Wednesday, 13 October 2004
Dáil Eireann Debate
All of us will agree that this Bill, which was published originally in 1999 when it was intended to set up a separate corruption assets bureau, is a continuance of the very valuable proceeds of crime legislation enacted in 1996. A second piece of legislation in 1999 established the Criminal Assets Bureau, which has done sterling work in the fight against crime. They are probably the most effective and influential pieces of legislation that deal with crime, particularly drug barons, in recent times. The legislation originated as a consequence of the assassination of Ms Veronica Guerin, the eminent journalist who reported widely on the activities of criminals, particularly those who were involved in the distribution and sale of drugs, money laundering and so on. The legislation is directed essentially at dealing with those activities and with ill-gotten ills in other fields of criminality. It has been very successful and has resulted in the seizure of significant quantities of drugs from time to time.
When that legislation was debated we received some figures from the Minister for Justice, Equality and Law Reform, Deputy McDowell, who subsequently published a press release in August 2003 giving the up to date situation regarding the amount of money that had been seized. The figures are probably considerably better now but at that time there were figures of €48 million on which there were final orders, €21 million with regard to interlocutory and interim orders and interest demanded was in excess of €71 million with over €46 million collected. In addition, social welfare savings amounted to more than €1.4 million. A considerable amount of money has been seized in one fashion or another. The legislation specified that all seized assets, including money, must be retained or frozen for a period of seven years and could not be disbursed in any manner, to the Exchequer or elsewhere.
Seven years had passed by the end of 2003 so the freezing period has been unfrozen for the first 18 months or thereabouts. This legislation proposes that the seven-year freezing period can be reduced by voluntary agreement. Once this legislation is enacted, a considerable amount of money and assets will accrue to the State from the seizure of the ill-gotten gains of criminals. My amendment proposes that these moneys be ring-fenced for disbursal to the communities from which they have largely been extracted. There are disadvantaged communities all over the country but particularly disadvantaged urban areas in Dublin city, which suffered the hardest hit in terms of heroin and other drug abuse and addiction.
There has been general agreement in all the discussions to date on this legislation and in public statements which have been issued that such an action would be a tremendous morale boost for local communities which have been at the receiving end of criminal activities and where the lives of young people caught up in the web of addiction have spiralled out of control. These communities have witnessed a lot of crime, families have been disrupted and lives have become chaotic. We know there is a shortage of facilities in many areas because the mid-term review of the national drugs task force is being undertaken. I am a member of my local drugs task force in the north inner city and this and other local forces state continuously that the funds have not been coming through from what was promised in the RAPID programme and otherwise to address the projects, programmes, awareness, treatment and rehabilitation needs in those areas. It would be wonderful to be able to say to those communities that there is a serious intent to ensure the money which has been taken out of the communities will be returned through investment in community projects to fight the terrible problem of drug abuse and other disadvantages which afflict them.
The last time we discussed this matter, the Minister for Justice, Equality and Law Reform, Deputy McDowell, said he would speak to the Minister for Finance. I do not know if the Minister for State, Deputy Brian Lenihan, has any knowledge of this. The Minister did not disagree with the points we were making on that occasion. There have been numerous areas in which funding has been ring-fenced, for example, to deal with water charges and with regard to money accruing from betting for the benefit of the horseracing and greyhound industries, a decision which was taken in this session. It is possible to do it. By and large, the Department of Finance throws cold water on the notion of ring-fencing money for particular purposes. It wants all funds to go into its deep maw to be dispersed as it and the Minister for Finance think proper. While that may be good as a general rule, it is not good enough in all circumstances. In emergency circumstances or ones where there is need to take a particular approach, it is quite appropriate to ensure this funding does not go into the Exchequer but is redirected towards communities.
The Government has slipped backwards in terms of its investment in disadvantaged communities and we have lost many community employment schemes, the jobs initiative and various programmes to tackle educational disadvantage. The Breaking the Cycle initiative was only piloted and was not extended in the manner originally planned and local drugs task forces cannot employ people because they do not have a regular budget. They cannot continue their current projects because they do not know whether they will have funding for them. Most projects have been scaled down or jettisoned and do not reach full fruition.
In the final Stages of this legislation I make a final appeal to the Minister to accept amendment No. 1 which is the most important of the amendments I have tabled. Other colleagues have tabled similar amendments. The Minister should take his courage in his hands and agree with us and persuade the Minister for Finance to ring-fence the funding that will come on stream, for injection back into local communities. A portion of the dormant accounts fund has been ring-fenced for particular purposes, so why can the same not be done here? There is nothing against it in principle and it would be an enormous morale boost for the communities. It would convince them that the Government cares and is willing to put its money where its mouth is and provide them with some of the resources they need to fight back, build up their communities, deal with young people at risk and provide needed services. It would restore their confidence that the Government supports them and will provide resources to fight the terrible problem of drug abuse once and for all.
Mr. J. O’Keeffe: The Minister of State should take this opportunity to deal with some general points in his response. Why are we dealing with amendments to the Proceeds of Crime (Amendment) Bill 1999 at this late stage of 2004? When it takes five years for a Bill to meander its way through the arcane processes of the legislative system, the public must look sideways at us and wonder whether we do our job at all. The Minister of State should tell us why this Bill was not given priority and brought to a head over this period.
I have only recently returned to dealing with the justice portfolio, but my eyebrows were raised higher than my hairline when I saw I was faced with a 1999 Bill. I raise this matter in the context that we are discussing a Bill that makes further provision for the recovery and disposal of the proceeds of crime and provides further powers to the CAB. Of all recent developments in the fight against crime, the CAB is worthy of high praise. I am delighted that some fellow Corkmen, Barry Galvin on the legal side and Fachtna Murphy on the Garda side, were involved with the setting up of the CAB. Those of us who have been impressed by the record of the CAB feel it is fair to ask why legislation giving it greater powers and dealing with the disposal of funds acquired by it was not given priority by the Government. I wish to put on record my admiration for the work of the CAB. When we see a job well done, it is important to take the opportunity to record our admiration and praise of it and of those involved in it. I encourage those currently involved with the CAB to continue their good work.
My amendment arises from the need for the perception that funds being seized by the CAB will be put to a purpose with which the public can identify. It proposes a redefinition of the phrase “drug related initiatives”. The idea is to enable the Minister for Justice, Equality and Law Reform to ensure the proceeds of crime seized by the State are applied to appropriate organisations and initiatives focused on redressing the damage caused by those in drug related activities.
It would be no harm for the Minister to confirm and put on the record of the House the up-to-date figures on the activities of the CAB. Much of the money with which the country is awash arises because Ireland is awash with drugs and much of the activity of the CAB is related to those involved in flooding the country with them. It is important therefore that funds received should be directed along the lines proposed by me and similarly minded colleagues. The Minister for Justice, Equality and Law Reform should have appropriate powers in this regard. Of course, the Department of Finance will object. I served as a Minister of State in that Department at one time and I am well aware of the Department’s attitude, which is understandable. However, I am trying to introduce a broader perspective into the discussion.
It is a natural Pavlovian reaction on the part of the Department of Finance to shy away from any question of ring-fencing. It would prefer to keep its finger in the pie at all stages so that it can control the tap if necessary. We will be told that ring-fencing is not appropriate in the circumstances and that there is no general case for it. However, there are examples of ring-fencing where the Government or the Oireachtas has felt it appropriate to provide for it. Deputy Costello mentioned the dormant accounts fund which is appropriate because the ring-fencing of those funds is exclusively for areas of educational, social and disability disadvantage.
One of the few creditable changes the Government made was the plastic bag tax, which I strongly supported. I do not raise this from the point of view of heaping praise on the Government, although I operate on the basis of giving praise where it is due. If one in 1,000 of the Government’s actions is worthy of praise, I will give it.
Under legislation the National Pensions Reserve Fund is allocated 1% of GNP annually. The provision of 0.7% of GNP for overseas development aid is a similar provision and it was highlighted at an Oireachtas Joint Committee on Foreign Affairs meeting yesterday, which I was glad to attend because of my continuing strong interest in that area. That was supposed to be ring-fenced but it depends on the Estimates. However, there are precedents for ring-fencing and it will not be sufficient for the Minister of State to state the Department of Finance does not like the general principle. It has been conceded in many areas and the proceeds of drug activity should qualify for prioritisation for ring-fencing.
I also refer to amendment No. 9, which provides for a reduction in the time the moneys must be held. I am concerned because the current provision of seven years is too long. A connection in the mind of the public between seizures of funds and their disposal seven years later will be lost. I appreciate a reasonable holding time is needed but it should be less than seven years. The Minister for Justice, Equality and Law Reform reduced the Statute of Limitations in regard to tort and personal injuries. His original proposal was one year but, under pressure from the Opposition, he ultimately agreed to two years. He had, however, proposed a shorter time.
The basis for my amendment is proposals by my colleague, Deputy O’Dowd, who has developed thinking on this issue, which he has outlined in the House over the past year or two. He examined the issues of ring-fencing seized funds and using them for a specific purpose and disposal time. The CAB has been successful in retrieving and selling assets. I hope the Minister of State will support a reduction in the time involved and will discuss what would be appropriate. Three years would be ideal.
Acceptance of ring fencing and a shorter time limit would open up a discussion on the establishment of a statutory framework for spending the money. It should be expended in the drugs area where it will have an influence on discouraging the use of drugs.
Aengus Ó Snodaigh: I tabled three amendments similar to those of the previous speakers. They provide that the proceeds of crime confiscated by the CAB should be ring-fenced. Deputy Jim O’Keeffe has outlined part of the reasoning behind the proposal but I would go further and provide that the money should be used for community development in economically disadvantaged areas rather than concentrating the money solely on the prevention of drug activity because, in doing so, drug prevention will be addressed through a longer term strategy, which has been identified by the National Crime Council and other bodies. Concentrating on economic disadvantage is one of the best ways to prevent drug abuse and drugs crime and that is why I tabled my amendments.
The money that could potentially be released would have major benefits for areas that have been identified by the Government in the past through the RAPID and CLÁR programmes. These areas are significantly economically disadvantaged and they experience most drug crime. Most of the CAB’s activity has been concentrated on these areas and, therefore, the money should be ring-fenced to tackle the underlying problems in these areas and to give them a boost to put them on a par with other communities.
Existing law together with this legislation provide that the property seized should be disposed of to the benefit of the Exchequer and the Minister for Finance can spend the proceeds as he or she sees fit. That is the main provision we would like amended. People expect and also deserve that the money should be ploughed back into the working class communities hardest hit by crime. Children in such communities are most at risk of coming into conflict with the law and ending up on drugs or unemployed and disadvantaged.
We need to break that cycle and the money seized under this legislation has the potential to do so. Between 1996 and 2003, the CAB obtained seizure orders worth more than €73 million. That is a significant amount to plough back into economically disadvantaged areas. I presume the CAB will continue its work to target drug barons and crime lords who are the scourge of working class and other communities throughout Ireland and that proceeds will continue to be generated so that a fund will be available from which moneys can be drawn down to support work that is under way and to accelerate rebuilding of communities under the RAPID programme, which has virtually ground to a halt.
Sinn Féin’s amendments have not been tabled simply to cause further debate. We proposed similar measures on Committee Stage. The Minister and some of his Cabinet colleagues have always argued against ring fencing, though as Deputy Jim O’Keeffe pointed out it continues to occur in quite a number of areas. It is a pity the Minister is not in the House. On Committee Stage, he gave a commitment to approach the Minister for Finance to discuss the proposal of three Opposition parties and to determine whether there was a way to ring-fence this type of funding. Deputy Jim O’Keeffe mentioned the dormant accounts fund, 52% of which is ring-fenced and allocation to RAPID areas and drugs task forces guaranteed. Lottery moneys are also earmarked for specific purposes including funding of sports activities, health services and Irish language programmes. Money from motor taxation is ring-fenced for local authorities to defray the costs of water charges, which is an odd one. Only last week, the Minister for Finance extended provisions for ring fencing moneys for the horse and greyhound-racing fund. Whatever people say about that, ring fencing is a facility that is available to Government and it should be employed in the legislation before us to ensure that moneys seized by the Criminal Assets Bureau are used productively to benefit disadvantaged communities.
On Committee Stage, the Minister insisted that as spending €1 on old-age pensions is just as valuable as spending €1 on deprived inner-city areas, we should funnel the money directly into the Exchequer and trust the Minister for Finance. The most recent figures on poverty in the State prove conclusively that we should not trust the Government to spend money as it has not used the funds that have been available to close the poverty gap. As the Government has failed to invest in communities most in need, we want legislative provisions to ensure that money is set aside for specific projects in disadvantaged areas. The criteria for determining what constitutes an economically disadvantaged area are already established and set out in the RAPID and CLÁR programmes. Crime lords and drugs barons generated the additional moneys at issue by targeting deprived communities. It should be considered that the moneys came from these areas and do not constitute tax revenue owed to the State. This is additional money that should be spent on projects in the areas in which people were targeted in the first instance. I hope the Minister will take these points on board.
On Committee Stage, the Minister said he would consider the points we raised and speak to the Minister for Finance. On this side of the House, we have proven that ring fencing is possible. The Minister also said on Committee Stage that he would consider introducing provisions to strengthen the fight against white-collar crime and corruption in particular. He made this commitment on the basis that the Bill before us is presented in place of separate and dedicated proceeds of corruption legislation promised in the programme for Government. The Minister indicated he was considering a provision to make it an actionable wrong to unjustly enrich oneself by means of a corrupt act with the effect that one would therefore expose oneself to civil liability where one did so. Such a provision would have allowed a person or persons to bring an action on behalf of a community to recover the proceeds of unjust enrichment. No amendments have been brought forward to give effect to such a provision today. Can the Minister of State explain why? Will further legislation come forward to deal with that specific area? We tend to come back to enact short, separate Bills to address matters that could have been dealt with in legislation previously before the House. The Minister originally promised to amend this Bill.
The public perception was that money seized by the Criminal Assets Bureau would be ploughed back into the areas that have been most disadvantaged by the crime lords and drugs barons. We are not asking for anything beyond the provisions most reasonable people in the State would expect to be made.
Mr. F. McGrath: I welcome strongly the debate on the Proceeds of Crime (Amendment) Bill. I support the amendment, which is very important as it gets to the heart of the issue of the proceeds of crime and aims to make practical provisions for the communities that were ripped off in the first instance. We must realise that communities ripped off by people involved in drugs require investment and the support of every Member of the Oireachtas.
In a previous day job I worked for many years in the north inner city where I saw the difficulties many people have to deal with. Of those who live in disadvantaged communities, 90% are fantastic people against the odds. The other 10% are involved in anti-social behaviour because of drugs problems, crime and family dysfunction. We must not lose sight of the fact that against the odds many working people are doing a magnificent job with their children and families.
I agree with Deputy Ó Snodaigh’s amendment that seeks to provide that funds realised on the making of disposal orders should be used for community development purposes in economically disadvantaged areas under the Principal Act as amended by this legislation. There are examples of good practice in this area. Some years ago, the magnificent Breaking the Cycle programme was introduced to tackle educational disadvantage by targeting money and investment at four year olds. Just 33 of the poorest schools in the State implemented the programme but cynics asked what it had done in terms of academic attainment after four or five years. I worked in one of the schools involved and saw the positive effects of the programme. It changed the atmosphere in the school by reducing the amount of violence and tension there. Children from very dysfunctional families wanted to come to school every day and at 4 p.m. when some of the after-school projects were finished the caretaker and I had to round them up and send them home. They were enjoying school and the focus on after-school activity.
The few extra euros put into such services yield positive results. While I accept that at the next step one must address reading levels and academic achievement, one cannot begin to educate children if they arrive at school at 9 a.m. hungry and having come from extremely violent situations or ones in which there are drugs. It is an extremely difficult job to do, which is why critics of the Breaking the Cycle programme should wake up and realise the good it has done.
Drugs are spreading rapidly through society in rural as well as urban areas. A year ago, €20 million worth of drugs was confiscated in part of my constituency. There is a culture of violence and intimidation of whole communities associated with drugs. It is not acceptable that people should be intimidated in their maisonettes and flats by five or six people involved in the drugs game. This issue forms part of the debate as does investing in development in economically disadvantaged areas. We must target resources allocated for children at risk. Between 300 and 600 of pupils in primary schools this morning urgently need help with emotional and social problems. We must intervene when such children are four, five or six years of age because they are lost to us by the time they reach 12 years of age and often end up in Mountjoy Prison by the time they reach 16 or 17 years of age. We must use money confiscated from criminals and drug barons in these areas. Spending money on children at risk is good for them, society and the taxpayer. If we can intervene and prevent children ending up in Mountjoy Prison it would be a worthwhile project.
The term “disadvantage” has been used a great deal in today’s debate and, in particular, in the amendments. We must ask ourselves the fundamental question of why, following ten years of economic boom and massive wealth, we continue to have communities which are deemed disadvantaged. There are times when I am annoyed by the use of the term “disadvantage” when speaking of particular communities. Perhaps the word “neglected” or some other word could be used. Why is it particular communities continue to feel totally excluded? Why is it most of the people living in such communities do not receive a decent week’s wages and that even those working receive only low salaries or the minimum wage? We as a society and, in particular, the Government must examine our conscience and ask why given the economic boom and the upturn in our economy many communities still feel totally excluded. Many parts of my constituency and parts of the Minister of State’s constituency are in that category. We must address this issue.
One can set up 20 poverty groups and 20 other agencies to examine the causes of poverty but I guarantee that the provision of proper education, decent housing and employment would bring an end to poverty. The low level of unemployment at 5% provides us with an opportunity to do so now. The economic debate is over as far as I am concerned. We must now focus on how we will distribute resources in a fair and positive way to people in the communities. That is important. The recent incident at Dunsink Lane raised issues such as discrimination against Travellers and problems of anti-social behaviour, violence and intimidation of communities. I believe the issues involved there relate mostly to policing in the area.
The Criminal Assets Bureau is relevant in the context of the amendments. It is a fantastic agency and is something for which Deputy Gregory and I pushed for many years. We believed that the finances of those who exploit others particularly by way of drugs should be confiscated and re-invested in education and housing. I also encourage the Government to invest some of that money in leisure activities. Many talented children in disadvantaged areas do not play rugby or other games and we are losing them as possible sports people in the future. That is important in the context of tourism and our international relationship with other countries. Thousands of children in poor areas are being left out because they do not have the required resources, such as the two cars of middle income families, which would enable them to be dropped to and collected from football matches. Often, they have to rely on voluntary workers in their communities to bring them to the games. We are losing out on the talent of many children in the area of sports and the arts.
Deputy Gregory will be aware that many children in the inner city in particular are involved in writing and playing music, which is good. They are the type of projects we should be supporting as specified in amendments. I support amendment No. 2 and hope it will be taken on board.
Mr. Gregory: I support the amendments which call for the ring-fencing of money confiscated by the Criminal Assets Bureau and its redirection into disadvantaged communities. Deputy Finian McGrath got to the heart of the matter when he posed the fundamental question of why we still have deprived, disadvantaged communities after years of affluence. We continue to be reminded week after week by the media of how affluent a society we have become and that we are one of the most affluent countries in Europe and the developed world. Yet, the gap between rich and poor is widening and disadvantaged communities remain drug ridden.
I attended a meeting of a community policing forum last night in Store Street Garda station. The forum was set up on the initiative of the local drugs task force in the area. When the Garda
was asked for a report on drug seizures in the north inner city it, unfortunately, provided a
litany in terms of the supply of heroin and cocaine at a variety of locations across the north inner city, the centre of the capital of what we are told is one of the most affluent countries in the world. The fundamental issue facing us is the redirection of money confiscated by CAB into disadvantaged areas. While there is a strong moral argument for doing so, it is the very least that should be done.
Deputy Finian McGrath and others spoke of the Breaking the Cycle disadvantaged education scheme. It is one of the scandals of this country that a scheme which was so beneficial to children in drugs task force areas in particular, the pilot scheme of which proved extremely successful, has been ignored. Perhaps it was ignored because it was not the product of Fianna Fáil initiative, I do not know. Teachers from the schools using it say it was the most beneficial scheme ever introduced. We must introduce change at pre-school and primary school level. If we do not grasp that opportunity we will continue to have debates on where money confiscated by CAB should be spent. While there is a strong moral argument for doing so it is not a critical issue. Unfortunately, the critical issues are not being tackled.
The Criminal Assets Bureau was established in the aftermath of the murder of Veronica Guerin at a time when some criminal gangs in the country were out of control. Some of those gangs have since been removed from the scene. I remain critical that the Criminal Assets Bureau has lost its focus. It has not remained focused on the issue for which it was primarily established — to deal with organised and drug related crime. The end result — I do not blame the Criminal Assets Bureau for this — is that there are now more drugs around than ever before. Cocaine has become a major problem and heroin remains a serious problem.
The meeting of the community policing forum last night shows that communities in these areas want to play their part in dealing with the drugs problem in particular. These people came together in a police station, something almost unheard of in the north inner city until this initiative took place. Prior to that meeting, they met in halls and marched on drug dealers. They had no faith in the police, the State or anyone because they had been neglected for so long. That perception has changed and people are prepared to work with the police, the city council and various agencies in tackling this problem.
It would be a marvellous gesture if the long-standing demand that the money involved was ring-fenced and put back into these communities was met. That has been sought since the foundation of the Criminal Assets Bureau. It has been put to many Ministers — I am not singling out the current Minister, who might prefer to call himself the Minister for justice and inequality, because he thinks there are benefits in inequality and that it is good for the economy. That is the philosophy of this Government, particularly the Progressive Democrats element, and it sustains the ever-widening gap between rich and poor. I had hoped the Minister would be here to address this issue.
The Minister stated that the revolving door in prisons no longer exists. A case arose, however, at the meeting of the community policing forum last night. People from the Ballybough area were alarmed at a series of break ins in the area, particularly against elderly people living alone, a frightening issue for them. The suspect was arrested by the gardaí but it transpired that he was unlawfully at large, he had been in prison, was let out on temporary release and did not return to Mountjoy. He was re-arrested and deposited in Mountjoy Prison. Senior gardaí present at the meeting of more than 200 residents expressed alarm at the activities of this individual. The guy was arrested, was unlawfully at large, was sent back to Mountjoy and he was no sooner there, believe it or not, than he is released again. This was announced at the meeting last night. The gardaí themselves were not aware of what happened — there seems to be no communications between the Garda stations responsible for arresting these people and depositing them in Mountjoy and the authorities in Mountjoy. The individual who was causing havoc in Ballybough is now back out and the people whose homes were broken into and other elderly people in the area live in fear. The revolving door that the Minister for Justice, Equality and Law Reform, Deputy McDowell, told us was long since closed clearly is not closed. I had hoped he would be here so I could raise this issue with him.
Mr. Gregory: I have done it now and I appreciate the leeway given by the Ceann Comhairle. This is an important issue and I hope the Minister of State, Deputy Brian Lenihan, raises it with the Minister for Justice, Equality and Law Reform.
I support this amendment and hope the Minister will find some way to implement it. It is a long-standing demand of community and residents’ groups and drugs task force organisations. If it was implemented it would be seen as a significant gesture by the Government to redirect money taken out of these communities back to where it came from.
Minister of State at the Department of Health and Children (Mr. B. Lenihan): Deputy Jim O’Keeffe asked why a Bill initiated in 1999 is coming before the House now. Second Stage of this Bill was completed in 2000 and it was not proceeded with at that stage pending the outcome of a number of court challenges to the primary legislation, the Proceeds of Crime Act 1996. Following those court cases and further consultation with the Criminal Assets Bureau, a number of additional proposals for inclusion in the Bill were made as Government amendments on Committee Stage. For the most part, the amendments relate to matters that have been brought to the Minister’s notice by the Criminal Assets Bureau arising from its experience in the operation of the legislation. Following the interim report of the planning tribunal, it was decided to incorporate measures relating to the seizure of assets in that context. We are dealing with a substantially revamped Bill.
Amendments were tabled on Committee Stage relating to the ring-fencing of money obtained by the Criminal Assets Bureau for community development purposes in certain areas and to fund programmes to discourage people from using drugs. The matter was raised with the Minister for Finance in late 2002 and the Department of Finance refused to countenance a change in policy at that stage. In March 2004, the matter was again put to the Minister for Finance and again the Minister indicated the he could not support the earmarking of revenue for any specific project. The earmarking of funds constrains the Government in the implementation of expenditure policy. If it was agreed that earmarked revenues should fund projects in communities affected by drug abuse, it would set a precedent that would make it difficult to refuse other representations that might be made in the future to earmark revenues for other specific purposes.
Mr. B. Lenihan: It has also been pointed out that if certain revenues were earmarked for particular projects within the overall fight against drug abuse, any project thus funded would be dependent on revenue collected. That is where the analogy with other earmarked arrangements falls down. We cannot say with any degree of certainty how much will accrue to this fund.
Mr. B. Lenihan: A fall in revenue might imply a fall in expenditure on a particular project. After Committee Stage, and against the background of those strong views, the Minister for Justice, Equality and Law Reform again raised the matter with the Department of Finance and the response was another resounding negative. The Department’s policy on this issue has clearly not changed and is not likely to.
Mr. B. Lenihan: There is a point that puts this discussion in context. As of today, a final order for approximately €1 million has been successfully made following the completion of the seven year period. That is the only money that has accrued to the Exchequer to date, although, as Deputy Ó Snodaigh pointed out, in excess of €70 million has been frozen in either interim or final orders so we can anticipate that a substantial fund will accrue to the Exchequer in the coming years. As of today, however, the total sum that has accrued is €1 million and that would not go far in tackling the problems that were so eloquently outlined by different Deputies in the House.
On educational disadvantage, the Government has piloted the very successful schools completion programme on a national basis and a substantial amount of Exchequer money was invested in that. There were also programmes in which local drugs task forces were involved and the amounts involved are out of all proportion to the amount involved in this fund to date. I accept that more money will accrue in time.
There are two reasons for the seven-year limitation period. First, as Deputy Jim O’Keeffe identified, there is the question of the rights which a third party might have to some of the property. The other reason is a constitutional issue identified by the Attorney General. The primary purpose of the proceeds of crime legislation is not to enrich the Exchequer with expropriated property but to freeze proceeds of crime to deprive those concerned of the benefits of criminal proceeds.
The most constant criticism of the legislation has been that it penalises individuals without the individual affected being convicted of an offence. A reduction of the period between the interlocutory order and the disposal order to three years might render the legislation more open to challenge on the grounds that it is a penal confiscation without due process. The shorter the period before the forfeiture stage, the greater the chance that the forfeiture might be deemed penal. While a period of seven years does not overcome all the relevant periods under the Statute of Limitations, it addresses the great majority of them. As Deputy O’Keeffe pointed out, the Statute of Limitations has been reduced to two years in the case of claims in tort for personal injury. Longer limitation periods generally arise in respect of claims for personal property such as money and claims founded on contract. The generality is that a period of six years is the relevant period and there are extensions of that period for persons with a disability, and minors and so forth. At the end of seven years, any contractual claims against real property will have been defeated, albeit claims by mortgagees and other claims against real property will not require to have been defeated in that time.
The period of seven years was very carefully selected as a desirable timespan during which contractual claims could be defeated. The new provision for consent disposal order in section 7 of the Bill allows for the seven year period to be reduced with the consent of all parties involved. The Attorney General has advised against any further dilution of the provision. We are in the hands of the Attorney General in this matter. I am sure Deputy O’Keeffe is well aware the legislation was challenged extensively in the court and has been subject to several robust challenges. It is important that a robust form is designed in order for it to withstand these challenges. That is the reason I cannot agree to Deputy O’Keeffe’s amendment to reduce the seven year period to three years.
Many Deputies commended the Criminal Assets Bureau on its work and I join in the tributes which have been paid. Deputies Ó Snodaigh, Finian McGrath and Gregory made a very strong case for the allocation of moneys to areas which are being devastated by drug abuse. I remind Deputy Gregory that the problem of cocaine use seems to cross all social boundaries and it is not restricted to any one social category but ideally the Government would wish to invest moneys as much as possible in areas that have been devastated by the effects of drug abuse. The Minister for Finance and his Department take the view that this matter cannot be ring-fenced.
Deputy Ó Snodaigh raised the question of the unjustified enrichment by persons who have engaged in political corruption. The Minister referred to that matter on Committee Stage. He said he wished to pursue the issue of a provision to tackle the position where someone, by means of some corrupt act, is able to benefit from the enhancement of the value of a property arising from the corrupt act. An example was given of a person who bribes a local government official to allow him build 60 rather than 50 houses on an estate. The mechanism would provide for a procedure to pursue the additional profit generated by the bribe. The Minister gave an undertaking to pursue the matter and introduce an amendment on Report Stage if such was found to be possible.
In the intervening period since Committee Stage, the draft head of a new provision has been drawn up. To ensure the robustness of the provision so that it will stand up to the type of scrutiny to which it is likely to be subjected, the Attorney General has indicated that senior counsel should examine the provision from both a constitutional and technical point of view. The matter has been referred to senior counsel. I can confirm that the proposal as currently envisaged is along the lines outlined by the Minister to the committee. There will be an effort to try to take into account the views expressed by a number of Deputies on Committee Stage on this issue. In keeping with the undertaking given on Committee Stage and subject to the further views of counsel on the proposal, it is intended to move an amendment in the Seanad on that subject. The matter will then be referred back to this House in due course for consideration.
Mr. Costello: The Minister of State’s reply is somewhat disappointing, considering the efforts made on this side of the House by Labour Party, Sinn Féin and Fine Gael Members on Second and Committee Stages. The Minister of State said the issue of ring-fencing the funding was raised in late 2002 and in March 2004. Has the matter been raised with the new Minister for Finance and, if so, has the new Minister for Finance indicated his views on the matter? If it has not been raised with the new Minister for Finance, perhaps the Minister of State will consider the concerns expressed in this House and ask the Minister for Justice, Equality and Law Reform to raise the matter with the Minister for Finance before the Bill goes to the other House.
This issue has been the nub of much discussion and debate. Everybody is in favour of what has been achieved by the original proceeds of crime legislation and in the working of the Criminal Assets Bureau. Everybody is anxious to see the extra powers which are included in this rather belated amending legislation introduced as soon as possible. The one thing missing is a provision for where the money will go. There is a lack of commitment by the Government to ensure that the money is earmarked.
It makes no sense for the Minister of State to say such a provision would create a precedent and that the Department of Finance does not wish to create a precedent. Many precedents have been created and they have been listed in the House today. The plastic bag levy is ring-fenced; the national lottery money is ring-fenced for particular purposes; the dormant accounts funds are ring-fenced; the pension reserve fund is ring-fenced; and the 0.7% of ODA funding, if we ever get it, is ring-fenced for a particular purpose. I do not understand why there is a problem with deciding that this money, which comes from the ill-gotten assets and gains of people who have committed the worst forms of criminality on disadvantaged communities in areas where so much money is needed, should go to those communities, which have been starved of resources across the board. Even if a problem did exist, this would be an example of a case where a precedent should be established. The Minister of State should take the proactive rather than the negative approach.
I am somewhat confused by the figures quoted by the Minister of State. He stated there has been a final order for only €1 million to date. Does that final order cover the full gamut of the period since the legislation was established in 1996? How much money has gone into the kitty, to the Exchequer? I would like to query how that tallies with what the Minister said in a press release.
Mr. Costello: We know about the seven year limitation period but that is now well past. Seven years from 1996 is 2003. That period finished over 12 months ago and we are now in the final quarter of 2004. A press release issued by the Minister for Justice, Equality and Law Reform in August last year stated that from its statutory inception in October 1996 to 31 December 2002, the Criminal Assets Bureau obtained interim and final restraint orders to the value of over €48 million and €21 million, respectively. Will the Minister of State explain what is a final order? In the same period, taxes and interest demanded were in excess of €71 million, with over €46 million collected. In layman’s language that means the Exchequer got €46 million and there was a final order that provided for the €48 million. In addition, social welfare savings amounted to over €1.4 million. Where is the money going, given that the Minister of State has said there has been only one final order granting €1 million?
Mr. Costello: Therefore there is a good deal more money out there. We want it made clear what money has accrued since the establishment of the Criminal Assets Bureau that is available for disbursement.
I am not satisfied with the Minister of State’s response which is inadequate. I hope he will go to the Minister about it. In regard to the item I raised with the Minister last week, that is, the spate of burglaries that took place in the Clonliffe area, can he give us some reassurance? He gave me a long reply on how the matter had been addressed. As he is aware one of those responsible was arrested on 2 October and released on 6 October. My information is that this person had been involved in certain drug activity. I have tabled a question to the Minister for Justice, Equality and Law Reform on the matter so I expect a reply.
Mr. J. O’Keeffe: It is clear from this discussion, because of the seven year retention period, that effectively all that has accrued to the Exchequer to date for disposal, since the establishment of and the fine work of the CAB, is €1 million. That is disappointing news to many of us who wanted to see a direct relationship between the expenditure of the moneys seized and the activities of those from whom it was received, but that connection is lost because of the length of time involved before the money appears. We have been talking about ring-fencing and where we would like to see the money spent. Essentially what transpires is that so far very little money is available for any expenditure, whether community related, disadvantaged areas or otherwise, or drug related initiatives. I would like to see a particular focus on discouraging people from taking drugs.
I take the Attorney General’s point. He has highlighted problems from the constitutional point of view, third party rights and so on. I would like an assurance from the Minister of State that this issue will be kept open. I understand the caution of the Attorney General, that is his job, however, I consider that a seven year period is a barrier to the moneys being spent on the ground. That only €1 million is available out of €70 million on hand is directly related to that seven year period.
There is also the power of the Department of Finance in regard to ring-fencing and all the arguments have been made. On Committee Stage the Minister appeared to be convinced there was a case to the extent that three visits were made to the god on high on Merrion Street, the Minister for Finance and his officials, and the answer was, no, no, no. All we can do is point out that there are precedents and because of the priority we established in regard to where the moneys should be spent there should be ring-fencing. For that reason I join colleagues in forcing this issue to a vote.
Aengus Ó Snodaigh: It is regrettable the Government has refused on this occasion to take the opportunity to ring-fence this money. It was always intended to be additional money to top up what was spent. The problem in the past was that whenever additional money was mentioned, for example, when the national lottery was established, it was intended to be additional money rather than mainstream money. The argument the Minister of State made was that projects could not depend on it. There are projects and whole areas of policy which are dependent on the national lottery succeeding — there is no guarantee of revenue from the lottery, especially with the establishment of the European lottery. A mistake was made with the national lottery funding, but it should not be made in regard to this money which should be ring-fenced and should be additional.
While only €1 million has accrued to the Exchequer to date, from the CAB figures for confiscation orders, in 2009 there will be €54 million available for these projects. That is just one block. I do not have the figures for the other years. If as Deputy Gregory said, the CAB continues to lose its way and target tax evaders, despite the fact that the courts found against it on a few occasions, and goes down the road of tackling corruption, banking scandals and white collar crime, much more money can be collected. It is not as if the pool of money will lessen over time. There should be more money if CAB does its work. This opportunity will be missed if the Government does not take this on board. The only people who will suffer are those who have been disadvantaged by crime in the first instance. This was answered by society’s attitudes towards Government. We now have an opportunity to take one small step to address disadvantage and the inequality that has been brought upon these areas. It is a scandal the Government will not ring-fence this money as it has done for the horse and greyhound racing fund.
Mr. F. McGrath: I wish to speak specifically to Deputy O’Keeffe’s amendment No. 3, which is an important part of the strategy in dealing with the whole issue of the proceeds of crime and the concept of discouraging people from taking drugs and assisting in the rehabilitation of drug users. We have to examine why young people get involved in drugs. The usual answers are low self-esteem, personal problems, low self-worth, major problems in their lives and not feeling any sense of value in society. Those are the reasons children and young people get involved in drugs. There is also the adventure side in that they are looking for a buzz and something different.
Given that prevention programmes are an important part of the strategy, some money from CAB and the proceeds of crime should be invested in sensible prevention programmes. I do not mean little campaigns such as putting up a poster in a school but serious personal development programmes for children as young as four, five and six years of age who come from dysfunctional families and who need a lift as regards their self-esteem and their self-worth. There are many programmes in primary schools and these can be used in a progressive way. If some of the money and the resources is used to assist them this would do much to prevent more young people getting involved in drugs.
Mr. Gregory: I wish to make two brief points. The amount of money is not the issue, rather it is that drug dealers accumulated their assets at the direct expense of communities in drug-ravaged areas. Therefore, the moneys involved should be returned to those communities as additional funding by whatever mechanism can be found to do so. It is a simple matter and it is beyond me why such a mechanism cannot be found. I regret that the Minister of State’s response seems to be that the Government is not prepared to look for such a mechanism to bring this about.
Will the Minister of State address the issue of the person charged with a series of house break-ins who, having failed to return from temporary release, was put back in prison only to be almost immediately given further temporary release back into the same community in which he has been causing havoc for the past few months?
Mr. B. Lenihan: The Deputy will have to deal with that, subject to guidance from the Chair, by way of parliamentary question or motion of the House. The officials of the Department of Justice, Equality and Law Reform are in the House to deal with the legislation before us today and do not have details to hand on operational matters connected with the Garda Síochána. Therefore, I am not in a position to answer the Deputy’s question. However, the matter was raised by Deputy Costello on the Adjournment of the House last week.
Mr. B. Lenihan: Nevertheless, I share Deputies’ concerns that the problems created by drug dealers should be a high priority, which point I have not stressed until now. The fundamental point is that if we earmarked this fund, we would add additional layers of bureaucracy to the allocation of funds, which would be unjustified unless significant and quantifiable added value in excess of the additional administrative costs could be shown. Ring fencing would add nothing to the sums realised for the Exchequer. Rather, it would absorb resources in itself by setting up another parallel bureaucracy to disburse funds associated with drugs task force areas. On that ground alone, we cannot accept ring fencing.
Mr. Costello: The Minister of State’s response does not cut any ice. We have given him the examples and precedents whereby money has been ring-fenced. The point made by speakers today is that such funding would give to communities which have been devastated by criminal activities, mainly drug dealing, a considerable morale boost. If the Government were seen to be so concerned about doing something that all the funds from the Criminal Assets Bureau were ploughed into these communities, it would give them the confidence to fight back against the devastation which has taken place. Since we are referring to additional funding, as well as a financial benefit there would also be a morale and confidence boosting effect as a result of such an action by the Government.
|Allen, Bernard.||Boyle, Dan.|
|Breen, Pat.||Broughan, Thomas P.|
|Bruton, Richard.||Burton, Joan.|
|Connaughton, Paul.||Costello, Joe.|
|Cowley, Jerry.||Crawford, Seymour.|
|Crowe, Seán.||Cuffe, Ciarán.|
|Deenihan, Jimmy.||Durkan, Bernard J.|
|English, Damien.||Gilmore, Eamon.|
|Gogarty, Paul.||Gormley, John.|
|Gregory, Tony.||Hayes, Tom.|
|Healy, Seamus.||Higgins, Joe.|
|Higgins, Michael D.||Howlin, Brendan.|
|Kehoe, Paul.||Lynch, Kathleen.|
|McCormack, Padraic.||McGrath, Finian.|
|McGrath, Paul.||McHugh, Paddy.|
|McManus, Liz.||Mitchell, Gay.|
|Morgan, Arthur.||Ó Caoláin, Caoimhghín.|
|Ó Snodaigh, Aengus.||O’Dowd, Fergus.|
|O’Keeffe, Jim.||O’Shea, Brian.|
|O’Sullivan, Jan.||Pattison, Seamus.|
|Penrose, Willie.||Perry, John.|
|Quinn, Ruairí.||Rabbitte, Pat.|
|Ryan, Eamon.||Ryan, Seán.|
|Sherlock, Joe.||Shortall, Róisín.|
|Stagg, Emmet.||Stanton, David.|
|Timmins, Billy.||Twomey, Liam.|
|Upton, Mary.||Wall, Jack.|
|Ahern, Dermot.||Ahern, Michael.|
|Andrews, Barry.||Ardagh, Seán.|
|Blaney, Niall.||Brady, Johnny.|
|Brady, Martin.||Brennan, Seamus.|
|Browne, John.||Callanan, Joe.|
|Callely, Ivor.||Carty, John.|
|Collins, Michael.||Coughlan, Mary.|
|Cowen, Brian.||Cregan, John.|
|Curran, John.||Davern, Noel.|
|Dempsey, Noel.||Dempsey, Tony.|
|Dennehy, John.||Devins, Jimmy.|
|Finneran, Michael.||Fitzpatrick, Dermot.|
|Fleming, Seán.||Fox, Mildred.|
|Gallagher, Pat The Cope.||Glennon, Jim.|
|Grealish, Noel.||Hanafin, Mary.|
|Harney, Mary.||Healy-Rae, Jackie.|
|Jacob, Joe.||Keaveney, Cecilia.|
|Kelleher, Billy.||Kelly, Peter.|
|Killeen, Tony.||Kirk, Seamus.|
|Kitt, Tom.||Lenihan, Brian.|
|Lenihan, Conor.||McEllistrim, Thomas.|
|Moloney, John.||Moynihan, Donal.|
|Moynihan, Michael.||Mulcahy, Michael.|
|Nolan, M. J.||Ó Fearghaíl, Seán.|
|O’Dea, Willie.||O’Donnell, Liz.|
|O’Donovan, Denis.||O’Flynn, Noel.|
|O’Keeffe, Batt.||O’Keeffe, Ned.|
|O’Malley, Fiona.||O’Malley, Tim.|
|Parlon, Tom.||Power, Peter.|
|Power, Seán.||Sexton, Mae.|
|Smith, Brendan.||Smith, Michael.|
|Wallace, Dan.||Wallace, Mary.|
|Walsh, Joe.||Wilkinson, Ollie.|
|Woods, Michael.||Wright, G. V.|
This is an amendment of some consequence in that it is an attempt to extend the definition of what exactly amounts to criminal conduct. My concern is that the Minister’s approach to the Bill has been very narrow in establishing that criminal conduct means conduct which constitutes an offence or more than one offence. I would like to broaden that definition. There is a strong case for a broader definition of criminal conduct. The question I pose is whether there is a case for establishing a definition of criminal conduct irrespective of whether such conduct has resulted in a criminal conviction. That is the bottom line. The safe, conservative approach that might even be advised by the Attorney General is that we should begin from the point of criminal conduct meaning somebody against whom there is a criminal conviction. My concern is that many people engaged in criminal conduct are never caught or convicted. That is the reason I propose we include in the legislation the wording “For the avoidance of doubt, ‘criminal conduct’ shall be construed as involving conduct irrespective of whether that conduct has resulted in a criminal conviction”. Compared with the dictionary definition of criminal conduct, my proposed wording would more accurately reflect the correct interpretation of what constitutes criminal conduct. These are the words chosen by the Minister of State. They do not focus on criminal conviction but on criminal conduct.
A person who has not been convicted could clearly say there is no conviction against him or her and, therefore, such conduct does not amount to criminal conduct. That would bring us to the question of onus of proof. There would have to be some evidence of criminal conduct but perhaps not beyond a reasonable doubt that would be necessary to establish a criminal conviction. If there is some evidence of criminal conduct, could we not provide for this definition in the Bill and leave it open to the person against whom moves have been made to establish that he or she has not been involved in criminal conduct? It is essentially a question of onus of proof.
Under the Bill, as amended, are we saying there must be a criminal conviction to establish criminal conduct? In a sense I put forward my proposal for discussion. I do so in the knowledge that I anticipate from a strict interpretation of the wording that the safer approach might be to limit the application to somebody against whom there is a conviction. However, would that allow somebody against whom there is considerable evidence of such conduct, perhaps much of it circumstantial and not sufficient to meet the conviction bar, go free? Is there a case for a somewhat broader definition of criminal conduct in such circumstances? Otherwise, many people who should be dealt with by the Criminal Assets Bureau may be let free. That is the reason I put forward the amendment.
Mr. B. Lenihan: In a sense, Deputy Jim O’Keeffe has answered his question by anticipating the answer, although I advise him I will not be as unsympathetic to some of his future amendments as I am to this one.
When this matter was discussed on Committee Stage, an undertaking was given to consider the Deputy’s proposal. What he has proposed is to add to the definition of criminal conduct the proviso regardless of whether that conduct has resulted in a criminal conviction in both the Criminal Assets Bureau Act 1996 and the Proceeds of Crime Act 1996. The intention of the Deputy is not without merit. However, the 1996 legislation operates as a civil forfeiture procedure to pursue the proceeds of a person’s crimes rather than seeking to obtain a conviction against that person.
Having considered the matter further, it is the view of the Attorney General that inclusion of the references proposed in the Deputy’s amendments should be avoided in the 1996 legislation lest that balance which exists between the civil forfeiture scheme operated under those statutes would in any way be tainted with the criminal scheme that operates under the Criminal Justice Act 1994. I hope this clarifies the issue for the Deputy and he will reconsider his amendment.
I want to deal with a matter, to which I did not reply, raised by Deputy Costello in our consideration of the previous section. There was some astonishment that the amount that has accrued to the Exchequer to date under the legislation is approximately €1 million. The position is that a period of seven years must elapse between the obtaining of the first order and the time when the moneys accrue to the Exchequer. In that interim period, the moneys are treated as an internal accounting matter, a suspense account of the Criminal Assets Bureau, but are not in any way vested in the Exchequer.
Mr. J. O’Keeffe: I thought there was a need for debate on this area. I am concerned we may be allowing some people to get away with actions they should not be allowed to. I appreciate the point that I anticipated would be raised by the Minister of State and the Attorney General. I will leave the issue aside for further debate, perhaps in the context of a further review of this type of legislation in future. I will not press the amendment.
This is an issue on which I focused on Committee Stage. I was concerned there may be many circumstances where the owner of property which would be the subject of seizure might not have full access to or control over it. This might be done deliberately. It might be by way of setting up trusts or otherwise with a view to putting some type of safety net around the property. If we amend the legislation as I suggest, it would mean the use of such devices would not prevent the Criminal Assets Bureau getting at the property of such criminals.
The first point I want to cover is the arrangements that might be made to put a property in the name of another person, a man of straw, or, alternatively, in the name of a trust that would have been actively set up by a criminal for the clear purpose of avoiding the efforts of the CAB to seize the property. It was from that point of view I tabled the amendment. The Bill, as drafted, covers some situations where the property concerned would be subject to an injunction. Essentially, that is all part of the same process where properties might be in the possession of others but beneficially owned by the criminal.
I spoke about these people being innovative. They could set up an adverse possession arrangement, long-term leases or other such devices clearly for the purpose of evading the efforts of CAB to seize the property concerned. The purpose of my amendment is to ensure the necessary powers are given to power to CAB to enable it to get beyond such phoney trusts and men of straw and seize the ill-gotten gains of such criminals.
Mr. B. Lenihan: Section 3 of the Bill amends section 1 of the Proceeds of Crime Act 1996 which deals with third party possession of property, and the new provisions of the Bill explicitly provide that a person remains in possession or control of the property for the purposes of the Act even if the property has been lawfully seized from the person or is subject to a restriction by order of the court.
The Bill covers circumstances where the property has been seized by any member of the Garda Síochána or the Revenue Commissioners and where the property is subject to an interim or an interlocutory order which prohibits disposal of, or dealing with, the property. However, on Committee Stage Deputy Jim O’Keeffe correctly highlighted that the Bill does not allow for circumstances in which the owner may not have full access to or control over the property while still being the legal owner. His amendment proposed to widen the existing provisions to cover circumstances in which the property is in the possession of other persons while still in the ownership of the person against whom the Criminal Assets Bureau is obtaining an interlocutory order. It was considered that this amendment would effectively strengthen the existing provisions. I commend the Deputy on raising this matter.
On Committee Stage, Deputy O’Keeffe’s amendment was accepted in principle subject to receiving the advice of the Attorney General and the parliamentary counsel on the precise wording. The Government amendment is a reworded version of the Deputy’s amendment based on that advice but the substance remains the same. The Minister is most grateful to the Deputy for highlighting this oversight. I trust that the Government amendment is acceptable to the Deputy and that he will withdraw his amendment.
There is one difference of substance in the wording proposed by the Government and that of Deputy Jim O’Keeffe. It relates to the circumstance of adverse possession. Essentially, what the Deputy is trying to address is a form of fraudulent conveyance whereby the asset owner attempts to divest himself of the property by using the camouflage of a trust or letting arrangement. However, adverse possession is not an arrangement as such but an inference the court draws regarding particular circumstances. It must be subject to adjudication by the court.
The advice of the Attorney General was that the term “adversely possessed” should not be used as it would give rise to confusion over the circumstances of a particular case of adverse possession. The advice received is that the phrase “or otherwise occupied by another person or is inaccessible” captures the intent of Deputy Jim O’Keeffe’s proposal. The substance of his proposal has been accepted but the wording regarding adverse possession was deemed unsatisfactory. I can see the point because, while a letting or trust requires a positive act, an adverse possession claim does not. It is an actual dispute about the circumstances and therefore the term “adverse possession” is somewhat inelegant. I thank the Deputy for raising the point because it brings about a change of real substance which adds to the legislation.
Mr. J. O’Keeffe: In the circumstances, I am happy that the thrust of my amendment is accepted. A principle has been established that will result in a better Bill and more focused powers for the CAB to deal with the circumstances in question.
I accept the advice of the Attorney General on the wording. If he feels his formulation is a better way of giving effect to what I am trying to achieve, I am prepared to accept the Minister’s amendment, formed on the Attorney General’s advice, and I will withdraw the Fine Gael amendment.
These amendments relate to interim orders, interlocutory orders and court procedures that would be followed in dealing with them. I am raising this issue in light of the recent Supreme Court decision in the McK. v. F. case regarding normal court procedures so we can obviate against future challenges in this respect. CAB does not really have a good record on the basis of some of its challenges.
The wording I am seeking to delete would reverse the Supreme Court decision and would seem to undermine normal court procedures, which would be undesirable. Obviously, we have responsibility to uphold existing Supreme Court decisions and normal court procedures. Furthermore, it is important that whatever process we put in place will stand up legally under the European Convention on Human Rights.
Section 4(d) inserts the following subsection: “(7) An application under subsection (1) may be made by originating motion.”. Instead of making an application by an originating notice of motion, which is of limited application, applications should be brought by CAB by way of normal proceedings and normal detailed pleadings. This would allow a case to be set out in some detail in normal court proceedings such that it would not be a meagre, scanty half-page motion. It would also facilitate defence.
The Supreme Court upheld the application of normal procedure in the McK. v. F. case but the Minister’s amendments, which he introduced on Committee Stage, seek to reverse the court’s decision. Will the Minister of State explain why he wishes to reverse that considering that the Supreme Court may wish to reassert its decision at any given time? No doubt, this would give rise to an enormous number of challenges.
I propose that we leave the Supreme Court decision in place. If we do not, it is likely that CAB’s position will be weakened, thereby giving rise to further legal challenges. There is already an extant Supreme Court decision outlining the matter. CAB has lost a number of cases that it took in the courts in the not too distant past. We should think very carefully before we depart from normal court procedures dictating how we provide detailed pleadings. I do not see the advantage of not following them. What is the advantage of presenting a bare motion when we can present some detail through normal procedures, adhere to the Supreme Court decision and ensure we are in line with the thinking of the European Court of Human Rights and the European Convention on Human Rights?
Mr. B. Lenihan: Deputy Costello’s contention that we are reversing the Supreme Court decision is a little strong. The Supreme Court had to make a decision, in the absence of rules of court, on the appropriate order under the proceeds of crime legislation. Of course the rules of court provide that in the absence of any specific provision by the Oireachtas or the rules of court, procedure by way of plenary summons and statement of claim is the normal procedure in the High Court. Therefore, we are not reversing the Supreme Court decision but making a deliberate decision on what form of procedure should be followed in the proceedings in question.
Earlier legislation did not prescribe any form of procedure and the rules committee did not see fit to adopt any form of procedure, therefore the Supreme Court had to determine the form of procedure. We are reversing the effect of the Supreme Court decision rather than the decision per se, but the Supreme Court did not pass any decision on the wisdom or otherwise of proceeding with a particular form of procedure.
Procedure by way of notice of motion grounded on affidavit is not a meagre, scanty, half-page application. Rather, insisting from the outset that the person involved be notified of the matter is a stronger protection for the person whose property is sought to be seized because the affidavit is a sworn document setting out the precise circumstances of the case. In a procedure by way of plenary summons and statement of claim, there is no such guarantee. It is, as the Deputy pointed out, simply an originating writ followed by a set of allegations. It does not have to be verified on oath by affidavit. There is a procedural distinction in the practice of the High Court between a plenary procedure and a procedure by way of notice of motion. A plenary procedure proceeds with the service of the plenary summons and then the delivery of a statement of claim. As Deputy Jim O’Keeffe knows, the pleadings can proceed at quite a leisurely fashion, so it can take some time to bring the matter before the High Court. When one originates proceedings by way of notice of motion grounded in an affidavit, however, they are made returnable to a definite court list on a definite date. In matters affecting the property rights of individuals it is important that these matters are brought as expeditiously as possible before the court forum. That is what this form of procedure that we are legislating for allows. In fact, it is the procedure that is used, for example, in enforcement proceedings under the planning legislation. The procedure of a notice of motion grounded in affidavit allows the applicant, in seeking to enforce a provision of a planning permission or an aspect of the planning code, to invoke the jurisdiction of the court in an expeditious manner and bring the matter before the court as speedily as possible. The procedure by way of plenary summons under the rules does not allow that. As a result of that, on Committee Stage amendments were tabled whereby applications for interim, interlocutory and disposal orders are to be made by originating motion.
Concerns were raised by the Deputy and a commitment was given by the Minister to re-examine the effects of the wording. The purpose of the Government amendments, however, was to have the matter in the courts list at the earliest opportunity, with the full case of both parties set out in a formal manner on oath. The wording used in the Government amendments tabled on Committee Stage will ensure a procedure by way of motion grounded on affidavit and the defendants will be obliged to respond to proceedings on affidavit, thus avoiding what can often be the dilatory procedure of notices for particulars, replies to particulars and the discovery of documentation. Of course, the court can still order that.
When the matter comes before the court there may be a conflict on the affidavits that are filed by the respective parties — the Criminal Assets Bureau and the respondent to the application. At that stage the judge has full power under the rules to say that the matter will have to proceed to a plenary hearing because of the nature of the conflicts involved, or an order of discovery of documents may be required in respect of particular measures. All of that is part of the jurisdiction of the court, which can still do that. The procedure by way of originating a motion based on affidavit is the format of planning injunctions and applications under the Waste Management Act.
Deputy Costello rightly referred to the Supreme Court decision in FK v. AF and JF, where the court decided that in the absence of rules, a section 3 application had to be made by way of plenary trial. That is unsatisfactory, however, because it allows proceeds of crime issues to be pleaded in general terms, so that the parties are not really aware of the case to be made until the trial opens. The practice of the Criminal Assets Bureau has always been to have an initiating motion in parallel with the plenary proceedings.
Without the inclusion of the amendments that were agreed on Committee Stage, the bureau could simply proceed by way of writ only. It is considered that this approach would be unfair to a defendant. One sees the same circumstance in repossession proceedings brought by banks and financial institutions, where they have to proceed by way of special or summary summons with an accompanying notice of motion grounded on affidavit. So there is a summary way of bringing the matter before the court because of the serious consequences it has for the debtor in that particular case.
The approach taken by the Minister in this respect is correct. The effect of the agreed amendments would be to have the matter in a court list at the earliest opportunity with the full case of both parties set out in a formal manner. I understand very well why Deputy Costello raised the issue because it was the subject of a Supreme Court decision. It is quite understandable that he would raise it.
Mr. Costello: I thank the Minister of State for his detailed response which is very reassuring. I wanted to ensure that there would not be fresh challenges to the legislation by departing in any way from court proceedings, considering also that we are talking about the seizure of assets and property which can affect people’s livelihoods and careers. It is an extremely serious matter. There are few matters more serious than activities undertaken through interlocutory and interim injunctions by the Criminal Assets Bureau and, therefore, there should not be further challenges somewhere along the line to the procedures that are now being instituted.
I accept what the Minister of State has said, but I hope he is correct in stating that this will not happen. There have been quite a lot of challenges to the manner in which the CAB has operated in the recent past. The bureau has not been able to uphold its procedures in the courts. It has lost most of those challenges which have interfered with the workings of CAB because the bureau has overstepped itself in the exercise of its powers. I hope we are not in any way opening up the possibility of fresh challenges in the courts.
Considering that after seven years we have only got €1 million, after all the interim, interlocutory and final orders, it does not seem to be moving too fast at present. There would be no harm in moving it up a little bit.
The Minister of State referred to the question of assets and why only €1 million had been realised up to now but I wish to clarify the position. There is a huge amount of money in the system, but where is it frozen? Whose bank account is it in? Is it available in so far as interest can accrue from it to the State? What sort of limbo is it in once the restraining orders have been issued? If the money is actually there, given the orders that have been made to date — even if the final order has not accessed money for the Exchequer — is there any reason that money could not be made available? Is there any circumstance under which there could be a final challenge to it at that point? All that is left is the seven-year period, while the money has gone into hibernation for years. Effectively, therefore, even though it is not physically deposited in the Exchequer, the money is within its grasp. The money may not technically be available to the Exchequer but in practice, substantially, it is there. Is that correct?
Mr. B. Lenihan: Deputy Costello is so experienced in debating Bills presented by the Minister for Justice, Equality and Law Reform that he deserves an honorary law degree at this stage. He never fails on technicalities.
Mr. B. Lenihan: We cannot borrow on the back of the Criminal Assets Bureau. The position is that third parties could of course claim rights to the moneys right up to the end of that period, or at least within the relevant limitation period that applied to them. Therefore, it is not vested in the Exchequer until that seven-year period has elapsed. The practical point is that an increasing amount of this money will be falling to the Exchequer in the years ahead. In a sense, the reason the sum is so low now is that the first seven years have had to pass. Earlier in the debate, Deputy Costello mentioned that the CAB has now been in operation for eight years. The early cases took some time to come before the courts in obtaining the necessary orders. That seven-year period has now passed and there will be an increasing amount of produce for the Exchequer out of these particular funds which are within the management of the Criminal Assets Bureau.
Mr. B. Lenihan: The amendment takes account of the fact that the copy of the Bill printed following Committee Stage omitted to include the intended capital “A” in the newly inserted section 4A in the proposal for consent disposal orders. I am grateful to Deputy O’Keeffe for his keen eye in spotting the error.
On Committee Stage, amendments were agreed to section 14 of the Criminal Assets Bureau Act 1996 which deals with search warrants. One of the changes contained in the new provisions is the replacement of the term “criminal activities” with the phrase “criminal conduct”. This reflects the change in the revised definitions contained in other relevant statutes and provides for consistency in this regard. On Committee Stage, it was noted that the new phrase “criminal conduct” was to be inserted in place of “criminal activities” where it is referred to in subsections (1), (2) and (4), but the reference in subsection (1) was omitted in the final stamped copy of the amendments. Accordingly, a commitment was given to include the omission on Report Stage, which is the purpose of the amendment.
The Bill amends the search warrant provision contained in section 14 of the Criminal Assets Bureau Act in regard to search warrants. One of these changes inserts a new subsection (c) which provides that the time limit which will apply to a search warrant will be one week but allows for the possibility where the judge may apply a different time limit if appropriate in the particular circumstances. This would allow a case to be made when applying for the search warrant for seeking a longer time limit if, for example, a number of search warrants were sought in different areas of the country and co-ordination were required to allow them to be executed simultaneously.
On Committee Stage, concerns were raised by Deputies Jim O’Keeffe, Costello and Ó Snodaigh about the absence of an upward time limit on the time during which a search warrant might be acted upon. A commitment was given to consider the issue further. Deputy Jim O’Keeffe has an amendment proposing a month, but the Minister has gone a bit further and considered that the appropriate period should be 14 days. The Minister proposed an amendment to allay the concerns expressed on Committee Stage. The net effect of the amendment is that the period to be specified in the search warrant will be one week but may be longer if a judge deems it appropriate. In any event, an upward limit of 14 days will apply. This is a lower margin than suggested in the debate. The Minister is grateful to the Deputies for their constructive approach to this issue and trusts the amendment is acceptable.
Mr. J. O’Keeffe: What is involved is a balance in regard to search warrants. The House is aware of the issue of timing of search warrants. Much debate has arisen recently in regard to a particularly controversial case. It raises the question of balance between the powers of the State and the powers of citizens. I am of the view that there must be an upper limit for the execution of search warrants. I also appreciate that the Garda and others must be given sufficient time to execute search warrants, especially if there is an effort to have a co-ordinated approach.
The doctrine of proportionality will apply to any such law we implement. If we infringe on that protection, a court would look at a situation where a search warrant that was of excessive length would not stand up to the constitutional test. From that point of view, I am pleased the Minister accepts there is need for an upward time limit. We are then into the question of whether it should be 14 days or a month. I selected a month because I understand it was the time limit CAB proposed. If the Minister, on the advice of the Attorney General, feels a 14-day time limit is better in the circumstances, I am prepared to go along with that.
While on the issue of search warrants, I want to take the opportunity to point out how seriously we must think about the provisions applying to search warrants. We must also consider seriously the way in which search warrants are dealt with. If we are giving powers to State bodies, we should give a loud and clear message that this power must be exercised and used with due care and due proportionality. I am especially focusing on an issue that was drawn to my attention yesterday when search warrants were issued on behalf of the Dúchas underwater heritage unit. Someone I know who is a pillar of the community had his house visited by members of the Dúchas underwater heritage unit because there was some allegation that he had been deep sea diving. He has been deep sea diving all his life. Four people from Dublin, accompanied by four members of the Garda Síochána, spent the entire day searching his house and business, at what cost I cannot imagine. I will raise the matter with the Minister with responsibility for Dúchas. It is necessary that such statute powers should be used with due care, discretion and proportionality. Given what I know about this incident, it appears to be an outrageous abuse of power in a situation where the items recovered after this very expensive dawn search amounted to a piece of worm-riddled ship timber, a lump of ship’s coal and a forged iron spike. I am merely putting down a marker that I will pursue this matter elsewhere.
In the context of the Bill, we must strike the right balance and set an upper limit. I am pleased the Minister accepted my proposal that there must be an upper limit. I proposed a month on the basis that this was what the CAB required. However, if the Minister, on the advice of the Attorney General, feels a 14 day limit is safer constitutionally, I am prepared to accept it.
Mr. Costello: I welcome the change. I am pleased it is 14 days rather than a month because a search warrant is an important document. As Deputy Jim O’Keeffe said, if there are question marks over how, where and why they are issued, it is important to set down a timeframe. I prefer two weeks rather than a month.
Aengus Ó Snodaigh: I welcome the fact the Minister took this issue on board. I would like the time limit to be seven days. In this day and age it would be possible to have co-ordination when executing search warrants within seven days if the Garda Síochána or any other authority co-ordinated their efforts before applying for a search warrant. It is a sad day, but at least there is an upper limit, which is welcome.
Mr. B. Lenihan: The proposed amendment seeks to put a limit of one month on the provision regarding orders to make material available. This is not the same position that applies to the previous amendment regarding search warrant provision because here one is dealing with an order to make material available for an investigation. It is not desirable to have an upper limit in that instance. The arguments that apply in the case of a search warrant provision cannot be logically applied to this provision. If one puts a limit on this provision, it could be a device to avoid making the material available. By delaying and allowing a time limit to expire, a person might seek to frustrate the authorities and avoid production of the material. It is a different type of provision which requires a person to give material, it is not concerned with a search of a person’s property.
On Committee Stage, an amendment to section 43 of the Criminal Justice Act 1994 was introduced. This section is an interpretation section and a new subsection (1) to replace the present subsection is inserted. The new subsection contains an expanded definition of “cash” and a new definition of criminal conduct and proceeds of crime. However, the amendment failed to maintain the definition of “exported” contained in existing legislation. While the new section does not require a definition of “exported”, other parts of the new amended legislation still do. The omission was an oversight in the stamped copy of the amendment and a commitment was given on Committee Stage to reintroduce the definition of “exported”. That is the purpose of the amendment.
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