Confiscation and Forfeiture

Drug Trafficking

The Criminal Justice Act 1994 made provision for confiscation and forfeiture orders. Where a person has been sentenced or otherwise dealt with for drug trafficking offences, the court is obliged to determine if the person has benefited from drug trafficking.

The court may choose not to make a determination if it is satisfied having regard to be means of the offender and circumstances, an insufficient amount is likely to be recovered to justify the order.

If the court decides that the person has benefited, it is to determine the amount to be recovered. It is obliged to make a confiscation order. The benefit is the payment or award received in connection with road trafficking. The matter is to be proved on the balance of probabilities. This is in addition to the proceeds of crime legislation.

Proceeds comprise any payment or reward received in connection with drug trafficking. It is not limited to profits but covers payments received.

Presumptions

It is presumed that

• property appearing to the court to have been held by the defendant at the time of his conviction or to have been transferred to or acquired by him since, within the period of six years before proceedings were instituted, was received by him as a payment for or a reward in connection with drug trafficking carried out by him.
• expenditure by the defendant since the beginning of the period was met out of payments received by him in connection with drug trafficking and
• property received or assumed to have been received, was received free of the interest of any third party.

This presumption may be rebutted. The onus is on the accused to prove to the contrary.

Other Offences

Where a person has been sentenced or otherwise dealt with in respect of an offence, other than a drug trafficking offence of which he has been convicted on indictment, then if the application is made by the DPP, the court may subject to the provisions make a confiscation order requiring the person concerned to pay such sum as the court sees fit. The court has discretion as to whether an order should be made.

A person benefits from the offence if he obtains assets as a result of or in connection with its commission. The benefit deemed received is deemed value in monetary terms. The civil standard of proof applies. The court may order confiscation to be paid at once or at a later date.

The defendant may be ordered to produce evidence to assist the court. It may restrain persons from dealing with any property while proceedings are ongoing. A restraining order may be granted or varied, pending the determination of the matter.

Nature of Order

A confiscation order is not penal in nature. However, the court is to take account of any separate proceedings instituted or intended to be instituted. An order may be made against a person who has died or absconded during criminal proceedings. Two years must pass from the date on which the accused absconded, except where it appears, it would be reasonable in the circumstances to use the power. The DPP must have taken reasonable steps to contact the accused who seems to have absconded.

The order may be enforced in the same manner as a High Court order by way of contempt of court. Imprisonment may be ordered in default of payment. The accused is entitled to make representations to the court.

The maximum terms of imprisonment that may be imposed in default are dependent on the amount of the confiscation order. The order may run consecutively with a prison sentence for the offence concerned. It may be reduced in proportion to amounts paid or recovered.

An appeal may be made against the confiscation order to the Court of Appeal. It may vary the amount of the order. It may uphold the appeal in whole or in part. It may order compensation to be paid to the applicant such as is just in the circumstances.

The High Court may make a variation order on application by the DPP or the accused if it considers the value of the realisable property is inadequate for payment of the remaining amount due. Inadequacy due to the default of the defendant in preserving the property may be disregarded. A variation may be sought where the amount realisable exceeds the amount in respect of which the confiscation order is made.

Confiscation of Related Things

Where a person is convicted of a drug trafficking offence or a serious drugs offence, the court may order anything shown to relate to the offence to be forfeited or destroyed or dealt with as the court orders. A person who claims an interest in the property concerned may apply to the court to show cause why the order should not be made. The property or asset must relate to the particular offence concerned.

When a person is convicted of an offence and the court is satisfied that the property which has been lawfully seized or was in his possession or under his control at the time of his apprehension or being summoned, has been used for the purpose of committing or facilitating the commission of any offence or it is intended to be used by him for the purpose, the court may order forfeiture of the assets or property concerned.

The order may also be made if the offence or an offence that is taken into consideration in determining the sentence comprises unlawful possession of the property which has been lawfully seized from the offender or was in his possession at the time of summons or arrest. The court may make a forfeiture order irrespective of whether the offender is dealt with in any other way in relation to the offence concerned.

Court Criteria

The court is to have regard to the value of the property, the likely financial and other effects on the offender (together with other orders being contemplated). The order deprives the offender of his interest in the assets concerned which is to be taken into the possession of a Garda Síochána, if not already held.

A person who has an interest in the property concerned is to be given an opportunity to be heard in relation to the application. The order is not to take effect until the appeal procedures have been terminated or lapsed. The Law of Property legislation applies subject to modification in relation to forfeiture.

A person with an interest may apply within six months and he must satisfy the court that he has not consented to the offender having possession of the property or that he did not know and had no reason to suspect that the property was likely to be used in the commission of a crime.

Offences against State

The Offences against the State Act 1998 provides that if a person is convicted of an offence in relation to firearms or explosives, then a forfeiture order shall be made. If having regard to the facts, nature and seriousness of offence or conviction, the court is satisfied that there would be a serious risk of injustice if the order was made, it may choose not to do so.

Forfeiture is relevant to the entire sentence so that it should not be excessive when taken with the forfeiture. The impact of forfeiture must be considered. Forfeiture applies to both movable and immovable property.

Restitution Orders

Orders of restitution may be made in respect of stolen property. Where a person has been convicted of  theft offences , or such offences are taken into account for the purpose of sentence, the court may order any person having possession or control of the property to restore it to the person entitled.

Where the person entitled to recover the asset applies, the court may order the property to be returned to the person entitled. The court may order that a sum of money not exceeding the value of the property stolen, which was taken from the convicted person’s possession when arrested should be given to the person entitled to recover the stolen property. It may order that the proceeds of disposal and money taken be paid, provided the total value does not exceed the value of the stolen property.

Restitution orders may only be made when there has been a conviction. It may be made before sentencing. If the property has been sold to a person acting in good faith, or has been secured to a lender on such terms and a restitution order is made, then on the application of the purchaser or lender, the court may order that there is to be paid to the purchaser or lender, money taken from the offender at the time of arrest as long as it does not exceed the purchase price for the assets or the loan as the case may be.