CAB Proceedings

Freezing Order

Criminal conduct for the purpose of the Proceeds of Crime Act means any conduct which is an offence in the State or would constitute an offence if it occurred within the State, is an offence under the law of the foreign state concerned and if at that time of application for the order, any property obtained or received at any time  by r as a result of or in connection with the conduct is situated within the State;

Where it is shown to the satisfaction of the court on unilateral application by a member of An Garda Síochána or officer of the Criminal Assets Bureau (member of An Garda Síochána not below the rank of chief superintendent) that a person is in possession of or control of property which directly or indirectly constitutes the proceeds of crime or property which were acquired in whole or in part in connection with that property, that directly or indirectly constitutes the proceeds of crime.

The value of the property is to be at least €13,000.The 2016 Act amended Principal Act to reduce the threshold value of property subject to the Act from €13,000 to €5,000.

The court may make an interim order prohibiting the person or any specified person having notice of the order from disposing of it for a period of 21 days.

Terms and Discharge

The initial order may contain conditions and restrictions as the court considers appropriate and shall provide notice to the affected third parties. The persons affected, including the respondents named in the application may apply to court to discharge the order if it can be shown that the property does not fall within the above category or is less than €13,000 in value. The 2016 Act amended Principal Act to reduce the threshold value of property subject to the Act from €13,000 to €5,000.

As interim order may be varied as necessary to permit enforcement of a court order for sums for cost, taxes due, or proceedings for other sums owed by the respondent.

The court may, on application, discharge the interim/interlocutory order. The order is to continue in force until the application for the order in relation to the property is heard or unless and until varied on the appeal.

Disposal Order

Where the interlocutory order has been in force for, not less than seven years in relation to the specified property, the court on application by the applicant may make a disposal order directing that the whole or part of the property is to be transferred subject to such terms as the court specifies to the Minister or such person as the court directs.

The court is to make an order unless it is shown to its satisfaction that the property does not constitute, directly or indirectly, proceeds of crime and was not acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes proceeds of crime.

The applicant must give notice to the respondent, unless the court is satisfied that it is not reasonably possible to ascertain his or her whereabouts and such other persons as the court may direct.

The disposal order transfers the respondent’s rights in the property to the Minister or such other person as the court directs. The Minister may sell or otherwise dispose of the property transferred and any proceeds shall be paid into the Exchequer.

In deciding whether to make a disposal order or not, the court shall give an opportunity to be heard to  any person claiming ownership of any part of the property concerned. The court if it considers it appropriate in the interests of  justice on the application of the respondents or of its own initiative, if the respondent cannot be ascertained,  may adjourn the proceeding for periods of up to two years as it considers reasonable.

There is provision for consent disposal order. Where an interlocutory/interim order has been in force for less than seven years, an application is made to the court with the consent of all parties, the court may make a consent disposal order on such terms and conditions as it sees fit. It is broadly in the same terms as the order referred to above, and the same consequences follow.

Orders re Property

At any time, when an interim or interlocutory is in force, the court may on an application make such orders as it considers to enable the order to have effect. Notice is to be given to the respondent unless his or her whereabouts cannot be reasonably ascertained. An interim order or interlocutory order or disposal order may be expressed to apply to any profit, gain, interest or other payment arising from or in connection with the assets to which the order relates.

Where an interim or interlocutory order is in force, the court on application by the respondent or other persons affected may make such orders as it considers appropriate in relation to the property concerned, if it is satisfied that it is essential to do so

to enable the respondent or other person to discharge reasonable living and other necessary expenses, including legal expenses in relation to proceedings under the Act incurred or to be incurred in respect of the respondent or his dependants;

to enable the respondent or that other party to carry on the business, trade or profession or other occupation to which the property relates.

An order may contain such conditions and restrictions as the court considers necessary or expedient for the purpose of protecting the value of the property and avoiding any unnecessary diminution in it.

An interim order may be made on application of a member of An Garda Síochána or other person to permit enforcement of an order for costs, recovery of taxes, institution of proceedings relating to recovery of any other sum owed.

There are equivalent proceedings where an order is made by an international tribunal in relation to the respondent. This arises under the international criminal legislation, in particular, international war crimes and equivalent legislation provided for under Conventions to which the State is party.

Receiver

Where an interim or interlocutory order is in force, the court may at any time appoint a receiver to take possession of the property to which the order relates and to manage, possess and dispose of it in accordance with court’s directions. It may require the person having possession or control of the property to give possession of it to the receiver.

Where a receiver takes action under a provision in relation to property, which is not in fact the subject of an order, having reasonable grounds for soul believing, he is not liable in respect of any loss or damage incurred except insofar as it is due to his negligence.

Where an interim or interlocutory order is made, the court registrar shall furnish the Registrar of Titles with the notice of the order and the registrar shall note it on the register. It shall inhibit dealings with the land. Provision is made for notification of variation of order and lapsing of orders.

Similar provision is made in relation to furnishing to the  Registry of Deeds  notice of the order, which is to be registered accordingly as if it was a deed. Equivalent provisions made in respect of variation in relation on discharge.

Proceeds of Crime (Amendment) Act 2016

The 2016 Act provides for the administrative seizure and detention of property other than land by the Criminal Assets Bureau (CAB). A Bureau Officer may seize the property for 24 hours on the basis of having reasonable grounds for suspecting it to be the proceeds of crime. The Chief Bureau Officer can authorise its further detention for 21 days.

The Chief Bureau Officer must be satisfied that:

• there are reasonable grounds for suspecting it to be the proceeds of crime;
• the CAB is carrying out an investigation into whether there are sufficient grounds to apply to the High Court for an interim order or interlocutory order;
• and there are reasonable grounds for believing the property may be disposed of or have its value diminished before an application to the Court could be made.

The 2016 Act provides protections for affected persons by allowing them to apply to the High Court to vary or revoke an authorisation made by the Chief Bureau Officer . The 2016 provides for an application for compensation for losses incurred by the owner of the property if CAB fails to apply for, or obtain, an interim order or interlocutory order from the Court.