the penal or criminal code. It is called the Proceeds of Crime (Amendment) Bill but the remedy provided to the Criminal Assets Bureau under its provisions is civil in character. It concerns a civil forfeiture and for that reason, after the matter had been considered in considerable detail, the Minister was advised by the Office of the Attorney General that the references proposed by Senator Cummins's amendments should be avoided in the legislation, lest the balance that exists between civil forfeiture, as against the criminal forfeiture that operates under the Criminal Justice Act 1994, should be upset. It is argued that by clarifying that definition of crime, in the way Senator Cummins understandably advocates, one would upset the balance upon which the legislation proceeds, namely that it is a civil forfeiture procedure.