Table of Contents
Freezing Orders
Restraint orders may be made where proceedings are pending for drug trafficking, financing terrorism or other indictable offences. These may be made where the confiscation order has been made or is likely to be made.
A freezing order may be made prohibiting a person dealing with property, subject to conditions as specified. A freezing order may apply to all realisable property held by a person. An application may be made to discharge or vary a freezing order by a person affected.
A freezing order authorizes the court to appoint a receiver to take possession of property and manage it in accordance with the court’s direction. Freezing orders may be registered against property in the Land Registry, Registry of Deeds or Companies Registration Office. This would mean that any third party acquiring the asset would be subjected to the order and would be bound accordingly so that they would not wish to proceed with a transaction in relation to it.
Interim & Disposal
Proceeds of crime litigation proceeds by way of an interim order. This has a limited period of effect. It may be initiated without notice of the persons concerned. Further orders are made which freeze the transfer of the assets for seven years, allowing time for claimants to bring applications to recover. There are procedures to allow the persons affected to challenge the basis of the proceedings.
There is a final disposal order by which assets may be forfeited to be State. Third parties can bring proceedings to recover money owed. The persons affected may make applications for business or living expenses.
The proceeds of crime legislation applies to assets having a value of more than €12,700 which directly or indirectly are the proceeds of crime.
The Proceeds of Crime Act covers criminal conduct in or outside the State.
Initial Application
Initially, a one-sided application is made to the High Court freezing the property. It is made by a senior Garda Síochána who is satisfied that the property constitutes directly or indirectly the proceeds of crime.
A temporary order may be granted on an application within 21 days of the initial application. This second application is made on notice.
The persons concerned have a right to challenge the making of the order. The person must prove the property is legitimately acquired and owned. The second order remains in place for 7 years. The court may transfer the property to or for the benefit of the State.
An application can be made to vary the injunction and release funds for essential legal advice, business and living expenses. There is an ad hoc legal aid scheme for such applications.
A receiver may manage the property. The receiver may sell the property and lodge the proceeds it to an account with the court.
Procedure
The opinion of a member of An Garda Síochána of the rank of superintendent or above is deemed evidence of the above matter. The court decides how much probative, effect this evidence should have.
The person concerned may be required to give details of his earnings and income and assets over the previous six years. The court will require an undertaking from the DPP not to use such as evidence in direct evidence in the course of a criminal trial. The court may make an order compensating the person concerned if any orders are ultimately shown to have been unjustly or incorrectly made.
Third parties may make claims of ownership in respect of properties concerned. They may assert their own title to the property concerned and have it excluded from the procedure.
Confiscation Order
Orders are made to forfeit and dispose of assets. Under a confiscation order, the amount to be recovered is the amount assessed by the court to be the proceeds of the illegal activity, generally drug trafficking.
There are provisions for the reassessment of the benefit received from drug trafficking, where new evidence comes to light. A further or fresh determination or confiscatory order may be made.
There are similar confiscatory provisions in respect of financing terrorism. The application is made by the DPP, rather than being automatic. Similar provisions apply. Assets and funds transferred to the accused within the previous six years are examined, which appear to have been held for use in connection with the finance of terrorism. Similar provisions in respect of tax and social welfare reassessment and revised assessments apply.
A person who fails without reasonable cause to comply with an order or gives false or misleading information is guilty of an offence. It is subject to conviction summarily to 12 months imprisonment or €1,905 or on conviction on indictment, five years or fine.
The High Court may make a corrupt enrichment order. This is directed at persons who have benefited from corruption.
Confiscation Order Issues
The provisions in respect of other non-drug trafficking non-terrorist financing confiscation orders require the applications to be made by the DPP. The provisions are not as extensive as in respect of drug trafficking and financing terrorism.
In the case of other offences, the legislation applies to benefits and property obtained as a result of or in connection with the commission of that offence and the value is the benefit received. The order is to recover the pecuniary advantage the court is satisfied the person has obtained as a result of the offence. The burden of proof is that of proof of the balance of probability.
In relation to the confiscatory powers, the court may order the defendant to give such information as may be specified. The failure to do so allows the court to draw an inference as it considers appropriate.
The court may take account of information to the effect that the victim intends to institute civil proceedings against the defendant in a respect of loss or damage when a confiscation order is made. It should take account of the fine imposed, other forfeitures, and orders involving any payment.
The powers in relation to confiscation may be exercised if proceedings are instituted in respect of drug trafficking or terrorism financing offences, where the defendant has absconded. This may be done, even where the person has not been convicted.
An appeal against a confiscation order lies to the Court of Appeal. The court may uphold or vary the order.
Applications can be made by the defendant or the DPP to vary the confiscation order. Where the amount which can be recovered under the confiscation order from the property is less than that ordered, the amount may be reduced.
Enforcement
A confiscation order can be enforced as if it is a judgment of the High Court. There is a provision for interest on unpaid confiscation orders.
If the payment due under the confiscation order is unpaid, the court may order the defendant to be imprisoned for periods ranging from 45 days to 10 years depending on the amount of the outstanding confiscation order.
Money paid is recovered pursuant to a confiscation order may be applied to meet the expenses of recoveries. Subject to this, it is paid to the State.
The High Court receiver has powers to manage and realise assets for the purpose of satisfying the confiscation order. If the person against whom the freezing order is made. is made bankrupt, the assets covered by the freezing order are not included in the assets available in the bankruptcy.
Seizure of Case
The Revenue and Garda Síochána have powers of search and detention. Cash may not be detained for more than 48 hours without a District Court authorisation, based on reasonable grounds for suspicion. The District Court may release the cash if satisfied that there are no longer any grounds for detention.
An application may be made to the court to forfeit cash seized. It is to be forfeited if the court is satisfied that it, directly or indirectly. represents the proceeds of crime or is intended for such use. Proof is required of the balance of probabilities. There is a provision for an appeal by a third party affected.
Powers of Gardai
A member of an Garda Síochána or of customs and excise may seize and detain money gained from or used in criminal conduct. The powers apply where a person is importing or exporting or intends to import or export cash directly or indirectly representing the proceeds of crime or intended for use in criminal conduct.
There is a general power for An Garda Síochána to apply to the court to require information of a person holding funds subject to confiscation or benefiting from assets or proceeds derived from criminal conduct as well as those directly engaged in indictable offences or drug trafficking. An order may be made against a person who appears to be in possession of material that is of substantial value, for the purpose of investigation and proceedings and such that it is likely to benefit the investigation.
The court may order that person concerned allow entry to the members of An Garda Síochána and may authorize them to enter and search. Computer-based information may be seized.
A member of An Garda Síochána undertaking searches may require details of a person’s name and address. Persons obstructing, failing to comply with requirements or giving a false address may be arrested without a warrant. It is an offence to obstruct or attempt to obstruct a member of An Garda Síochána acting under the authority of an order.
Powers to Obtain Information
The Revenue may disclose information to An Garda Síochána whether a reasonable grounds for suspecting that a person may have derived profits or gains from an unlawful source or activity, the information is likely to be of value to the investigation and that it is in the public interest that the information should be produced.
An Garda Síochána may apply to the District Court for a warrant to search premises for the purpose of investigation of drug trafficking, financing terrorism where a person has benefited from drug trafficking, holds funds subject to confiscation or benefits from an offence for which a confiscation order is made.
Where there are reasonable grounds for suspicion and where it would not be appropriate to use one of the other powers of search, because it is not practicable to communicate with the person entitled to produce the material, grant access to the material or where the investigation would be seriously prejudiced unless immediate access is had. Certain other conditions apply.
A warrant under this provision entitles a member of an Garda Síochána to seize and retain material that is likely to be of substantial value to the investigation. This provision applies for the person who appears to be authorised to allow access to the material, which is not appropriate to require for the above reasons.
There must be reasonable grounds for suspecting that the relevant material is on the premises concerned, is of substantial value to the investigation, cannot be particularised at the time of the application and that it is not practicable to communicate with a person to grant entry, that entry would not be granted unless a warrant is produced and the investigation might be seriously prejudiced unless immediate entry can be secured.
Compensation Order
Where a person is not convicted of an offence for which a confiscation order may be made or is convicted but his conviction is quashed, a compensation order may be made if the court deems appropriate.
No compensation is ordered unless there has been serious default on the part of the persons concerned in the investigation and the applicant has suffered loss in consequence of anything done under the legislation. Compensation may only be ordered if the proceedings could not have been instituted or continued without a serious default.