Proceeds of Crime (Amendment) Bill - Second Stage Speech

Posted on July 05, 2016

I welcome the Minister back to the House. I also welcome the opportunity to debate this important issue. All of us and others outside the House have spoken of the wider context in which the Bill is being proposed. All of us have seen horrific murders in recent weeks and months. Many have mentioned the shooting today in Lusk and there was another shooting last week very close to where I live in a busy shopping street in the south inner city. All of us have been shocked by the brutality of these murders and shootings and by the recent violence, although we acknowledge they represent only a small number of individuals who are connected to an international and national drugs trade and to criminal organisations. That is the context within which the Bill is being introduced and, clearly, a key aim of the Bill is to act to seek to tackle those involved in criminal organisations at low and middle level. I recognise that tackling organised crime at all levels is a priority for the Government and all of us acknowledge that. There is no doubt that the escalation of crime, particularly in inner city Dublin in recent months, requires a proactive approach.

I and my party colleagues in the Labour Party would emphasise, and I am sure most would agree, that tackling this level of this type of organised crime requires tackling the core issues of disadvantage, of drug use and of tackling these in a way where we do not only have a criminal justice approach. I share Senator Ruane's concern about criminalising addiction and my colleague, Senator Ó Ríordáin expressed that view recently in a debate on the misuse of drugs legislation. We would clearly support a model that would examine much broader issues and that would redirect attention and investment towards disadvantaged communities suffering from a lack of opportunity. We drafted our amendment along the lines of the amendment, to which Senator Mac Lochlainn referred, concerning the ring-fencing of any proceeds or money confiscated towards disadvantaged communities.

The Minister said she would be seeking Cabinet approval today for new legislation allowing increased interception powers for gardaí to intercept e-mails, social media accounts and so on. She has spoken today of the further motion that will be brought before this and the other House concerning reducing the sum under which cash suspected of being the proceeds of crime may be seized by the Garda or Revenue Commissioners under the Criminal Justice Act. We will have an opportunity to debate that at another date. I emphasise the need in both of those areas - in the area of increased powers of interception and in the area where we are considering a regulation to reduce the limit to €1,000 with respect to powers of seizure under the criminal justice legislation - we would have to make sure that we are striking a balance between effective investigatory powers and fundamental due process rights. The Minister has also emphasised the need for that.

Turning to this Bill, we must be mindful of the need to strike a balance. The Minister quoted from the litigation under the original 1996 Proceeds of Crime Act in which the courts refer to this Act as bringing in draconian powers, and indeed those powers of civil forfeiture were unprecedented at the time. Ireland was one of the first countries to introduce them in the context of the appalling murder of Veronica Guerin and also the murder of Detective Garda Jerry McCabe 20 years ago. That was the context at the time. I had the pleasure some months ago of chairing an Irish centre for European Law conference at the Royal Irish Academy on the enforcement of laws against transnational crimes across the EU. It was interesting to hear form people in the front line of law enforcement who have such an interest in our model of civil forfeiture. Having listened to those people speak, there is no doubt that they face enormous challenges in dealing with transnational crime but, again, at that conference and at all other forums where we are dealing with this issue, we must be conscious of the need to balance enhanced powers for law enforcement officers with the need to ensure protection for due progress rights.

Turning to this amending legislation, which amends the 1996 Act which was introduced due to bring in a civil forfeiture regime, we must be concerned that we do not unbalance the delicate crafting of the 1996 regime. Others have mentioned the huge amount of jurisprudence litigation that has developed since 1996. We must be careful that any amendments to the 1996 Act do not unbalance it or unduly encroach on due process rights.

I would make the following three points. First, we in the Labour Party will bring forward an amendment on Committee Stage aimed at ring-fencing the proceeds seized under the legislation to go towards addressing issues of disadvantage. Others have spoke about that also. I accept that the Minister has spoken about a wider review in terms of this legislation and that issue may come under that wider review but it is important we would bring it forward during the debate on this Bill. A second issue, which was raised previously, is that there are concerns that there may be unforeseen consequences flowing from the significant reduction in the threshold to €5,000, for example, with respect to those engaged in prostitution where proceeds of moneys gained from the sale of sex may be seized. We will bring forward an amendment on that to take account of the proposed change in the law in the sex offences Bill which, as the Minister will know, I strongly support, with respect to the change in the law on prostitution. However, we must be careful that this change will be reflected in this Bill to ensure that those engaged in prostitution will not have money seized under this legislation, as that would be an unforeseen consequence. I am referring here to those on the ground, I am not referring to those involved in pimping or organised crime where, clearly, the legislation is directed towards them.

I want to return to section 3 of this Bill which deals with the extension of powers of seizure and detention to CAB officers and, in particular, to the chief bureau officer. We need to carefully scrutinise those provisions. They represent a very significant expansion of the powers and of a very significant extension of the current civil forfeiture regime. The current regime requires court supervision and empowers the CAB to apply to the court for interim or interlocutory orders under 1996 Act, whereas the new legislation proposes to enable CAB officers and the chief bureau officer to freeze assets or proceeds of crime, where they consider there is a reasonable grounds for suspecting a split in the proceeds of crime, for 24 hours and then for 21 days.

We need to be particularly careful about the significant expansion of powers here. In particular, it would be sensible and in keeping with constitutional concerns to at least include some provision requiring that the CAB officers could not keep the property up to that maximum period without some obligation to go to the court if the tests under sections 2 and 3 of the 1996 Act apply. There are similar provisions already in place that we could use as a model. The Criminal Justice Act 1984 brought in the power of detention for up to 24 hours at the time but section 4(5) of the 1984 Act provides that where the Garda has enough evidence to prefer a charge, it must, without delay, charge the person, even if that is within the period of detention permitted. In other words, in order to be careful about introducing safeguards, there should at least be some provision in the new Bill that requires CAB officers to go to court where they have enough evidence to seek an interim or interlocutory order.

We must be mindful that in sections 2 and 3 of the 1996 Act there are careful safeguards in place to ensure, for example, that people who have legitimate businesses are not targeted unfairly and, as was said, we must be careful that people do not lose out. Many of us may have heard of cases where, for example, criminal proceeds are being stored unknown to legitimate business owners on their premises and their property is then seized at a huge loss to their business and it takes them some time then to recoup that. We know that may be happening already but, clearly, court supervision is provided for in the 1996 Act. This significantly expands the powers of seizure and detention of property. We need to be careful that where we are doing this, and I recognise the reason for it and the importance of it to enable the CAB to prepare the evidence for the interim and interlocutory order applications, we should consider some additional safeguard to require that they go to court immediately within the 21 day period where they have requisite evidence gathered or the application prepared under the 1996 Act. We are working on drafting an amendment of that nature but I thought I would raise it here because we must be mindful of that section 3 power, which is probably the most significant aspect of the Bill, more significant than the lowering of the threshold, which perhaps has been the issue on which there has been most public focus.

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