Michael McDowell (Dublin South East, Progressive Democrats)

The amendment proposes to insert a new subsection (5) in section 38. The existing subsections (4) to (10) of that section provide that the High Court may issue a freezing order prohibiting any person from dealing with the property of the person to whom the request relates, provided that the High Court is satisfied that the ICC has or is likely to impose a fine, forfeiture or reparation order against the person concerned.

The amendment proposes that when a freezing order is made and proceedings are pending relating to the relief referred to in the definition of realisable property in section 37, the High Court, on the making of the freezing order, must order the discharge of those other proceedings. It effectively proposes that ICC freezing orders will discharge interim or interlocutory orders made under other enactments. However, if the ICC does not impose a fine, or make a forfeiture or reparation order against the person concerned at all, then the opportunity is lost for freezing assets for domestic purposes as the other orders will have been discharged. For example, if the CAB got a freezing order against a person in Ireland and the ICC showed an interest in the same property on the same basis, the effect would be that the CAB's freezing order would be extinguished by the making of an order by the Irish courts. If the ICC decided not to order a fine or reparation, the CAB would have lost its freezing order and, provided it found out in time, would have to rush into court before the person in question could dispose of the property.

I accept the general proposition that it is undesirable to have a number of orders in respect of the same property when they are not all capable of being reconciled but this provision could have a negative effect if it simply extinguishes all domestic freezing orders once the ICC mechanism is triggered. The tidiness intended by the Senator's amendment would come at the expense of the certainty that people would not be able to escape a freezing order simply by reference to an order made by the High Court in favour of the ICC which was later discharged when it was not possible to intervene immediately to re-establish the first order. Effectiveness requires that we allow existing domestic orders to continue in respect of the same property.