Proceeds of Crime II
Seizure of Cash & Equivalents
The Criminal Justice Act 1994 as amended by the Proceeds of Crime Act 1996 makes further provision for the seizure of the proceeds of crime. 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 conduct that constitutes an offence or one or more offences, or would be offence if committed within the State.
A member of An Garda SÃochána or officer of Customs and Excise may search a place if he has reasonable grounds for suspecting that a person is importing or exporting or intends to import or export an amount of cash which is at least a prescribed sum and which represents the proceeds of crime or is intended by any person for use in connection with criminal conduct.
A member of An Garda SÃochána or officer of Revenue Commissioners may seize and detain any such cash or equivalent if it is not less than the prescribed sum, and he has reasonable grounds for suspecting that it directly or indirectly represents the proceeds of crime or is intended for use in any criminal conduct.
Cash Etc. Detained
Cash detained is to be kept for up to 48 hours and further dealt with in accordance with orders made by the District Court. An application may be made for the extension of the time limit where there is a suspicion that it represents proceeds as above, while its origin or derivation is further investigated and consideration is given to the institution of criminal proceedings.
The order may permit continuation of the detention of the cash for three months and the order may be from time to time continued for periods of up to three months. The total period of detention shall not exceed two years. An application may be made for the forfeiture of the cash in certain circumstances.
The above applications may be made by a member of Garda SÃochána or officer of Customs and Excise. Where cash is detained under the above provisions, on application, the District Court may direct its release if it is satisfied that the position as suspected proceeds of crime, etc. is no longer applicable.
Application for Forfeiture
An application for forfeiture may be made or proceedings may be instituted against the person for an offence in relation to the cash, in which event the cash will not be released until the proceedings have concluded.
Judges of the Circuit Court may order forfeiture of the cash detained, if satisfied, on the application, that the cash directly or indirectly represents the proceeds of crime or is intended for use in connection with any criminal conduct. An application is be made by the DPP. The civil standard of proof applies. There is provision for an appeal against the determination within 30 days to the High Court. The High Court may make such order as it considers appropriate, in accordance with the legislation.
Cash detained for more than 48 hours is to be held in an interest-bearing account. Any interest earned is to be added to the cash. There is provision for notices to be given of the application to the persons affected. Rules of court may determine the procedure.
The prescribed sum is prescribed as of 2009 at £5000 (€6,235). Money forfeited following payment of expenses, that have arisen in relation to their forfeiture shall be paid to the Minister for Finance.
Disclosure and Mandatory Disclosure
Money laundering and terrorist financing legislation allows applications for the purpose of disclosure of information. Any person or body to whom the money laundering legislation applies, including a director, officer or employee of a entity, subject to the legislation who suspects that an offence of financing terrorism or money laundering offences have occurred in relation to the business of that body or person, must report the suspicion to the Garda SÃochána and Revenue Commissioner. Information received may be used in an investigation into the offence.
A person who is charged with the supervision of a body or other entity subject to the money laundering legislation, who believes that an offence of financing terrorism or money laundering offences or offences relating to the proceeds of crime or money laundering must report the suspicions to the Garda SÃochána and Revenue Commissioners. This may be done in accordance with internal reporting procedures established by the employer for this purpose.
A person who fails to comply with the obligation, is guilty of an offence which may be tried on summary conviction to a fine up to €1,270 or imprisonment to 12 months or on conviction on indictment, a term of up to five years or a fine. #[05:21] Integrate here Re: money laundering.
The Minister for Justice may after consultation with the Minister for Finance, designate States and territorial units which in his opinion do not have adequate procedures for the detecting money laundering. A body subject to the money laundering legislation must report to the Garda SÃochána, any transaction connected with a State or territorial unit that stands so designated. Similar obligations apply as in respect of money laundering.
Reports may be made in accordance with internal reporting procedures. The offences are equivalent to those for failing to notify suspected money laundering.
Third Parties
Where in relation to an investigation into drug trafficking, whether a person holds funds subject to confiscation, or  whether a person has benefited from an offence in respect of which a confiscation order might be made, or where certain orders have been applied for or warrant sought, a person who knowing or suspecting that the investigation is taking place makes any disclosure which is likely to prejudice the investigation, is guilty of an offence.
Where a report is made under the legislation, a person who knowing and suspecting that the report has been made, makes any disclosure which is likely to prejudice the investigation arising from a report into whether an offence of financing terrorism or money laundering offences has been committed, shall be guilty of an offence. The punishment is similar to that in respect of money laundering.
Offences committed by body corporates with the consent or connivance or attributable to the neglect of any person being a director, manager, secretary of a body corporate may be prosecuted against by the relevant officer, who shall be deemed guilty of the offence and subject to similar punishment.
Where property of any kind or wherever situated or an interest in it becomes subject to confiscation, forfeiture, restraint or control under the legislation, any act or purported disposition of the property or interest in it or other act purporting to be taken in respect of it , by or on behalf of the owner or the person claiming an interest in it, in reliance on the law of any country, whether as beneficial owner or in other capacity, in reliance on the law of any country or territory outside the State shall have effect, is deemed not to have effect and to be void.
Assets Possessed at Arrest
Where a person is convicted of an offence, and the court by or before whom he was convicted, is satisfied that any assets which have been lawfully seized from him or which is in his possession or under his control at the time he was apprehended for the offence has been used for the purpose of the committing or facilitating committing an offence or was intended to be used for that purpose or for an offence that has been taken into consideration in determining the sentence, consists of unlawfully possessed property, which has been lawfully seized and was under his control at the time when he was apprehended, the court may make a forfeiture order in respect of the property.
Mandatory in Some Cases
Where a person is convicted of an offence under explosives or firearms legislation and a forfeiture order may be made in respect of the property, the court shall make a forfeiture order, unless having regard to matters below, and to the nature and degree of the seriousness of the offence for which the person is being convicted, it is satisfied that there would be a serious risk of injustice if it was ordered. In considering whether to make a forfeiture order above, it shall have regard to the value of the property, the likely financial and other effects on the offender of making of the order.
An order made under the provisions above shall deprive the offender of his rights in any of the property concerned and the property shall be taken into the possession of An Garda SÃochána. A court shall not order property to be forfeited, if a person claiming to be an owner or interested in it applies to be heard, unless opportunity is given to show cause why the order should not be made. Also included in the above mandatory forfeiture is Section 6, Act 2005.
A court may, in making a forfeiture order include such provisions as may be required, supplemental to that order in order to protect any interest in the property, other than that of the offender. An order shall not take effect until the ordinary time for instituting an appeal against the conviction or order concerned has expired or the appeal has been finally determined. The Police Property Act applies with modification to the procedure.