Michael McDowell (Dublin South East, Progressive Democrats)

When I saw this amendment I had sympathy with the view expressed as the same question occurred to me. My Department considered this originally when the Bill was being drafted. The strong advice from the Attorney General and the Garda Síochána was to the effect that they did not want the proceeds of crime orders to be put into a criminal context. The reason for this is that the philosophical underpinnings for our CAB procedures operate very much on the basis that a criminal conviction or process is not part and parcel of the confiscation of the proceeds of crime in Ireland.

There are confiscation orders in many European countries which follow from criminal convictions. However, what is unique about the Irish model is that the Supreme Court has held that a conviction is not a necessary precondition for these kind of orders or proof of criminal activity to a criminal standard of proof is unnecessary because, in effect, somebody in the possession of the proceeds of crime is a person who does not have lawful possession of them or have property rights to them. Therefore, to deprive them of control of those assets is not to punish them in any way. This philosophical distinction is crucial to the constitutional integrity of what the Criminal Assets Bureau does.

The Department had the same thought on the issue as did Senator Tuffy and her colleagues, but we were warned away from it by the Attorney General and the Garda, who did not want the two concepts mixed together.