Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

Twenty years ago, when a fearless journalist told the truth about vicious gangsters and paid for it with her life, these Houses, the Government and the agencies of the State responded swiftly, effectively and in a spirit of unity. Veronica Guerin's murder by ruthless men marked a very dark hour in the life of this country, an enduring loss for her family and friends and an important turning point in the fight against crime. Six weeks after her murder, the Proceeds of Crime Act 1996 was enacted and two months after that the Criminal Assets Bureau Act was passed. In doing that, these Houses developed an innovative model for depriving gangsters and murderers of the proceeds of their crimes.

The Irish model is one that has been studied and copied by some countries, and envied by many that have not done so. In the intervening period, the Criminal Assets Bureau, CAB, has retrieved hundreds of millions of euro in proceeds of crime, unpaid taxes and fraudulently obtained welfare payments. It has been so successful that it has driven some gang leaders overseas, leaving only their accomplices here to run their day-to-day drugs businesses. We have now reached another turning point. Those subordinates of the offshore drug barons have brought murder to our streets in an appalling way in recent months. We must respond, and we are doing that. We, as the State, the Parliament, the Government, law enforcement agencies and communities, will stand together to face down those who would put themselves above the law and above the lives of others. Their motivation is greed for wealth, and we will do all we can to deprive them of their wealth.

I and my officials met the Garda Commissioner, the chief of the Criminal Assets Bureau and other senior officers to examine what further measures could be taken to pressurise and deal with the lower-level gang activity taking place. Five weeks ago, I secured the agreement of the Government to a package of measures to increase the pressure on organised criminals. That package includes the establishment of a special crime task force by the Garda Síochána, in co-operation with the Revenue Commissioners and the Department of Social Protection. The task force will focus relentlessly on persons involved in gangland activities.The Government has consistently made it clear that we will fund whatever measures are needed for An Garda Síochána to best tackle the critical and unprecedented challenges it faces. We have backed up these assurances with the recent approval of substantial additional funding of some €55 million for An Garda Síochána.

We need to invest the Garda and the CAB with the right legislative powers. There is already in place a wide range of strong legislative measures to deal with gangland activities. These measures include the Criminal Justice (Amendment) Act 2009 which brought forward provisions to respond to the reality of intimidation by criminal gangs; the Criminal Justice (Surveillance) Act 2009; the Criminal Justice (Miscellaneous Provisions) Act 2009 which addressed the use of weapons; the Criminal Justice (Mutual Assistance) Act 2008 to enhance international co-operation which is essential in the fight against organised crime gangs; and the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010. Therefore, we have a range of criminal justice legislative provisions in place.

I am introducing proposals to enhance and update the legislative framework for the lawful interception of communications and covert electronic surveillance to combat the threats from serious and organised crime and terrorism. We discussed this issue at the Cabinet today. Ireland is one of the few countries in Europe that cannot respond to warrants from other countries in this area because of the lack of legislation.

In the shorter term the prescribed sum under section 38 of the Criminal Justice Act 1994, under which cash suspected of being the proceeds of crime may be seized by gardaí or Revenue officers, will be reduced from €6,500 to €1,000 by way of section 44 regulations. The necessary motion for the approval by the Dáil of these regulations will be debated tomorrow evening. The approval of this House will be sought shortly afterwards.

The other key immediate legislative change is this Bill. At the Government meeting its drafting was approved as a matter of urgency. It has been crafted quickly but very carefully to provide additional powers for the CAB to target the proceeds of crime. We are very conscious of the balances that have to be maintained in the legislation. We have had several challenges during the years to the CAB legislation, each of which the State has won.

At present, the CAB has no power under the Proceeds of Crime Act to seize and detain the proceeds of crime without making an application to the court. Section 2 of the Proceeds of Crime Act 1996 allows for it to make an ex parteapplication to the High Court for an interim order. An interim order can prohibit any person from disposing of or dealing with any property if the court is satisfied that it constitutes the proceeds of crime. To seek such an order, the CAB must have marshalled all of the relevant evidence and be in a position to establish that the property derives from criminal conduct. Given the level of scrutiny applied by the court to such an application, particularly as it is an ex parte application where only the applicant is heard by the court, this is a challenging task for the CAB. The new power will now allow CAB officers to move quickly to seize property and they will have 21 days to prepare their court application.

The Bill will also allow gang members to be targeted by reducing the threshold that applies under the Proceeds of Crime Act 1996 from €13,000 to €5,000. The Bill is being brought forward as an urgent measure in order that these changes will be available to the CAB without delay. Senators may have other proposals for reform, but I ask that such proposals not delay unduly the rapid passage of the Bill and instead be considered as part of the wider review of the proceeds of crime legislation which can deliver further reforms in the medium term.

The Proceeds of Crime Act 1996 operates as civil law. The applications made under it to the High Court rely on the civil standard of proof - the balance of probabilities. It operates, as the legal experts say, in rem, not in personam, to target property, not persons. No finding is made as to the guilt of a person, as happens in a criminal trial; rather, a finding is made on whether the property is the proceeds of crime. Provision is made for the belief of a Garda chief superintendent to be admitted as evidence. The Act allows for an interlocutory order to be made where the court is satisfied on the evidence from the CAB that property is the proceeds of crime and, to an extent, shifts the onus to the respondent to disprove the case. The Act contains no criminal offences and no penal sanctions.

Early on in its operation, the civil status of the Act was considered in litigation. In the Murphy v.G. M. and Gilligan v. CAB cases the then Chief Justice, Mr. Justice Keane, noted that the legislation was "unquestionably draconian" and then addressed the key point of whether proceedings under the Act were civil or criminal in nature. Following an extensive review of the case law on the factors that differentiated between criminal and civil actions, he found the appellants had failed to establish that the Act amounted to criminal proceedings. It is possible to maintain the special provisions of the Act because they amount to civil proceedings. Any addition to the Act, therefore, must not tip the balance of the Act in order that they become criminal proceedings. It is for that reason that I want to emphasise the care which has been taken to ensure the Bill is not only constitutionally sound but also sustainable in the special civil context of the Proceeds of Crime (Amendment) Act. The Attorney General has not only reviewed its provisions but has also had external senior counsel consider it twice, first when the scheme was being developed and again when the final draft was prepared. The chief bureau officer and the bureau legal officer were consulted on a number of occasions by my officials as the Bill was developed to ensure all their knowledge, experience and expertise were brought to bear. Even with all that care, there are some minor textual errors in the Bill that need to be corrected on Committee Stage. That is the other key reason I ask that more extensive proposals for change be considered as part of the wider review of the proceeds of crime legislation which can deliver further reforms in the medium term. I would like all such proposals to undergo the same rigorous checking by my officials and the Office of the Attorney General and the CAB to be consulted on them.

The proceeds of crime legislation has served us very well. When one examines annual reports showing the detail on proceeds of crime and the amounts involved over the years, one notes the success of the CAB. Many other countries want to copy our model and others are very impressed by the way it has operated. It has served us well and been important in dealing with criminal activity. It has been tested time and again in the courts. We must be sure changes to this carefully honed legislative tool do not blunt or break it in any way. It is important for the State to have this legislation in place and be able to use it effectively, given the challenges An Garda faces nationally and internationally from criminals.

Let me turn to the details of the Bill. Its Long Title indicates that it is to amend the Proceeds of Crime Act 1996. Section 1 defines the "Principal Act" as being the 1996 Act.

Section 2 contains two definitions.

Section 3 inserts three new sections providing for the administrative seizure and detention of property other than land by the Criminal Assets Bureau, applications to the court and compensation.

The new section 1A allows a bureau officer who is in a public place or any other place in which he or she is permitted to be to seize any property he or she has reasonable grounds for suspecting to be the proceeds of crime. It is intended to provide for seizure of the suspected proceeds of crime, both where the property is discovered opportunistically as part of general CAB operations or as part of a focused operation targeting particular suspected proceeds. The bureau officer must have reasonable grounds for suspecting that the property, in whole or in part and directly or indirectly, constitutes the proceeds of crime and is of a total value of not less than €5,000. Once these criteria are met, the bureau officer may seize and detain the property for up to 24 hours. This represents a serious interference with the property rights and potentially other rights of individuals; hence the need to limit the period in which it can have effect. Any further detention beyond 24 hours must meet the additional criteria set out in subsection (2). The chief bureau officer, the head of the bureau, can authorise the further detention of the property for up to 21 days if the criteria included in paragraphs (a), (b), (c) and (d) are cumulatively met.The whole purpose of the section is evident in paragraph (c). It is to allow CAB time to prepare for an interim or interlocutory application to the High Court.

Subsection (3) requires that the chief bureau officer give written notice to all affected persons unless satisfied that it is not reasonably possible to attain their whereabouts. The notice shall include the reasons for the authorisation and inform them of their right to make an application under section 1B. Subsection (5) allows details, the disclosure of which might prejudice the investigation, to be withheld. I will table a Committee Stage amendment to correct a small error here. The section currently refers to a "direction" but should read "authorisation".

The new section 1B provides protections for affected persons by allowing them to apply to the court to vary or revoke an authorisation made by the chief bureau officer under section 1A. The court can vary or revoke the authorisation if satisfied that any one of the criteria outlined in paragraphs (a), (b), (c) or (d), to which I have referred, is not met. The word "not" will have to be inserted in paragraph (b) before the words "less than €5,000", and there will be a Committee Stage amendment to that effect.

The new section 1C provides for an application for compensation for losses incurred by the owner of the property if CAB fails to apply for or obtain an interim or interlocutory order from the court. I will table a minor amendment to section 1C to clarify that a compensation application can be made where such an order is not sought before the expiration of the authorisation.

Sections 4, 5, and 6 amend the relevant provisions of the principal Act to reduce the threshold value of the property from €13,000 to €5,000.

Section 7 provides the Short Title and relevant citations and a standard commencement provision.

I reiterate that we will face down the current threat posed by criminal gangs and will do whatever is necessary to ensure that nobody is above the law. I think Senators will agree that An Garda Síochána has done some great work in dealing with the current situation. This legislation aims to help this work and follows on from detailed discussion and consultation with people dealing with these issues on the front line day in, day out. They have shown absolute determination and resolve in the face of what I think Senators would agree is unprecedented ruthlessness from the gangs. I want to make it clear once again that there will be no let-up in the pressure that will be put on these criminal gangs and the actions that will be taken by An Garda Síochána, the relevant authorities, to deal with the threat that they pose. The gangs are involved in a cycle of revenge and retaliation, the consequences of which we have all seen. Their outrageous actions are in very sharp contrast to the dignity that we have seen in local communities in the face of the threat that they pose. The communities have the right to live safely and securely. All sides of both Houses came together as one 20 years ago to reject the violence, greed and indifference to human suffering that we saw in the leaders of the drug gangs. I hope we can do so again today.