Number 1 of 2005

PROCEEDS OF CRIME (AMENDMENT) ACT 2005

ARRANGEMENT OF SECTIONS

PART 1

Preliminary and General

PART 2

Amendments to Principal Act

PART 3

Amendments to Act of 1996

PART 4

Amendments to Act of 1994

PART 5

Amendments to Act of 2001

Number 1 of 2005

PROCEEDS OF CRIME (AMENDMENT) ACT 2005

AN ACT TO MAKE FURTHER PROVISION IN RELATION TO THE RECOVERY AND DISPOSAL OF PROCEEDS OF CRIME AND FOR THAT PURPOSE TO AMEND THE PROCEEDS OF CRIME ACT 1996, THE CRIMINAL ASSETS BUREAU ACT 1996, THE CRIMINAL JUSTICE ACT 1994 AND THE PREVENTION OF CORRUPTION (AMENDMENT) ACT 2001. [12th February, 2005]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

PART 1

PRELIMINARY AND GENERAL

Short title, collective citation and construction.

1.—(1) This Act may be cited as the Proceeds of Crime (Amendment) Act 2005 .

(2) The Principal Act and Part 2 of this Act may be cited together as the Proceeds of Crime Acts 1996 and 2005.

(3) The Act of 1996 and Part 3 of this Act may be cited together as the Criminal Assets Bureau Acts 1996 and 2005.

(4) The Prevention of Corruption Acts 1889 to 2001 and Part 5 of this Act may be cited together as the Prevention of Corruption Acts 1889 to 2005.

Interpretation.

2.—In this Act—

“Act of 1994” means the Criminal Justice Act 1994 ;

“Act of 1996” means the Criminal Assets Bureau Act 1996 ;

“Act of 2001” means the Prevention of Corruption (Amendment) Act 2001 ;

“Principal Act” means the Proceeds of Crime Act 1996 .

PART 2

Amendments to Principal Act

Amendment of section 1 (interpretation) of Principal Act.

3.—Section 1 of the Principal Act is hereby amended—

(a) in subsection (1)—

(i) by the substitution of the following definitions for those of “the applicant”, “proceeds of crime”, “property” and “the respondent”:

“ ‘the applicant’ means a person, being a member, an authorised officer or the Criminal Assets Bureau, who has applied to the Court for the making of an interim order or an interlocutory order and, in relation to such an order that is in force, means, as appropriate, any member, any authorised officer or the Criminal Assets Bureau;

‘proceeds of crime’ means any property obtained or received at any time (whether before or after the passing of this Act) by or as a result of or in connection with criminal conduct;

‘property’, in relation to proceeds of crime, includes—

(a) money and all other property, real or personal, heritable or moveable,

(b) choses in action and other intangible or incorporeal property, and

(c) property situated outside the State where—

(i) the respondent is domiciled, resident or present in the State, and

(ii) all or any part of the criminal conduct concerned occurs therein,

and references to property shall be construed as including references to any interest in property;

‘the respondent’ means a person, wherever domiciled, resident or present, in respect of whom an interim order or interlocutory order, or an application for such an order, has been made and includes any person who, but for this Act, would become entitled, on the death of the first-mentioned person, to any property to which such an order relates (being an order that is in force and is in respect of that person);”,

and

(ii) by the insertion of the following definitions:

“ ‘consent disposal order’ means an order under section 3(1A) or 4A(1);

‘criminal conduct’ means any conduct—

(a) which constitutes an offence or more than one offence, or

(b) which occurs outside the State and which would constitute an offence or more than one offence—

(i) if it occurred within the State,

(ii) if it constituted an offence under the law of the state or territory concerned, and

(iii) if, at the time when an application is being made for an interim order or interlocutory order, any property obtained or received at any time (whether before or after the passing of this Act) by or as a result of or in connection with the conduct is situated within the State;”,

and

(b) by the insertion, after subsection (1), of the following:

“(1A) (a) For the avoidance of doubt, a person shall be deemed for the purposes of this Act to be in possession or control of property notwithstanding that it (or any part of it)—

(i) is lawfully in the possession of any member of the Garda Síochána, any officer of the Revenue Commissioners or any other person, having been lawfully seized or otherwise taken by any such member, officer or person,

(ii) is subject to an interim order or interlocutory order or any other order of a court which—

(I) prohibits any person from disposing of or otherwise dealing with it or diminishing its value, or

(II) contains any conditions or restrictions in that regard,

or is to the like effect,

or

(iii) is subject to a letting agreement, the subject of a trust or otherwise occupied by another person or is inaccessible,

and references in this Act to the possession or control of property shall be construed accordingly.

(b) Paragraph (a)(ii) is without prejudice to sections 11(2) and 13(2).”.

Amendment of section 2 (interim order) of Principal Act.

4.—Section 2 of the Principal Act is hereby amended—

(a) in subsection (1) by the substitution, for the opening words up to and including “officer”, of the following:

“Where it is shown to the satisfaction of the Court on application to it ex parte in that behalf by a member, an authorised officer or the Criminal Assets Bureau”,

(b) by the insertion, after subsection (3), of the following:

“(3A) Without prejudice to sections 3(7) and 6, where an interim order is in force, the Court may, on application to it in that behalf by the applicant or any other person, vary the order to such extent as may be necessary to permit—

(a) the enforcement of any order of a court for the payment by the respondent of any sum, including any sum in respect of costs,

(b) the recovery by a county registrar or sheriff of income tax due by the respondent pursuant to a certificate issued by the Collector-General under section 962 of the Taxes Consolidation Act 1997 , together with the fees and expenses provided for in that section, or

(c) the institution of proceedings for, or relating to, the recovery of any other sum owed by the respondent.’,

(c) in subsection (6) by the substitution of the following for paragraph (b):

“(b) in case the application is under subsection (3A) or (4), by the applicant or other person making the application to the respondent, unless the Court is satisfied that it is not reasonably possible to ascertain the respondent's whereabouts,”,

and

(d) by the addition of the following subsection:

“(7) An application under subsection (1) may be made by originating motion.”.

Amendment of section 3 (interlocutory order) of Principal Act.

5.—Section 3 of the Principal Act is hereby amended—

(a) in subsection (1)—

(i) by the substitution, for the opening words up to and including “section 8”, of the following:

“Where, on application to it in that behalf by a member, an authorised officer or the Criminal Assets Bureau, it appears to the Court on evidence tendered by the applicant, which may consist of or include evidence admissible by virtue of section 8”,

and

(ii) by the substitution, for “the Court shall make”, of “the Court shall, subject to subsection (1A), make”,

(b) by the insertion of the following subsection after subsection (1):

“(1A) On such an application the Court, with the consent of all the parties concerned, may make a consent disposal order, and section 4A shall apply and have effect accordingly.”,

(c) by the insertion, after subsection (3), of the following:

“(3A) Without prejudice to subsection (7) and section 6, where an interlocutory order is in force, the Court may, on application to it in that behalf by the applicant or any other person, vary the order to such extent as may be necessary to permit—

(a) the enforcement of any order of a court for the payment by the respondent of any sum, including any sum in respect of costs,

(b) the recovery by a county registrar or sheriff of income tax due by the respondent pursuant to a certificate issued by the Collector-General under section 962 of the Taxes Consolidation Act 1997 , together with the fees and expenses provided for in that section, or

(c) the institution of proceedings for, or relating to, the recovery of any other sum owed by the respondent.”,

(d) in subsection (6) by the substitution of the following for paragraph (a):

“(a) in case the application is under subsection (1), (3A) or (4), by the applicant or other person making the application to the respondent, unless the Court is satisfied that it is not reasonably possible to ascertain the respondent's whereabouts,”,

and

(e) by the addition of the following subsection:

“(8) An application under subsection (1) may be made by originating motion.”.

Amendment of section 4 (disposal order) of Principal Act.

6.—Section 4 of the Principal Act is hereby amended by the addition of the following subsection:

“(9) An application under subsection (1) may be made by originating motion.”.

New section 4A in Principal Act.

7.—The Principal Act is hereby amended by the insertion of the following section after section 4:

Amendment of section 6 (order in relation to property the subject of interim order or interlocutory order) of Principal Act.

8.—Section 6 of the Principal Act is hereby amended by the substitution of the following for paragraph (a) of subsection (1):

“(a) the respondent or that other person to discharge the reasonable living and other necessary expenses (including legal expenses in or in relation to proceedings under this Act) incurred or to be incurred by or in respect of the respondent and his or her dependants or that other person, or”.

Amendment of section 8 (evidence and proceedings under Act) of Principal Act.

9.—Section 8 of the Principal Act is hereby amended—

(a) in subsection (1) by the substitution of the following for paragraph (b):

“(b) in proceedings under section 3, on affidavit or, where the respondent requires the deponent to be produced for cross-examination or the court so directs, in oral evidence,”,

and

(b) by the insertion, after subsection (5), of the following:

“(6) In any proceedings under this Act a document purporting to be a document issued by the Criminal Assets Bureau and to be signed on its behalf shall be deemed, unless the contrary is shown, to be such a document and to be so signed.”.

Non-application to Principal Act of section 11(7) of Statute of Limitations 1957.

10.—For the avoidance of doubt, it is hereby declared that section 11(7) of the Statute of Limitations 1957 does not apply in relation to proceedings under the Principal Act.

Amendment of section 9 (affidavit specifying property and income of respondent) of Principal Act.

11.—Section 9 of the Principal Act is amended by renumbering it as subsection (1) and inserting the following subsection:

“(2) Such an affidavit is not admissible in evidence in any criminal proceedings against that person or his or her spouse, except any such proceedings for perjury arising from statements in the affidavit.”.

New sections 16A and 16B in Principal Act.

12.—The Principal Act is hereby amended by the insertion of the following sections after section 16:

PART 3

Amendments to Act of 1996

Amendment of section 1 (interpretation) of Act of 1996.

13.—Section 1(1) of the Act of 1996 is hereby amended by the addition of the following definitions:

“ ‘criminal conduct’ means any conduct which—

(a) constitutes an offence or more than one offence, or

(b) where the conduct occurs outside the State, constitutes an offence under the law of the state or territory concerned and would constitute an offence or more than one offence if it occurred within the State;

‘place’ includes a dwelling;”.

Amendment of section 4 (objectives of Bureau) of Act of 1996.

14.—Section 4 of the Act of 1996 is hereby amended by the substitution of references to “criminal conduct” for the references to “criminal activity”.

Amendment of section 5 (functions of Bureau) of Act of 1996.

15.—Section 5(1) of the Act of 1996 is hereby amended—

(a) by the substitution of references to “criminal conduct” for the references to “criminal activity”, and

(b) by the insertion of “an authority with functions related to the recovery of proceeds of crime,” after “being”.

Amendment of section 14 (search warrants) of Act of 1996.

16.—Section 14 of the Act of 1996 is hereby amended—

(a) in subsections (1), (2) and (4), by the substitution of references to “criminal conduct” for the references in those subsections to “criminal activities”,

(b) in subsection (4)—

(i) by the deletion of “within one week of the date of issuing of the warrant” and the insertion of “within a period to be specified in the warrant”, and

(ii) by the deletion of “any material found at that place, or any material” and the insertion of “any material (other than material subject to legal privilege) found at that place, or any such material”,

(c) by the insertion of the following subsection after subsection (4):

“(4A) The period to be specified in the warrant shall be one week, unless it appears to the judge that another period, not exceeding 14 days, would be appropriate in the particular circumstances of the case.”,

(d) in subsection (5), by substituting “subsection (2)” for “subsection (3)”,

(e) by the insertion of the following subsection after subsection (5):

“(5A) The authority conferred by subsection (4) to seize and retain any material includes, in the case of a document or record, authority—

(a) to make and retain a copy of the document or record, and

(b) where necessary, to seize and retain any computer or other storage medium in which any record is kept.”,

(f) by the insertion of the following subsection after subsection (6):

“(6A) A bureau officer who is a member of the Garda Síochána acting under the authority of a warrant under this section may—

(a) operate any computer at the place which is being searched or cause it to be operated by a person accompanying the member for that purpose, and

(b) require any person at that place who appears to the member to have lawful access to the information in the computer—

(i) to give to the member any password necessary to operate it,

(ii) otherwise to enable the member to examine the information accessible by the computer in a form in which it is visible and legible, or

(iii) to produce the information to the member in a form in which it can be removed and in which it is, or can be made, visible and legible,”,

and

(g) by the substitution of the following subsection for subsection (9):

“(9) In this section—

‘computer at the place which is being searched’ includes any other computer, whether at that place or at any other place, which is lawfully accessible by means of that computer, and

‘material’ includes a copy of the material and a document or record.”.

Amendment of maximum amount of certain fines in Act of 1996.

17.—Sections 11(2)(a), 12(2)(a), 13(2)(a), 14(7), 15(2)(a) and 16(2) of the Act of 1996 are hereby amended by the substitution of “€3,000” for “£1,500” in each case.

New sections 14A, 14B and 14C in Act of 1996.

18.—The Act of 1996 is hereby amended by the insertion of the following sections after section 14:

PART 4

AMENDMENTS TO ACT OF 1994

Amendment of Title to Part VI of Act of 1994.

19.—The Title to Part VI of the Act of 1994 is hereby amended by the substitution of “SEARCH FOR, SEIZURE AND DISPOSAL OF MONEY GAINED FROM, OR FOR USE IN, CRIMINAL CONDUCT” for “DRUG TRAFFICKING MONEY IMPORTED OR EXPORTED IN CASH”.

Amendment of section 38 (seizure and detention) of Act of 1994.

20.—Section 38 of the Act of 1994 is hereby amended—

(a) by the substitution of the following subsections for subsection (1):

“(1) A member of the Garda Síochána or an officer of customs and excise may search a person if the member or officer has reasonable grounds for suspecting that—

(a) the person is importing or exporting, or intends or is about to import or export, an amount of cash which is not less than the prescribed sum, and

(b) the cash directly or indirectly represents the proceeds of crime or is intended by any person for use in connection with any criminal conduct.

(1A) A member of the Garda Síochána or an officer of the Revenue Commissioners may seize and in accordance with this section detain any cash (including cash found during a search under subsection (1)) if—

(a) its amount is not less than the prescribed sum, and

(b) he or she has reasonable grounds for suspecting that it directly or indirectly represents the proceeds of crime or is intended by any person for use in any criminal conduct.”,

and

(b) by the insertion of the following subsection after subsection (3):

“(3A) Where an application is made under section 39(1) for an order for the forfeiture of cash detained under this section, the cash shall, notwithstanding subsection (3), continue to be so detained until the application is finally determined.”.

Amendment of section 39 (forfeiture of seized cash) of Act of 1994.

21.—Section 39(1) of Act 1994 is hereby amended by the substitution of “the proceeds of crime or is intended by any person for use in connection with any criminal conduct” for “any person's proceeds of, or is intended by any person for use in, drug trafficking”.

Amendment of section 43 (interpretation of Part VI) of Act of 1994.

22.—Section 43 of the Act of 1994 is hereby amended by the substitution of the following subsection for subsection (1):

“(1) In this Part of the Act—

‘cash’ includes notes and coins in any currency, postal orders, cheques of any kind (including travellers’ cheques), bank drafts, bearer bonds and bearer shares;

‘criminal conduct’ means any conduct which—

(a) constitutes an offence or more than one offence, or

(b) where the conduct occurs outside the State, constitutes an offence under the law of the state or territory concerned and would constitute an offence or more than one offence if it occurred within the State;

‘exported’, in relation to any cash, includes its being brought to any place in the State for the purpose of being exported;

‘proceeds of crime’ has the meaning given to that expression by section 1(1) (as amended by section 3 of the Proceeds of Crime (Amendment) Act 2005) of the Proceeds of Crime Act 1996 .”.

PART 5

Amendments to Act of 2001

New sections 2A, 2B and 2C in Act of 2001.

23.—The Act of 2001 is hereby amended by the insertion of the following sections after section 2:

AN tACHT UM FHÁLTAIS Ó CHOIREACHT (LEASÚ) 2005 PROCEEDS OF CRIME (AMENDMENT) ACT 2005

EXPLANATORY AND FINANCIAL MEMORANDUM

Introduction

The purpose of this Act is to make further provision in relation to the recovery and disposal of proceeds of crime and for that purpose to amend the Proceeds of Crime Act 1996 , the Criminal Assets Bureau Act 1996 , the Criminal Justice Act 1994 and the Prevention of Corruption (Amendment) Act 2001 .

Exchequer Costs and Staffing Implications

The Act will not give rise to exchequer costs and has no staffing implications.

Part 1

Section 1 contains the short title, collective citation and construction provision and defines Section 2 contains the interpretation provisions.

Part 2 comprises ten sections and contains the amendments to Section 3 substitutes new definitions in that Act for “applicant”, “proceeds of crime”, “property”, and “respondent”. The new definition of “applicant” is a broader definition which will give the Criminal Assets Bureau the flexibility to take proceedings in its own name in addition to taking proceedings, as they already do, in the name of a member or authorised officer of the Criminal Assets Bureau. The new definition of “proceeds of crime” replaces the reference to “the commission of an offence” in the existing definition with the words “criminal conduct” and a definition of “criminal conduct” is included in the section similar to that used in Section 21(7) of the Criminal Justice (Theft and Fraud Offences) Act 2001 in relation to the offence of “money laundering”. The outcome of this change means that it will not be necessary for the Criminal Assets Bureau to show that the criminal conduct was a particular kind of criminality if it is shown that the property was obtained through conduct of one of a number of kinds each of which would be an offence. In addition, criminal conduct and property can include criminal conduct and property outside the jurisdiction.

The definition of “criminal conduct” ensures that foreign criminality is now covered by the scope of the legislation where there are proceeds of that criminality within the State. The definition of “property” has been amended to provide for inclusion of a reference to property which is situated outside the State but where there are specific links to this jurisdiction, namely, that the respondent is domiciled, resident or present in the State and all or any part of the criminal conduct takes place within the State.

The definition of “respondent” has also been amended to include a reference to a person wherever domiciled, resident or present to reflect the fact that in some instances the service of proceedings may be out of the jurisdiction. Not only may the respondent be the subject of proceedings but may also be a person who, but for the Principal Act, would become entitled to inherit the property of the respondent, if he or she died. In addition to the changes in definitions already in the Principal Act, new definitions are included for ‘consent disposal order’ and ‘criminal conduct’.

The combined changes relating to the definitions of “proceeds of crime”, “property”, “criminal conduct” and “respondent” will mean that the proceeds of crime legislation will apply in relation to five specific scenarios as follows—

1. Where the respondent and the property are in the State and the criminal conduct occurs within the State;

2. Where the respondent is situated outside the State but the property is located in the State and the criminal conduct occurs within the State;

3. Where the criminal conduct occurred outside the State but the respondent and the property are situated within the State, provided that the conduct constituting the offence is also an offence in the foreign jurisdiction;

4. Where the respondent is situated within the state and the criminal conduct occurred within the state but the property is located outside the State; and

5. Where the property is located within the State, the respondent is situated outside the State and the criminal conduct occurred outside the State, provided that the conduct constituting the offence is also an offence in the foreign jurisdiction.

Section 3 also inserts a new section 1A into the Principal Act the purpose of which is to make it clear that a person is deemed, for the purposes of the Principal Act, to be in possession of property where the property, after seizure, is in the lawful possession of the Gardaí or the Revenue Commissioners or is subject to an interim or interlocutory order or any other order of the Court (without prejudice to the powers of assignees in bankruptcy or liquidators) or is subject to a letting agreement, subject of a trust or otherwise occupied by another person or is inaccessible.

Section 4 amends section 2 of the Principal Act. Paragraph (a) is a technical amendment consequent to the amendment already made in section 3(a) of the Act which provides for applications to court to be made in the name of the Criminal Assets Bureau. Paragraph (b), inserting a new subsection (3A) into section 2 of the Principal Act, makes provision for an interim order made under that section to be varied so that income tax or other sums owing on foot of court orders may be recovered. At present, an interim order may only be varied on the application of the person against whom the order is made, or by another person who claims to own part or all of the property. This new subsection provides that the applicant, that is a person who is a member, an authorised officer or the Criminal Assets Bureau itself, or any other person may apply for a variation of an interim order, for certain purposes.

The purposes for which a Court may vary any of the terms of an interim order are set out in subsections (a), (b) and (c) of the new subsection (3A) and include where the respondent owes a sum under a court order, recovery of any sum owed in income tax and institution of proceedings for the recovery of any other sum owed by the respondent. This new provision will enable other specified claims on the property to be met from the frozen assets and will facilitate further the tracing of other properties without cost to the Exchequer.

Paragraph (c), which substitutes a new paragraph (b) in subsection (6) of section 2, deals with giving notice of an application for an interim order under the section, and follows on from subsection (3A), which enables the applicant or other person making the application to seek a variation of an interim order. Paragraph (d) adds a new subsection to section 2 which provides that a section 2 application may be made by way of originating motion. Similar amendments are included in sections 5 and 6 of the Act in relation to section 3 interlocutory orders and section 4 disposal orders. The purpose of providing for applications by way of originating motion is to ensure a procedure by way of motion grounded on affidavit and, as a result, defendants will be obliged to respond to proceedings on affidavit and so avoid the need for Particulars and Discovery at an early stage in the process.

Section 5 of the Act amends section 3 of the Principal Act. Firstly, paragraph (a), which amends subsection (1) of section 3 of the Principal Act, reflects the changes in section 3(a) of the Act to allow an action to be taken in the name of the Criminal Assets Bureau and, in addition, provides that the evidence tendered to it may now consist of or include evidence admissible by virtue of section 8 of the Principal Act, whereas previously the evidence tendered to it was required to consist of or include such evidence. The effect of the latter change is to provide the court with more flexibility in relation to the matters it may take into consideration in reaching its decision as to whether or not to make an interlocutory order. Paragraph (b) inserts a new subsection (1A) into section 3 of the Principal Act to provide for a consent disposal order to be taken contemporaneously with a section 3 interlocutory order, if all the parties are in agreement. Paragraph (c) inserts an additional subsection (3A) into section 3 of the Principal Act. The new subsection provides that a court may vary the terms of an interlocutory order, following an application to it by the applicant or any other person, for the same reasons for which it may vary an interim order, that is to permit;

(a) enforcement of any court order for payment of any sum, including an order as to costs,

(b) recovery of income tax due as well as any fees or expenses arising under section 962 of the Taxes Consolidation Act 1997 , or

(c) proceedings to be taken for the recovery of any other sum owed by the respondent.

Paragraph (d) provides for the substitution of a new wording for section 3(6)(a) of the Principal Act, to the effect that notice of an application under the section shall be served by the applicant, or other person making the application, on the respondent unless the court is satisfied that it is not reasonably possible to discover his or her whereabouts. Paragraph (e) adds a new subsection to section 3 providing that an application for an interlocutory order may be made by originating motion.

Section 6 of the Act amends section 4 of the Principal Act by the addition of a new subsection which allows for an application for a disposal order to be made by way of originating motion.

Section 7 provides for the insertion of a new section 4A in the Principal Act and makes provision for a consent disposal order. Section 4 of the Principal Act already provides that, where property has been the subject of an interlocutory order for a period of seven years, an application may be made to the High Court by the Criminal Assets Bureau for a disposal order whereby the property is transferred to the Minister for Finance. This new section provides for the concept of a “consent disposal order” which will allow for that period of seven years to be reduced on application to the High Court with the consent of all the parties concerned. It contains a protection in subsection (5) by providing that the court must not make such an order unless it is satisfied that no serious risk of injustice arises.

Section 8 of the Act amends section 6(1) of the Principal Act. At present, a respondent whose property is frozen under an interim or interlocutory order may apply to the court for an order which will enable that person to discharge reasonable living and other necessary expenses. This amendment, substituting a new paragraph (a), will extend that facility to any person who may be affected by either an interim or interlocutory order under the Principal Act. For example, it will enable a spouse or dependent of the respondent to make an application to the court in his or her own right for access to the frozen property.

Section 9 of the Act amends section 8 of the Principal Act in two ways. At present, section 8 of the Principal Act provides that evidence of belief of the applicant that property is the proceeds of crime must be given, in the case of an application for an interim order under section 2, either on affidavit or, if the court so directs, in oral evidence, and, in the case of an application under section 3 for an interlocutory order, in oral evidence only. By virtue of paragraph (a) of section 9 of the Act, such evidence at the interlocutory stage may be given on affidavit or, where the respondent requires the deponent to attend for the purpose of cross-examination or where the court so directs, the evidence must be given orally. This measure will enable the resources of the Criminal Assets Bureau to be used more efficiently, while, at the same time, safeguarding the court's role and the rights of the respondent. Paragraph (b) adds a new subsection (6) to section 8 of the Principal Act. This is a consequential amendment arising from the earlier provision in section 3(a)(i) which amends the definition of “applicant” so as to permit the Criminal Assets Bureau, as a corporate entity, to apply for orders under the Principal Act under its own name. It provides for a rebuttable presumption that a document purporting to have been issued by the Criminal Assets Bureau and signed on its behalf shall be deemed to be such a document and so signed.

Section 10 puts on a statutory basis the decision of the Supreme Court in McK & D [2004] IESC 32 (17 May 2004), where the Court upheld two earlier decisions of the High Court to the effect that section 11(7) of the Statute of Limitations 1957 does not apply at any stage to proceedings under the Principal Act. There had been a doubt about the matter.

Section 11 amends section 9 of the Principal Act to make it clear that an affidavit of property or income, which the court may direct a respondent to file, is not admissible in evidence in any criminal proceedings against the respondent or his or her spouse, except any such proceedings for perjury arising from statements in the affidavit.

Section 12 inserts two new sections — sections 16A and 16B — in the Proceeds of Crime Act 1996 . The new section 16A provides in subsection (1) that certain documents are to be admissible in any proceedings as evidence of any fact therein of which direct oral evidence would be admissible without further proof. The documents concerned are (i) a document which consists of part of a record of a business, or a copy of that document, (ii) a deed, and (iii) a document which purports to be signed by a person on behalf of the business and which states that either (a) a designated document or documents constitute the record or part of the records of the business or a copy or are copies of such a document or documents or (b) there is no entry or other reference in the records to a specified matter, provided that, in both those instances, the person has personal knowledge of those matters.

Subsection (2) of the new section is a safeguard provision which provides that a document is not admissible under subsection (1) if the court is of the opinion that in the interests of justice it ought not be admitted. Subsection (3) provides that the section is without prejudice to any other enactments or rule of law which authorises the admissibility of documentary evidence. Subsection (4) sets out definitions for terms used, namely “business”, “deed”, “document”, “public authority” and “records”.

The new section 16B inserted by section 12 provides for a corrupt enrichment order. The purpose of this provision is to deal with the situation where someone, by means of a corrupt act, benefits from the enhancement of the value of property legally acquired, arising from the corrupt act. This section provides for a procedure whereby the corruptly enhanced value can be subject to a corrupt enrichment order taken against the individual concerned.

Under subsection (1) a person is corruptly enriched where he or she derives a pecuniary or other advantage or benefit as a result of or in connection with “corrupt conduct”. “Corrupt conduct” is defined as any conduct which is an offence under the Prevention of Corruption Acts 1889 to 2001, the Official Secrets Act 1963 and the Ethics in Public Office Act 1995 . The subsection also includes a definition of “property”. Subsection (2) provides that where it appears to the Court on evidence from the applicant that a person has been corruptly enriched, the Court may make what is termed a “corrupt enrichment order” which directs that person — the defendant — to pay to the Minister for Finance or other person specified by the Court an amount equivalent to the amount by which the Court determines the person has been corruptly enriched.

Subsection (3) provides for a presumption until the contrary is shown of corrupt conduct on the part of a defendant where three conditions are fulfilled. Subsection (4) provides the Court with power to prohibit disposal of, or dealing with, the property concerned or to prevent diminution of its value. Subsection (5) provides that where the applicant makes a statement on oath that it is his or her belief that the defendant has (a) derived a specified pecuniary or other advantage or benefit as a result of corrupt conduct, (b) is in possession or control of property acquired directly or indirectly as a result of or in connection with corrupt conduct or (c) is in possession or control of specified property and that the property was acquired directly or indirectly as a result of or in connection with the property already referred to in (b) then, if the Court is satisfied there are reasonable grounds for that belief, the statement shall be evidence of the matters referred to.

Subsection (6) provides that the Court may make an order which directs the defendant to file an affidavit specifying his or her property or income and sources of income or both, but such affidavit is not admissible in criminal proceedings against the defendant or his or her spouse, except in the case of perjury proceedings arising from statements in the affidavit. Subsection (7) applies the provisions of sections 14 to 14C of the Criminal Assets Bureau Act 1996 (as amended and inserted by sections 16 and 18 of this Act) relating to search warrants, orders to make material available, prejudicial disclosure and trusts, to assets or proceeds derived from unjust enrichment. Subsection (8) applies the civil standard of proof to the proceedings and subsection (9) applies the rules of court applicable to civil proceedings to proceedings under the section.

Part 3 of the Bill comprises 6 sections which amend Section 13 reflects the earlier change to the definition of “criminal conduct” contained in the Principal Act and provides for consistency between the definition in that Act (as amended by this Act) and the Criminal Assets Bureau Act 1996 . “Place” in the Criminal Assets Bureau Act 1996 is defined as including a dwelling.

Sections 14, 15 and 16 replace references to “criminal activity” with “criminal conduct” in those sections of the Criminal Assets Bureau Act 1996 where they occur and provide consistency with the corresponding amendments being made to the Principal Act. Section 5(1) of the Criminal Assets Bureau Act 1996 provides, as one of the functions of the Criminal Assets Bureau, “co-operation with any police force, or any authority, being a tax authority or social security authority of a territory or state other than the State”. However, civil forfeiture asset recovery agencies like the one recently established in the UK do not come within these categories and hence the need to include in the area of co-operation “an authority with functions related to the recovery of proceeds of crime”. Section 15 (b) of the Act provides accordingly.

Section 16 amends the section 14 search warrant provision of the Criminal Assets Bureau Act 1996 in a number of ways. Paragraph (b)(i) provides that a warrant issued by the District Court under section 14 shall subsist for whatever period is specified by the Court in the warrant, but by virtue of paragraph (c) — inserting a new subsection (4A) in section 14 — the period to be specified shall be one week unless it appears to the judge that another period not exceeding 14 days would be appropriate. Paragraph (b)(ii) makes it clear that the material that can be seized cannot include material subject to legal privilege. Paragraph (e) provides that the authority to search also includes authority to make and retain a copy of documents or records and, if necessary, for the seizure and retention of computers or other storage medium on which a record may be kept. Paragraph (f) inserts a new subsection (6A) in section 14 modelled on the provisions of section 48 of the Criminal Justice (Theft and Fraud Offences) Act 2001 . It provides, in the context of a search warrant, for a Criminal Assets Bureau officer who is a member of the Garda Síochána to take certain specified actions in the case of computer searches.

Section 17 increases the maximum amount of fines on summary conviction for certain offences under the Criminal Assets Bureau Act 1996 from £1,500 to €3,000.

Section 18 creates three new sections — 14A, 14B and 14C — in section 63 of the Criminal Justice Act 1994 . It allows a Criminal Assets Bureau officer, who is a member of the Garda Síochána, to apply to the court for an order to make material available for the purposes of an investigation into whether a person has benefited from, is in receipt of, or controls proceeds of crime. It outlines the conditions attaching to this order and deals with the operation of these orders and also includes provision for criminal sanctions for non-compliance with the order. The new section 14B provides for an offence of disclosure prejudicial to the making available of material under new section 14A, more commonly referred to as a “tipping off” offence. This new provision is modelled on the offence of prejudicing an investigation contained in section 58 of the Criminal Justice Act 1994 . The new section 14C provides for application to the court for disclosure of the identity of persons for whom property is held in trust. This will enable the Chief Bureau Officer or an authorised officer of the Revenue Commissioners to apply to the High Court in order to establish the identity of trustees or persons for whom property is held in trust where there is an investigation in relation to whether a person is in receipt of, controls or has benefited from, the proceeds of crime.

Part 4 of the Act comprises 4 sections which amend Section 20 amends the seizure and detention of cash provision contained in section 38 of the 1994 Act. The new subsection (1) of section 38 gives the Gardaí and Officers of Custom and Excise a power of search where there are reasonable grounds to suspect that a person may be involved in importing or exporting an amount of cash not less than the prescribed amount, currently €6,500, and which either directly or indirectly is suspected of representing the proceeds of crime or is intended for use in connection with criminal conduct.

The new subsection 1(A) of section 38 — inserted by section 20 of this Act — broadens the power of seizure of such cash in the section to officers of the Revenue Commissioners, instead of Officers of Customs and Excise, as at present, and allows for seizure of cash which is suspected to directly or indirectly represent proceeds of any criminal conduct, and not just drug trafficking, as at present. In addition, the amended seizure power will now apply to cash anywhere in the State and not just to money “being imported into or exported from the State”. A new subsection (3A) inserted after subsection (3) of section 38 of the 1994 Act provides that where an application under section 39 of the 1994 Act has been made to the Circuit Court for forfeiture, then the provisions of section 38(3) relating to a three month time limit shall not apply. Its effect is to avoid the need for returning to the District Court every three months to renew a seizure order under section 38 in a situation where the Circuit Court has taken seisin of proceedings to deal with an application for forfeiture of cash seized under section 39. In other words, the cash can be retained without the need for orders to be made in the District Court at three monthly intervals pending a final determination of the application for forfeiture in the Circuit Court.

Section 21 amends the provision contained in section 39 of the Criminal Justice Act 1994 relating to forfeiture of seized cash and is a consequential amendment to take account of the fact that section 38 has been amended to refer to cash which is suspected to directly or indirectly represent proceeds of any criminal conduct, and not just drug trafficking, as previously.

Section 22 amends section 43 of the Criminal Justice Act 1994 by providing for new definitions of ‘cash’, ‘criminal conduct’ and ‘proceeds of crime’. The new definition of ‘cash’ widens the existing definition by including notes and coins in any currency, postal orders, cheques, bank drafts, bearer bonds and bearer shares. The new definitions of ‘criminal conduct’ and ‘proceeds of crime’ are the same as the definitions of ‘criminal conduct’ and ‘proceeds of crime’ in the Proceeds of Crime Act 1996 . The inclusion of these definitions in the Criminal Justice Act 1994 provides for consistency between the Acts.

Part 5 of the Bill comprises one section — section 23 — which inserts new sections 2A, 2B and 2C into section 38 of the Criminal Justice Act 1994 and will mean that a suspected bribe, as an instrumentality of crime, will be automatically capable of seizure. The new section 2B provides for forfeiture by the Court of the gift or consideration which has been seized and detained under the previous provision and is modelled on the forfeiture of cash provision in section 39 of the Criminal Justice Act 1994 . The Court may make an order whether or not proceedings have been brought against a person for an offence with which the gift or consideration is connected, and the standard of proof for proceedings for forfeiture is that applicable to civil proceedings. The new section 2C applies the provisions of sections 40 (appeal), 41 (interest), 42 (procedure) and 45 (disposal) which relate to the seizure and forfeiture of cash, in Part VI of the Criminal Justice Act 1994 , to the new seizure and forfeiture provisions provided in these amendments.

An Roinn Dlí agus Cirt, Comhionannais agus Athchóirithe Dlí. Márta, 2005.