David Stanton (Cork East, Fine Gael) | Oireachtas source

I thank the Senator. I appreciate the motivation behind the proposed amendment, which is well-intentioned. It would be great if CAB could deprive criminals of the proceeds of crime without delay. However, Senators will recall that the Minister in her Second Stage speech emphasised the critical balance of the Proceeds of Crime Act, which operates a as a piece of civil law. The Supreme Court has found the Act does not amount to criminal proceedings. The special provisions of the Act are possible to maintain because they amount to civil proceedings. Any additions to the Act, therefore, must not tip the balance of the Act so that they become criminal proceedings.

It is for that reason that I want to emphasise the care that has been taken to ensure this Bill is not only constitutionally sound but is also sustainable in the special civil context of the Proceeds of Crime Act. The Attorney General's advice has been sought on the proposal to reduce the waiting period for a disposal order from seven years on a number of occasions over the years. In 1999 and in 2003 the then Attorneys General advised against the reduction of the seven-year period. The Senator will recall that former Chief Justice Keane described the Act as "unquestionably draconian". The seven-year period has been seen as an important counterbalance to the Act's draconian nature and one that prevents it from being seen as a penal measure. The advice of the Attorney General has been sought once again in the context of the current Bill and the proposed amendment. I am advised that in the absence of a clearly demonstrated need for and justification of a reduction to four years, it is too risky to do so as it would jeopardise the proportionality of the legislation.

As was said on Second Stage, the Proceeds of Crime Act has served us well for 20 years. It has been tested again and again in the courts. We must be sure that any changes to this carefully honed legislative tool do not blunt or break it. I would, therefore, ask the Senator not to press the amendment.

In addition to that fundamental point about the proportionality of the Act overall, there are practical questions concerning how such a reduction in the period would apply to existing cases and what transitional provisions might be required.If I have not convinced Senators of the risks inherent in reducing the waiting period, I would at least ask that they not press the amendment today but pursue the question as part of the medium-term review of the legislation.